Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Construction and Operation of the Liberty Drilling and Production Island, Beaufort Sea, Alaska, 24926-24968 [2019-10965]
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Federal Register / Vol. 84, No. 103 / Wednesday, May 29, 2019 / Proposed Rules
without change. All personal identifying
information (e.g., name, address),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
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file formats only.
FOR FURTHER INFORMATION CONTACT:
Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 180627584–9388–01]
RIN 0648–BI00
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to Construction and
Operation of the Liberty Drilling and
Production Island, Beaufort Sea,
Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS has received a request
from Hilcorp Alaska (Hilcorp) for
authorization to take marine mammals
incidental to construction and operation
of the Liberty Drilling and Production
Island (LDPI), over the course of five
years. Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is
proposing regulations to govern that
take, and requests comments on the
proposed regulations. NMFS will
consider public comments prior to
making any final decision on the
issuance of the requested MMPA
authorization and agency responses will
be summarized in the final notice of our
decision.
DATES: Comments and information must
be received no later than June 28, 2019.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2018–0053, by any of the
following methods:
• Electronic submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20190053 click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Jolie Harrison, Chief, Permits and
Conservation Division, Office of
Protected Resources, National Marine
Fisheries Service, 1315 East West
Highway, Silver Spring, MD 20910.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
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SUMMARY:
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Availability
A copy of Hilcorp’s application and
any supporting documents, as well as a
list of the references cited in this
document, may be obtained online at
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act. In case
of problems accessing these documents,
please call the contact listed above (see
FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory
Action
NMFS received an application from
Hilcorp requesting five-year regulations
and authorization to incidentally take
multiple species of marine mammals in
Foggy Island Bay, Beaufort Sea, by Level
A harassment (non-serious injury) and
Level B harassment (behavioral
disturbance), incidental to construction
and operation of the LDPI and
associated infrastructure. Please see
‘‘Background’’ below for definitions of
harassment. In addition, a limited
unintentional take involving the
mortality or serious injury of no more
than two ringed seals (Phoca hispida)
would be authorized to occur during
annual ice road construction and
maintenance. This proposed rule
establishes a framework under the
authority of the MMPA (16 U.S.C. 1361
et seq.) to allow for the authorization of
take of marine mammals incidental to
Hilcorp’s activities related to
construction and operation of the LDPI.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16
U.S.C. 1371(a)(5)(A)) directs 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 for up to five years
if, after notice and public comment, the
agency makes certain findings and
issues regulations that set forth
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permissible methods of taking pursuant
to that activity and other means of
effecting the ‘‘least practicable adverse
impact’’ on the affected species or
stocks and their habitat (see the
discussion below in the ‘‘Proposed
Mitigation’’ section), as well as
monitoring and reporting requirements.
Section 101(a)(5)(A) of the MMPA and
the implementing regulations at 50 CFR
part 216, subpart I provide the legal
basis for issuing this proposed rule
containing five-year regulations, and for
any subsequent Letters of Authorization
(LOAs). As directed by this legal
authority, this proposed rule contains
mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within
the Proposed Rule
Following is a summary of the major
provisions of this proposed rule Hilcorp
would be required to implement. These
measures include:
• Use of soft start during impact pile
driving to allow marine mammals the
opportunity to leave the area prior to
beginning impact pile driving at full
power;
• Implementation of shutdowns of
construction activities under certain
circumstances to minimize harassment,
including injury;
• Prohibition on impact pile driving
during the fall Cross Island bowhead
whale hunt and seasonal drilling
restrictions to minimize impacts to
marine mammals and subsistence users;
• Implementation of best
management practices to avoid and
minimize ice seal and habitat
disturbance during ice road
construction, maintenance, and use;
• Use of marine mammal and
acoustic monitoring to detect marine
mammals and verify predicted sound
fields;
• Coordination with subsistence users
and adherence to a Plan of Cooperation
(POC); and
• Limitation on vessel speeds and
transit areas, where appropriate.
Background
The MMPA prohibits the take of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
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harassment, a notice of a proposed
incidental take authorization is
provided to the public for review. Under
the MMPA, ‘‘take’’ is defined as
meaning to harass, hunt, capture, or kill,
or attempt to harass, hunt, capture, or
kill any marine mammal. ‘‘Harassment’’
is statutorily defined as any act of
pursuit, torment, or annoyance which
has the potential to injure a marine
mammal or marine mammal stock in the
wild (Level A harassment) or 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 but which does
not have the potential to injure a marine
mammal or marine mammal stock in the
wild (Level B harassment).
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). Further, NMFS must prescribe
the permissible methods of taking and
other ‘‘means of effecting the least
practicable [adverse] impact’’ on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stocks for
taking for certain subsistence uses
(referred to in shorthand as
‘‘mitigation’’); and requirements
pertaining to the mitigation, monitoring
and reporting of such takings are set
forth.
National Environmental Policy Act
To comply with the National
Environmental Policy Act of 1969
(NEPA; 42 U.S.C. 4321 et seq.) and
NOAA Administrative Order (NAO)
216–6A, NMFS must evaluate our
proposed action (i.e., the promulgation
of regulations and subsequent issuance
of incidental take authorization) and
alternatives with respect to potential
impacts on the human environment.
On August 23, 2018, the Bureau of
Ocean Energy Management (BOEM)
released a Final Environmental Impact
Statement (EIS) analyzing the possible
environmental impacts of Hilcorp’s
proposed Liberty development and
production plan (DPP). BOEM’s Draft
EIS was made available for public
comment from August 18, 2017 through
December 8, 2017. The final EIS may be
found at https://www.boem.gov/hilcorpliberty/. NMFS is a cooperating agency
on the EIS. Accordingly, NMFS plans to
adopt the EIS, provided our
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independent evaluation of the
document finds that it includes
adequate information analyzing the
effects on the human environment of
issuing the rule. We will review all
comments submitted in response to this
notice prior to concluding our NEPA
process or making a final decision on
the regulations request.
Summary of Request
On August 2, 2017, Hilcorp petitioned
NMFS for rulemaking under Section
101(a)(5)(A) of the MMPA to authorize
the take of six species of marine
mammals incidental to construction and
operation of the proposed LDPI in Foggy
Island Bay, Alaska. On April 26, 2018,
Hilcorp submitted a revised petition
which NMFS deemed adequate and
complete. On May 9, 2018, we
published a notice of receipt of
Hilcorp’s petition in the Federal
Register, requesting comments and
information related to the request for
thirty days (83 FR 21276). We received
comments from the Center for Biological
Diversity and 15,843 citizens opposing
issuance of the requested regulations
and LOA. We also received comments
from the Alaska Eskimo Whaling
Commission (AEWC) who
recommended we include subsistence
related mitigation and coordination
requirements in the final rule. The
comments and information received
were considered in development of this
proposed rule and are available online
at https://www.fisheries.noaa.gov/
permit/incidental-take-authorizationsunder-marine-mammal-protection-act.
More recently, Hilcorp provided
subsequent additional information,
including details on a previously
undescribed component of the project
(installation of foundation piles in the
interior of the LDPI), and revised marine
mammal density and estimate take
numbers on February 4, 2019. Hilcorp
also updated their proposed Marine
Mammal Mitigation and Monitoring
Plan (4MP) on January 29, 2019.
To extract oil and gas in the Liberty
Oil Field, Hilcorp is proposing to
construct a 9.3 acre artificial island (the
LDPI) in 19 feet (ft) (5.8 meters (m)) of
water in Foggy Island Bay,
approximately 5 miles (mi) (8
kilometers (km)) north of the
Kadleroshilik River and install
supporting infrastructure (e.g., ice roads,
pipeline). Ice roads would be
constructed annually and begin
December 2020. Island construction,
which requires impact and vibratory
pile driving, is proposed to commence
and be completed in 2021. Pile driving
would primarily occur during icecovered season (only ice seals are
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present during this time period);
however, up to two weeks of pile
driving may occur during the openwater season. Pipeline installation is
anticipated to occur in 2022. Drilling
and production is proposed to occur
from 2022 through 2025.
Hilcorp requests, and NMFS is
proposing to authorize, the take, by
Level A harassment and Level B
harassment, of bowhead whales
(Balaena mysticetus), gray whales
(Eschrichtius robustus), beluga whales
(Delphinapterus leucas), ringed seals
(Phoca hispida), bearded seals
(Erignathus barbatus), and spotted seals
(Phoca largha) incidental to LDPI
construction and operation activities
(e.g., pile driving, ice road and island
construction). Hilcorp also requested,
and NMFS is proposing to authorize,
mortality and serious injury of two
ringed seals incidental to annual ice
road construction over a 5-year period.
The proposed regulations and LOA
would be valid for five years from
December 1, 2020, through November
30, 2025.
Description of the Specified Activity
Overview
Hilcorp is proposing to construct and
operate the LDPI, a self-contained
offshore drilling and production facility
located on an artificial gravel island.
Infrastructure and facilities necessary to
drill wells and process and export
approximately 60,000 to 70,000 barrels
of oil per day to shore would be
installed on the island. To transport oil,
a pipeline from the island would be
installed, tying into the existing
Bandami pipeline located on shore
between the Sagavanirktok and
Kadleroshilik Rivers on Alaska’s North
Slope. To access the island and move
vehicles and equipment, ice roads
would be constructed annually. All
island construction and pipeline
installation would occur during winter
months as much as possible; however,
pile driving and slope protection could
occur during the open water season.
Drilling and production, once begun,
would occur year round. After island
and pipeline construction, Hilcorp
would commence and continue drilling
and production for approximately 20 to
25 years at which time the island would
be decommissioned. The proposed
regulations and LOA would cover the
incidental take of marine mammals
during LDPI construction and operation
for the first five years of work.
Thereafter, data collected during these
five years (e.g., acoustic monitoring
during drilling, ice road marine
mammal monitoring) would determine
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if future incidental take authorizations
are warranted for continuing operations.
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Dates and Duration
The proposed regulations would be
valid for a period of five years from
December 1, 2020, through November
30, 2025. Ice road construction and
pipeline installation would be limited to
winter months. Island construction
would be conducted primarily during
winter months; however, given
construction schedules are subject to
delays for multiple reasons. Hilcorp
anticipates, at most, up to two weeks of
open-water pile driving may be required
in the first year to complete any pile
driving not finished during the winter.
Other work such as island slope
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armoring may also occur during openwater conditions. All island
construction would commence and is
expected to be completed in the first
year of the proposed regulations
(December 2020 through November
2021). Pipeline installation would occur
in year 2 of the proposed regulations
(December 2021 through November
2022), while drilling and production
would begin in year 3 and continue
through the life of the proposed
regulations. Ice road construction and
maintenance activities would occur
each winter.
Specified Geographical Region
The Liberty field is located in Federal
waters of Foggy Island Bay, Beaufort Sea
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about 8.9 km (5.5 mi) offshore in 6.1 m
(20 ft) of water and approximately 8 to
13 km (5 to 8 mi) east of the existing
Endicott Satellite Drilling Island (SDI)
and approximately 32 km (20 mi) east
of Prudhoe Bay. Hilcorp would
construct the Liberty project on three
leases, OCS–Y–1650, OCS–Y–1886, and
OCS–Y–1585. The proposed LDPI
would be constructed in 19 ft (5.8 m) of
water about 5 mi (8 km) offshore in
Foggy Island Bay. The LDPI and all
associated infrastructure (e.g., ice roads)
are located inside the McClure barrier
island group which separates Foggy
Island Bay from the Beaufort Sea (Figure
1).
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Detailed Description of Activities
The Liberty Prospect is located 8.85
km offshore in about 6 m of water,
inside the Beaufort Sea’s barrier islands.
Hilcorp, as the Liberty operator, is
proposing to develop the Liberty Oil
Field reservoir, located on the Outer
Continental Shelf (OCS), in Foggy Island
Bay, Beaufort Sea, Alaska. The Liberty
reservoir is the largest delineated but
undeveloped light oil reservoir on the
North Slope. It is projected to deliver a
peak production rate of between 60,000
and 70,000 barrels of oil per day within
two years of initial production. Total
recovery over an estimated field life of
15 to 20 years is predicted to be in the
range of 80 to 150 million stock tank
barrels of oil. The Liberty Oil Field
leases were previously owned by BP
Exploration Alaska, Inc. (BPXA). In
April 2014, BPXA announced the sale of
several North Slope assets to Hilcorp
including the area where the proposed
LDPI would be constructed and other
existing oil production islands
(Northstar, Endicott, Milne Point). The
Liberty Project has many similarities to
previous oil and gas islands constructed
on the North Slope, including Endicott,
Northstar and Oooguruk.
The proposed LDPI project includes
development of a mine-site to supply
gravel for the construction of the LDPI,
construction of the island and annual
ice roads, installation of an undersea
pipeline that reaches shore from the
LDPI and then connects to the existing
above-ground Badami pipeline, drilling,
production and operation (for
simplicity, hence forward we refer to
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both production and operation as
‘‘production’’). The mine site is located
inland of marine mammal habitat over
which NMFS has jurisdiction; therefore,
its development will not be discussed
further in this proposed rule as no
impacts to marine mammals under
NMFS jurisdiction would be affected by
this project component. Here, we
discuss those activities that have the
potential to take marine mammals: Ice
road construction and maintenance,
island construction (pile driving and
slope armoring), pipeline installation,
drilling and production. We also
describe auxiliary activities, including
vessel and aircraft transportation. A
schedule of all phases on the project
and summary of equipment and
activities involved are included in Table
1.
TABLE 1—LDPI PROJECT COMPONENTS, SCHEDULE, AND ASSOCIATED EQUIPMENT
Project component
Regulation
year
Season
Equipment and activity
Grader, ice auger, trucks (flood road, haul gravel, general
transit, maintenance).
Impact and vibratory pile and pipe driving, backhoe (digging),
excavator (slope shaping, armor installation, ditchwitch
(sawing ice).
Ditchwitch (sawing ice), backhoe (digging), trucks.
Drill rig, land-based equipment on island (e.g., generators).
Barge, tugs, crew boats, helicopter.
Ice road construction, use, and
maintenance.
Island construction ..................
1–5
Ice-covered .............................
*1
Ice-covered, open water .........
Pipeline installation ..................
Drilling and production ............
Marine vessel and aircraft support.
Emergency and oil response
training.
2
3–5
1–5
Ice-covered .............................
Ice-covered, open water .........
Open-water, ice-covered (helicopter only).
Ice-covered, open water .........
1–5
Vessels, hovercrafts, all-terrain vehicles, snow machines, etc.
* Hilcorp has indicated a goal to complete all LDPI construction in the first year the regulations would be valid; however, they may need to install foundation piles in year 2.
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Ice Road and Ice Pad Construction and
Maintenance
Hilcorp will construct ice roads and
perform maintenance, as necessary. Ice
roads are a route across sea ice created
by clearing and grading snow then
pumping seawater from holes drilled
through the floating ice. Some roads
may use grounded ice. Hilcorp would
clear away snow using a tractor,
bulldozer, or similar piece of equipment
then pump seawater from holes drilled
through floating ice, and then flood the
ice road. The ice roads will generally be
constructed by pumper units equipped
with an ice auger to drill holes in the
sea ice and then pump water from under
the ice to flood the surface of the ice.
The ice augers and pumping units will
continue to move along the ice road
alignment to flood the entire alignment,
returning to a previous area as soon as
the flooded water has frozen. The ice
road will be maintained and kept clean
of gravel and other solids. Freshwater
can be sprayed onto the road surface to
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form a cap over the main road structure
for the top layer or to repair any cracks.
Ice roads will be used for onshore and
offshore access, installing the pipeline,
hauling gravel used to construct the
island, moving equipment on/off island,
personnel and supply transit, etc. Ice
roads are best constructed when
weather is -20 degrees Fahrenheit (F) to
-30 degrees F, but temperatures below 0
degree F are considered adequate for ice
road construction. Ice road construction
can typically be initiated in mid- to lateDecember and roads maintained until
mid-May. At the end of the season, ice
roads will be barricaded by snow berm
and/or slotted at the entrance to prevent
access and allowed to melt naturally.
Figure 1 shows the locations of the
proposed ice roads.
• Ice road # 1 will extend
approximately 11.3 km (7 mi) over
shorefast sea ice from the Endicott SDI
to the LDPI (the SDI to LDPI ice road).
It will be approximately 37 m wide (120
ft) with driving lane of approximately
12 m (40 ft). It would cover
approximately 160 acres of sea ice.
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• Ice road # 2 (approximately 11.3 km
(7 mi)) will connect the LDPI to the
proposed Kadleroshilik River gravel
mine site and then will continue to the
juncture with the Badami ice road
(which is ice road # 4). It will be
approximately 15 m (50 ft) wide.
• Ice road # 3 (approximately 9.6 km
[6 mi], termed the ‘‘Midpoint Access
Road’’) will intersect the SDI to LDPI ice
road and the ice road between the LDPI
and the mine site. It will be
approximately 12 m (40 ft) wide.
• Ice road # 4 (approximately 19.3 km
(12 mi)), located completely onshore,
will parallel the Badami pipeline and
connect the mine site with the Endicott
road.
All four ice roads would be
constructed for the first three years to
support pipeline installation and
transportation from existing North Slope
roads to the proposed gravel mine site,
and from the mine site to the proposed
LDPI location in the Beaufort Sea. After
year 3, only ice road #1 would be
constructed to allow additional
materials and equipment to be
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artificial gravel island with a subsea
pipeline to shore. The LDPI will be
located approximately 8 kilometers (km)
or 5 miles (mi) offshore in Foggy Island
Bay and 11.7 km (7.3 mi) southeast of
the existing SDI on the Endicott
causeway (see Figure 1). The LDPI will
be constructed of reinforced gravel in
5.8 meters (m) (19 feet (ft)) of water and
have a working surface of approximately
3.8 hectares (ha) (9.3 acres (ac)). A steel
sheet pile wall would surround the
island to stabilize the placed gravel and
the island would include slope
protection bench, dock and ice road
access and a seawater intake area
(Figure 2).
mobilized to support LDPI, pipeline,
and facility construction activities as all
island construction and pipeline
installation should be complete by year
3. Winter sea ice road/trail construction
will begin as early as possible (typically
December 1 through mid-February). It is
anticipated that all ice road construction
activities will be initiated prior to
March 1, before the time when female
ringed seals establish birth lairs.
In addition to the ice roads, three ice
pads are proposed to support
construction activities (year 2 and 3).
These would be used to support LDPI,
pipeline, (including pipe stringing and
two stockpile/disposal areas) and
facilities construction. A fourth staging
area ice pad (approximately 350 feet by
700 feet) would be built on the sea ice
on the west side of the LDPI during
production well drilling operations.
Other on-ice activities occurring prior
to March 1 could also include spill
training exercises, pipeline surveys,
snow clearing, and work conducted by
other snow vehicles such as a Pisten
Bully, snow machine, or rollagon. Prior
to March 1, these activities could occur
outside of the delineated ice road/trail
and shoulder areas.
The LDPI will include a selfcontained offshore drilling and
production facility located on an
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column to the sea floor, building the
island structure from the bottom up. A
conical pile of gravel (hauled in from
trucks from the mine site using the ice
road) will form on the sea floor until it
reaches the surface of the ice. Gravel
hauling over the ice road to the LDPI
construction site is estimated to
continue for 50 to 70 days, and
conclude mid-April or earlier
depending on road conditions. The
construction would continue with a
sequence of removing additional ice and
pouring gravel until the surface size is
achieved. Following gravel placement,
slope armoring and protection
installation would occur. Using islandbased equipment (e.g., backhoe, bucketdredge) and divers, Hilcorp would
create a slope protection profile
consisting of a 60-ft (18.3 m) wide bench
covered with a linked concrete mat that
Hilcorp would begin constructing the
LDPI during the winter immediately
following construction of the ice road
from the mine site to the island location.
Sections of sea ice at the island’s
location would be cut using a
ditchwitch and removed. A backhoe and
support trucks using the ice road would
move ice away. Once the ice is removed,
gravel will be poured through the water
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LDPI Construction
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extends from a sheet pile wall
surrounding the island to slightly above
mean low low water (MLLW) (Figure 3).
The linked concrete mat requires a high
strength, yet highly permeable woven
polyester fabric under layer to contain
the gravel island fill. The filter fabric
panels will be overlapped and tied
together side-by-side (requiring diving
operations) to prevent the panels from
separating and exposing the underlying
gravel fill. Because fabric is overlapped
and tied together, no slope protection
debris would enter the water column
should it be damaged. Above the fabric
under layer, a robust geo-grid will be
placed as an abrasion guard to prevent
damage to the fabric by the linked mat
armor. The concrete mat system would
continue another at a 3:1 slope another
86.5 ft into the water, terminating at a
depth of ¥19 ft (¥5.8 m). In total, from
the sheet pile wall, the bench and
concrete mat would extend 146.5 ft.
Island slope protection is required to
assure the integrity of the gravel island
by protecting it from the erosive forces
of waves, ice ride-up, and currents. A
detailed inspection of the island slope
protection system will be conducted
annually during the open-water season
to document changes in the condition of
the island slope protection system that
have occurred since the previous year’s
inspection. Any damaged material
would be removed. Above-water
activities will consist of a visual
inspection of the dock and sheet pile
BILLING CODE 3510–22–C
driving to obtain final desired depth for
each sheet pile. Per day, this equates to
a maximum of 40 minutes and 2,000
strikes of impact hammering per day.
For vibratory driving, pile penetration
speed can vary depending on ground
conditions, but a minimum sheet pile
penetration speed is 20 inches (0.5 m)
per minute to avoid damage to pile or
hammer (NASSPA 2005). For this
project, the anticipated duration is
based on a preferred penetration speed
Once the slope protection is in place,
Hilcorp would install the sheet pile wall
around the perimeter of the island using
vibratory and, if necessary, impact
hammers. Hilcorp anticipates driving up
to 20 piles per day to a depth of 25 ft.
A vibratory hammer would be used first
followed by an impact hammer to
‘‘proof’’ the pile. Hilcorp anticipates
each pile needing 100 hammer strikes
over approximately 2 minutes of impact
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enclosure, and documenting the
condition of the island bench and
ramps. The below-water slopes will be
inspected by divers or if water clarity
allows, remotely by underwater cameras
contracted separately by Hilcorp. The
results of the below water inspection
will be recorded for repair if needed. No
vessels will be required. Multi-beam
bathymetry and side-scan sonar imagery
of the below-water slopes and adjacent
sea bottom will be acquired using a
bathymetry vessel. The sidescan sonar
would operate at a frequency between
200–400 kilohertz (kHz). The singlebeam echosounder would operate at a
frequency of about 210 kHz.
BILLING CODE 3510–22–P
greater than 40 inches (1 m) per minute,
resulting in 7.5 minutes to drive each
pile. Given the high storm surge and
larger waves that are expected to arrive
at the LDPI site from the west and
northwest, the wall will be higher on
the west side than on the east side. At
the top of the sheet-pile wall,
overhanging steel ‘‘parapet’’ will be
installed to prevent wave passage over
the wall.
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Within the interior of the island, 16
steel conductor pipes would be driven
to a depth of 160 ft (49 m) to provide
the initial stable structural foundation
for each oil well. They would be set in
a well row in the middle of the island.
Depending on the substrate the
conductor pipes would be driven by
impact or vibratory methods or both.
During construction of the nearby
Northstar Island (located in deeper
water), it took 5 to 8.5 hours to drive
one conductor pipe (Blackwell et al.,
2004). For the Liberty LDPI, Hilcorp
anticipates it would take two hours of
active pile driving per day to install a
conductor pipe given the 5 to 8.5 hour
timeframe at Northstar includes pauses
in pile driving and occurred in deeper
water requiring deeper pile depths. In
addition, approximately 700 to 1,000
foundation piles may also be installed
within the interior of the island should
engineering determine they are
necessary for island support.
Pipeline Installation
khammond on DSKBBV9HB2PROD with PROPOSALS3
Hilcorp would install a pipe-in-pipe
subsea pipeline consisting of a 12-in
diameter inner pipe and a 16-in
diameter outer pipe to transport oil from
the LDPI to the existing Bandami
pipeline. Pipeline construction is
planned for the winter after the island
is constructed. A schematic of the
pipeline can be found in Figure 2–3 of
BOEM’s Final EIS available at https://
www.boem.gov/Hilcorp-Liberty/. The
pipeline will extend from the LDPI,
across Foggy Island Bay, and terminate
onshore at the existing Badami Pipeline
tie-in location. For the marine segment,
construction will progress from
shallower water to deeper water with
multiple construction spreads.
To install the pipeline, a trench will
be excavated using ice-road based long
reach excavators with pontoon tracks.
The pipeline bundle will be lowered
into the trench using side booms to
control its vertical and horizontal
position, and the trench will be
backfilled by excavators using excavated
trench spoils and select backfill. Hilcorp
intends to place all material back in the
trench slot. All work will be done from
ice roads using conventional excavation
and dirt-moving construction
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equipment. The target trench depth is 9
to 11 ft (2.7 to 3.4 m) with a proposed
maximum depth of cover of
approximately 7 ft (2.1 m). The pipeline
will be approximately 5.6 mi (9 km)
long. Hydro-testing (pressure testing
using sea water) of the entire pipeline
will be completed prior to
commissioning.
Drilling and Production
The final drill rig has yet to be chosen
by Hilcorp but has been narrowed to
two options and will accommodate
drilling of 16 wells. The first option is
the use of an existing platform-style
drilling unit that Hilcorp owns and
operates in the Cook Inlet. Designated as
Rig 428, the rig has been used recently
and is well suited in terms of depth and
horsepower rating to drill the wells at
Liberty. A second option that is being
investigated is a new build drilling unit
that would be built to not only drill
Liberty development wells, but would
be more portable and more adaptable to
other applications on the North Slope.
Regardless of drill rig type, the well row
arrangement on the island is designed to
accommodate up to 16 wells. We note
that while Hilcorp is proposing a 16
well design, only 10 wells would be
drilled. The 6 additional well slots
would be available as backups or for
potential in-fill drilling if needed during
the project life.
Process facilities on the island will
separate crude oil from produced water
and gas. Gas and water will be injected
into the reservoir to provide pressure
support and increase recovery from the
field. A single-phase subsea pipe-inpipe pipeline will transport salesquality crude from the LDPI to shore,
where an aboveground pipeline will
transport crude to the existing Badami
pipeline. From there, crude will be
transported to the Endicott Sales Oil
Pipeline, which ties into Pump Station
1 of the TransAlaska Pipeline System
(TAPS) for eventual delivery to a
refinery.
Description of Marine Mammals in the
Area of the Specified Activity
Sections 3 and 4 of the application
summarize available information
regarding status and trends, distribution
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and habitat preferences, and behavior
and life history of the potentially
affected species. Additional information
regarding population trends and threats
may be found in NMFS’ Stock
Assessment Reports (SARs; https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessments) and more
general information about these species
(e.g., physical and behavioral
descriptions) may be found on NMFS’
website (www.nmfs.noaa.gov/pr/
species/mammals/). Additional
information may be found in BOEM’s
Final EIS for the project which is
available online at https://
www.boem.gov/Hilcorp-Liberty/.
Table 2 lists all species with expected
potential for occurrence in Foggy Island
Bay and surrounding Beaufort Sea and
summarizes information related to the
population or stock, including
regulatory status under the MMPA and
ESA and potential biological removal
(PBR), where known. For taxonomy, we
follow Committee on Taxonomy (2016).
PBR is defined by the MMPA as the
maximum number of animals, not
including natural mortalities, that may
be removed from a marine mammal
stock while allowing that stock to reach
or maintain its optimum sustainable
population (as described in NMFS’
SARs). PBR and annual serious injury
and mortality from anthropogenic
sources are included here as gross
indicators of the status of the species
and other threats.
Marine mammal abundance estimates
presented in this document represent
the total number of individuals that
make up a given stock or the total
number estimated within a particular
study or survey area. NMFS’ stock
abundance estimates for most species
represent the total estimate of
individuals within the geographic area,
if known, that comprises that stock. For
some species, this geographic area may
extend beyond U.S. waters. All managed
stocks in this region are assessed in
NMFS’ U.S. 2017 SAR for Alaska (Muto
et al., 2018). All values presented in
Table 2 are the most recent available at
the time of publication and are available
in the 2017 SARs (Muto et al., 2018).
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TABLE 2—MARINE MAMMALS WITH EXPECTED POTENTIAL OCCURRENCE IN BEAUFORT SEA, ALASKA
Common name
Scientific name
ESA/
MMPA
status;
strategic
(Y/N) 1
Stock
Stock abundance )
(CV, Nmin, most recent
abundance survey) 2
PBR
Annual
M/SI 3
Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)
Family Eschrichtiidae
Gray whale .................................
Eschrichtius robustus ................
Eastern North Pacific ................
-;N
20,990 (0.05, 20,125,
2011).
624
132
16,820 (0.052, 16,100,
2011).
10,103 (0.3, 7,891, 2006)
unk ..................................
3,168 (0.26, 2,554,
2013) 6.
161
46
83
undet
5.1
26
0
0.6
Und
139
244
67
5.9
0
2,498
320
108
241
Und
1,054
423,237,
Und
12,697
391
329
163,086,
9,785
3.9
Family Balaenidae
Bowhead whale .........................
Balaena mysticetus ...................
Western Arctic ..........................
E/D; Y
Humpback whale .......................
Minke whale ...............................
Fin whale ...................................
Megaptera novaeangliae ..........
...................................................
...................................................
Central North Pacific Stock ......
Alaska .......................................
Northeast Pacific .......................
E/D; Y
-;N
E/D; Y
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae
Beluga whale .............................
Killer whale ................................
Delphinapterus leucas ..............
Beaufort Sea .............................
-; N
..............................................
Eastern Chukchi .......................
-; N
Orcinus orcas ............................
Eastern North Pacific Gulf of
Alaska, Aleutian Islands, and
Bering Sea Transient.
-;N
39,258 (0.229, N/A,
1992).
20,752 (0.70, 12,194,
2012).
587 (n/a, 587, 2012) .......
Order Carnivora—Superfamily Pinnipedia
Family Otariidae (eared seals and sea lions)
Steller sea lion ...........................
Eumatopias jubatus ..................
..............................................
Eastern U.S ..............................
Western U.S .............................
-; N
E/D;Y
41,638 (-, 41,638, 2015)
53,303 (-, 53,303, 2016)
T, D; Y
170,000 (-,
2012) 4.
299,174 (-,
423,625 (-,
2013).
184,000 (-,
2013).
Family Phocidae (earless seals)
Ringed Seal ...............................
Pusa hispida .............................
Alaska .......................................
Bearded seal ..............................
Spotted seal ...............................
Erignathus barbatus ..................
Phoca largha .............................
Alaska .......................................
Alaska .......................................
Ribbon seal ................................
Histriophoca fasciata ................
Alaska .......................................
T, D; Y
170,000,
273,676) 5
.....
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1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the
ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically
designated under the MMPA as depleted and as a strategic stock.
2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock
abundance.
3 These values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., subsistence use,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated
with estimated mortality due to commercial fisheries is presented in some cases.
4 The population provided here was derived using a using a very limited sub-sample of the data collected from the U.S. portion of the Bering Sea in 2012 (Conn et
al., 2014). Thus, the actual number of ringed seals in the U.S. sector of the Bering Sea is likely much higher, perhaps by a factor of two or more (Muto et al., 2018).
Reliable estimates of abundance are not available for the Chukchi and Beaufort seas (Muto et al., 2018).
5 5. In spring of 2012 and 2013, surveys were conducted in the Bering Sea and Sea of Okhotsk; these data do not include seals in the Chukchi and Beaufort Seas
at the time of the survey.
6N
BEST, NMIN, and PBR have been calculated for this stock; however, important caveats exist. See Stock Assessment Report text for details.
Note—Italicized species are not expected to be taken or proposed for authorization.
All species that could potentially
occur in the Beaufort Sea are included
in Table 2. However, the temporal and/
or spatial occurrence of minke, fin,
humpback whales, killer whales,
narwhals, harbor porpoises, and ribbon
seals are such that take is not expected
to occur, and they are not discussed
further beyond the explanation
provided here. These species, regularly
occur in the Chukchi Sea but not as
commonly in the Beaufort Sea.
Narwhals, Steller sea lions, and hooded
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seals are considered extralimital to the
proposed action area These species
could occur in the Beaufort Sea, but are
either uncommon or extralimital east of
Barrow (located in the Foggy Island Bay
area and surveys within the Bay have
revealed zero sightings).
In addition, the polar bear may be
found in Foggy Island Bay. However,
this species is managed by the U.S. Fish
and Wildlife Service and is not
considered further in this document.
On October 11, 2016, NOAA released
the Final Environmental Impact
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Statement (FEIS) for the Effects of Oil
and Gas Activities in the Arctic Ocean
(81 FR 72780, October 21, 2016)
regarding geological and geophysical
(i.e., seismic) activities, ancillary
activities, and exploratory drilling. The
Final EIS may be found at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/
environmental-impact-statement-eiseffects-oil-and-gas-activities. Although
no seismic activities are proposed by
Hilcorp, the EIS contains detailed
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information on marine mammal species
proposed to be potentially taken by
Hilcorp’s specified activities. More
recently, BOEM released a final EIS on
the Liberty Project. We incorporate by
reference the information on the species
proposed to be potentially taken by
Hilcorp’s specified activities from these
documents and provide a summary and
any relevant updates on species status
here.
Bowhead Whale
The only bowhead whale stock found
within U.S. waters is the Western Arctic
stock, also known as the BeringChukchi-Beaufort stock (Rugh et al.,
2003) or Bering Sea stock (Burns et al.,
1993). The majority of the Western
Arctic stock migrates annually from
wintering areas (December to March) in
the northern Bering Sea, through the
Chukchi Sea in the spring (April
through May), to the eastern Beaufort
Sea where they spend much of the
summer (June through early to midOctober) before returning again to the
Bering Sea in the fall (September
through December) to overwinter
(Braham et al., 1980, Moore and Reeves
1993, Quakenbush et al., 2010a, Citta et
al., 2015). Some bowhead whales are
found in the western Beaufort, Chukchi,
and Bering seas in summer, and these
are thought to be a part of the expanding
Western Arctic stock (Rugh et al., 2003;
Clarke et al., 2013, 2014, 2015; Citta et
al., 2015). The most recent population
parameters (e.g., abundance, PBR) of
western Arctic bowhead whales are
provided in Table 2.
Bowhead whale distribution in the
Beaufort Sea during summer-fall has
been studied by aerial surveys through
the Bowhead Whale Aerial Survey
Project (BWASP). This project was
funded or contracted by the Minerals
Management Service (MMS)/Bureau of
Ocean Energy Management (BOEM) and
Bureau of Land Management (BLM)
annually from 1979 to 2010. The focus
of the BWASP aerial surveys was the
autumn migration of bowhead whales
through the Alaskan Beaufort Sea,
although data were collected on all
marine mammals sighted. The NMFS
National Marine Mammal Laboratory
(NMML) began coordinating BWASP in
2007, with funding from MMS. In 2011,
an Interagency Agreement between the
BOEM and NMML combined BWASP
with COMIDA under the auspices of a
single survey called Aerial Surveys of
Arctic Marine Mammals (ASAMM)
(Clarke et al., 2012); both studies are
funded by BOEM. In September to midOctober bowheads begin their western
migration out of the Canadian Beaufort
Sea to the Chukchi Sea (Figure 3.2–10).
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Most westward travel across the
Beaufort Sea by tagged whales was over
the shelf, within 100 km (62 mi) of
shore, although a few whales traveled
farther offshore (Quakenbush et al.,
2012).
During winter and spring, bowhead
whales are closely associated with sea
ice (Moore and Reeves 1993,
Quakenbush et al., 2010a, Citta et al.,
2015). The bowhead whale spring
migration follows fractures in the sea ice
around the coast of Alaska, generally in
the shear zone between the shorefast ice
and the mobile pack ice. During
summer, most of the population is in
relatively ice-free waters in the
southeastern Beaufort Sea (Citta et al.,
2015), an area often exposed to
industrial activity related to petroleum
exploration (e.g., Richardson et al.,
1987, Davies, 1997). Summer aerial
surveys conducted in the western
Beaufort Sea during July and August of
2012–2014 have had relatively high
sighting rates of bowhead whales,
including cows with calves and feeding
animals (Clarke et al., 2013, 2014, 2015).
During the autumn migration through
the Beaufort Sea, bowhead whales
generally select shelf waters (Citta et al.,
2015). In winter in the Bering Sea,
bowhead whales often use areas with
∼100 percent sea-ice cover, even when
polynyas are available (Quakenbush et
al., 2010a, Citta et al., 2015).
From 2006 through 2014, median
distance of bowhead whales from shore
was 23.6 km (14.7 mi) in the East Region
and 24.2 km (15.0 mi) in the West
Region during previous low-ice years,
with annual median distances ranging
from as close as 6.3 km (3.9 mi) in 2009
to 37.6 km (23.4 mi) in 2013 (Clarke et
al., 2015b). Median depth of sightings
during previous low-ice years was 39 m
(128 ft) in the East Region and 21 m (69
ft) in the West Region; in 2014, median
depth of on-transect sightings was 20 m
(66 ft) and 19 m (62 ft), respectively
(Clarke et al., 2015b). In September and
October 2014, bowhead whales in the
East Region of the study area were
sighted in shallower water and closer to
shore than in previous years of light sea
ice cover; in the West Region, bowhead
sightings in fall 2014 were in shallower
water than in previous light ice years,
but the distance from shore did not
differ (Clarke et al., 2015b). Behaviors
included milling, swimming, and
feeding, to a lesser degree. Highest
numbers of sightings were in the central
Beaufort Sea and east of Point Barrow.
Overall, the most shoreward edge of the
bowhead migratory corridor for
bowhead extends approximately 40 km
(25 mi) north from the barrier islands,
which are located approximately 7 km
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(4 mi) north of Liberty Project. The
closest approach of a tagged whale
occurred in August 2016 when it came
within 16 km of the proposed LDPI
(Quakenbush, 2018).
Historically, there have been few
spring, summer, or autumn observations
of bowheads in larger bays such as
Camden, Prudhoe, and Harrison Bays,
although some groups or individuals
have occasionally been observed feeding
around the periphery of or, less
commonly, inside the bays as migration
demands and feeding opportunities
permit. Observations indicate that
juvenile, sub-adult, and cow-calf pairs
of bowheads are the individuals most
frequently observed in bays and
nearshore areas of the Beaufort, while
more competitive whales are found in
the Canadian Beaufort and Barrow
Canyon, as well as deeper offshore
waters (Clarke et al., 2011b, 2011c,
2011d, 2012, 2013, 2014, 2015b; Koski
and Miller, 2009; Quakenbush et al.,
2010).
Clarke et al. (2015) evaluated
biologically important areas (BIAs) for
bowheads in the U.S. Arctic region and
identified nine BIAs. The spring (AprilMay) migratory corridor BIA for
bowheads is far offshore of the LDPI but
within the transit portion of the action
area, while the fall (September-October)
migratory corridor BIA (western
Beaufort on and north of the shelf) for
bowheads is further inshore and closer
to the LDPI. Clarke et al. (2015) also
identified four BIAs for bowheads that
are important for reproduction and
encompassed areas where the majority
of bowhead whales identified as calves
were observed each season; none of
these reproductive BIAs overlap with
the LDPI, but may be encompassed in
indirect areas such as vessel transit
route. Finally, three bowhead feeding
BIAs were identified. Again, there is no
spatial overlap of the activity area with
these BIAs.
From July 8, 2008, through August 25,
2008, BPXA conducted a 3D seismic
survey in the Liberty Prospect, Beaufort
Sea. During the August survey a mixedspecies group of whales was observed in
one sighting near the barrier islands that
included bowhead and gray whales
(Aerts et al., 2008). This is the only
known survey sighting of bowhead
whales within Foggy Island Bay despite
industry surveys occurring during the
open water season in 2010, 2014, and
2015 and NMFS aerial surveys flown
inside Foggy Island Bay in 2016 and
2017.
Alaska Natives have been taking
bowhead whales for subsistence
purposes for at least 2,000 years
(Marquette and Bockstoce, 1980, Stoker
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and Krupnik, 1993). Subsistence takes
have been regulated by a quota system
under the authority of the IWC since
1977. Alaska Native subsistence
hunters, primarily from 11 Alaska
communities, take approximately 0.1–
0.5 percent of the population per annum
(Philo et al., 1993, Suydam et al., 2011).
The average annual subsistence take (by
Natives of Alaska, Russia, and Canada)
during the 5-year period from 2011
through 2015 is 43 landed bowhead
whales (Muto et al., 2018).
Gray Whale
The eastern North Pacific population
of gray whales migrates along the coasts
of eastern Siberia, North America, and
Mexico (Allen and Angliss 2010; Weller
et al., 2002) and population size has
been steadily increasing, potentially
reaching carrying capacity (Allen and
Angliss, 2010, 2012). Abundance
estimates will likely rise and fall in the
future as the population finds a balance
with the carrying-capacity of the
environment (Rugh et al., 2005). The
steadily increasing population
abundance warranted delisting of the
eastern North Pacific gray whale stock
in 1994, as it was no longer considered
endangered or threatened under the
ESA (Rugh et al., 1999). A five-year
status review determined that the stock
was neither in danger of extinction nor
likely to become endangered in the
foreseeable future, thus, retaining the
non-threatened classification (Rugh et
al., 1999). Table 2 provided population
parameters for this stock.
The gray whale migration may be the
longest of any mammalian species. They
migrate over 8,000 to 10,000 km (5,000
to 6,200 mi) between breeding lagoons
in Mexico and Arctic feeding areas each
spring and fall (Rugh et al., 1999). The
southward migration out of the Chukchi
Sea generally begins during October and
November, passing through Unimak
Pass in November and December, then
continues along a coastal route to Baja
California (Rice et al., 1984). The
northward migration usually begins in
mid-February and continues through
May (Rice et al. 1984).
Gray whales are the most coastal of all
the large whales and inhabit primarily
inshore or shallow, offshore continental
shelf waters (Jones and Swartz, 2009);
however, they are more common in the
Chukchi than in the Beaufort Sea.
Throughout the summers of 2010 and
2011, gray whales regularly occurred in
small groups north of Point Barrow and
west of Barrow (George et al., 2011;
Shelden et al., 2012). In 2011, there
were no sightings of gray whales east of
Point Barrow during ASAMM aerial
surveys (Clarke et al., 2012); however,
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they were observed east of Point
Barrow, primarily in the vicinity of
Barrow Canyon, from August to October
2012 (Clarke et al., 2013). Gray whales
were again observed east of Point
Barrow in 2013, with all sightings in
August except for one sighting in late
October (Clarke et al., 2014). In 2014,
sightings in the Beaufort Sea included a
few whales east of Point Barrow and one
north of Cross Island near Prudhoe Bay
(Clarke et al., 2015b). Gray whales
prefer shoal areas (<60 m (197 ft) deep)
with low (<7 percent) ice cover (Moore
and DeMaster, 1997). These areas
provide habitat rich in gray whale prey
(amphipods, decapods, and other
invertebrates).
From July 8, 2008 through August 25,
2008, BPXA conducted a 3D seismic
survey in the Liberty Prospect, Beaufort
Sea. During the August survey a mixedspecies group of whales was observed in
one sighting near the barrier islands that
included bowhead and gray whales
(Aerts et al., 2008). This is the only
known survey sighting of gray whales
within Foggy Island Bay despite
industry surveys occurring during the
open water season in 2010, 2014, and
2015 and NMFS aerial surveys flown
inside Foggy Island Bay in 2016 and
2017.
Beluga Whale
Five beluga whale stocks are present
in Alaska including the Cook Inlet,
Bristol Bay, eastern Bering Sea, eastern
Chukchi Sea, and Beaufort Sea stocks
(O’Corry-Crowe et al., 1997, Allen and
Angliss, 2015). The eastern Chukchi and
Beaufort Sea stocks are thought to
overlap in the Beaufort Sea. Both stocks
are closely associated with open leads
and polynyas in ice-covered regions
throughout Arctic and sub-Arctic waters
of the Northern Hemisphere.
Distribution varies seasonally. Whales
from both the Beaufort Sea and eastern
Chukchi Sea stocks overwinter in the
Bering Sea. Belugas of the eastern
Chukchi may winter in offshore,
although relatively shallow, waters of
the western Bering Sea (Richard et al.,
2001), and the Beaufort Sea stock may
winter in more nearshore waters of the
northern Bering Sea (R. Suydam, pers.
comm. 2012c). In the spring, belugas
migrate to coastal estuaries, bays, and
rivers. Annual migrations may cover
thousands of kilometers (Allen and
Angliss, 2010, 2012a).
Satellite telemetry data from 23
whales tagged in Kaseguluk Lagoon in
1998 through 2002 provided
information on movements and
migrations of eastern Chukchi Sea
belugas. Animals initially traveled north
and east into the northern Chukchi and
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western Beaufort seas after capture
(Suydam et al., 2001, 2005). Movement
patterns between July and September
vary by age and/or sex classes. Adult
males frequent deeper waters of the
Beaufort Sea and Arctic Ocean (79–80°
N), where they remain throughout the
summer. Immature males moved farther
north than immature females but not as
far north as adult males. All of the
belugas frequented water deeper than
200 m (656 ft) along and beyond the
continental shelf break. Use of the
inshore waters within the Beaufort Sea
Outer Continental Shelf lease sale area
was rare (Suydam et al., 2005).
Most information on distribution and
movements of belugas of the Beaufort
Sea stock was similarly derived using
satellite tags. A total of 30 belugas were
tagged in the Mackenzie River Delta,
Northwest Territories, Canada, during
summer and autumn in 1993, 1995, and
1997 (Richard et al., 2001).
Approximately half of the tagged whales
traveled far offshore of the Alaskan
coastal shelf, while the remainder
traveled on the shelf or near the
continental slope (Richard et al., 2001).
Migration through Alaskan waters lasted
an average of 15 days. In 1997, all of the
tagged belugas reached the western
Chukchi Sea (westward of 170° W)
between September 15 and October 9.
Overall, the main fall migration corridor
for beluga whales is believed to be
approximately 62 mi (100 km) north of
the Project Area (Richard et al., 1997,
2001). Both the spring (April-May) and
fall (September-October) migratory
corridor BIAs for belugas are far north
of the proposed action area because
sightings of belugas from aerial surveys
in the western Beaufort Sea are
primarily on the continental slope, with
relatively few sightings on the shelf
(Clarke et al., 2015). No reproductive
and feeding BIAs exist for belugas in the
action area (Clarke et al., 2015).
O’Corry et al. (2018) studied genetic
marker sets in 1,647 beluga whales. The
data set was from over 20 years and
encompassed all of the whales’ major
coastal summering regions in the Pacific
Ocean. The genetic marker analysis of
the migrating whales revealed that
while both the wintering and
summering areas of the eastern Chukchi
Sea and eastern Beaufort Sea
subpopulations may overlap, the timing
of spring migration differs such that the
whales hunted at coastal sites in
Chukotka, the Bering Strait (i.e.,
Diomede), and northwest Alaska (i.e.,
Point Hope) in the spring and off of
Alaska’s Beaufort Sea coast in summer
were predominantly from the eastern
Beaufort Sea population. Earlier genetic
investigations and recent telemetry
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studies show that the spring migration
of eastern Beaufort whales occurs earlier
and through denser sea ice than eastern
Chukchi Sea belugas. The discovery that
a few individual whales found at some
of these spring locations had higher
likelihood of having eastern Chukchi
Sea ancestry or being of mixed-ancestry,
indicates that the Bering Strait region is
also an area where the stock mix in
spring. Citta et al. (2016) also observed
that tagged eastern Beaufort Sea whales
migrated north in spring through the
Bering Strait earlier than the eastern
Chukchi belugas so they had to pass
through the latter’s primary wintering
area. Therefore, the eastern Chukchi
stock should not be present in the action
area at any time in general, but
especially during summer-late fall,
when the beluga exposures would be
anticipated for this project. Therefore,
we assume all belugas impacted by the
proposed project are from the Beaufort
Sea stock.
Beluga whales were regularly sighted
during the September-October BWASP
and the more recent ASAMM aerial
surveys of the Alaska Beaufort Sea
coast. Burns and Seaman (1985) suggest
that beluga whales are strongly
associated with the ice fringe and that
the route of the autumn migration may
be mainly determined by location of the
drift ice margin. Relatively few beluga
whales have been observed in the
nearshore areas (on the continental shelf
outside of the barrier islands) of
Prudhoe Bay. However, groups of
belugas have been detected nearshore in
September (Clarke et al., 2011a) and
opportunistic sightings have been
recorded from Northstar Island and
Endicott. These sightings are part of the
fall migration which generally occurs
farther offshore although a few sightings
of a few individuals do occur closer to
the shore, and occasionally inside the
barrier islands of Foggy Island Bay.
During the 2008 seismic survey in Foggy
Island Bay, three sightings of eight
individuals were observed at a location
about 3 mi (4.8 km) east of the Endicott
Satellite Drilling Island (Aerts et al.,
2008). In 2014, during a BPXA 2D HR
shallow geohazard survey in July and
August, PSOs recorded eight groups of
approximately 19 individual beluga
whales, five of which were juveniles
(Smultea et al., 2014). During the open
water season July 9 through July 19,
2015, five sightings of belugas occurred
(Cate et al., 2015). Also in 2015, acoustic
monitoring was conducted in Foggy
Island Bay between July 6 and
September 22, 2015, to characterize
ambient sound conditions and to
determine the acoustic occurrence of
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marine mammals near Hilcorp’s Liberty
Prospect in Foggy Island Bay (FrouinJouy et al., 2015). Two recorders
collected underwater sound data before,
during, and after Hilcorp’s 2015
geohazard survey (July 6–Sept. 22).
Detected marine mammal vocalizations
included those from beluga whales and
pinnipeds. Belugas were detected on
five days by passive-recorders inside the
bay during the three-month survey
period (Frouin-Jouy et al., 2015). During
the 2016 and 2017 ASAMM surveys
flown inside Foggy Island Bay, no
belugas were observed. Beluga whales
are the cetacean most likely to be
encountered during the open-water
season in Foggy Island Bay, albeit few
in abundance.
Ringed Seal
One of five Arctic ringed seal stocks,
the Alaska stock, occurs in U.S. waters.
The Arctic subspecies of ringed seals
was listed as threatened under the ESA
on December 28, 2012, primarily due to
expected impacts on the population
from declines in sea and snow cover
stemming from climate change within
the foreseeable future (77 FR 76706).
However, on March 11, 2016, the U.S.
District Court for the District of Alaska
issued a decision in a lawsuit
challenging the listing of ringed seals
under the ESA (Alaska Oil and Gas
Association et al. v. National Marine
Fisheries Service, Case No. 4:14–cv–
00029–RRB). The decision vacated
NMFS’ listing of Arctic ringed seals as
a threatened species. However, on
February 12, 2018, in Alaska Oil & Gas
Association v. Ross, Case No. 16–35380,
the U.S. Court of Appeals for the Ninth
Circuit reversed the district court’s 2016
decision. As such, Arctic ringed seals
remain listed as threatened under the
ESA.
During winter and spring in the
United States, ringed seals are found
throughout the Beaufort and Chukchi
Seas; they occur in the Bering Sea as far
south as Bristol Bay in years of
extensive ice coverage. Most ringed
seals that winter in the Bering and
Chukchi Seas are thought to migrate
northward in spring with the receding
ice edge and spend summer in the pack
ice of the northern Chukchi and
Beaufort Seas.
Ringed seals are resident in the
Beaufort Sea year-round, and based on
results of previous surveys in Foggy
Island Bay (Aerts et al., 2008, Funk et
al., 2008, Savarese et al., 2010, Smultea
et al., 2014), and monitoring from
Northstar Island (Aerts and Richardson,
2009, 2010), they are expected to be the
most commonly occurring pinniped in
the action area year-round.
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Ringed seals are present in the
nearshore and sea ice year-round,
maintaining breathing holes and
excavating subnivean lairs in the
landfast ice during the ice-covered
season. Ringed seals overwinter in the
landfast ice in and around the LDPI
action area. There is some evidence
indicating that ringed seal densities are
low in water depths of less than 3 m,
where landfast ice extending from the
shoreline generally freezes to the sea
bottom in very shallow waters during
the course of the winter (Moulton et al.,
2002a, Moulton et al., 2002b,
Richardson and Williams, 2003). Ringed
seals that breed on shorefast ice may
either forage within 100 km (62.1 mi) of
their breeding habitat or undertake
extensive foraging trips to more
productive areas at distances of between
100–1,000 kilometers (Kelly et al.,
2010b). Adult Arctic ringed seals show
site fidelity, returning to the same
subnivean site after the foraging period
ends. Movements are limited during the
ice-bound months, including the
breeding season, which limits their
foraging activities and may minimize
gene flow within the species (Kelly et al.
2010b). During April to early June (the
reproductive period), radio-tagged
ringed seals inhabiting shorefast ice
near Prudhoe Bay had home range sizes
generally less than 1,336 ac (500 ha) in
area (Kelly et al., 2005). Sub-adults,
however, were not constrained by the
need to defend territories or maintain
birthing lairs and followed the
advancing ice southward to winter
along the Bering Sea ice edge where
there may be enhanced feeding
opportunities and less exposure to
predation (Crawford et al., 2012). Subadult ringed seals tagged in the
Canadian Beaufort Sea similarly
undertook lengthy migrations across the
continental shelf of the Alaskan
Beaufort Sea into the Chukchi Sea,
passing Point Barrow prior to freeze-up
in the central Chukchi Sea (Harwood et
al., 2012). Factors most influencing seal
densities during May through June in
the central Beaufort Sea between
Oliktok Point and Kaktovik were water
depth, distance to the fast ice edge, and
ice deformation. Highest densities of
seals were at depths of 5 to 35 m (16 to
144 ft) and on relatively flat ice near the
fast ice edge (Frost et al., 2004).
Sexual maturity in ringed seals varies
with population status. It can be as early
as 3 years for both sexes and as late as
7 years for males and 9 years for
females. Ringed seals breed annually,
with timing varying regionally. Mating
takes place while mature females are
still nursing their pups on the ice and
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is thought to occur under the ice near
birth lairs. In all subspecies except the
Okhotsk, females give birth to a single
pup hidden from view within a snowcovered birth lair. Ringed seals are
unique in their use of these birth lairs.
Pups learn how to dive shortly after
birth. Pups nurse for 5 to 9 weeks and,
when weaned, are four times their birth
weights. Ringed seal pups are more
aquatic than other ice seal pups and
spend roughly half their time in the
water during the nursing period
(Lydersen and Hammill, 1993). Pups are
normally weaned before the break-up of
spring ice.
Ringed seals are an important
resource for Alaska Native subsistence
hunters. Approximately 64 Alaska
Native communities in western and
northern Alaska, from Bristol Bay to the
Beaufort Sea, regularly harvest ice seals
(Ice Seal Committee, 2016). Based on
the harvest data from 12 Alaska Native
communities, a minimum estimate of
the average annual harvest of ringed
seals in 2009–2013 is 1,050 seals (Muto
et al., 2016).
Other sources of mortality include
commercial fisheries and predation by
marine and terrestrial predators
including polar bears, arctic foxes,
walrus, and killer whales. During 2010–
2014, incidental mortality and serious
injury of ringed seals was reported in 4
of the 22 federally-regulated commercial
fisheries in Alaska monitored for
incidental mortality and serious injury
by fisheries observers: the Bering Sea/
Aleutian Islands flatfish trawl, Bering
Sea/Aleutian Islands pollock trawl,
Bering Sea/Aleutian Islands Pacific cod
trawl, and Bering Sea/Aleutian Islands
Pacific cod longline fisheries (Muto et
al., 2016). From May 1, 2011 to
December 31, 2016, 657 seals, which
included 233 dead stranded seals, 179
subsistence hunted seals, and 245 live
seals, stranded or were sampled during
permitted health assessments studies.
Species involved were primarily ice
seals including ringed, bearded, ribbon,
and spotted seals in northern and
western Alaska. The investigation
identified that clinical signs were likely
due to an abnormality of the molt, but
a definitive cause for the abnormal molt
was not determined.
Bearded Seal
Two subspecies of bearded seal have
been described: E. b. barbatus from the
Laptev Sea, Barents Sea, North Atlantic
Ocean, and Hudson Bay (Rice 1998);
and E. b. nauticus from the remaining
portions of the Arctic Ocean and the
Bering and Okhotsk seas (Ognev, 1935,
Scheffer, 1958, Manning, 1974, Heptner
et al., 1976). On December 28, 2012,
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NMFS listed two distinct population
segments (DPSs) of the E. b. nauticus
subspecies of bearded seals—the
Beringia DPS and Okhotsk DPS—as
threatened under the ESA (77 FR
76740). Similar to ringed seals, the
primary concern for these DPSs is the
ongoing and projected loss of sea-ice
cover stemming from climate change,
which is expected to pose a significant
threat to the persistence of these seals in
the foreseeable future (based on
projections through the end of the 21st
century; Cameron et al., 2010). Similar
to ringed seals, the ESA listing of the
Beringia and Okhotsk DPSs of bearded
seal was challenged in the U.S. District
Court for the District of Alaska, and on
July 25, 2014, the court vacated NMFS’
listing of those DPSs of bearded seals as
threatened under the ESA (Alaska Oil
and Gas Association et al. v. Pritzker,
Case No. 4:13–cv–00018–RRB).
However, the U.S. Court of Appeals for
the Ninth Circuit reversed the district
court’s 2016 decision on October 24,
2016 (Alaska Oil & Gas Association v.
Pritzer, Case No. 14–35806). As such,
the Beringia and Okhotsk DPSs of
bearded seal remain listed as threatened
under the ESA.
For the purposes of MMPA stock
assessments, the Beringia DPS is
considered the Alaska stock of the
bearded seal (Muto et al., 2016). The
Beringia DPS of the bearded seal
includes all bearded seals from breeding
populations in the Arctic Ocean and
adjacent seas in the Pacific Ocean
between 145° E longitude
(Novosibirskiye) in the East Siberian Sea
and 130° W longitude in the Canadian
Beaufort Sea, except west of 157° W
longitude in the Bering Sea and west of
the Kamchatka Peninsula (where the
Okhotsk DPS is found). They generally
prefer moving ice that produces natural
openings and areas of open-water
(Heptner et al., 1976, Fedoseev, 1984,
Nelson et al., 1984). They usually avoid
areas of continuous, thick, shorefast ice
and are rarely seen in the vicinity of
unbroken, heavy, drifting ice or large
areas of multi-year ice (Fedoseev, 1965,
Burns and Harbo, 1972, Burns and
Frost, 1979, Burns, 1981, Smith, 1981,
Fedoseev, 1984, Nelson et al., 1984).
Spring surveys conducted in 1999–
2000 along the Alaska coast indicate
that bearded seals are typically more
abundant 20–100 nautical miles (nmi)
from shore than within 20 nmi from
shore, except for high concentrations
nearshore to the south of Kivalina
(Bengtson et al., 2005; Simpkins et al.,
2003).
Although bearded seal vocalizations
(produced by adult males) have been
recorded nearly year-round in the
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Beaufort Sea (MacIntyre et al., 2013,
MacIntyre et al., 2015), most bearded
seals overwinter in the Bering Sea. In
addition, during late winter and early
spring, Foggy Island Bay is covered with
shorefast ice and the nearest lead
systems are at least several kilometers
away, making the area unsuitable
habitat for bearded seals. Therefore,
bearded seals are not expected to be
encountered in or near the LDPI portion
of the action area during this time (from
late winter through early spring).
During the open-water period, the
Beaufort Sea likely supports fewer
bearded seals than the Chukchi Sea
because of the more extensive foraging
habitat available to bearded seals in the
Chukchi Sea. In addition, as a result of
shallow waters, the sea floor in Foggy
Island Bay south of the barrier islands
is often scoured by ice, which limits the
presence of bearded seal prey species.
Nevertheless, aerial and vessel-based
surveys associated with seismic
programs, barging, and government
surveys in this area between 2005 and
2010 reported several bearded seal
sightings (Green and Negri, 2005, Green
and Negri 2006, Green et al., 2007, Funk
et al., 2008, Hauser et al., 2008, Savarese
et al., 2010, Clarke et al., 2011, Reiser
et al., 2011). In addition, eight bearded
seal sightings were documented during
shallow geohazard seismic and seabed
mapping surveys conducted in July and
August 2014 (Smultea et al., 2014).
Frouin-Mouy et al. (2016) conducted
acoustic monitoring in Foggy Island Bay
from early July to late September 2014,
and detected pinniped vocalizations on
10 days via the nearshore recorder and
on 66 days via the recorder farther
offshore. Although the majority of these
detections were unidentified pinnipeds,
bearded seal vocalizations were
positively identified on two days
(Frouin-Mouy et al., 2016).
Bearded seals are an important
resource for Alaska Native subsistence
hunters. Approximately 64 Alaska
Native communities in western and
northern Alaska, from Bristol Bay to the
Beaufort Sea, regularly harvest ice seals
(Ice Seal Committee, 2016). However,
during 2009–2013, only 12 of 64 coastal
communities were surveyed for bearded
seals; and, of those communities, only 6
were surveyed for two or more
consecutive years (Ice Seal Committee,
2016). Based on the harvest data from
these 12 communities (Table 2), a
minimum estimate of the average
annual harvest of bearded seals in 2009–
2013 is 390 seals. Harvest surveys are
designed to estimate harvest within the
surveyed community, but because of
differences in seal availability, cultural
hunting practices, and environmental
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conditions, extrapolating harvest
numbers beyond that community is not
appropriate (Muto et al., 2016).
Of the 22 federally-regulated U.S.
commercial fisheries in Alaska
monitored for incidental mortality and
serious injury by fisheries observers, 12
fisheries could potentially interact with
bearded seals. During 2010–2014,
incidental mortality and serious injury
of bearded seals occurred in three
fisheries: The Bering Sea/Aleutian
Islands pollock trawl, Bering Sea/
Aleutian Islands flatfish trawl, and
Bering Sea/Aleutian Islands Pacific cod
trawl fisheries (Muto et al., 2016). This
species was also part of the
aforementioned 2011–2016 UME.
Spotted Seal
Spotted seals are distributed along the
continental shelf of the Bering, Chukchi,
and Beaufort seas, and the Sea of
Okhotsk south to the western Sea of
Japan and northern Yellow Sea. Eight
main areas of spotted seal breeding have
been reported (Shaughnessy and Fay,
1977) and Boveng et al. (2009) grouped
those breeding areas into three DPSs:
The Bering DPS, which includes
breeding areas in the Bering Sea and
portions of the East Siberian, Chukchi,
and Beaufort seas that may be occupied
outside the breeding period; the
Okhotsk DPS; and the Southern DPS,
which includes spotted seals breeding
in the Yellow Sea and Peter the Great
Bay in the Sea of Japan. For the
purposes of MMPA stock assessments,
NMFS defines the Alaska stock of
spotted seals to be that portion of the
Bering DPS in U.S. waters.
The distribution of spotted seals is
seasonally related to specific life-history
events that can be broadly divided into
two periods: Late-fall through spring,
when whelping, nursing, breeding, and
molting occur in association with the
presence of sea ice on which the seals
haul out, and summer through fall when
seasonal sea ice has melted and most
spotted seals use land for hauling out
(Boveng et al., 2009). Spotted seals are
most numerous in the Bering and
Chukchi seas (Quakenbush, 1988),
although small numbers do range into
the Beaufort Sea during summer (Rugh
et al., 1997; Lowry et al., 1998).
At Northstar, few spotted seals have
been observed. A total of 12 spotted
seals were positively identified near the
source-vessel during open-water seismic
programs in the central Alaskan
Beaufort Sea, generally occurring near
Northstar from 1996 to 2001 (Moulton
and Lawson, 2002). The number of
spotted seals observed per year ranged
from zero (in 1998 and 2000) to four (in
1999).
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During a seismic survey in Foggy
Island Bay, PSOs recorded 18 pinniped
sightings, of which one was confirmed
as a spotted seal (Aerts et al., 2008).
Spotted seals were the second most
abundant seal species observed by PSOs
during Hilcorp’s geohazard surveys in
July-August 2014 (Smultea et al., 2014)
and in July 2015 (Cate et al., 2015).
Given their seasonal distribution and
low numbers in the nearshore waters of
the central Alaskan Beaufort Sea, no
spotted seals are expected in the action
area during late winter and spring, but
could be present in low numbers during
the summer or fall.
Similar to other ice seal species,
spotted seals are an important resource
for Alaska Native subsistence hunters.
Of the 12 communities (out of 64)
surveyed during 2010–2014, the
minimum annual spotted seal harvest
estimates totaled across 12 out of 64
user communities surveyed ranged from
83 (in 2 communities) to 518 spotted
seals (in 10 communities). Based on the
harvest data from these 12 communities,
a minimum estimate of the average
annual harvest of spotted seals in 2010–
2014 is 328 seals.
From 2011–2015, incidental mortality
and serious injury of spotted seals
occurred in 2 of the 22 federallyregulated U.S. commercial fisheries in
Alaska monitored for incidental
mortality and serious injury by fisheries
observers: The Bering Sea/Aleutian
Islands flatfish trawl and Bering Sea/
Aleutian Islands Pacific cod longline
fisheries. In 2014, there was one report
of a mortality incidental to research on
the Alaska stock of spotted seals,
resulting in a mean annual mortality
and serious injury rate of 0.2 spotted
seals from this stock in 2011–2015. This
species was also part of the
aforementioned 2011–2016 UME.
Marine Mammal Hearing
Hearing is the most important sensory
modality for marine mammals
underwater, and exposure to
anthropogenic sound can have
deleterious effects. To appropriately
assess the potential effects of exposure
to sound, it is necessary to understand
the frequency ranges marine mammals
are able to hear. Current data indicate
that not all marine mammal species
have equal hearing capabilities (e.g.,
Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008).
To reflect this, Southall et al. (2007 and
2019) recommended that marine
mammals be divided into functional
hearing groups based on directly
measured or estimated hearing ranges
on the basis of available behavioral
response data, audiograms derived
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using auditory evoked potential
techniques, anatomical modeling, and
other data. Note that no direct
measurements of hearing ability have
been successfully completed for
mysticetes (i.e., low-frequency
cetaceans). Subsequently, NMFS (2016)
described generalized hearing ranges for
these marine mammal hearing groups.
Generalized hearing ranges were chosen
based on the approximately 65 dB
threshold from the normalized
composite audiograms, with an
exception for lower limits for lowfrequency cetaceans where the result
was deemed to be biologically
implausible and the lower bound from
Southall et al. (2007) retained. The
functional groups and the associated
frequencies are indicated below (note
that these frequency ranges correspond
to the range for the composite group,
with the entire range not necessarily
reflecting the capabilities of every
species within that group):
• Low-frequency cetaceans
(mysticetes): Generalized hearing is
estimated to occur between
approximately 7 (hertz) Hz and 35 kHz;
• Mid-frequency cetaceans (larger
toothed whales, beaked whales, and
most delphinids): Generalized hearing is
estimated to occur between
approximately 150 Hz and 160 kHz;
• High-frequency cetaceans
(porpoises, river dolphins, and members
of the genera Kogia and
Cephalorhynchus; including two
members of the genus Lagenorhynchus,
on the basis of recent echolocation data
and genetic data): Generalized hearing
is estimated to occur between
approximately 275 Hz and 160 kHz;
• Pinnipeds in water; Phocidae (true
seals): Functional hearing is estimated
to occur between approximately 50 Hz
to 86 kHz; and
• Pinnipeds in water; Otariidae
(eared seals): Functional hearing is
estimated to occur between
approximately 60 Hz and 39 kHz.
For more detail concerning these
groups and associated frequency ranges,
please see NMFS (2018) for a review of
available information. Six marine
mammal species (three cetacean and
three phocid pinniped) have the
potential to co-occur with Hilcorp’s
LDPI project. Of the three cetacean
species that may be present, two are
classified as low-frequency cetaceans
(i.e., all mysticete species) and one is
classified as a mid-frequency cetacean
(beluga whale).
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Potential Effects of the Specified
Activity on Marine Mammals and Their
Habitat
This section includes a summary and
discussion of the ways that components
of the specified activity may impact
marine mammals and their habitat. The
Estimated Take by Incidental
Harassment section later in this
document includes a quantitative
analysis of the number of individuals
that are expected to be taken by this
activity. The Negligible Impact Analysis
and Determination section considers the
content of this section, the Estimated
Take by Incidental Harassment section,
and the Proposed Mitigation section, to
draw conclusions regarding the likely
impacts of these activities on the
reproductive success or survivorship of
individuals and how those impacts on
individuals are likely to impact marine
mammal species or stocks.
The potential impacts of the proposed
LDPI on marine mammals involve both
non-acoustic and acoustic effects.
Potential non-acoustic effects could
result from the physical presence of
personnel, structures and equipment,
construction or maintenance activities,
and the occurrence of oil spills. The
LDPI project also has the potential to
result in mortality and serious injury of
ringed seals via direct physical
interaction on ice roads and harass (by
Level A harassment and Level B
harassment) cetaceans and seals via
acoustic disturbance. We first discuss
the effects of ice road and ice trail
construction and maintenance on ringed
seals with respect to direct human
interaction followed by an in-depth
discussion on sound and potential
effects on marine mammals from
acoustic disturbance. The potential for
and potential impacts from both small
and large oil spills are discussed in
more detail later in this section;
however, please note Hilcorp did not
request, nor is NMFS proposing to
authorize, take from oil spills.
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Mortality, Serious Injury and NonAcoustic Harassment—Ice Seals
This section discusses the potential
impacts of ice road construction, use
and maintenance on ringed seals, the
only species likely to be encountered
during this activity. Acoustic impacts
from this and other activities (e.g., pile
driving) are provided later in the
document. To assess the potential
impacts from ice roads, one must
understand sea ice dynamics, the
influence of ice roads on sea ice, and ice
seal ecology.
Sea ice is constantly moving and
flexing due to winds, currents, and
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snow load. Sea ice grows (thickens) to
its maximum in March, then begins to
degrade once solar heating increases
above the necessary threshold. Sea ice
will thin and crack due to atmospheric
pressure and temperature changes. In
the absence of ice roads, sea ice is
constantly cracking, deforming (creating
pressure ridges and hummocks), and
thickening or thinning. Ice road
construction interrupts this dynamic by
permanently thickening and stabilizing
the sea ice for the season; however, it
thins and weakens sea ice adjacent to
ice roads due to weight of the ice road
and use as speed and load of vehicles
using the road creates pressure waves in
the ice, cracking natural ice adjacent to
the road (pers. comm., M. Williams,
August 17, 2018). These cracks and
thinned ice, occurring either naturally
or adjacent to ice roads, are easily
exploitable habitat for ringed seals.
As discussed in the Description of
Marine Mammal section, ringed seals
build lairs which are typically
concentrated along pressure ridges,
cracks, leads, or other surface
deformations (Smith and Stirling 1975,
Hammill and Smith, 1989, Furgal et al.,
1996). To build a lair, a pregnant female
will first excavate a breathing hole, most
easily in cracked or thin ice. The lair
will then be excavated (snow must be
present for lair construction). Later in
the season, basking holes may be
created from collapsed lairs or new
basking holes will be excavated; both of
which must have breathing holes and
surface access (pers. comm., M.
Williams, August 17, 2018).
Williams et al. (2006) provides the
most in-depth discussion of ringed seal
use around Northstar Island, the first
offshore oil and gas production facility
seaward of the barrier islands in the
Alaskan Beaufort Sea. Northstar is
located 9.5 km from the mainland on a
manmade gravel island in 12 m of
water. In late 2000 and early 2001, sea
ice in areas near Northstar Island where
summer water depth was greater than
1.5 m was searched for ringed seal
structures. At Northstar, ringed seals
were documented creating and using sea
ice structures (basking holes, breathing
holes, or birthing lairs) within 11 to
3,500 m (36 to 11,482 ft) of Northstar
infrastructure which includes ice roads,
pipeline, and the island itself (Williams
et al., 2006). Birth lairs closest to
Northstar infrastructure were 882 m and
144 m (2,894 and 374 ft) from the island
and ice road, respectively (Williams et
al., 2006). Two basking holes were
found within 11 and 15 m (36 and 49
ft) from the nominal centerline of a
Northstar ice road and were still in use
by the end of the study (Williams et al.,
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2006). Although located in deeper water
outside of the barrier islands, we
anticipate ringed seals would use ice
around the LDPI and associated ice
roads in a similar manner.
Since 1998, there have been three
documented incidents of ringed seal
interactions on North Slope ice roads,
with one recorded mortality. On April
17, 1998, during a vibroseis on-ice
seismic operation outside of the barrier
islands east of Bullen Point in the
eastern Beaufort Sea, a ringed seal pup
was killed when its lair was destroyed
by a Caterpillar tractor clearing an ice
road. The lair was located on ice over
water 9 m (29 ft) deep with an ice
thickness of 1.3 m (4.3 ft). It was
reported that an adult may have been
present in the lair when it was
destroyed. Crew found blood on the ice
near an open hole approximately 1.3 km
(0.8 mi) from the destroyed lair; this
could have been from a wounded adult
(MacLean, 1998). On April 24, 2018, a
Tucker (a tracked vehicle used in snow
conditions) traveling on a Northstar sea
ice trail broke through a brine pocket.
After moving the Tucker, a seal pup
climbed out of the hole in the ice, but
no adult was seen in the area. The seal
pup remained in the area for the next
day and a half. This seal was seen in an
area with an estimated water depth of 6
to 7 m (20 to 24 ft) (Hilcorp, 2018b). The
third reported incident occurred on
April 28, 2018, when a contractor
performing routine maintenance
activities to relocate metal plates
beneath the surface of the ice road from
Oliktok Point to Spy Island Drill site
spotted a ringed seal pup next to what
may have been a lair site. No adult was
observed in the area. The pup appeared
to be acting normally and was seen
going in and out of the opening several
times (Eni, 2018).
Overall, NMFS does not anticipate the
potential for mortality or serious injury
of ringed seals to be high given there has
been only one documented mortality
over 25 years of ice road construction in
the Arctic. However, the potential does
exist; therefore, we are including a small
amount of mortality or serious injury (n
= 2) in this proposed rule over the fiveyear life of the regulations. To mitigate
this risk, NMFS and Hilcorp have
developed a number of best
management practices (BMPs) aimed at
reducing the potential of disturbing
(e.g., crushing) ice seal structures on ice
roads (see Proposed Mitigation and
Monitoring).
Potential Acoustic Impacts—Level A
Harassment and Level B Harassment
In the following discussion, we
provide general background information
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on sound before considering potential
effects to marine mammals from sound
produced by construction and operation
of the LDPI.
Description of Sound Sources
This section contains a brief technical
background on sound, on the
characteristics of certain sound types,
and on metrics used in this proposal
inasmuch as the information is relevant
to the specified activity and to a
discussion of the potential effects of the
specified activity on marine mammals
found later in this document. For
general information on sound and its
interaction with the marine
environment, please see, e.g., Au and
Hastings (2008); Richardson et al.
(1995); Urick (1983).
Sound travels in waves, the basic
components of which are frequency,
wavelength, velocity, and amplitude.
Frequency is the number of pressure
waves that pass by a reference point per
unit of time and is measured in Hz or
cycles per second. Wavelength is the
distance between two peaks or
corresponding points of a sound wave
(length of one cycle). Higher frequency
sounds have shorter wavelengths than
lower frequency sounds, and typically
attenuate (decrease) more rapidly,
except in certain cases in shallower
water. Amplitude is the height of the
sound pressure wave or the ‘‘loudness’’
of a sound and is typically described
using the relative unit of the decibel
(dB). A sound pressure level (SPL) in dB
is described as the ratio between a
measured pressure and a reference
pressure (for underwater sound, this is
1 microPascal (mPa)), and is a
logarithmic unit that accounts for large
variations in amplitude; therefore, a
relatively small change in dB
corresponds to large changes in sound
pressure. The source level (SL)
represents the SPL referenced at a
distance of 1 m from the source
(referenced to 1 mPa), while the received
level is the SPL at the listener’s position
(referenced to 1 mPa).
Root mean square (rms) is the
quadratic mean sound pressure over the
duration of an impulse. Root mean
square is calculated by squaring all of
the sound amplitudes, averaging the
squares, and then taking the square root
of the average (Urick, 1983). Root mean
square accounts for both positive and
negative values; squaring the pressures
makes all values positive so that they
may be accounted for in the summation
of pressure levels (Hastings and Popper,
2005). This measurement is often used
in the context of discussing behavioral
effects, in part because behavioral
effects, which often result from auditory
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cues, may be better expressed through
averaged units than by peak pressures.
Sound exposure level (SEL;
represented as dB re 1 mPa2-s) represents
the total energy in a stated frequency
band over a stated time interval or
event, and considers both intensity and
duration of exposure. The per-pulse SEL
is calculated over the time window
containing the entire pulse (i.e., 100
percent of the acoustic energy). SEL is
a cumulative metric; it can be
accumulated over a single pulse, or
calculated over periods containing
multiple pulses. Cumulative SEL
represents the total energy accumulated
by a receiver over a defined time
window or during an event. Peak sound
pressure (also referred to as zero-to-peak
sound pressure or 0-pk) is the maximum
instantaneous sound pressure
measurable in the water at a specified
distance from the source, and is
represented in the same units as the rms
sound pressure.
When underwater objects vibrate or
activity occurs, sound-pressure waves
are created. These waves alternately
compress and decompress the water as
the sound wave travels. Underwater
sound waves radiate in a manner similar
to ripples on the surface of a pond and
may be either directed in a beam or
beams or may radiate in all directions
(omnidirectional sources), as is the case
for sound produced by the pile driving
activity considered here. The
compressions and decompressions
associated with sound waves are
detected as changes in pressure by
aquatic life and man-made sound
receptors such as hydrophones.
Even in the absence of sound from the
specified activity, the underwater
environment is typically loud due to
ambient sound, which is defined as
environmental background sound levels
lacking a single source or point
(Richardson et al., 1995). The sound
level of a region is defined by the total
acoustical energy being generated by
known and unknown sources. These
sources may include physical (e.g.,
wind and waves, earthquakes, ice,
atmospheric sound), biological (e.g.,
sounds produced by marine mammals,
fish, and invertebrates), and
anthropogenic (e.g., vessels, dredging,
construction) sound. A number of
sources contribute to ambient sound,
including wind and waves, which are a
main source of naturally occurring
ambient sound for frequencies between
200 Hz and 50 kHz (Mitson, 1995). In
general, ambient sound levels tend to
increase with increasing wind speed
and wave height. Precipitation can
become an important component of total
sound at frequencies above 500 Hz, and
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possibly down to 100 Hz during quiet
times. Marine mammals can contribute
significantly to ambient sound levels, as
can some fish and snapping shrimp. The
frequency band for biological
contributions is from approximately 12
Hz to over 100 kHz. Sources of ambient
sound related to human activity include
transportation (surface vessels),
dredging and construction, oil and gas
drilling and production, geophysical
surveys, sonar, and explosions. Vessel
noise typically dominates the total
ambient sound for frequencies between
20 and 300 Hz. In general, the
frequencies of anthropogenic sounds are
below 1 kHz and, if higher frequency
sound levels are created, they attenuate
rapidly.
The sum of the various natural and
anthropogenic sound sources that
comprise ambient sound at any given
location and time depends not only on
the source levels (as determined by
current weather conditions and levels of
biological and human activity) but also
on the ability of sound to propagate
through the environment. In turn, sound
propagation is dependent on the
spatially and temporally varying
properties of the water column and sea
floor, and is frequency-dependent. As a
result of the dependence on a large
number of varying factors, ambient
sound levels can be expected to vary
widely over both coarse and fine spatial
and temporal scales. Sound levels at a
given frequency and location can vary
by 10–20 decibels (dB) from day to day
(Richardson et al., 1995). The result is
that, depending on the source type and
its intensity, sound from the specified
activity may be a negligible addition to
the local environment or could form a
distinctive signal that may affect marine
mammals.
Sounds are often considered to fall
into one of two general types: Pulsed
and non-pulsed (defined in the
following). The distinction between
these two sound types is important
because they have differing potential to
cause physical effects, particularly with
regard to hearing (e.g., Ward, 1997 in
Southall et al., 2007). See Southall et al.
(2007) for an in-depth discussion of
these concepts. The distinction between
these two sound types is not always
obvious, as certain signals share
properties of both pulsed and nonpulsed sounds. A signal near a source
could be categorized as a pulse, but due
to propagation effects as it moves farther
from the source, the signal duration
becomes longer (e.g., Greene and
Richardson, 1988).
Pulsed sound sources (e.g., airguns,
explosions, gunshots, sonic booms,
impact pile driving) produce signals
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that are brief (typically considered to be
less than one second), broadband, atonal
transients (ANSI, 1986, 2005; Harris,
1998; NIOSH, 1998; ISO, 2003) and
occur either as isolated events or
repeated in some succession. Pulsed
sounds are all characterized by a
relatively rapid rise from ambient
pressure to a maximal pressure value
followed by a rapid decay period that
may include a period of diminishing,
oscillating maximal and minimal
pressures, and generally have an
increased capacity to induce physical
injury as compared with sounds that
lack these features.
Non-pulsed sounds can be tonal,
narrowband, or broadband, brief or
prolonged, and may be either
continuous or intermittent (ANSI, 1995;
NIOSH, 1998). Some of these nonpulsed sounds can be transient signals
of short duration but without the
essential properties of pulses (e.g., rapid
rise time). Examples of non-pulsed
sounds include those produced by
vessels, aircraft, machinery operations
such as drilling or dredging, vibratory
pile driving, and active sonar systems.
The duration of such sounds, as
received at a distance, can be greatly
extended in a highly reverberant
environment.
The impulsive sound generated by
impact hammers is characterized by
rapid rise times and high peak levels.
Vibratory hammers produce nonimpulsive, continuous noise at levels
significantly lower than those produced
by impact hammers. Rise time is slower,
reducing the probability and severity of
injury, and sound energy is distributed
over a greater amount of time (e.g.,
Nedwell and Edwards, 2002; Carlson et
al., 2005).
Acoustic Effects
We previously provided general
background information on marine
mammal hearing (see ‘‘Description of
Marine Mammals in the Area of the
Specified Activity’’). Here, we discuss
the potential effects of sound on marine
mammals.
Potential Effects of Underwater
Sound—Note that, in the following
discussion, we refer in many cases to a
review article concerning studies of
noise-induced hearing loss conducted
from 1996–2015 (i.e., Finneran, 2015).
For study-specific citations, please see
that work. Anthropogenic sounds cover
a broad range of frequencies and sound
levels and can have a range of highly
variable impacts on marine life, from
none or minor to potentially severe
responses, depending on received
levels, duration of exposure, behavioral
context, and various other factors. The
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potential effects of underwater sound
from active acoustic sources can
potentially result in one or more of the
following: Temporary or permanent
hearing impairment, non-auditory
physical or physiological effects,
behavioral disturbance, stress, and
masking (Richardson et al., 1995;
Gordon et al., 2004; Nowacek et al.,
2007; Southall et al., 2007; Go¨tz et al.,
2009). The degree of effect is
intrinsically related to the signal
characteristics, received level, distance
from the source, and duration of the
sound exposure. In general, sudden,
high level sounds can cause hearing
loss, as can longer exposures to lower
level sounds. Temporary or permanent
loss of hearing will occur almost
exclusively for noise within an animal’s
hearing range. We first describe specific
manifestations of acoustic effects before
providing discussion specific to pile
driving.
Richardson et al. (1995) described
zones of increasing intensity of effect
that might be expected to occur, in
relation to distance from a source and
assuming that the signal is within an
animal’s hearing range. First is the area
within which the acoustic signal would
be audible (potentially perceived) to the
animal but not strong enough to elicit
any overt behavioral or physiological
response. The next zone corresponds
with the area where the signal is audible
to the animal and of sufficient intensity
to elicit behavioral or physiological
responsiveness. Third is a zone within
which, for signals of high intensity, the
received level is sufficient to potentially
cause discomfort or tissue damage to
auditory or other systems. Overlaying
these zones to a certain extent is the
area within which masking (i.e., when a
sound interferes with or masks the
ability of an animal to detect a signal of
interest that is above the absolute
hearing threshold) may occur; the
masking zone may be highly variable in
size.
Potential effects from impulsive
sound sources can range in severity
from effects such as behavioral
disturbance or tactile perception to
physical discomfort, slight injury of the
internal organs and the auditory system,
or mortality (Yelverton et al., 1973).
Non-auditory physiological effects or
injuries that theoretically might occur in
marine mammals exposed to high level
underwater sound or as a secondary
effect of extreme behavioral reactions
(e.g., change in dive profile as a result
of an avoidance reaction) caused by
exposure to sound include neurological
effects, bubble formation, resonance
effects, and other types of organ or
tissue damage (Cox et al., 2006; Southall
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24941
et al., 2007; Zimmer and Tyack, 2007;
Tal et al., 2015). The construction and
operational activities associated with
the LDPI do not involve the use of
devices such as explosives or midfrequency tactical sonar that are
associated with these types of effects.
Auditory Threshold Shifts
NMFS defines threshold shift (TS) as
a change, usually an increase, in the
threshold of audibility at a specified
frequency or portion of an individual’s
hearing range above a previously
established reference level (NMFS,
2018). The amount of threshold shift is
customarily expressed in decibels
(ANSI, 1995). Threshold shift can be
permanent (PTS) or temporary (TTS). As
described in NMFS (2018), there are
numerous factors to consider when
examining the consequence of TS,
including, but not limited to, the signal
temporal pattern (e.g., impulsive or nonimpulsive), likelihood an individual
would be exposed for a long enough
duration or to a high enough level to
induce a TS, the magnitude of the TS,
time to recovery (seconds to minutes or
hours to days), the frequency range of
the exposure (i.e., spectral content), the
hearing and vocalization frequency
range of the exposed species relative to
the signal’s frequency spectrum (i.e.,
how animal uses sound within the
frequency band of the signal; e.g.,
Kastelein et al., 2014b), and their
overlap (e.g., spatial, temporal, and
spectral).
Marine mammals exposed to highintensity sound, or to lower-intensity
sound for prolonged periods, can
experience hearing threshold shift (TS),
which is the loss of hearing sensitivity
at certain frequency ranges (Finneran,
2015). TS can be permanent (PTS), in
which case the loss of hearing
sensitivity is not fully recoverable, or
temporary (TTS), in which case the
animal’s hearing threshold would
recover over time (Southall et al., 2007).
Repeated sound exposure that leads to
TTS could cause PTS. In severe cases of
PTS, there can be total or partial
deafness, while in most cases the animal
has an impaired ability to hear sounds
in specific frequency ranges (Kryter,
1985).
When PTS occurs, there is physical
damage to the sound receptors in the ear
(i.e., tissue damage), whereas TTS
represents primarily tissue fatigue and
is reversible (Southall et al., 2007). In
addition, other investigators have
suggested that TTS is within the normal
bounds of physiological variability and
tolerance and does not represent
physical injury (e.g., Ward, 1997).
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Therefore, NMFS does not consider TTS
to constitute auditory injury.
Relationships between TTS and PTS
thresholds have not been studied in
marine mammals, and there is no PTS
data for cetaceans, but such
relationships are assumed to be similar
to those in humans and other terrestrial
mammals. PTS typically occurs at
exposure levels at least several decibels
above (a 40-dB threshold shift
approximates PTS onset; e.g., Kryter et
al., 1966; Miller, 1974) that inducing
mild TTS (a 6-dB threshold shift
approximates TTS onset; e.g., Southall
et al. 2007). Based on data from
terrestrial mammals, a precautionary
assumption is that the PTS thresholds
for impulse sounds (such as impact pile
driving pulses as received close to the
source) are at least 6 dB higher than the
TTS threshold on a peak-pressure basis
and PTS cumulative sound exposure
level thresholds are 15 to 20 dB higher
than TTS cumulative sound exposure
level thresholds (Southall et al., 2007).
Given the higher level of sound or
longer exposure duration necessary to
cause PTS as compared with TTS, it is
considerably less likely that PTS could
occur.
TTS is the mildest form of hearing
impairment that can occur during
exposure to sound (Kryter, 1985). While
experiencing TTS, the hearing threshold
rises, and a sound must be at a higher
level in order to be heard. In terrestrial
and marine mammals, TTS can last from
minutes or hours to days (in cases of
strong TTS). In many cases, hearing
sensitivity recovers rapidly after
exposure to the sound ends. Few data
on sound levels and durations necessary
to elicit mild TTS have been obtained
for marine mammals.
Marine mammal hearing plays a
critical role in communication with
conspecifics, and interpretation of
environmental cues for purposes such
as predator avoidance and prey capture.
Depending on the degree (elevation of
threshold in dB), duration (i.e., recovery
time), and frequency range of TTS, and
the context in which it is experienced,
TTS can have effects on marine
mammals ranging from discountable to
serious. For example, a marine mammal
may be able to readily compensate for
a brief, relatively small amount of TTS
in a non-critical frequency range that
occurs during a time where ambient
noise is lower and there are not as many
competing sounds present.
Alternatively, a larger amount and
longer duration of TTS sustained during
time when communication is critical for
successful mother/calf interactions
could have more serious impacts.
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Currently, TTS data only exist for four
species of cetaceans (bottlenose dolphin
(Tursiops truncatus), beluga whale
(Delphinapterus leucas), harbor
porpoise, and Yangtze finless porpoise
(Neophocoena asiaeorientalis)) and
three species of pinnipeds (northern
elephant seal, harbor seal, and
California sea lion) exposed to a limited
number of sound sources (i.e., mostly
tones and octave-band noise) in
laboratory settings (Finneran, 2015).
TTS was not observed in trained spotted
(Phoca largha) and ringed (Pusa
hispida) seals exposed to impulsive
noise at levels matching previous
predictions of TTS onset (Reichmuth et
al., 2016). In general, harbor seals and
harbor porpoises have a lower TTS
onset than other measured pinniped or
cetacean species (Finneran, 2015).
Additionally, the existing marine
mammal TTS data come from a limited
number of individuals within these
species. There are no data available on
noise-induced hearing loss for
mysticetes. For summaries of data on
TTS in marine mammals or for further
discussion of TTS onset thresholds,
please see Southall et al. (2007),
Finneran and Jenkins (2012), Finneran
(2015), and NMFS (2018).
NMFS defines TTS as ‘‘a temporary,
reversible increase in the threshold of
audibility at a specified frequency or
portion of an individual’s hearing range
above a previously established reference
level’’ (NMFS, 2016). A TTS of 6 dB is
considered the minimum threshold shift
clearly larger than any day-to-day or
session-to-session variation in a
subject’s normal hearing ability
(Schlundt et al., 2000; Finneran et al.,
2000; Finneran et al., 2002, as reviewed
in Southall et al., 2007 for a review).
TTS can last from minutes or hours to
days (i.e., there is recovery), occur in
specific frequency ranges (i.e., an
animal might only have a temporary
loss of hearing sensitivity between the
frequencies of 1 and 10 kHz)), and can
be of varying amounts (for example, an
animal’s hearing sensitivity might be
temporarily reduced by only 6 dB or
reduced by 30 dB). Currently, TTS
measurements exist for only four
species of cetaceans (bottlenose
dolphins, belugas, harbor porpoises, and
Yangtze finless porpoise) and three
species of pinnipeds (Northern elephant
seal, harbor seal, and California sea
lion). These TTS measurements are from
a limited number of individuals within
these species.
Depending on the degree (elevation of
threshold in dB), duration (i.e., recovery
time), and frequency range of TTS, and
the context in which it is experienced,
TTS can have effects on marine
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mammals ranging from discountable to
serious (similar to those discussed in
auditory masking, below). For example,
a marine mammal may be able to readily
compensate for a brief, relatively small
amount of TTS in a non-critical
frequency range that takes place during
a time when the animal is traveling
through the open ocean, where ambient
noise is lower and there are not as many
competing sounds present.
Alternatively, a larger amount and
longer duration of TTS sustained during
time when communication is critical for
successful mother/calf interactions
could have more serious impacts. We
note that reduced hearing sensitivity as
a simple function of aging has been
observed in marine mammals, as well as
humans and other taxa (Southall et al.,
2007), so we can infer that strategies
exist for coping with this condition to
some degree, though likely not without
cost.
Behavioral Effects—Behavioral
disturbance from elevated noise
exposure may include a variety of
effects, including subtle changes in
behavior (e.g., minor or brief avoidance
of an area or changes in vocalizations),
more conspicuous changes in similar
behavioral activities, and more
sustained and/or potentially severe
reactions, such as displacement from or
abandonment of high-quality habitat.
Behavioral responses to sound are
highly variable and context-specific and
any reactions depend on numerous
intrinsic and extrinsic factors (e.g.,
species, state of maturity, experience,
current activity, reproductive state,
auditory sensitivity, time of day), as
well as the interplay between factors
(e.g., Richardson et al., 1995; Wartzok et
al., 2003; Southall et al., 2007; Weilgart,
2007). Behavioral reactions can vary not
only among individuals but also within
an individual, depending on previous
experience with a sound source,
context, and numerous other factors
(Ellison et al., 2012), and can vary
depending on characteristics associated
with the sound source (e.g., whether it
is moving or stationary, number of
sources, distance from the source).
Please see Appendices B–C of Southall
et al. (2007) for a review of studies
involving marine mammal behavioral
responses to sound.
Habituation can occur when an
animal’s response to a stimulus wanes
with repeated exposure, usually in the
absence of unpleasant associated events
(Wartzok et al., 2003). Animals are most
likely to habituate to sounds that are
predictable and unvarying. It is
important to note that habituation is
appropriately considered as a
‘‘progressive reduction in response to
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stimuli that are perceived as neither
aversive nor beneficial,’’ rather than as,
more generally, moderation in response
to human disturbance (Bejder et al.,
2009). The opposite process is
sensitization, when an unpleasant
experience leads to subsequent
responses, often in the form of
avoidance, at a lower level of exposure.
As noted, behavioral state may affect the
type of response. For example, animals
that are resting may show greater
behavioral change in response to
disturbing sound levels than animals
that are highly motivated to remain in
an area for feeding (Richardson et al.,
1995; NRC, 2003; Wartzok et al., 2003).
Controlled experiments with captive
marine mammals have showed
pronounced behavioral reactions,
including avoidance of loud sound
sources (Ridgway et al., 1997; Finneran
et al., 2003). Observed responses of wild
marine mammals to loud pulsed sound
sources (typically airguns or acoustic
harassment devices) have been varied
but often consist of avoidance behavior
or other behavioral changes suggesting
discomfort (Morton and Symonds, 2002;
see also Richardson et al., 1995;
Nowacek et al., 2007). However, many
delphinids approach low-frequency
airgun source vessels with no apparent
discomfort or obvious behavioral change
(e.g., Barkaszi et al., 2012), indicating
the importance of frequency output in
relation to the species’ hearing
sensitivity.
Available studies show wide variation
in response to underwater sound;
therefore, it is difficult to predict
specifically how any given sound in a
particular instance might affect marine
mammals perceiving the signal. If a
marine mammal does react briefly to an
underwater sound by changing its
behavior or moving a small distance, the
impacts of the change are unlikely to be
significant to the individual, let alone
the stock or population. However, if a
sound source displaces marine
mammals from an important feeding or
breeding area for a prolonged period,
impacts on individuals and populations
could be significant (e.g., Lusseau and
Bejder, 2007; Weilgart, 2007; NRC,
2005). However, there are broad
categories of potential response, which
we describe in greater detail here, that
include alteration of dive behavior,
alteration of foraging behavior, effects to
breathing, interference with or alteration
of vocalization, avoidance, and flight.
Changes in dive behavior can vary
widely and may consist of increased or
decreased dive times and surface
intervals as well as changes in the rates
of ascent and descent during a dive (e.g.,
Frankel and Clark, 2000; Costa et al.,
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2003; Ng and Leung, 2003; Nowacek et
al.; 2004; Goldbogen et al., 2013a,
2013b). Variations in dive behavior may
reflect interruptions in biologically
significant activities (e.g., foraging) or
they may be of little biological
significance. The impact of an alteration
to dive behavior resulting from an
acoustic exposure depends on what the
animal is doing at the time of the
exposure and the type and magnitude of
the response.
Disruption of feeding behavior can be
difficult to correlate with anthropogenic
sound exposure, so it is usually inferred
by observed displacement from known
foraging areas, the appearance of
secondary indicators (e.g., bubble nets
or sediment plumes), or changes in dive
behavior. As for other types of
behavioral response, the frequency,
duration, and temporal pattern of signal
presentation, as well as differences in
species sensitivity, are likely
contributing factors to differences in
response in any given circumstance
(e.g., Croll et al., 2001; Nowacek et al.;
2004; Madsen et al., 2006; Yazvenko et
al., 2007). A determination of whether
foraging disruptions incur fitness
consequences would require
information on or estimates of the
energetic requirements of the affected
individuals and the relationship
between prey availability, foraging effort
and success, and the life history stage of
the animal.
Variations in respiration naturally
vary with different behaviors and
alterations to breathing rate as a
function of acoustic exposure can be
expected to co-occur with other
behavioral reactions, such as a flight
response or an alteration in diving.
However, respiration rates in and of
themselves may be representative of
annoyance or an acute stress response.
Various studies have shown that
respiration rates may either be
unaffected or could increase, depending
on the species and signal characteristics,
again highlighting the importance in
understanding species differences in the
tolerance of underwater noise when
determining the potential for impacts
resulting from anthropogenic sound
exposure (e.g., Kastelein et al., 2001,
2005, 2006; Gailey et al., 2007; Gailey et
al., 2016).
Marine mammals vocalize for
different purposes and across multiple
modes, such as whistling, echolocation
click production, calling, and singing.
Changes in vocalization behavior in
response to anthropogenic noise can
occur for any of these modes and may
result from a need to compete with an
increase in background noise or may
reflect increased vigilance or a startle
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response. For example, in the presence
of potentially masking signals,
humpback whales and killer whales
have been observed to increase the
length of their songs (Miller et al., 2000;
Foote et al., 2004), while right whales
have been observed to shift the
frequency content of their calls upward
while reducing the rate of calling in
areas of increased anthropogenic noise
(Parks et al., 2007). In some cases,
animals may cease sound production
during production of aversive signals
(Bowles et al., 1994).
Avoidance is the displacement of an
individual from an area or migration
path as a result of the presence of a
sound or other stressors, and is one of
the most obvious manifestations of
disturbance in marine mammals
(Richardson et al., 1995). For example,
gray whales are known to change
direction—deflecting from customary
migratory paths—in order to avoid noise
from airgun surveys (Malme et al.,
1984). Avoidance may be short-term,
with animals returning to the area once
the noise has ceased (e.g., Bowles et al.,
1994; Goold, 1996; Stone et al., 2000;
Morton and Symonds, 2002; Gailey et
al., 2007). Longer-term displacement is
possible, however, which may lead to
changes in abundance or distribution
patterns of the affected species in the
affected region if habituation to the
presence of the sound does not occur
(e.g., Blackwell et al., 2004; Bejder et al.,
2006; Teilmann et al., 2006).
A flight response is a dramatic change
in normal movement to a directed and
rapid movement away from the
perceived location of a sound source.
The flight response differs from other
avoidance responses in the intensity of
the response (e.g., directed movement,
rate of travel). Relatively little
information on flight responses of
marine mammals to anthropogenic
signals exist, although observations of
flight responses to the presence of
predators have occurred (Connor and
Heithaus, 1996). The result of a flight
response could range from brief,
temporary exertion and displacement
from the area where the signal provokes
flight to, in extreme cases, marine
mammal strandings (Evans and
England, 2001). However, it should be
noted that response to a perceived
predator does not necessarily invoke
flight (Ford and Reeves, 2008), and
whether individuals are solitary or in
groups may influence the response.
Behavioral disturbance can also
impact marine mammals in more subtle
ways. Increased vigilance may result in
costs related to diversion of focus and
attention (i.e., when a response consists
of increased vigilance, it may come at
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the cost of decreased attention to other
critical behaviors such as foraging or
resting). These effects have generally not
been demonstrated for marine
mammals, but studies involving fish
and terrestrial animals have shown that
increased vigilance may substantially
reduce feeding rates (e.g., Beauchamp
and Livoreil, 1997; Fritz et al., 2002;
Purser and Radford, 2011). In addition,
chronic disturbance can cause
population declines through reduction
of fitness (e.g., decline in body
condition) and subsequent reduction in
reproductive success, survival, or both
(e.g., Harrington and Veitch, 1992; Daan
et al., 1996; Bradshaw et al., 1998).
However, Ridgway et al. (2006) reported
that increased vigilance in bottlenose
dolphins exposed to sound over a fiveday period did not cause any sleep
deprivation or stress effects.
Many animals perform vital functions,
such as feeding, resting, traveling, and
socializing, on a diel cycle (24-hour
cycle). Disruption of such functions
resulting from reactions to stressors
such as sound exposure are more likely
to be significant if they last more than
one diel cycle or recur on subsequent
days (Southall et al., 2007).
Consequently, a behavioral response
lasting less than one day and not
recurring on subsequent days is not
considered particularly severe unless it
could directly affect reproduction or
survival (Southall et al., 2007). Note that
there is a difference between multi-day
substantive behavioral reactions and
multi-day anthropogenic activities. For
example, just because an activity lasts
for multiple days does not necessarily
mean that individual animals are either
exposed to activity-related stressors for
multiple days or, further, exposed in a
manner resulting in sustained multi-day
substantive behavioral responses.
Stress Responses—An animal’s
perception of a threat may be sufficient
to trigger stress responses consisting of
some combination of behavioral
responses, autonomic nervous system
responses, neuroendocrine responses, or
immune responses (e.g., Seyle, 1950;
Moberg, 2000). In many cases, an
animal’s first and sometimes most
economical (in terms of energetic costs)
response is behavioral avoidance of the
potential stressor. Autonomic nervous
system responses to stress typically
involve changes in heart rate, blood
pressure, and gastrointestinal activity.
These responses have a relatively short
duration and may or may not have a
significant long-term effect on an
animal’s fitness.
Neuroendocrine stress responses often
involve the hypothalamus-pituitaryadrenal system. Virtually all
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neuroendocrine functions that are
affected by stress—including immune
competence, reproduction, metabolism,
and behavior—are regulated by pituitary
hormones. Stress-induced changes in
the secretion of pituitary hormones have
been implicated in failed reproduction,
altered metabolism, reduced immune
competence, and behavioral disturbance
(e.g., Moberg, 1987; Blecha, 2000).
Increases in the circulation of
glucocorticoids are also equated with
stress (Romano et al., 2004).
The primary distinction between
stress (which is adaptive and does not
normally place an animal at risk) and
‘‘distress’’ is the cost of the response.
During a stress response, an animal uses
glycogen stores that can be quickly
replenished once the stress is alleviated.
In such circumstances, the cost of the
stress response would not pose serious
fitness consequences. However, when
an animal does not have sufficient
energy reserves to satisfy the energetic
costs of a stress response, energy
resources must be diverted from other
functions. This state of distress will last
until the animal replenishes its
energetic reserves sufficient to restore
normal function.
Relationships between these
physiological mechanisms, animal
behavior, and the costs of stress
responses are well-studied through
controlled experiments and for both
laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al.,
1998; Jessop et al., 2003; Krausman et
al., 2004; Lankford et al., 2005). Stress
responses due to exposure to
anthropogenic sounds or other stressors
and their effects on marine mammals
have also been reviewed (Fair and
Becker, 2000; Romano et al., 2002b)
and, more rarely, studied in wild
populations (e.g., Romano et al., 2002a).
For example, Rolland et al. (2012) found
that noise reduction from reduced ship
traffic in the Bay of Fundy was
associated with decreased stress in
North Atlantic right whales. These and
other studies lead to a reasonable
expectation that some marine mammals
will experience physiological stress
responses upon exposure to acoustic
stressors and that it is possible that
some of these would be classified as
‘‘distress.’’ In addition, any animal
experiencing TTS would likely also
experience stress responses (NRC,
2003).
Auditory Masking—Sound can
disrupt behavior through masking, or
interfering with, an animal’s ability to
detect, recognize, or discriminate
between acoustic signals of interest (e.g.,
those used for intraspecific
communication and social interactions,
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prey detection, predator avoidance,
navigation) (Richardson et al., 1995;
Erbe et al., 2016). Masking occurs when
the receipt of a sound is interfered with
by another coincident sound at similar
frequencies and at similar or higher
intensity, and may occur whether the
sound is natural (e.g., snapping shrimp,
wind, waves, precipitation) or
anthropogenic (e.g., shipping, sonar,
seismic exploration) in origin. The
ability of a noise source to mask
biologically important sounds depends
on the characteristics of both the noise
source and the signal of interest (e.g.,
signal-to-noise ratio, temporal
variability, direction), in relation to each
other and to an animal’s hearing
abilities (e.g., sensitivity, frequency
range, critical ratios, frequency
discrimination, directional
discrimination, age or TTS hearing loss),
and existing ambient noise and
propagation conditions.
Under certain circumstances, marine
mammals experiencing significant
masking could also be impaired from
maximizing their performance fitness in
survival and reproduction. Therefore,
when the coincident (masking) sound is
man-made, it may be considered
harassment when disrupting or altering
critical behaviors. It is important to
distinguish TTS and PTS, which persist
after the sound exposure, from masking,
which occurs during the sound
exposure. Because masking (without
resulting in TS) is not associated with
abnormal physiological function, it is
not considered a physiological effect,
but rather a potential behavioral effect.
The frequency range of the potentially
masking sound is important in
determining any potential behavioral
impacts. For example, low-frequency
signals may have less effect on highfrequency echolocation sounds
produced by odontocetes but are more
likely to affect detection of mysticete
communication calls and other
potentially important natural sounds
such as those produced by surf and
some prey species. The masking of
communication signals by
anthropogenic noise may be considered
as a reduction in the communication
space of animals (e.g., Clark et al., 2009)
and may result in energetic or other
costs as animals change their
vocalization behavior (e.g., Miller et al.,
2000; Foote et al., 2004; Parks et al.,
2007; Di Iorio and Clark, 2009; Holt et
al., 2009). Masking can be reduced in
situations where the signal and noise
come from different directions
(Richardson et al., 1995), through
amplitude modulation of the signal, or
through other compensatory behaviors
(Houser and Moore, 2014). Masking can
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be tested directly in captive species
(e.g., Erbe, 2008), but in wild
populations it must be either modeled
or inferred from evidence of masking
compensation. There are few studies
addressing real-world masking sounds
likely to be experienced by marine
mammals in the wild (e.g., Branstetter et
al., 2013).
Masking affects both senders and
receivers of acoustic signals and can
potentially have long-term chronic
effects on marine mammals at the
population level as well as at the
individual level. Low-frequency
ambient sound levels have increased by
as much as 20 dB (more than three times
in terms of SPL) in the world’s ocean
from pre-industrial periods, with most
of the increase from distant commercial
shipping (Hildebrand, 2009). All
anthropogenic sound sources, but
especially chronic and lower-frequency
signals (e.g., from vessel traffic),
contribute to elevated ambient sound
levels, thus intensifying masking.
Potential Effects of Hilcorp’s
Activity—As described previously (see
‘‘Description of the Specified Activity’’),
Hilcorp proposes to build ice roads,
install a pipeline, construct and operate
a gravel island using impact and
vibratory pile driving, and drill for oil
in Foggy Island Bay. These activities
would occur under ice and open water
conditions (with the exception of ice
roads). These activities have the
potential to harass marine mammals
from acoustic disturbance (all species)
and via human disturbance/presence on
ice (ice seals). There is also potential for
ice seals, specifically ringed seals, to be
killed in the event a lair is crushed
during ice road construction and
maintenance in undisturbed areas after
March 1, annually.
NMFS analyzed the potential effects
of oil and gas activities, including
construction of a gravel island and
associated infrastructure, in its 2016 EIS
on the Effects of Oil and Gas Activities
in the Arctic Ocean (NMFS, 2016;
available at https://
www.fisheries.noaa.gov/resource/
document/effects-oil-and-gas-activitiesarctic-ocean-final-environmentalimpact). Although that document
focuses on seismic exploration, there is
a wealth of information in that
document on marine mammal impacts
from anthropogenic noise. More specific
to the proposed project, BOEM provides
a more detailed analysis on the potential
impacts of the Liberty LDPI in its’ EIS
on the Liberty Development and
Production Plan, Beaufort Sea, Alaska,
on which NMFS was a cooperating
agency (BOEM, 2018; available at
https://www.boem.gov/Hilcorp-Liberty/).
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We refer to those documents,
specifically Chapter 4 of each of those
documents, as a comprehensive impact
assessment but provide a summary and
complimentary analysis here.
The effects of pile driving on marine
mammals are dependent on several
factors, including the size, type, and
depth of the animal; the depth,
intensity, and duration of the pile
driving sound; the depth of the water
column; the substrate of the habitat; the
standoff distance between the pile and
the animal; and the sound propagation
properties of the environment. With
both types of pile driving, it is likely
that the onset of pile driving could
result in temporary, short term changes
in an animal’s typical behavioral
patterns and/or avoidance of the
affected area. These behavioral changes
may include (as summarized in
Richardson et al., 1995): Changing
durations of surfacing and dives,
number of blows per surfacing, or
moving direction and/or speed;
reduced/increased vocal activities;
changing/cessation of certain behavioral
activities (such as socializing or
feeding); visible startle response or
aggressive behavior (such as tail/fluke
slapping or jaw clapping); avoidance of
areas where sound sources are located;
and/or flight responses.
For all noise-related activities,
bowhead and gray whales are not
anticipated to be exposed to noise above
NMFS harassment threshold often. As
previously described, Hilcorp aims to
conduct all pile driving during the icecovered season, as was done at
Northstar; however, they are allowing
for unforeseen scheduling delays.
Bowheads are not present near LDPI
during the winter and are not normally
found in the development area during
mid-summer (July through mid-August)
when the whales are further east in the
Canadian Beaufort. Therefore there are
no impacts on foraging habitat for
bowhead whales during mid-summer.
Starting in late August and continuing
until late October, bowheads may be
exposed to sounds from the proposed
activities at LDPI or may encounter
vessel traffic to and from the island. It
is unlikely that any whales would be
displaced from sounds generated by
activities at the LDPI due to their
distance from the offshore migrating
whales, and the effects of buffering from
the barrier islands. Any displacement
would be subtle and involve no more
than a small proportion of the passing
bowheads, likely less than that found at
Northstar (Richardson, 2003, 2004;
Mcdonald et al., 2012). This is due to
the baffling-effect of the barrier island
between the construction activity and
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24945
the main migratory pathway of bowhead
whales. Moreover, mitigation such as
avoiding pile driving during the fall
bowhead whale hunt further reduces
potential for harassment as whales are
migrating offshore.
Ongoing activities such as drilling
may also harass marine mammals;
however, drilling sounds from artificial
islands are relatively low. As
summarized in Richardson et al. (1995),
beluga whales (the cetacean most likely
to occur in Foggy Island Bay) are often
observed near drillsites within 100 to
150 m (328.1 to 492.1 ft) from artificial
islands. Drilling operations at Northstar
facility during the open-water season
resulted in brief, minor localized effects
on ringed seals with no consequences to
ringed seal populations (Richardson and
Williams, 2004). Adult ringed seals
seem to tolerate drilling activities.
Brewer et al. (1993) noted ringed seals
were the most common marine mammal
sighted and did not seem to be
disturbed by drilling operations at the
Kuvlum 1 project in the Beaufort Sea.
Southall et al. (2007) reviewed literature
describing responses of pinnipeds to
continuous sound and reported that the
limited data suggest exposures between
∼90 and 140 dB re 1 mPa generally do
not appear to induce strong behavioral
responses in pinnipeds exposed to
continuous sounds in water. Hilcorp
will conduct acoustic monitoring during
drilling to determine if future incidental
take authorizations are warranted from
LDPI operation.
The biological significance of many of
these behavioral disturbances is difficult
to predict, especially if the detected
disturbances appear minor. However,
the consequences of behavioral
modification could be expected to be
biologically significant if the change
affects growth, survival, or
reproduction. Significant behavioral
modifications that could lead to effects
on growth, survival, or reproduction,
such as drastic changes in diving/
surfacing patterns or significant habitat
abandonment are extremely unlikely in
this area (i.e., shallow waters in
modified industrial areas).
The onset of behavioral disturbance
from anthropogenic sound depends on
both external factors (characteristics of
sound sources and their paths) and the
specific characteristics of the receiving
animals (hearing, motivation,
experience, demography) and is difficult
to predict (Southall et al., 2007).
Whether impact or vibratory driving,
sound sources would be active for
relatively short durations, with relation
to the durations animals use sound
(either emitting or receiving) on a daily
basis, and over a small spatial scale
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relative to marine mammal ranges.
Therefore, the potential impacts from
masking are limited in both time and
space. Further, the frequencies output of
pile driving are low relative to the range
of frequencies used by most species for
vital life functions such as
communication or foraging. In
summary, we expect some masking to
occur; however, the biological impacts
of any potential masking are anticipated
to be negligible. Finally, any masking
that might rise to Level B harassment
under the MMPA would occur
concurrently within the zones of
behavioral harassment already
estimated for vibratory and impact pile
driving, and which have already been
taken into account in the exposure
analysis.
Oil Spills
During the life of the proposed
regulations, Hilcorp would be actively
drilling for crude oil in Foggy Island
Bay and transporting that oil via a
single-phase subsea pipe-in-pipe
pipeline from the LDPI to shore, where
an aboveground pipeline will transport
crude to the existing Badami pipeline.
From there, crude will be transported to
the Endicott Sales Oil Pipeline, which
ties into Pump Station 1 of the
TransAlaska Pipeline System (TAPS) for
eventual delivery to a refinery.
Whenever oil is being extracted or
transported, there is potential for a spill.
Accidental oil spills have a varying
potential to occur and with varying
impacts on marine mammals. For
example, if a spill or pipeline leak
occurs during the winter, oil would be
trapped by the ice. However, response
may be more difficult due in part to the
presence of ice. If a spill or leak occurs
during the open-water season, oil may
disperse more widely; however,
response time may be more prompt.
Spills may also be large or small. Small
spills are defined as spills of less than
1,000 barrels (bbls), and a large spill is
greater than 1,000 bbls. For reference, 1
bbl equates to 42 gallons.
Based on BOEM’s oil spill analyses in
its EIS, the only sized spills that are
reasonably likely to occur in association
with the proposed action are small
spills (<1,000 bbls) (BOEM, 2017a).
Small spills, although accidental, occur
during oil and gas activities with
generally routine frequency and are
considered likely to occur during
development, production, and/or
decommissioning activities associated
with the proposed action. BOEM
estimates about 70 small spills, most of
which would be less than 10 bbls,
would occur over the life of the Liberty
Project. Small crude oil spills would not
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likely occur before drilling operations
begin. Small refined oil spills may occur
during development, production, and
decommissioning. The majority of small
spills are likely to occur during the
approximate 22-year production period,
which is an average of about 3 spills per
year.
The majority of small spills would be
contained on the proposed LDPI or
landfast ice (during winter). BOEM
anticipates that small refined spills that
reach the open water would be
contained by booms or absorbent pads;
these small spills would also evaporate
and disperse within hours to a few days.
A 3 bbl refined oil spill during summer
is anticipated to evaporate and disperse
within 24 hours, and a 200 bbl refined
oil spill during summer is anticipated to
evaporate and disperse within 3 days
(BOEM, 2017a).
A large spill is a statistically unlikely
event. The average number of large
spills for the proposed action was
calculated by multiplying the spill rate
(Bercha International Inc., 2016; BOEM,
2017a), by the estimated barrels
produced (0.11779 bbl or 117.79 Million
Barrels). By adding the mean number of
large spills from the proposed LDPI and
wells (∼0.0043) and from pipelines
(∼0.0024), a mean total of 0.0067 large
spills were calculated for the proposed
action. Based on the mean spill number,
a Poisson distribution indicates there is
a 99.33 percent chance that no large
spill occurs over the development and
production phases of the project, and a
0.67 percent chance of one or more large
spills occurring over the same period.
The statistical distribution of large spills
and gas releases shows that it is much
more likely that no large spills or
releases occur than that one or more
occur over the life of the project.
However, a large spill has the potential
to seriously harm ESA-listed species
and their environment. Assuming one
large spill occurs instead of zero allows
BOEM to more fully estimate and
describe potential environmental effects
(BOEM, 2017a).
Hilcorp is currently developing its oil
spill response plan in coordination with
the Bureau of Safety and Environmental
Enforcement (BSEE) who must approve
the plan. BSEE oversees oil spill
planning and preparedness for oil and
gas exploration, development, and
production facilities in both state and
Federal offshore waters of the United
States. NMFS provided BSEE with its
recommended marine mammal oil spill
response protocols available at https://
www.fisheries.noaa.gov/resource/
document/pinniped-and-cetacean-oilspill-response-guidelines. NMFS has
provided BSEE with recommended
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marine mammal protocols should a spill
occur. BSEE has indicated NMFS will
have opportunity to provide comments
on Hilcorp’s plan during a Federal
agency public comment period. As
noted above, Hilcorp did not request,
and NMFS is not proposing to
authorize, take of marine mammals
incidental to oil spills. NMFS does not
authorize incidental take from oil spills
under section 101(a)(5)(A) of the MMPA
in general, and oil spills are not part of
the specified activity in this case.
Cetaceans
While direct mortality of cetaceans is
unlikely, exposure to spilled oil could
lead to skin irritation, baleen fouling
(which might reduce feeding efficiency),
respiratory distress from inhalation of
hydrocarbon vapors, consumption of
some contaminated prey items, and
temporary displacement from
contaminated feeding areas. Geraci and
St. Aubin (1990) summarize effects of
oil on marine mammals, and Bratton et
al. (1993) provides a synthesis of
knowledge of oil effects on bowhead
whales. The number of whales that
might be contacted by a spill would
depend on the size, timing, and
duration of the spill. Whales may not
avoid oil spills, and some have been
observed feeding within oil slicks
(Goodale et al., 1981).
The potential effects on cetaceans are
expected to be less than those on seals
(described later in this section of the
document). Cetaceans tend to occur well
offshore where cleanup activities (in the
open-water season) are unlikely to be as
concentrated. Also, cetaceans are
transient and, during the majority of the
year, absent from the area. Further,
drilling would be postponed during the
bowhead whale hunt every fall;
therefore, the risk to cetaceans during
this time, when marine mammal
presence and subsistence use is high,
has been fully mitigated.
Pinnipeds
Ringed, bearded, and spotted seals are
present in open-water areas during
summer and early autumn, and ringed
seals remain in the area through the icecovered season. Therefore, an oil spill
from LDPI or its pipeline could affect
seals. Any oil spilled under the ice also
has the potential to directly contact
seals. The most relevant data of
pinnipeds exposed to oil is from the
Exxon Valdez oil spill (EVOS).
The largest documented impact of a
spill, prior to the EVOS, was on young
seals in January in the Gulf of St.
Lawrence (St. Aubin, 1990). Intensive
and long-term studies were conducted
after the EVOS in Alaska. There may
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have been a long-term decline of 36
percent in numbers of molting harbor
seals at oiled haulout sites in Prince
William Sound following EVOS (Frost
et al., 1994a). However, in a reanalysis
of those data and additional years of
surveys, along with an examination of
assumptions and biases associated with
the original data, Hoover-Miller et al.
(2001) concluded that the EVOS effect
had been overestimated. Harbor seal
pup mortality at oiled beaches was 23%
to 26%, which may have been higher
than natural mortality, although no
baseline data for pup mortality existed
prior to EVOS (Frost et al., 1994a).
Adult seals rely on a layer of blubber
for insulation, and oiling of the external
surface does not appear to have adverse
thermoregulatory effects (Kooyman et
al., 1976, 1977; St. Aubin, 1990).
However, newborn seal pups rely on
their fur for insulation. Newborn ringed
seal pups in lairs on the ice could be
contaminated through contact with
oiled mothers. There is the potential
that newborn ringed seal pups that were
contaminated with oil could die from
hypothermia. Further, contact with oil
on the external surfaces can potentially
cause increased stress and irritation of
the eyes of ringed seals (Geraci and
Smith, 1976; St. Aubin, 1990). These
effects seemed to be temporary and
reversible, but continued exposure of
eyes to oil could cause permanent
damage (St. Aubin, 1990). Corneal
ulcers and abrasions, conjunctivitis, and
swollen nictitating membranes were
observed in captive ringed seals placed
in crude oil-covered water (Geraci and
Smith, 1976), and in seals in the
Antarctic after an oil spill (Lillie, 1954).
Marine mammals can ingest oil if
their food is contaminated. Oil can also
be absorbed through the respiratory tract
(Geraci and Smith, 1976; Engelhardt et
al., 1977). Some of the ingested oil is
voided in vomit or feces but some is
absorbed and could cause toxic effects
(Engelhardt, 1981). When returned to
clean water, contaminated animals can
depurate this internal oil (Engelhardt,
1978, 1982, 1985). In addition, seals
exposed to an oil spill are unlikely to
ingest enough oil to cause serious
internal damage (Geraci and St. Aubin,
1980, 1982).
Since ringed seals are found yearround in the U.S. Beaufort Sea and more
specifically in the project area, an oil
spill at any time of year could
potentially have effects on ringed seals.
However, they are more widely
dispersed during the open-water season.
Spotted seals are unlikely to be found in
the project area during late winter and
spring. Therefore, they are more likely
to be affected by a spill in the summer
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or fall seasons. Bearded seals typically
overwinter south of the Beaufort Sea.
However, some have been reported
around Northstar during early spring
(Moulton et al., 2003b).
Oil Spill Cleanup Activities
Oil spill cleanup activities could
increase disturbance effects on either
whales or seals, causing temporary
disruption and possible displacement
(BOEM, 2018). General issues related to
oil spill cleanup activities are discussed
earlier in this section for cetaceans. In
the event of a large spill contacting and
extensively oiling coastal habitats, the
presence of response staff, equipment,
and the many aircraft involved in the
cleanup could (depending on the time
of the spill and the cleanup) potentially
displace seals. If extensive cleanup
operations occur in the spring, they
could cause increased stress and
reduced pup survival of ringed seals.
Oil spill cleanup activity could
exacerbate and increase disturbance
effects on subsistence species, cause
localized displacement of subsistence
species, and alter or reduce access to
those species by hunters. On the other
hand, the displacement of marine
mammals away from oil-contaminated
areas by cleanup activities would
reduce the likelihood of direct contact
with oil. Impacts to subsistence uses of
marine mammals are discussed later in
this document (see the ‘‘Impact on
Availability of Affected Species or Stock
for Taking for Subsistence Uses’’
section).
Potential Take From Oil Spills
Hilcorp did not request, and NMFS is
not proposing to authorize, take of
marine mammals incidental to oil spills.
Should an oil spill occur and marine
mammals are killed, injured, or
harassed by the spill, the ‘‘taking’’
would be unauthorized. However,
NMFS is including mitigation and
reporting measures within these
proposed regulations to minimize risk to
marine mammals. Should an oil spill
occur at the drill site and that oil enter
the marine environment such that
marine mammals are at risk of exposure,
NMFS is proposing to include a
mitigation measure that Hilcorp notify
NMFS immediately and cease drilling
until NMFS can assess the severity of
the spill and potential impacts to
marine mammals. Should the pipeline
leak, crude oil transport via the pipeline
would also cease immediately until the
pipeline is repaired. In the case of any
spill, Hilcorp would immediately
initiate communication and response
protocol per its Oil Spill Response Plan.
Finally, Hilcorp must maintain the
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frequency of oil spill response training
at no less than one two hour session per
week.
Anticipated Effects on Marine Mammal
Habitat
The footprint of the LPDI would result
in permanent impacts to habitats used
directly by marine mammals; however,
the footprint is minimal compared to
available habitat within Foggy Island
Bay and, further, few cetaceans use
Foggy Island Bay. BOEM has also
required mitigation designed to reduce
impacts to marine mammal habitat,
including water quality and habitat
disturbance. For example, initial island
construction (fill placement phase) and
pipeline installation/backfill will occur
in winter when fewer fish species are
present and when water currents are
low, which will reduce total suspended
solids (TSS) distribution. In addition,
island armoring will serve to reduce
erosion and the spread of silt or gravel
over potential prey habitat. However,
increased turbidity and suspended
solids resulting from artificial island
construction or exploratory drilling
discharges could have adverse impacts
on water quality and, if increases
persisted for extended periods of time;
these impacts would be localized but
could be long term (NOAA, 2016). If oil
and gas industry operators comply with
the U.S. Environmental Protection
Agency’s Clean Water Act requirements,
then elevations in turbidity and
concentrations of total suspended solids
resulting from exploratory drilling
activity would not result in
unreasonable degradation of the marine
environment (NOAA, 2016).
The proposed activities could also
affect acoustic habitat (see Auditory
Masking discussion above), but
meaningful impacts are unlikely given
the low usage of the area by marine
mammals and limited pile driving
during open-water conditions
(approximately 2 weeks). There are no
known foraging hotspots, or habitats of
significant biological importance to
marine mammals present in the marine
waters in Foggy Island Bay. Migratory
pathways for cetaceans exist outside the
McClure Island group; however, the
majority of noise from the project would
be confined to Foggy Island Bay with
low levels potentially propagating
outside of but close to the McClure
Islands during vibratory pile driving
only (see Figure 5 in Appendix A of
Hilcorp’s application). In addition, pile
driving would not occur during the fall
bowhead whale migration (see Proposed
Mitigation section); therefore, no
impacts to migratory habitats during use
is anticipated during this time period.
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Effects to Prey—Sound may affect
marine mammals through impacts on
the abundance, behavior, or distribution
of prey species (e.g., crustaceans,
cephalopods, fish, zooplankton). Marine
mammal prey varies by species, season,
and location and, for some, is not well
documented. Here, we describe studies
regarding the effects of noise on known
marine mammal prey.
Fish utilize the soundscape and
components of sound in their
environment to perform important
functions such as foraging, predator
avoidance, mating, and spawning (e.g.,
Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy
and peripheral sensory structures,
which vary among species, fishes hear
sounds using pressure and particle
motion sensitivity capabilities and
detect the motion of surrounding water
(Fay et al., 2008). The potential effects
of noise on fishes depends on the
overlapping frequency range, distance
from the sound source, water depth of
exposure, and species-specific hearing
sensitivity, anatomy, and physiology.
Key impacts to fishes may include
behavioral responses, hearing damage,
barotrauma (pressure-related injuries),
and mortality.
Fish react to sounds which are
especially strong and/or intermittent
low-frequency sounds, and behavioral
responses such as flight or avoidance
are the most likely effects. Short
duration, sharp sounds can cause overt
or subtle changes in fish behavior and
local distribution. The reaction of fish to
noise depends on the physiological state
of the fish, past exposures, motivation
(e.g., feeding, spawning, migration), and
other environmental factors. Hastings
and Popper (2005) identified several
studies that suggest fish may relocate to
avoid certain areas of sound energy.
Additional studies have documented
effects of pile driving on fish, although
several are based on studies in support
of large, multiyear bridge construction
projects (e.g., Scholik and Yan, 2001,
2002; Popper and Hastings, 2009).
Several studies have demonstrated that
impulse sounds might affect the
distribution and behavior of some
fishes, potentially impacting foraging
opportunities or increasing energetic
costs (e.g., Fewtrell and McCauley,
2012; Pearson et al., 1992; Skalski et al.,
1992; Santulli et al., 1999; Paxton et al.,
2017). However, some studies have
shown no or slight reaction to impulse
sounds (e.g., Pena et al., 2013; Wardle
et al., 2001; Jorgenson and Gyselman,
2009). More commonly, though, the
impacts of noise on fish are temporary.
SPLs of sufficient strength have been
known to cause injury to fish and fish
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mortality. However, in most fish
species, hair cells in the ear
continuously regenerate and loss of
auditory function likely is restored
when damaged cells are replaced with
new cells. Halvorsen et al. (2012a)
showed that a TTS of 4–6 dB was
recoverable within 24 hours for one
species. Impacts would be most severe
when the individual fish is close to the
source and when the duration of
exposure is long. Injury caused by
barotrauma can range from slight to
severe and can cause death, and is most
likely to occur in fish with swim
bladders. Barotrauma injuries have been
documented during controlled exposure
to impact pile driving (Halvorsen et al.,
2012b; Casper et al., 2013).
The most likely impact to fish from
pile driving activities at the project
areas would be temporary behavioral
avoidance of the area. The duration of
fish avoidance of an area after pile
driving stops is unknown, but a rapid
return to normal recruitment,
distribution and behavior is anticipated.
In general, impacts to marine mammal
prey species are expected to be minor
and temporary due to the expected short
daily duration of individual pile driving
events and the relatively small areas
being affected.
The area likely impacted by the
activities is relatively small compared to
the available habitat in inland waters in
the region. Any behavioral avoidance by
fish of the disturbed area would still
leave significantly large areas of fish and
marine mammal foraging habitat in the
nearby vicinity. As described in the
preceding, the potential for the LDPI to
affect the availability of prey to marine
mammals or to meaningfully impact the
quality of physical or acoustic habitat is
considered to be insignificant.
Estimated Take
This section provides an estimate of
the number of incidental takes proposed
for authorization through this proposed
rule, which will inform both NMFS’
consideration of ‘‘small numbers’’ and
the negligible impact determination.
Except with respect to certain
activities not pertinent here, section
3(18) of the MMPA defines
‘‘harassment’’ as: Any act of pursuit,
torment, or annoyance which (i) has the
potential to injure a marine mammal or
marine mammal stock in the wild (Level
A harassment); or (ii) has the potential
to disturb a marine mammal or marine
mammal stock in the wild by causing
disruption of behavioral patterns,
including, but not limited to, migration,
breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
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Authorized takes would primarily be
by Level B harassment, as use of pile
hammers, drill rigs, and ice-based
equipment (e.g., augers, trucks) have the
potential to result in disruption of
behavioral patterns for individual
marine mammals. There is also some
potential for auditory injury (Level A
harassment) to result during pile
driving. The proposed mitigation and
monitoring measures are expected to
minimize the severity of such taking to
the extent practicable.
No mortality or serious injury is
anticipated as a result of exposure to
acoustic sources; however, mortality
and serious injury of ringed seals may
occur from ice road construction, use,
and maintenance conducted after March
1, annually. Below we describe how we
estimated mortality and serious injury
from ice road work followed by a
detailed acoustic harassment estimation
method.
Mortality/Serious Injury (Ice Seals)
The only species with the potential to
incur serious injury or mortality during
the proposed project are ringed seals
during ice road construction, use, and
maintenance. Other ice seal species are
not known to use ice roads within the
action area. As described in the
Description of Marine Mammals section,
pregnant ringed seals establish lairs in
shorefast sea ice beginning in early
March where pups are born and nursed
throughout spring (March through May).
As described in the Potential Effects
of the Specified Activity on Marine
Mammals and Their Habitat section
above, there have been only three
documented interactions with ringed
seals despite over 20 years of ice road
construction on the North Slope; one
mortality in 1998 and two non-lethal
interactions in 2018. All three animals
involved were seal pups in or near their
lairs. The two recent interactions in
2018 led NMFS to work with the
companies involved in the interactions,
including Hilcorp, to better understand
the circumstances behind the
interactions and to develop a list of
BMPs designed to avoid and minimize
potential harassment. Hilcorp has
adopted these BMPs (see Proposed
Mitigation and Monitoring section);
however, the potential for mortality
remains, albeit low. Because lairs can
include both a pup and its mother, but
interactions with ringed seals are
relatively uncommon, NMFS is
proposing to authorize the taking, by
mortality or serious injury, of two
ringed seals over the course of five years
of ice road construction.
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Acoustic Harassment
Generally speaking, we estimate take
by considering: (1) Acoustic thresholds
above which NMFS believes the best
available science indicates marine
mammals will be behaviorally harassed
or incur some degree of permanent
hearing impairment; (2) the area or
volume of water that will be ensonified
above these levels in a day; (3) the
density or occurrence of marine
mammals within these ensonified areas;
and, (4) and the number of days of
activities. We note that while these
basic factors can contribute to a basic
calculation to provide an initial
prediction of takes, additional
information that can qualitatively
inform take estimates is also sometimes
available (e.g., previous monitoring
results or average group size). Below, we
describe the factors considered here in
more detail and present the proposed
take estimate.
Acoustic Thresholds
Using the best available science,
NMFS has developed acoustic
thresholds that identify the received
level of underwater sound above which
exposed marine mammals would be
reasonably expected to be behaviorally
harassed (equated to Level B
harassment) or to incur PTS of some
degree (equated to Level A harassment).
Level B Harassment for non-explosive
sources—Though significantly driven by
received level, the onset of behavioral
disturbance from anthropogenic noise
exposure is also informed to varying
degrees by other factors related to the
source (e.g., frequency, predictability,
duty cycle), the environment (e.g.,
bathymetry), and the receiving animals
(e.g., hearing, motivation, experience,
demography, behavioral context) and
can be difficult to predict (Southall et
al., 2007, Ellison et al., 2012). Based on
what the available science indicates and
the practical need to use a threshold
based on a factor that is both predictable
and measurable for most activities,
NMFS uses a generalized acoustic
threshold based on received level to
estimate the onset of Level B
harassment. NMFS predicts that marine
mammals are likely to be harassed in a
manner we consider Level B harassment
when exposed to underwater
anthropogenic noise above received
levels of 120 dB re 1 mPa (rms) for
continuous (e.g., vibratory pile-driving,
drilling) and above 160 dB re 1 mPa
(rms) for non-explosive impulsive (e.g.,
seismic airguns) or intermittent (e.g.,
scientific sonar) sources.
24949
Hilcorp’s Liberty Project includes the
use of continuous, non-impulsive
(vibratory pile driving, drilling,
auguring) and intermittent, impulsive
(impact pile driving) sources, and
therefore the 120 and 160 dB re 1 mPa
(rms) thresholds are applicable.
Level A harassment for non-explosive
sources—NMFS’ Technical Guidance
for Assessing the Effects of
Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies
dual criteria to assess auditory injury
(Level A harassment) to five different
marine mammal groups (based on
hearing sensitivity) as a result of
exposure to noise from two different
types of sources (impulsive or nonimpulsive). Hilcorp’s proposed activity
includes the use of impulsive (e.g.,
impact pile driving) and non-impulsive
(e.g., vibratory pile driving, slope
shaping, trenching) sources.
These thresholds are provided in
Table 3. The references, analysis, and
methodology used in the development
of the thresholds are described in NMFS
2018 Technical Guidance, which may
be accessed at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-acoustic-technical-guidance.
TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT
PTS onset acoustic thresholds *
(received level)
Hearing Group
Impulsive
Low-Frequency (LF) Cetaceans .......................................
Mid-Frequency (MF) Cetaceans ......................................
High-Frequency (HF) Cetaceans .....................................
Phocid Pinnipeds (PW) (Underwater) ..............................
Otariid Pinnipeds (OW) (Underwater) ..............................
Cell
Cell
Cell
Cell
Cell
1:
3:
5:
7:
9:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
219
230
202
218
232
dB;
dB;
dB;
dB;
dB;
Non-impulsive
LE,LF,24h: 183 dB .........................
LE,MF,24h: 185 dB ........................
LE,HF,24h: 155 dB ........................
LE,PW,24h: 185 dB .......................
LE,OW,24h: 203 dB .......................
Cell
Cell
Cell
Cell
Cell
2: LE,LF,24h: 199 dB.
4: LE,MF,24h: 198 dB.
6: LE,HF,24h: 173 dB.
8: LE,PW,24h: 201 dB.
10: LE,OW,24h: 219 dB.
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential to exceed the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also
be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s.
In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure
is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being
included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated
with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level
thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for
action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.
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Ensonified Area
Here, we describe operational and
environmental parameters of the activity
that will feed into identifying the area
ensonified above the acoustic
thresholds, which include source levels
and transmission loss coefficient.
In shallow water noise propagation is
highly dependent on the properties of
the bottom and the surface, among other
things. Parameters such as depth and
the bottom properties can vary with
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distance from the source. There is a lowfrequency cut-off related to the water
depth, below which energy is
transferred directly into the sea floor.
Overall, the transmission loss in
shallow water is a combination of
cylindrical spreading effects, bottom
interaction effects at lower frequencies
and scattering losses at high
frequencies. To estimate ensonfied area,
Hilcorp used the parabolic equation (PE)
modelling algorithm RAMGeo (Collins,
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1993) to calculate the transmission loss
between the source and the receiver
(SLR, 2017). The full modeling report,
including details on modeling
methodology and procedure and
ensonification area figures, can be found
in the Underwater and Airborne Noise
Modelling Report attached as Appendix
A in Hilcorp’s application. We provide
a summary here.
RAMGeo is an efficient and reliable
PE algorithm for solving range-
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dependent acoustic problems with fluid
seabed geo-acoustic properties. The
noise sources were assumed to be
omnidirectional and modelled as point
sources. In practice many sources are
directional, this assumption is
conservative. To estimate Level A
harassment and Level B harassment
threshold distances, Hilcorp first
obtained one-third octave source
spectral levels via reference spectral
curves with their subsequent corrections
based on their corresponding overall
source levels. Table 4 contains
estimated source levels and Appendix B
in Hilcorp’s acoustic modeling report
contains source spectrum shape used in
the model (SLR, 2018).
TABLE 4—ESTIMATED SOURCE LEVELS AND DURATION
Underwater source levels
(db re: 1 μPa)
Activity
Ice-covered
season
Pipeline installation (trucks on ice, backhoe, ditchwitch)
Number of
piles
per day
Airborne
(db re: 20μPa)
Open-water
season
169.6–179.1
N/A
185
210
........................
74.8–78 @100
m.
81 @100 m ......
93 @160 m ......
...........................
Sheet pile—vibratory ........................................................
Sheet pile—impact ...........................................................
Conductor pipe—vibratory ................................................
221
235.7
........................
Conductor pipes/foundation piles—impact .......................
Slope shaping/armoring ....................................................
Drilling and production ......................................................
171.7
n/a
170.5
N/A
20
........................
16
196
167
151
...........................
64.7 @100 m ...
80 @200 m ......
........................
n/a
n/a
Max. duration
per day
12 hrs.
2.5 hrs.1
40 min.2
2.5 hrs (proxy
from sheet
piles).
2 hrs.3
9.6 hrs.
24 hrs.
1 Estimated
based on 20 piles per day, 7.5 min per pile.
duration estimate is 20 min per day.
3 Hilcorp estimates 440–6,300 strikes per day.
2 Average
Hilcorp relied on operational data
from Northstar construction activities to
estimate LDPI construction activity
methods and durations. Greene et al.
(2008) indicates impact pile driving at
Northstar was required only to finish off
each pile after vibratory driving it into
the frozen material of old Seal Island.
Since Liberty will be a newly
constructed gravel island, driving sheet
piles should be easier than was the case
at Northstar. Impact sheet pile driving
therefore may not be required at Liberty
and is included in the application as a
precaution. Hilcorp assumed
approximately 2 minutes and 100
strikes per pile with a maximum of 20
piles installed per day. Blackwell et al.
(2004a) observed impact pipe driving at
Northstar. On most days, one conductor
pipe was driven in a day over a period
of 5 to 8.5 hours. The longest day of
observation was 10.5 hours in which
time two pipes were driven. The
observation period each day included
all pipe driving time, but driving was
never continuous during the entire
observation period. Hilcorp applied a
correction factor to the Northstar
duration, assuming pipe driving at the
LDPI would actually occur for 20
percent of the total installation time
logged at Northstar.
The scenarios with theoretical
potential for PTS onset are slope
shaping, vibratory driving, and impact
pile driving and pipe driving during the
open water season. Hilcorp did not
model distances to PTS thresholds
during ice-covered conditions because
no cetaceans are present in the region
during this time and noise levels are
expected to attenuate very rapidly under
ice conditions. Hilcorp did not request,
nor does NMFS anticipate, take by Level
A harassment (PTS) during island
construction conducted under ice
conditions. The following discussion on
PTS potential is limited to the openwater season.
Table 5 summarizes Hilcorp’s
modeled distances to NMFS PTS
thresholds using the maximum
durations identified above (see also
Tables 16 through 18 in Appendix A of
Hilcorp’s application for shorter
durations). We note marine mammals
would have to be extremely close to the
island during slope shaping and pile
driving for an extended period of time
to potentially incur PTS. We find these
durations at distance are highly unlikely
and have concluded the potential for
PTS from slope shaping and vibratory
pile driving for any marine mammal
hearing group does not exist. Table 6
summarizes distances and ensonified
areas to NMFS Level B harassment
thresholds during ice-covered and open
water conditions.
TABLE 5—RADIAL DISTANCES TO NMFS LEVEL A HARASSMENT THRESHOLDS AND ENSONIFIED AREA DURING THE OPENWATER SEASON
Activity (duration) and distance to threshold (ensonified area)
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Marine mammal hearing
group (species)
Low frequency cetaceans
(bowhead, gray whales).
Mid frequency cetaceans
(belugas).
Phocid Pinnipeds (bearded,
ringed, spotted seals).
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Slope shaping
(9.6 hrs)
Vibratory sheet piling
(2.5 hrs)
Impact sheet piling
(40 min)
<10 m (0 km2) ..................
50 m (164 ft) ....................
1,940 (11.8 km2) ..............
87 m (2.38 km2)
n/a ....................................
<10 m (0 km2) ..................
60 m (0.01 km2) ...............
27 m (0.002 km2)
<10 m (0 km2) ..................
20 m (66 ft) ......................
526 m (0.87 km2) .............
240 m (0.18 km2)
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TABLE 6—RADIAL DISTANCES TO NMFS LEVEL B HARASSMENT THRESHOLDS AND ENSONIFIED AREA
Open water 1
Ice-covered
Underwater
noise—icecovered
(m)
Activity
Ice road construction and maintenance ..............................
Pipeline construction ............................................................
Sheet pile driving—vibratory ................................................
Sheet pile driving—impact ...................................................
Conductor pipe/foundation pile driving—impact ..................
Slope shaping/armoring .......................................................
Helicopter (take-off/landing) .................................................
Drilling and Production .........................................................
Min
(m)
170
210
390
90
11
n/a
n/a
230
Median
(m)
n/a
n/a
12,000
1,700
300
880
n/a
20
Max
(m)
n/a
n/a
14,800
2,050
315
1,160
n/a
55
Airborne noise
n/a
n/a
17,500
2,250
400
1,260
n/a
85
<15
<15
15
100
100
<15
67
30
1 Open water results are minimum, median and maximum distance to the appropriate noise threshold across all depths calculated in the direction of maximum noise propagation from the source, away from shore. Median distances were used to estimate ensonified areas and take
calculations.
Marine Mammal Occurrence
Each fall and summer, NMFS and
BOEM conduct an aerial survey in the
Arctic, the Aerial Survey of Arctic
Marine Mammals (ASAMM) surveys.
The goal of these surveys is to document
the distribution and relative abundance
of bowhead, gray, right, fin and beluga
whales and other marine mammals in
areas of potential oil and natural gas
exploration, development, and
production activities in the Alaskan
Beaufort and northeastern Chukchi
Seas. Traditionally, only fall surveys
were conducted but then, in the summer
of 2012 (mid-July), the first dedicated
summer survey effort began in the
ASAMM Beaufort Sea study area.
Hilcorp used these ASAMM surveys as
the data source to estimate seasonal
densities of cetaceans (bowhead, gray
and beluga whales) in the project area.
The ASAMM surveys are conducted
within blocks that overlay the Beaufort
and Chukchi Seas oil and gas lease sale
areas offshore of Alaska (Figure 6–1 in
Hilcorp’s application), and provide
sighting data for bowhead, gray, and
beluga whales during summer and fall
months. During the summer and fall,
NMFS observed for marine mammals on
effort for 7,990 km and 9,244 km,
respectively, from 2011 through 2016.
Data from those surveys are used for this
analysis. We note the location of the
proposed LDPI project is in ASAMM
survey block 1; the inshore boundary of
this block terminates at the McClure
Island group. It was not until 2016 that
on-effort surveys began inside the
McClure Island group (i.e., Foggy Island
Bay) since bowhead whales, the focus of
the surveys, are not likely to enter the
bay. During ASAMM surveys in Foggy
Island Bay, no marine mammals have
been observed. Therefore, the density
estimates provided here are an
overestimate because they rely on
offshore surveys where marine
mammals are concentrated.
Bowhead Whale
Summer and fall bowhead whale
densities were calculated using the
results from ASAMM surveys from 2011
through 2017. The surveys provided
sightings and effort data by month and
season (summer and fall), as well as
each survey block (Clarke et al., 2012,
2013a, 2014, 2015, 2017). Bowhead
whale densities were calculated in a
two-step approach; they first calculated
a sighting rate of whales per km, then
they multiplied the transect length by
the effective strip width using the
modeled species-specific effective strip
width for an aero commander aircraft
calculated by Ferguson and Clarke
(2013). Where the effective strip width
is the half-strip width, it must be
multiplied by 2 in order to encompass
both sides of the transect line. Thus
whale density was calculated as follows:
Whales per km2 = whales per kilometer/
(2 × the effective strip width). The
effective strip width for bowhead
whales was calculated to be 1.15 km
(CV=0.08). Table 7 contains pooled data
from 2011 through 2017 Block 1
ASAMM surveys and resulting
densities.
The resulting densities are expected
to be overestimates for the LDPI analysis
because data is based on sighting effort
outside the barrier islands, and
bowhead and gray whales rarely occur
within the barrier islands, while belugas
also are found in higher abundance
outside of Foggy Island Bay.
TABLE 7—BOWHEAD WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES
Year
Season
Month
2011 ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
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2012 ..............................
2013 ..............................
2014 ..............................
2015 ..............................
2016 ..............................
2017 ..............................
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Transect effort
(km)
Number of
whale sighted
346
1,476
1,493
1,086
1,582
1,121
1,393
1,538
1,262
1,663
1,914
2,360
3,003
1
24
5
14
21
21
17
79
15
17
74
19
8
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29MYP3
Whale/km
0.003
0.016
0.003
0.013
0.013
0.019
0.012
0.051
0.012
0.010
0.039
0.008
0.003
Whale/km2
0.001
0.007
0.001
0.006
0.006
0.008
0.005
0.022
0.005
0.004
0.017
0.004
0.001
24952
Federal Register / Vol. 84, No. 103 / Wednesday, May 29, 2019 / Proposed Rules
TABLE 7—BOWHEAD WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES—Continued
Year
Season
Month
Fall ..............................
Sept–Oct .....................
Total ......................
1 Value
Transect effort
(km)
Number of
whale sighted
1,803
85
0.047
0.020
141
259
1 0.012
1 0.005
1 0.023
1 0.0010
Summer
Fall
10,993
11,047
Whale/km2
Whale/km
represents average, not total, across all years per relevant season.
Gray Whales
Gray whales are rare in the project
area and ASAMM aerial survey block 1.
From 2011 through 2017 only two gray
whales have been observed during
ASAMM block 1 surveys despite over
21,000 miles of trackline effort, for a
resulting density of zero (Table 8).
However, a group of baleen whales
comprised of both bowhead and gray
whales was observed during industry
marine mammal surveys in Foggy Island
Bay in 2008. Therefore, Hilcorp has
requested, and NMFS proposes to
authorize, take, by Level B harassment,
of two gray whales annually during the
effective period of the proposed
regulations on the chance gray whales
enter the ensonified zone during LDPI
activities.
TABLE 8—GRAY WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES
Transect effort
(km)
Year
Season
Month
2011 ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
2012 ..............................
2013 ..............................
2014 ..............................
2015 ..............................
2016 ..............................
2017 ..............................
Total ......................
Summer
Fall
Beluga Whales
As with the large whales, beluga
whale presence is anticipated to be
higher outside the barrier islands.
Sighting data collected during industry
marine mammal surveys in Foggy Island
Bay (as described in the Description of
Marine Mammals section) are used to
estimate likelihood of presence when
deriving final proposed take numbers;
however, these data were not collected
in a manner that allows for a derivation
Number of
whales
sighted
Whale/km2
Whale/km
346
1,476
1,493
1,086
1,582
1,121
1,393
1,538
1,262
1,663
1,914
2,360
3,003
1,803
0
0
0
0
0
0
0
1
0
0
1
0
0
0
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.001
0.000
0.000
0.001
0.000
0.001
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
10,993
11,047
1
1
0
0
0.000
0.000
of density inside the bay or integration
into the ASAMM survey data. The
ASAMM surveys were recently
extended into Foggy Island Bay;
however, no beluga whales or any other
cetaceans were observed while within
the Bay. Table 9 presents block 1
ASAMM survey data and resulting
densities for beluga whales. We note the
2012 and 2013 ASAMM reports
stratified beluga whale sightings by
depth rather than by survey block.
Because the final beluga whale take
numbers presented in this proposed rule
are adjusted based on expected presence
in the entire bay based on marine
mammal monitoring by industry in
Foggy Island Bay, NMFS did not pursue
investigating the raw data further and
believe the values here are a reasonable
and conservative representation of
density in survey block 1 based on
comparison to other ASAMM survey
year sighting rates where sightings by
blocks are available.
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TABLE 9—BELUGA WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES
Transect effort
(km)
Year
Season
Month
2011 ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
2012 ..............................
2013 ..............................
2014 ..............................
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Number of
whales
sighted
346
1,476
5,001
4,868
4,270
3,372
1,393
1,538
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0
0
47
5
75
2
13
9
29MYP3
Whale/km
0.000
0.000
0.009
0.001
0.018
0.001
0.009
0.006
Whale/km2
0.000
0.000
0.008
0.001
0.014
0.0005
0.008
0.005
24953
Federal Register / Vol. 84, No. 103 / Wednesday, May 29, 2019 / Proposed Rules
TABLE 9—BELUGA WHALE SIGHTING DATA FROM 2011 THROUGH 2017 AND RESULTING DENSITIES—Continued
Season
Month
2015 ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Summer .......................
Fall ..............................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
Jul–Aug .......................
Sept–Oct .....................
2016 ..............................
2017 ..............................
Total ......................
Summer
Fall
Ringed Seals
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Transect effort
(km)
Year
Limited data are available on ringed
seal densities in the southern Beaufort
Sea during the winter months; however,
ringed seals winter ecology studies
conducted in the 1980s (Kelly et al.,
1986, Frost and Burns, 1989) and
surveys associated with the Northstar
development (Williams et al., 2001)
provide information on both seal icestructure use (where ice structures
include both breathing holes and
subnivean lairs), and on the density of
ice structures.
Kelly et al. (1986) found that in the
southern Beaufort Sea and Kotzebue
Sound, radio-tagged seals used between
1 and at least 4 subnivean lairs. The
distances between lairs was up to 4 km
(10 mi), with numerous breathing holes
in-between (Kelly et al., 1986). While
Kelly et al. (1986) calculated the average
number of lairs used per seal to be 2.85,
they also suggested that this was likely
to be an underestimate. To estimate
winter ringed seal density within the
project area, the average ice structure
density of 1.45/km2 was divided by the
average number of ice structures used
by an individual seal of 2.85 (SD=2.51;
Kelly et al., 1986). This results in an
estimated density of 0.510 ringed seals/
km2 during the winter months. This
density is likely to be overestimated due
to Kelly et al. (1986)’s suggestion that
their estimate of the average number of
lairs used by a seal was an
underestimate (the denominator used).
For spring ringed seal densities, aerial
surveys flown in 1997 through 2002
over Foggy Island Bay and west of
Prudhoe Bay during late May and early
June (Frost et al., 2002, Moulton et al.,
2002b, Richardson and Williams, 2003),
when the greatest percentage of seals
Number of
whales
sighted
Whale/km2
Whale/km
1,262
1,663
1,914
2,360
3,003
1,803
37
3
349
15
4
0
0.029
0.002
0.182
0.006
0.001
0.000
0.024
0.001
0.148
0.005
0.001
0.000
17,189
17,080
521
34
0
0
0.029
0.002
have abandoned their lairs and are
hauled out on the ice (Kelly et al., 2010),
provides the best available information
on ringed seal densities.
Because densities were consistently
very low where water depth was less
than 3 m (and these areas are generally
frozen solid during the ice-covered
season) densities have been calculated
where water depth was greater than 3 m
deep (Moulton et al., 2002a, Moulton et
al., 2002b, Richardson and Williams,
2003). Based on the average density of
surveys flown 1997 to 2002, the
uncorrected average density of ringed
seals during the spring is expected to be
0.548 ringed seals/km2. Because the
number of seals is expected to be much
lower during the open water season, we
estimated summer (open-water) ringed
seal density to be 50 percent of the
spring densities, resulting in an
estimated density of 0.27 ringed seals/
km2. Ringed seals remain in the water
through the fall and in to the winter,
however, due to the lack of available
data on fall densities within the LDPI
action area we have assumed the same
density of ringed seals as in the
summer; 0.27 ringed seals/km2 (see
Hilcorp’s application and NMFS (2018)
for more data details).
Bearded Seals
Industry monitoring surveys for the
Northstar development during the
spring seasons in 1999 (Moulton et al.,
2000), 2000 (Moulton et al., 2001), 2001
(Moulton et al., 2002a), and 2002
(Moulton et al., 2003) counted 47
bearded seals (annual mean of 11.75
seals during an annual mean of 3,997.5
km2 of effort); these data were
insufficient to calculate a reliable
density estimate in each year, no other
on bearded seal presence were available.
Annual reports (Richardson, 2008) for
years 2000 through 2002 include similar
figures. A winter and spring density
using the four years of Northstar
development data equates to 0.003
bearded seals per km2.
For the open-water season (summer
and fall), bearded seal density was
calculated as a proportion of the ringed
seal summer density based on the
percentage of pinniped sightings during
monitoring surveys in 1996 (Harris et
al., 2001), 2008 (Aerts et al., 2008,
Hauser et al., 2008), and 2012 (HDR,
2012). During these surveys, 63 percent
were ringed seals, 17 percent were
bearded seals and 20 percent were
spotted seals. Thus, the density of
bearded seals during the open water
season (summer and fall) was calculated
as 17 percent of the ringed seal density
of 0.27 seals/km2. This results in an
estimated summer density for bearded
seals of 0.05 seals/km2.
Spotted Seals
Given their seasonal distribution and
low numbers in the nearshore waters of
the central Alaskan Beaufort Sea, no
spotted seals are expected in the action
area during late winter and spring, but
a few individuals could be expected
during the summer or fall. Using the
same monitoring data described in the
bearded seal section above, spotted seal
density during the open water season
(summer and fall) was calculated as 20
percent of the ringed seal summer
density estimate (0.27 seals/km2) in the
LDPI Project Area. This results in an
estimated density of 0.05 seals/km2.
A summary of marine mammal
densities used to estimate exposures is
provided, by season and species, in
Table 10.
TABLE 10—SUMMARY OF MARINE MAMMAL DENSITIES
Winter
(Nov–Mar)
Species
Stock
Bowhead whale .................................
Western Arctic ..................................
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Spring
(Apr–Jun)
0
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Summer
(Jul–Aug)
0
29MYP3
0.006
Fall
(Sept–Oct)
0.009
24954
Federal Register / Vol. 84, No. 103 / Wednesday, May 29, 2019 / Proposed Rules
TABLE 10—SUMMARY OF MARINE MAMMAL DENSITIES—Continued
Winter
(Nov–Mar)
Species
Stock
Gray whale ........................................
Beluga whale ....................................
Ringed seal .......................................
Bearded seal .....................................
Spotted seal ......................................
Eastern N Pacific .............................
Beaufort Sea ....................................
Alaska ...............................................
Alaska ...............................................
Alaska ...............................................
Exposure Estimates
To quantitatively assess exposure of
marine mammals to noise from the
various activities associated with the
Liberty Project, Hilcorp used the median
range to which Level A harassment and
Level B harassment thresholds were
reached for ice road construction and
maintenance, island construction,
vibratory and impact sheet pile driving,
impact conductor pipe driving, slope
shaping, drilling, and production.
Hilcorp considered the potential for take
on any given day based on the largest
Level B harassment zone for that day.
For each species, exposure estimates
were calculated in a multi-step process.
On any given day of the year, the
expected take for that day per species
was calculated as: Density × ensonified
area (of the largest Level B harassment
zone for that day). Results were then
summed for the year to provide total
exposure estimates per species.
In some cases, however, the
calculated densities alone do not reflect
the full potential of exposure. For
example, beluga whale densities are
quite low; however, previous marine
mammal surveys in Foggy Island Bay
have identified the potential for them to
be there in greater numbers than
reflected based on NMFS survey data
alone. In other cases, the potential for
exposure is almost discountable (e.g.,
calculated gray whale takes are zero) but
given they could appear in Foggy Island
Spring
(Apr–Jun)
0
0
0.51
0.003
0
Summer
(Jul–Aug)
0
0
0.548
0.003
0
Fall
(Sept–Oct)
0
0.029
0.27
0.05
0.05
0
0.002
0.27
0.05
0
the specified activities given the rarity
of bowhead and gray whales entering
Foggy Island Bay. However, in an
abundance of caution, Hilcorp has
requested, and NMFS proposes to
authorize, limited Level A harassment
takes per year of each species
potentially exposed to impact pile
driving noise (Table 11). Group size was
considered in Level B harassment take
requests in cases where sighting data
and group size indicate potential for a
greater amount of take than calculated
based on density (e.g., beluga whale take
request is higher than calculated take
estimate). A small amount of the Level
B harassment exposures were allocated
to Level A harassment for the first year
of work (i.e., pile driving during open
water).
For seals, a straight density estimate
was used following the method
described above. In assessing the
calculated results; there was no need to
adjust take numbers for Level B
harassment.
The amount and manner of take
Hilcorp requested, and NMFS proposes
to authorize, for each species is
summarized in Table 11 below. In
addition to the takes listed below,
Hilcorp requests, and NMFS is
proposing to authorize, a total of two
ringed seal mortalities over the life of
the proposed regulations incidental to
ice road construction, use, and
maintenance.
Bay, Hilcorp has requested take
authorization. Hilcorp also requested
take authorization for bowhead whales
despite the lack of project-related noise
above NMFS harassment thresholds
extending much beyond the McClure
Islands (e.g., see Figure 02 in Appendix
D of Hilcorp’s application) where
bowheads are more likely to be found.
As described in the Marine Mammal
Occurrence section, we used density
based on surveys conducted outside of
the McClure Islands; therefore, Hilcorp
has likely overestimated potential take.
However, given the sensitivities
surrounding this species in the Arctic,
we believe a precautionary approach is
appropriate here to conservatively
assess the potential effects on the stock
and subsistence use.
Bowhead, gray, and beluga whales
have the potential to be present and
exposed to noise during the open-water
season. Work during ice conditions (e.g.,
pipeline installation, ice road
construction) does not have the
potential to harass cetaceans because
they are not present in the action area.
Hilcorp anticipates conducting a
maximum of 15 days of open-water pile
driving and could conduct slope
shaping throughout the summer. The
method described above was used to
estimate take, by Level B harassment, in
year 1 when the LDPI would be
constructed.
There is a very low potential for large
whale Level A harassment (PTS) from
TABLE 11—ANNUAL AND TOTAL AMOUNT OF PROPOSED TAKE INCIDENTAL TO HILCORP’S LDPI PROJECT
Species
(stock)
Year
Bowhead
(W Arctic)
Gray
(ENP)
Beluga
(Beaufort)
Ringed seal
(AK)
Bearded seal
(AK)
Spotted seal
(AK)
khammond on DSKBBV9HB2PROD with PROPOSALS3
Level A harassment
1
2
3
4
5
...............................................................
...............................................................
...............................................................
...............................................................
...............................................................
2
0
0
0
0
2
0
0
0
0
10
0
0
0
0
5
0
0
0
0
2
0
0
0
0
2
0
0
0
0
Total Level A harassment .................
2
2
10
5
2
2
40
336
58
58
Level B harassment
1 ...............................................................
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24955
Federal Register / Vol. 84, No. 103 / Wednesday, May 29, 2019 / Proposed Rules
TABLE 11—ANNUAL AND TOTAL AMOUNT OF PROPOSED TAKE INCIDENTAL TO HILCORP’S LDPI PROJECT—Continued
Species
(stock)
Year
Bowhead
(W Arctic)
2
3
4
5
Beluga
(Beaufort)
Ringed seal
(AK)
Bearded seal
(AK)
Spotted seal
(AK)
...............................................................
...............................................................
...............................................................
...............................................................
1
1
1
1
1
1
1
1
20
20
20
20
8
22
18
17
1
1
1
1
1
1
1
1
Total Level B harassment .................
10
5
120
401
62
62
Proposed Mitigation
khammond on DSKBBV9HB2PROD with PROPOSALS3
Gray
(ENP)
In order to issue an IHA under
Section 101(a)(5)(A) and (D) of the
MMPA, NMFS must set forth the
permissible methods of taking pursuant
to such activity, and other means of
effecting the least practicable impact on
such species or stock and its habitat,
paying particular attention to rookeries,
mating grounds, and areas of similar
significance, and on the availability of
such species or stock for taking for
certain subsistence uses.
NMFS regulations require applicants
for incidental take authorizations to
include information about the
availability and feasibility (economic
and technological) of equipment,
methods, and manner of conducting
such activity or other means of effecting
the least practicable adverse impact
upon the affected species or stocks and
their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or
may not be appropriate to ensure the
least practicable adverse impact on
species or stocks and their habitat, as
well as subsistence uses where
applicable, we carefully consider two
primary factors:
(1) The manner in which, and the
degree to which, the successful
implementation of the measure(s) is
expected to reduce impacts to marine
mammals, marine mammal species or
stocks, and their habitat, as well as
subsistence uses. This considers the
nature of the potential adverse impact
being mitigated (likelihood, scope,
range). It further considers the
likelihood that the measure will be
effective if implemented (probability of
accomplishing the mitigating result if
implemented as planned) the likelihood
of effective implementation (probability
implemented as planned) and;
(2) the practicability of the measures
for applicant implementation, which
may consider such things as cost,
impact on operations, and, in the case
of a military readiness activity,
personnel safety, practicality of
implementation, and impact on the
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effectiveness of the military readiness
activity.
The mitigation measures presented
here are a product of Hilcorp’s
application, recommendations from the
Arctic peer review panel (available at
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act), NMFS’
recommendations, and public
comments on the Federal Register
Notice of Receipt.
Construction Mitigation Measures
Hilcorp will aim to construct the
island, including completing all pile
driving, during the ice-covered season
(as was done for Northstar). Should an
ice seal be observed on or near the LDPI
by any Hilcorp personnel, the sighting
will be reported to Hilcorp’s
Environmental Specialist. No
construction activity should occur
within 10 m of an ice seal and any
vehicles used should use precaution
and not approach any ice seal within
10 m.
During the open-water season, the
following mitigation measures apply:
Hilcorp will station two protected
species observers (PSOs) on elevated
platforms on the island during all pile
driving in open-water conditions (see
Proposed Monitoring and Reporting for
more details). Marine mammal
monitoring shall take place from 30
minutes prior to initiation of pile
driving activity through 30 minutes
post-completion of pile driving activity.
Pre-activity monitoring shall be
conducted for 30 minutes to ensure that
the shutdown zone is clear of marine
mammals, and pile driving may
commence when observers have
declared the shutdown zone (which
equates to the Level A harassment zone
in Table 5) is clear of marine mammals.
In the event of a delay or shutdown of
activity resulting from marine mammals
in the shutdown zone, animals shall be
allowed to remain in the shutdown zone
(i.e., must leave of their own volition)
and their behavior shall be monitored
and documented.
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If a marine mammal is approaching a
Level A harassment zone and pile
driving has not commenced, pile
driving shall be delayed. Pile driving
may not commence or resume until
either the animal has voluntarily left
and been visually confirmed beyond the
shutdown zone; 15 minutes have passed
without subsequent detections of small
cetaceans and pinnipeds; or 30 minutes
have passed without subsequent
detections of large cetaceans. NMFS
may adjust the shutdown zones pending
review and approval of an acoustic
monitoring report (see Monitoring and
Reporting).
Hilcorp will use soft start techniques
when impact pile driving. Soft start
requires contractors to provide an initial
set of strikes at reduced energy,
followed by a thirty-second waiting
period, then two subsequent reduced
energy strike sets. A soft start must be
implemented at the start of each day’s
impact pile driving and at any time
following cessation of impact pile
driving for a period of thirty minutes or
longer.
In the unlikely event a low frequency
cetacean (bowhead or gray whale)
approaches or enters the Level A
harassment zone, pile driving would be
shut down. If a mid-frequency cetacean
(beluga) or pinniped (seal) enters the
Level A harassment zone during pile
driving, Hilcorp proposes to complete
setting the pile (which takes ten to
fifteen minutes from commencement)
but not initiate additional pile driving of
new piles until the marine mammal has
left and is on a path away from the
Level A harassment zone. Hilcorp
would not commence pile driving if any
species is observed approaching or
within the Level A harassment zone
during the pre-construction monitoring
period.
If a species for which authorization
has not been granted, or a species for
which authorization has been granted
but the authorized takes are met, is
observed approaching or within the
monitoring zone (which equates to the
Level B harassment zone in Table 6),
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pile driving and removal activities must
shut down immediately using delay and
shut-down procedures. Activities must
not resume until the animal has been
confirmed to have left the area or the
observation time period, as indicated in
above, has elapsed.
Hilcorp shall install the pipeline
during the ice-covered season, thereby
minimizing noise impacts to marine
mammals as noise does not propagate
well in ice and cetaceans are not present
in the action area during winter.
Proposed Mitigation for Ice Road
Construction, Maintenance, and Use
During ice road construction, Hilcorp
would follow several BMPs recently
developed through a collaborative effort
with NMFS. These BMPs are informed
by the best available information on
how ice roads are constructed and
maintained and ice seal lairing
knowledge. They are designed to
minimize disturbance and set forth a
monitoring and reporting plan to
improve knowledge. The complete BMP
document is available on our website at
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act.
The ice road BMPs are applicable to
construction and maintenance of Liberty
sea ice roads and sea ice trails in areas
where water depth is greater than 10
feet (ft) (the minimum depth required to
establish ringed seal lairs) as well as any
open leads in the sea ice requiring a
temporary bridge during the ice road
season. They are organized into the
following categories: (1) Wildlife
training; (2) general BMPs implemented
throughout the ice road season; (3)
BMPs to be implemented prior to March
1st; (4) BMPs to be implemented after
March 1; and (4) reporting. We refer the
reader to the complete BMP document
on our website but provide a summary
of provisions here.
Timing—Hilcorp will construct sea
ice roads as early as possible (typically
December 1 through mid-February) so
that the entire corridor is disturbed
prior to March 1, the known onset of
lairing season. Blading and snow
blowing of ice roads/trails will be
limited to the previously disturbed and
delineated areas to the extent safe and
practicable. Snow will be plowed or
blown from the ice surface so as to
preserve the safety and integrity of the
ice surface for continued use.
After March 1, annually, blading and
snow blowing of ice roads will be
limited to the previously disturbed ice
road/shoulder areas to the extent safe
and practicable. However, when safety
requires a new ice trail to be constructed
after March 1st, construction activities
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such as drilling holes in the ice to
determine ice quality and thickness,
will be conducted only during daylight
hours with good visibility. Ringed seal
structures will be avoided by a
minimum of 150 ft during ice testing
and new trail construction.
Personnel—Hilcorp will employ a
NMFS-approved, trained environmental
field specialist who will serve as the
primary ice seal monitor and main point
of contact for any ice seal observations
made by other Hilcorp staff, employees,
or contractors. This person shall be in
charge of conducting monitoring
surveys every other day while the ice
road is being actively used. The
specialist will also be responsible for
alerting all crew to ice seal sightings and
reporting to the appropriate officials.
Training—Prior to initiation of annual
sea ice road activities, all project
personnel associated with ice road
construction or use (i.e., construction
workers, surveyors, vehicle drivers
security personnel, and the
environmental team) will receive annual
training on these BMPs. Annual training
also includes reviewing the company’s
Wildlife Interaction Plan which has
been modified to include reference to
the BMPs and reporting protocol. In
addition to the BMPs, other topics in the
training may include ringed seal
reproductive ecology (e.g., temporal and
spatial lairing behavior, habitat
characteristics, potential disturbance
effect, etc.) and summary of applicable
laws and regulatory requirements
including, but not limited to, MMPA
incidental take authorization
requirements.
General BMPs To Be Implemented
Throughout Season—Hilcorp would
establish ice road speed limits, delineate
the roadways with highly visible
markers (to avoid vehicles from driving
off roadway where ice seals may be
more likely to lair), and clearly mark
corners of rig mats, steel plates, and
other materials used to bridge sections
of hazardous ice (to allow for easy
location of materials when removed,
minimizing disturbance to potentially
nearby ice seals). Construction,
maintenance or decommissioning
activities associated with ice roads and
trails will not occur within 150 ft of the
observed ring seal, but may proceed as
soon as the ringed seal, of its own
accord, moves farther than 150 ft
distance away from the activities or has
not been observed within that area for
at least 24 hours. All personnel would
be prohibited from closely approaching
any seal and would be required to report
all seals sighted within 150 ft of the
center of the ice road to the designated
Environmental Specialist.
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Once the new ice trail is established,
tracked vehicle operation will be
limited to the disturbed area to the
extent practicable and when safety of
personnel is ensured. If an ice road or
trail is being actively used under
daylight conditions with good visibility,
a dedicated observer (not the vehicle
operator) will conduct a survey along
the sea ice road/trail to observe if any
ringed seals are within 500 ft of the
roadway corridor.
Mitigation for Subsistence Uses of
Marine Mammals or Plan of
Cooperation
Regulations at 50 CFR 216.104(a)(12)
further require incidental take
authorization (ITA) applicants
conducting activities that take place in
Arctic waters to provide a Plan of
Cooperation (POC) or information that
identifies what measures have been
taken and/or will be taken to minimize
adverse effects on the availability of
marine mammals for subsistence
purposes. A plan must include the
following:
• A statement that the applicant has
notified and provided the affected
subsistence community with a draft
plan of cooperation;
• A schedule for meeting with the
affected subsistence communities to
discuss proposed activities and to
resolve potential conflicts regarding any
aspects of either the operation or the
plan of cooperation;
• A description of what measures the
applicant has taken and/or will take to
ensure that proposed activities will not
interfere with subsistence whaling or
sealing; and
• What plans the applicant has to
continue to meet with the affected
communities, both prior to and while
conducting the activity, to resolve
conflicts and to notify the communities
of any changes in the operation.
Hilcorp submitted a POC to NMFS,
dated April 18, 2018, which includes all
the required elements included in the
aforementioned regulations (available at
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act). The
POC documents Hilcorp’s stakeholder
engagement activities, which began in
2014 for this project, with subsistence
communities within the North Slope
Region including Nuiqsut, Barrow and
Kaktovik, the closest villages to the
Project Area. The POC includes a
description of the project, how access to
the Project Area will occur, pipeline and
island construction techniques, and
drilling operations. The plan also
describes the ongoing community
outreach cooperation and coordination
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and measures that will be implemented
by Hilcorp to minimize adverse effects
on marine mammal subsistence. The
POC is a living document and will be
updated throughout the LDPI review
and permitting process. As such,
Hilcorp intends to maintain open
communication with all stakeholders
throughout the Liberty permitting and
development process. In addition,
Hilcorp, along with several other North
Slope Industry participants, has entered
into a Conflict Avoidance Agreement
(CAA) with the AEWC for all North
Slope oil and gas activities to minimize
potential interference with bowhead
subsistence hunting. By nature of the
measures, the mitigation described
above also minimizes impacts to
subsistence users and is not repeated
here. Additional mitigation measures
specific to subsistence use include:
• Avoid impact pile driving during
the Cross Island bowhead whale hunt
which usually occurs from the last week
of August through mid-September;
• Schedule all non-essential boat,
hovercraft, barge, and air traffic to avoid
conflicting with the timing of the Cross
Island bowhead hunt; and
• Adhere to all communication and
coordination measures described in the
POC.
During the comment period on
BOEM’s EIS for this project and our
NOR announcing receipt of Hilcorp’s
application, the AEWC submitted
comments pertaining to potential effects
on subsistence use. The AEWC
indicated Hilcorp’s continued
participation in the Open Water Season
CAA and the Good Neighbor Policy
(GNP), along with its willingness to
work with the Nuiqsut Whaling
Captains to mitigate subsistence harvest
concerns are central to the AEWC’s
support for the Liberty Project. Further,
recommendations from the peer-review
panel recommended the existing POC
and CAA should be renewed and
implemented annually to ensure that
project activities are coordinated with
the North Slope Borough and Alaska
Native whaling captains. Therefore, in
addition to the activity specific
mitigation measures above, NMFS is
requiring Hilcorp to abide by the POC,
and remain committed to the GNP
throughout the life of the regulations. In
addition, Hilcorp has committed to
following the CAA.
Based on our evaluation of the
applicant’s proposed measures, NMFS
has preliminarily determined that the
proposed mitigation measures provide
the means effecting the least practicable
impact on the affected species or stocks
and their habitat, paying particular
attention to rookeries, mating grounds,
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and areas of similar significance, and on
the availability of such species or stock
for subsistence uses.
Proposed Monitoring and Reporting
In order to issue an LOA for an
activity, Section 101(a)(5)(A) of the
MMPA states that NMFS must set forth
requirements pertaining to the
monitoring and reporting of the
authorized taking. NMFS’ MMPA
implementing regulations further
describe the information that an
applicant should provide when
requesting an authorization (50 CFR
216.104(a)(13)), including the means of
accomplishing the necessary monitoring
and reporting that will result in
increased knowledge of the species and
the level of taking or impacts on
populations of marine mammals.
Monitoring and reporting
requirements prescribed by NMFS
should contribute to improved
understanding of one or more of the
following:
• Occurrence of significant
interactions with marine mammal
species in action area (e.g., animals that
came close to the vessel, contacted the
gear, or are otherwise rare or displaying
unusual behavior);
• Nature, scope, or context of likely
marine mammal exposure to potential
stressors/impacts (individual or
cumulative, acute or chronic), through
better understanding of: (1) Action or
environment (e.g., source
characterization, propagation, ambient
noise); (2) affected species (e.g., life
history, dive patterns); (3) co-occurrence
of marine mammal species with the
action; or (4) biological or behavioral
context of exposure (e.g., age, calving or
feeding areas);
• Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors;
• How anticipated responses to
stressors impact either: (1) Long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks;
• Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or important physical
components of marine mammal habitat);
and
• Mitigation and monitoring
effectiveness.
Marine Mammal Monitoring During the
Open-Water Season
Hilcorp shall employ NMFS approved
PSOs and conduct marine mammal
monitoring per the Marine Mammal
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24957
Monitoring Plan, dated February 12,
2019. Two PSOs will be placed on
either side of the island where pile/
pipe-driving or slope shaping activities
are occurring. For example, one PSO
would be placed on the side where
construction activities are taking place
and the other placed on the opposite
side to provide complete observer
coverage around the island. PSO
stations will be moved around the
island as needed during construction
activities to provide full coverage. PSOs
will be switched out such that they will
observe for no more than 4 hours at a
time and no more than 12 hours in a 24hour period.
A third island-based PSO will work
closely with an aviation specialist to
monitor the Level B harassment zone
during all open-water pile and pipe
driving using an unmanned aircraft
system (UAS). This third PSO and the
UAS pilot will be located on the island.
UAS monitoring will also be used
during slope shaping, which may occur
in open water intermittently until
August 31 the first year the proposed
regulations are valid. Should foundation
piles be installed the subsequent year,
the requirement for UAS will be
dependent upon the success of the
program in the previous year and results
of any preliminary acoustic analysis
during year 1 construction (e.g., impact
driving conductor pipes). Should UAS
not be deemed effective and
construction is ongoing during the
open-water season, a vessel-based PSO
shall observe the monitoring zone
during pile and pipe driving.
During the open-water season, marine
mammal monitoring will take place
from 30 minutes prior to initiation of
pile and pipe driving activity through
30 minutes post-completion of pile
driving activity. Pile driving may
commence when observers have
declared the shutdown zone clear of
marine mammals. In the event of a delay
or shutdown of activity resulting from
marine mammals in the shutdown zone,
animals must be allowed to remain in
the shutdown zone (i.e., must leave of
their own volition) and their behavior
must be monitored and documented.
During the ice-covered season, in
addition to ice road monitoring (see
below), Hilcorp personnel will report
any ice seal sightings on or near the
LDPI to Hilcorp’s Environmental
Specialist.
Acoustic Monitoring During the OpenWater Season
Hilcorp will conduct acoustic
monitoring of island construction
activities during the open-water season
in accordance with its Acoustic
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Monitoring Plan available on our
website. In summary, Hilcorp proposes
to annually conduct underwater
acoustic monitoring during the open
water season (July through the
beginning of October) using Directional
Autonomous Seafloor Acoustic
Recorders (DASARs). One or more
DASARs will be deployed at a predetermined GPS location(s) away from
the LDPI. Each DASAR will be
connected by a ground line to an anchor
on the seafloor. At the end of the open
water season, the DASAR will be
retrieved by dragging grappling hooks
on the seafloor, perpendicular to and
over the location of the ground line, as
defined by the GPS locations of the
anchor and DASAR. All activities
conducted during the open water season
will be monitored. Goals of the acoustic
monitoring plan are to characterize LDPI
construction and operation noises,
ambient sound levels, and verify (or
amend) modeled distances to NMFS
harassment thresholds. Recorder
arrangement will be configured each
year based on the anticipated activities
for that season and the modelled sound
propagation estimates for the relevant
sources. Hilcorp’s acoustic monitoring
plan can be found at https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act.
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Marine Mammal Monitoring During Ice
Road Construction, Maintenance and
Use
Hilcorp has prepared a
comprehensive ice seal monitoring and
mitigation plan via development of a
BMP document which is available at
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act. Hilcorp
would be required to implement these
BMPs; we provide a summary here but
encourage the public to review the full
BMP document.
Seal surveys will be conducted every
other day during daylight hours.
Observers for ice road activities need
not be trained PSOs, but they must have
received the species observation
training and understand the applicable
sections of Hilcorp’s Wildlife
Management Plan. In addition, they
must be capable of detecting, observing
and monitoring ringed seal presence
and behaviors, and accurately and
completely recording data. Observers
will have no other primary duty than to
watch for and report observations
related to ringed seals during this
survey. If weather conditions become
unsafe, the observer may be removed
from the monitoring activity.
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Construction, maintenance or
decommissioning activities associated
with ice roads and trails will not occur
within 150 ft of the observed ring seal,
but may proceed as soon as the ringed
seal, of its own accord, moves farther
than 150 ft distance away from the
activities or has not been observed
within that area for at least 24 hours.
Transport vehicles (i.e., vehicles not
associated with construction,
maintenance or decommissioning) may
continue their route within the
designated road/trail without stopping.
If a ringed seal structure (i.e.,
breathing hole or lair) is observed
within 150 ft of the ice road/trail, the
location of the structure will be reported
to the Environmental Specialist who
will then carry out a notification
protocol. A qualified observer will
monitor the structure every six hours on
the day of the initial sighting to
determine whether a ringed seal is
present. Monitoring for the seal will
occur every other day the ice road is
being used unless it is determined the
structure is not actively being used (i.e.,
a seal is not sighted at that location
during monitoring).
Monitoring Plan Peer Review
The MMPA requires that monitoring
plans be independently peer reviewed
where the proposed activity may affect
the availability of a species or stock for
taking for subsistence uses (16 U.S.C.
1371(a)(5)(D)(ii)(III)). Regarding this
requirement, NMFS’ implementing
regulations state, upon receipt of a
complete monitoring plan, and at its
discretion, NMFS will either submit the
plan to members of a peer review panel
for review or within 60 days of receipt
of the proposed monitoring plan,
schedule a workshop to review the plan
(50 CFR 216.108(d)).
NMFS established an independent
peer review panel (PRP) to review
Hilcorp’s 4MP for the proposed LDPI
project in Foggy Island Bay. NMFS
provided the PRP with Hilcorp’s ITA
application and monitoring plan and
asked the panel to answer the following
questions:
1. Will the applicant’s stated
objectives effectively further the
understanding of the impacts of their
activities on marine mammals and
otherwise accomplish the goals stated
above? If not, how should the objectives
be modified to better accomplish the
goals above?
2. Can the applicant achieve the
stated objectives based on the methods
described in the plan?
3. Are there technical modifications to
the proposed monitoring techniques and
methodologies proposed by the
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applicant that should be considered to
better accomplish their stated
objectives?
4. Are there techniques not proposed
by the applicant (i.e., additional
monitoring techniques or
methodologies) that should be
considered for inclusion in the
applicant’s monitoring program to better
accomplish their stated objectives?
5. What is the best way for an
applicant to present their data and
results (formatting, metrics, graphics,
etc.) in the required reports that are to
be submitted to NMFS (i.e., 90-day
report and comprehensive report)?
The PRP met in May 2018 and
subsequently provided a final report to
NMFS containing recommendations that
the panel members felt were applicable
to Hilcorp’s monitoring plans. The PRP
concluded the objectives for both the
visual and acoustic monitoring are
appropriate, and agrees that the
objective of real-time mitigation of
potential disturbance of marine
mammals would be met through visual
monitoring. The PRP’s primary
recommendations and comments are
summarized and addressed below. The
PRP’s full report is available on our
website at https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act.
The PRP recommended Hilcorp
consult with biologists at the NMFS
Marine Mammal Laboratory and other
scientists and users familiar with the
use and limitations of UAS technology
for studying marine mammals at sea
regarding appropriate protocols and
procedures for the proposed project.
Hilcorp has worked, and will continue
to work, with NMFS to develop a safe,
effective UAS monitoring program.
The PRP noted marine mammal
monitoring would not be conducted
during the ice-covered season. Since the
PRP met, Hilcorp has developed a
marine mammal monitoring plan that
would be enacted during ice-covered
months along the ice roads and ice
trails. These roads lead up to the LDPI;
therefore, marine mammal monitoring
would occur during the ice-covered
season and occur at the LDPI. NMFS has
also included a provision that should
ice seals be observed on or near the
LDPI, they shall be reported to Hilcorp’s
Environmental Specialist and no
personnel shall approach or operate
equipment within 10 m of the seal.
The PRP was concerned no acoustic
monitoring would be conducted during
the winter months and recommended
Hilcorp deploy multiple acoustic
recorders during ice-covered periods to
obtain data on both presence of marine
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mammals and sound levels generated
during pile driving activities. Hilcorp is
not proposing to deploy long-term
bottom mounted hydrophones but will
collect measurements using hand-held
hydrophones lowered in a hole drilled
through the ice.
The PRP also encouraged Hilcorp to
consider deployment of additional
acoustic recorders during the openwater season approximately 15 km
northwest of the project area to facilitate
a broader, multi-year approach to
analyzing the effect of sound exposure
on marine mammals by various LDPI
and non-LDPI sources. The deployment
of multiple recorders would provide a
measure of redundancy and avoid the
risk of losing all of the season’s data if
the recorders are lost or malfunction.
Hilcorp is proposing to position
multiple recorders simultaneously to
record sound levels at multiple ranges
from the project activities. Data
recorded during times with no project
activities, if such times exist, will be
analyzed for ambient sound level
statistics. The recorder arrangement will
be configured each year based on the
anticipated activities for that season.
The PRP recommended that the
existing POC and CAA be renewed and
implemented annually to ensure that
project activities are coordinated with
the North Slope Borough and Alaska
Native whaling captains. Hilcorp is
required to implement the POC and has
agreed to implement a CAA with the
AEWC.
Reporting
General—A draft report would be
submitted to NMFS within 90 days of
the completion of monitoring for each
year the regulations are valid. The
report will include marine mammal
observations pre-activity, duringactivity, and post-activity during pile
driving days, and will also provide
descriptions of any behavioral responses
to construction activities by marine
mammals and a complete description of
all mitigation shutdowns and the results
of those actions and an extrapolated
total take estimate based on the number
of marine mammals observed during the
course of construction. A final report
must be submitted within 30 days
following resolution of comments on the
draft report. Hilcorp would also submit
a comprehensive annual summary
report covering all activities conducted
under the incidental take regulations no
more than 90 days after the regulations
expire.
Ice Road Reporting
On an annual basis, Hilcorp will also
submit a draft report to NMFS AKR and
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OPR compiling all ringed seal
observations within 90 days of
decommissioning the ice road and ice
trails. The report will include
information about activities occurring at
time of sighting, ringed seal age class
and behavior, and actions taken to
mitigate disturbance. In addition the
report will include an analysis of the
effectiveness of the BMPs recently
developed in coordination with NMFS
and any proposed updates to the BMPs
or Wildlife Management Plan as a result
of the encounter. A final report shall be
prepared and submitted within thirty
days following resolution of comments
on the draft report from NMFS.
NMFS is also proposing to require
Hilcorp to submit more immediate
reports should a marine mammal be
unexpectantly killed or seriously
injured by the specified activity or a
dead or injured marine mammal is
observed by a PSO or Hilcorp personnel.
These are standard measures required
by NMFS; details on reporting timelines
and information can be found in the
proposed regulations.
LDPI Construction and Operation
Reporting
Each day of marine mammal
monitoring, PSOs will complete field
sheets containing information NMFS
typically requires for pile driving and
construction activities. The full list of
data is provided in Hilcorp’s Marine
Mammal Monitoring and Mitigation
Plan and in the proposed regulations
below. Data include, but are not limited
to, information on daily activities
occurring, marine mammal sighting
information (e.g., species, group size,
and behavior), manner and amount of
take, and any mitigation actions taken.
Data in these field sheets will be
summarized and Hilcorp will provide a
draft annual report to NMFS no later
than 90 days post marine mammal
monitoring efforts. Hilcorp would also
submit an annual acoustic monitoring
report no later than 90 days after
acoustic recorders are recovered each
season. The acoustic monitoring reports
shall contain measured dB rms, SEL and
peak values as well as ambient noise
levels, per the Acoustic Monitoring Plan
and as described below in the proposed
regulations.
Hilcorp will also submit to NMFS a
draft final report on all marine mammal
monitoring conducted under the
proposed regulations no later than
ninety calendar days of the completion
of marine mammal and acoustic
monitoring or sixty days prior to the
issuance of any subsequent regulations,
if necessary, for this project, whichever
comes first. A final report shall be
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prepared and submitted within thirty
days following resolution of comments
on the draft report from NMFS.
Negligible Impact Analysis and
Determination
Introduction
NMFS has defined negligible impact
as an impact resulting from the
specified activity that cannot be
reasonably expected to, and is not
reasonably likely to, adversely affect the
species or stock through effects on
annual rates of recruitment or survival
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of takes alone is not enough information
on which to base an impact
determination. In addition to
considering estimates of the number of
marine mammals that might be ‘‘taken’’
by mortality, serious injury, and Level A
harassment or Level B harassment, we
consider other factors, such as the likely
nature of any behavioral responses (e.g.,
intensity, duration), the context of any
such responses (e.g., critical
reproductive time or location,
migration), as well as effects on habitat,
and the likely effectiveness of
mitigation. We also assess the number,
intensity, and context of estimated takes
by evaluating this information relative
to population status. Consistent with the
1989 preamble for NMFS’ implementing
regulations (54 FR 40338; September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
incorporated into this analysis via their
impacts on the environmental baseline
(e.g., as reflected in the regulatory status
of the species, population size and
growth rate where known, ongoing
sources of human-caused mortality, and
specific consideration of take by M/SI
previously authorized for other NMFS
research activities).
Serious Injury and Mortality
NMFS is proposing to authorize a
very small number of serious injuries or
mortalities that could occur incidental
to ice road construction, use, and
maintenance. We note here that the
takes from ice road construction, use,
and maintenance enumerated below
could result in non-serious injury, but
their worst potential outcome
(mortality) is analyzed for the purposes
of the negligible impact determination.
In addition, we discuss here the
connection, and differences, between
the legal mechanisms for authorizing
incidental take under section 101(a)(5)
for activities such as LDPI construction
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and operation, and for authorizing
incidental take from commercial
fisheries. In 1988, Congress amended
the MMPA’s provisions for addressing
incidental take of marine mammals in
commercial fishing operations. Congress
directed NMFS to develop and
recommend a new long-term regime to
govern such incidental taking (see
MMC, 1994). The need to develop a
system suited to the unique
circumstances of commercial fishing
operations led NMFS to suggest a new
conceptual means and associated
regulatory framework. That concept,
PBR, and a system for developing plans
containing regulatory and voluntary
measures to reduce incidental take for
fisheries that exceed PBR were
incorporated as sections 117 and 118 in
the 1994 amendments to the MMPA. In
Conservation Council for Hawaii v.
National Marine Fisheries Service, 97 F.
Supp.3d 1210 (D. Haw. 2015), which
concerned a challenge to NMFS’
regulations and LOAs to the Navy for
activities assessed in the 2013—2018
HSTT MMPA rulemaking, the Court
ruled that NMFS’ failure to consider
PBR when evaluating lethal takes in the
negligible impact analysis under section
101(a)(5)(A) violated the requirement to
use the best available science.
PBR is defined in section 3 of the
MMPA as the maximum number of
animals, not including natural
mortalities, that may be removed from a
marine mammal stock while allowing
that stock to reach or maintain its
optimum sustainable population (OSP)
and, although not controlling, can be
one measure considered among other
factors when evaluating the effects of M/
SI on a marine mammal species or stock
during the section 101(a)(5)(A) process.
OSP is defined in section 3 of the
MMPA as the number of animals which
will result in the maximum productivity
of the population or the species, keeping
in mind the carrying capacity of the
habitat and the health of the ecosystem
of which they form a constituent
element. Through section 2, an
overarching goal of the statute is to
ensure that each species or stock of
marine mammal is maintained at or
returned to its OSP.
PBR values are calculated by NMFS as
the level of annual removal from a stock
that will allow that stock to equilibrate
within OSP at least 95 percent of the
time, and is the product of factors
relating to the minimum population
estimate of the stock (Nmin), the
productivity rate of the stock at a small
population size, and a recovery factor.
Determination of appropriate values for
these three elements incorporates
significant precaution, such that
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application of the parameter to the
management of marine mammal stocks
may be reasonably certain to achieve the
goals of the MMPA. For example,
calculation of the minimum population
estimate (Nmin) incorporates the level of
precision and degree of variability
associated with abundance information,
while also providing reasonable
assurance that the stock size is equal to
or greater than the estimate (Barlow et
al., 1995), typically by using the 20th
percentile of a log-normal distribution
of the population estimate. In general,
the three factors are developed on a
stock-specific basis in consideration of
one another in order to produce
conservative PBR values that
appropriately account for both
imprecision that may be estimated, as
well as potential bias stemming from
lack of knowledge (Wade, 1998).
Congress called for PBR to be applied
within the management framework for
commercial fishing incidental take
under section 118 of the MMPA. As a
result, PBR cannot be applied
appropriately outside of the section 118
regulatory framework without
consideration of how it applies within
the section 118 framework, as well as
how the other statutory management
frameworks in the MMPA differ from
the framework in section 118. PBR was
not designed and is not used as an
absolute threshold limiting commercial
fisheries. Rather, it serves as a means to
evaluate the relative impacts of those
activities on marine mammal stocks.
Even where commercial fishing is
causing M/SI at levels that exceed PBR,
the fishery is not suspended. When M/
SI exceeds PBR in the commercial
fishing context under section 118,
NMFS may develop a take reduction
plan, usually with the assistance of a
take reduction team. The take reduction
plan will include measures to reduce
and/or minimize the taking of marine
mammals by commercial fisheries to a
level below the stock’s PBR. That is,
where the total annual human-caused
M/SI exceeds PBR, NMFS is not
required to halt fishing activities
contributing to total M/SI but rather
utilizes the take reduction process to
further mitigate the effects of fishery
activities via additional bycatch
reduction measures. In other words,
under section 118 of the MMPA, PBR
does not serve as a strict cap on the
operation of commercial fisheries that
may incidentally take marine mammals.
Similarly, to the extent PBR may be
relevant when considering the impacts
of incidental take from activities other
than commercial fisheries, using it as
the sole reason to deny (or issue)
incidental take authorization for those
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activities would be inconsistent with
Congress’s intent under section
101(a)(5), NMFS’ long-standing
regulatory definition of ‘‘negligible
impact,’’ and the use of PBR under
section 118. The standard for
authorizing incidental take for activities
other than commercial fisheries under
section 101(a)(5) continues to be, among
other things that are not related to PBR,
whether the total taking will have a
negligible impact on the species or
stock. Nowhere does section
101(a)(5)(A) reference use of PBR to
make the negligible impact finding or
authorize incidental take through multiyear regulations, nor does its companion
provision at 101(a)(5)(D) for authorizing
non-lethal incidental take under the
same negligible-impact standard. NMFS’
MMPA implementing regulations state
that take has a negligible impact when
it does not ‘‘adversely affect the species
or stock through effects on annual rates
of recruitment or survival’’—likewise
without reference to PBR. When
Congress amended the MMPA in 1994
to add section 118 for commercial
fishing, it did not alter the standards for
authorizing non-commercial fishing
incidental take under section 101(a)(5),
implicitly acknowledging that the
negligible impact standard under
section 101(a)(5) is separate from the
PBR metric under section 118. In fact,
in 1994 Congress also amended section
101(a)(5)(E) (a separate provision
governing commercial fishing incidental
take for species listed under the ESA) to
add compliance with the new section
118 but retained the standard of the
negligible impact finding under section
101(a)(5)(A) (and section 101(a)(5)(D)),
showing that Congress understood that
the determination of negligible impact
and application of PBR may share
certain features but are, in fact,
different.
Since the introduction of PBR in
1994, NMFS had used the concept
almost entirely within the context of
implementing sections 117 and 118 and
other commercial fisheries managementrelated provisions of the MMPA. Prior
to the Court’s ruling in Conservation
Council for Hawaii v. National Marine
Fisheries Service and consideration of
PBR in a series of section 101(a)(5)
rulemakings, there were a few examples
where PBR had informed agency
deliberations under other MMPA
sections and programs, such as playing
a role in the issuance of a few scientific
research permits and subsistence
takings. But as the Court found when
reviewing examples of past PBR
consideration in Georgia Aquarium v.
Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga.
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2015), where NMFS had considered
PBR outside the commercial fisheries
context, ‘‘it has treated PBR as only one
‘quantitative tool’ and [has not used it]
as the sole basis for its impact
analyses.’’ Further, the agency’s
thoughts regarding the appropriate role
of PBR in relation to MMPA programs
outside the commercial fishing context
have evolved since the agency’s early
application of PBR to section 101(a)(5)
decisions. Specifically, NMFS’ denial of
a request for incidental take
authorization for the U.S. Coast Guard
in 1996 seemingly was based on the
potential for lethal take in relation to
PBR and did not appear to consider
other factors that might also have
informed the potential for ship strike in
relation to negligible impact (61 FR
54157; October 17, 1996).
The MMPA requires that PBR be
estimated in SARs and that it be used
in applications related to the
management of take incidental to
commercial fisheries (i.e., the take
reduction planning process described in
section 118 of the MMPA and the
determination of whether a stock is
‘‘strategic’’ as defined in section 3), but
nothing in the statute requires the
application of PBR outside the
management of commercial fisheries
interactions with marine mammals.
Nonetheless, NMFS recognizes that as a
quantitative metric, PBR may be useful
as a consideration when evaluating the
impacts of other human-caused
activities on marine mammal stocks.
Outside the commercial fishing context,
and in consideration of all known
human-caused mortality, PBR can help
inform the potential effects of M/SI
requested to be authorized under
101(a)(5)(A). As noted by NMFS and the
U.S. Fish and Wildlife Service in our
implementation regulations for the 1986
amendments to the MMPA (54 FR
40341, September 29, 1989), the
Services consider many factors, when
available, in making a negligible impact
determination, including, but not
limited to, the status of the species or
stock relative to OSP (if known);
whether the recruitment rate for the
species or stock is increasing,
decreasing, stable, or unknown; the size
and distribution of the population; and
existing impacts and environmental
conditions. In this multi-factor analysis,
PBR can be a useful indicator for when,
and to what extent, the agency should
take an especially close look at the
circumstances associated with the
potential mortality, along with any other
factors that could influence annual rates
of recruitment or survival.
When considering PBR during
evaluation of effects of M/SI under
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section 101(a)(5)(A), we first calculate a
metric for each species or stock that
incorporates information regarding
ongoing anthropogenic M/SI from all
sources into the PBR value (i.e., PBR
minus the total annual anthropogenic
mortality/serious injury estimate in the
SAR), which is called ‘‘residual PBR.’’
(Wood et al., 2012). We first focus our
analysis on residual PBR because it
incorporates anthropogenic mortality
occurring from other sources. If the
ongoing human-caused mortality from
other sources does not exceed PBR, then
residual PBR is a positive number, and
we consider how the anticipated or
potential incidental M/SI from the
activities being evaluated compares to
residual PBR using the framework in the
following paragraph. If the ongoing
anthropogenic mortality from other
sources already exceeds PBR, then
residual PBR is a negative number and
we consider the M/SI from the activities
being evaluated as described further
below.
When ongoing total anthropogenic
mortality from the applicant’s specified
activities does not exceed PBR and
residual PBR is a positive number, as a
simplifying analytical tool we first
consider whether the specified activities
could cause incidental M/SI that is less
than 10 percent of residual PBR (the
‘‘insignificance threshold,’’ see below).
If so, we consider M/SI from the
specified activities to represent an
insignificant incremental increase in
ongoing anthropogenic M/SI for the
marine mammal stock in question that
alone (i.e., in the absence of any other
take) will not adversely affect annual
rates of recruitment and survival. As
such, this amount of M/SI would not be
expected to affect rates of recruitment or
survival in a manner resulting in more
than a negligible impact on the affected
stock unless there are other factors that
could affect reproduction or survival,
such as Level A and/or Level B
harassment, or other considerations
such as information that illustrates the
uncertainty involved in the calculation
of PBR for some stocks. In a few prior
incidental take rulemakings, this
threshold was identified as the
‘‘significance threshold,’’ but it is more
accurately labeled an insignificance
threshold, and so we use that
terminology here, as we did in the
AFTT Proposed (83 FR 10954; March
13, 2017) and Final Rules (83 FR 57076;
November 14, 2018). Assuming that any
additional incidental take by Level A or
Level B harassment from the activities
in question would not combine with the
effects of the authorized M/SI to exceed
the negligible impact level, the
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anticipated M/SI caused by the
activities being evaluated would have a
negligible impact on the species or
stock. However, M/SI above the 10
percent insignificance threshold does
not indicate that the M/SI associated
with the specified activities is
approaching a level that would
necessarily exceed negligible impact.
Rather, the 10 percent insignificance
threshold is meant only to identify
instances where additional analysis of
the anticipated M/SI is not required
because the negligible impact standard
clearly will not be exceeded on that
basis alone.
Where the anticipated M/SI is near,
at, or above residual PBR, consideration
of other factors (positive or negative),
including those outlined above, as well
as mitigation is especially important to
assessing whether the M/SI will have a
negligible impact on the species or
stock. PBR is a conservative metric and
not sufficiently precise to serve as an
absolute predictor of population effects
upon which mortality caps would
appropriately be based. For example, in
some cases stock abundance (which is
one of three key inputs into the PBR
calculation) is underestimated because
marine mammal survey data within the
U.S. EEZ are used to calculate the
abundance even when the stock range
extends well beyond the U.S. EEZ. An
underestimate of abundance could
result in an underestimate of PBR.
Alternatively, we sometimes may not
have complete M/SI data beyond the
U.S. EEZ to compare to PBR, which
could result in an overestimate of
residual PBR. The accuracy and
certainty around the data that feed any
PBR calculation, such as the abundance
estimates, must be carefully considered
to evaluate whether the calculated PBR
accurately reflects the circumstances of
the particular stock. M/SI that exceeds
PBR may still potentially be found to be
negligible in light of other factors that
offset concern, especially when robust
mitigation and adaptive management
provisions are included.
In Conservation Council for Hawaii v.
National Marine Fisheries Service,
which involved the challenge to NMFS’
issuance of LOAs to the Navy in 2013
for activities in the HSTT Study Area,
the Court reached a different
conclusion, stating, ‘‘Because any
mortality level that exceeds PBR will
not allow the stock to reach or maintain
its OSP, such a mortality level could not
be said to have only a ‘negligible
impact’ on the stock.’’ As described
above, the Court’s statement
fundamentally misunderstands the two
terms and incorrectly indicates that
these concepts (PBR and ‘‘negligible
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impact’’) are directly connected, when
in fact nowhere in the MMPA is it
indicated that these two terms are
equivalent.
Specifically, PBR was designed as a
tool for evaluating mortality and is
defined as the number of animals that
can be removed while ‘‘allowing that
stock to reach or maintain its OSP.’’
OSP is defined as a population that falls
within a range from the population level
that is the largest supportable within the
ecosystem to the population level that
results in maximum net productivity,
and thus is an aspirational management
goal of the overall statute with no
specific timeframe by which it should
be met. PBR is designed to ensure
minimal deviation from this overarching
goal, with the formula for PBR typically
ensuring that growth towards OSP is not
reduced by more than 10 percent (or
equilibrates to OSP 95 percent of the
time). As PBR is applied by NMFS, it
provides that growth toward OSP is not
reduced by more than 10 percent, which
certainly allows a stock to ‘‘reach or
maintain its OSP’’ in a conservative and
precautionary manner—and we can
therefore clearly conclude that if PBR
were not exceeded, there would not be
adverse effects on the affected species or
stocks. Nonetheless, it is equally clear
that in some cases the time to reach this
aspirational OSP level could be slowed
by more than 10 percent (i.e., total
human-caused mortality in excess of
PBR could be allowed) without
adversely affecting a species or stock
through effects on its rates of
recruitment or survival. Thus even in
situations where the inputs to calculate
PBR are thought to accurately represent
factors such as the species’ or stock’s
abundance or productivity rate, it is still
possible for incidental take to have a
negligible impact on the species or stock
even where M/SI exceeds residual PBR
or PBR.
As noted above, PBR is helpful in
informing the analysis of the effects of
mortality on a species or stock because
it is important from a biological
perspective to be able to consider how
the total mortality in a given year may
affect the population. However, section
101(a)(5)(A) of the MMPA indicates that
NMFS shall authorize the requested
incidental take from a specified activity
if we find that the total of such taking
i.e., from the specified activity will have
a negligible impact on such species or
stock. In other words, the task under the
statute is to evaluate the applicant’s
anticipated take in relation to their
take’s impact on the species or stock,
not other entities’ impacts on the
species or stock. Neither the MMPA nor
NMFS’ implementing regulations call
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for consideration of other unrelated
activities and their impacts on the
species or stock. In fact, in response to
public comments on the implementing
regulations NMFS explained that such
effects are not considered in making
negligible impact findings under section
101(a)(5), although the extent to which
a species or stock is being impacted by
other anthropogenic activities is not
ignored. Such effects are reflected in the
baseline of existing impacts as reflected
in the species’ or stock’s abundance,
distribution, reproductive rate, and
other biological indicators.
NMFS guidance for commercial
fisheries provides insight when
evaluating the effects of an applicant’s
incidental take as compared to the
incidental take caused by other entities.
Parallel to section 101(a)(5)(A), section
101(a)(5)(E) of the MMPA provides that
NMFS shall allow the incidental take of
ESA-listed endangered or threatened
marine mammals by commercial
fisheries if, among other things, the
incidental M/SI from the commercial
fisheries will have a negligible impact
on the species or stock. As discussed
earlier, the authorization of incidental
take resulting from commercial fisheries
and authorization for activities other
than commercial fisheries are under two
separate regulatory frameworks.
However when it amended the statute in
1994 to provide a separate incidental
take authorization process for
commercial fisheries, Congress kept the
requirement of a negligible impact
determination for this one category of
species, thereby applying the standard
to both programs. Therefore, while the
structure and other standards of the two
programs differ such that evaluation of
negligible impact under one program
may not be fully applicable to the other
program (e.g., the regulatory definition
of ‘‘negligible impact’’ at 50 CFR
216.103 applies only to activities other
than commercial fishing), guidance on
determining negligible impact for
commercial fishing take authorizations
can be informative when considering
incidental take outside the commercial
fishing context. In 1999, NMFS
published criteria for making a
negligible impact determination
pursuant to section 101(a)(5)(E) of the
MMPA in a notice of proposed permits
for certain fisheries (64 FR 28800; May
27, 1999). Criterion 2 stated If total
human-related serious injuries and
mortalities are greater than PBR, and
fisheries-related mortality is less than
0.1 PBR, individual fisheries may be
permitted if management measures are
being taken to address non-fisheriesrelated serious injuries and mortalities.
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When fisheries-related serious injury
and mortality is less than 10 percent of
the total, the appropriate management
action is to address components that
account for the major portion of the
total. This criterion addresses when
total human-caused mortality is
exceeding PBR, but the activity being
assessed is responsible for only a small
portion of the mortality. In incidental
take authorizations in which NMFS has
recently articulated a fuller description
of how we consider PBR under section
101(a)(5)(A), this situation had not
arisen, and NMFS’ description of how
we consider PBR in the section 101(a)(5)
authorization process did not, therefore,
include consideration of this scenario.
However, the analytical framework we
use here appropriately incorporates
elements of the one developed for use
under section 101(a)(5)(E) and because
the negligible impact determination
under section 101(a)(5)(A) focuses on
the activity being evaluated, it is
appropriate to utilize the parallel
concept from the framework for section
101(a)(5)(E).
Accordingly, we are using a similar
criterion in our negligible impact
analysis under section 101(a)(5)(A) to
evaluate the relative role of an
applicant’s incidental take when other
sources of take are causing PBR to be
exceeded, but the take of the specified
activity is comparatively small. Where
this occurs, we may find that the
impacts of the taking from the specified
activity may (alone) be negligible even
when total human-caused mortality
from all activities exceeds PBR if (in the
context of a particular species or stock):
The authorized mortality or serious
injury would be less than or equal to 10
percent of PBR and management
measures are being taken to address
serious injuries and mortalities from the
other activities (i.e., other than the
specified activities covered by the
incidental take authorization under
consideration). We must also determine,
though, that impacts on the species or
stock from other types of take (i.e.,
harassment) caused by the applicant do
not combine with the impacts from
mortality or serious injury to result in
adverse effects on the species or stock
through effects on annual rates of
recruitment or survival.
As discussed above, however, while
PBR is useful in informing the
evaluation of the effects of M/SI in
section 101(a)(5)(A) determinations, it is
just one consideration to be assessed in
combination with other factors and is
not determinative, including because, as
explained above, the accuracy and
certainty of the data used to calculate
PBR for the species or stock must be
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considered. And we reiterate the
considerations discussed above for why
it is not appropriate to consider PBR an
absolute cap in the application of this
guidance. Accordingly, we use PBR as a
trigger for concern while also
considering other relevant factors to
provide a reasonable and appropriate
means of evaluating the effects of
potential mortality on rates of
recruitment and survival, while
acknowledging that it is possible to
exceed PBR (or exceed 10 percent of
PBR in the case where other humancaused mortality is exceeding PBR but
the specified activity being evaluated is
an incremental contributor, as described
in the last paragraph) by some small
amount and still make a negligible
impact determination under section
101(a)(5)(A).
A stock-wide PBR is unknown since
data is only available for the Bering Sea.
However, PBR for ringed seals in the
Bearing Sea alone, considering an Nmin
of 5,100. Total annual mortality and
serious injury is 1,054 for an r-PBR of
4,046 (Muto et al., 2018), which means
that the insignificance threshold is 405.
No mortality or serious injury of ringed
seals is currently authorized under any
other incidental take authorization
issued pursuant to section 101(a)(5)(A)
of the MMPA. In the case of Liberty, the
proposed authorized taking, by
mortality, of two ringed seals over the
course of 5 years, which equates to 0.4
mortality takes annually, is less than 10
percent r-PBR when considering
mortality and serious injuring caused by
other anthropogenic sources.
Harassment
Hilcorp requested, and NMFS
proposes, to authorize take, by Level A
harassment and Level B harassment, of
six species of marine mammals. The
amount of taking proposed to be
authorized is low compared to marine
mammal abundance. Potential impacts
of LDPI activities include PTS, TTS, and
behavioral changes due to exposure to
construction and operation noise. The
potential for Level A harassment occurs
during impact pile driving. As
discussed in the Potential Effects of the
Specified Activity on Marine Mammals
and Their Habitat section, PTS is a
permanent shift in hearing threshold
and the severity of the shift is
determined by a myriad of factors. Here,
we expect cetaceans to incur only a
slightly elevated shift in hearing
threshold because we do not except
them to be close to the source
(especially large whales who primarily
stay outside the McClure Island group)
and that impact pile driving (the source
with greatest potential to cause PTS)
would only occur for a maximum of 40
minutes per day. Therefore, the
potential for large threshold shifts in
unlikely. Further, the frequency range of
hearing that may be impaired is limited
to the frequency bands of the source.
Pile driving exhibits energy in lower
frequencies. While low frequency
baleen whales are most susceptible to
this, these are the species that are
unlikely to come very close to the
source. Mid-frequency cetaceans and
phocids do not have best hearing within
these lower frequency bands of pile
driving; therefore, the resulting impact
of any threshold shift is less likely to
impair vital hearing. All other noise
generated from the project is expected to
be low level from activities such as
slope-shaping and drilling and not
result in PTS.
Cetaceans are infrequent visitors to
Foggy Island Bay with primary habitat
use outside of the McClure Islands. Any
taking within Foggy Island Bay is not
expected to impact reproductive or
survival activities as the bay is not
known to contain critical areas such as
rookeries, mating grounds, or other
areas of similar significance. Some
ringed seals do lair in Foggy Island Bay;
however, the area impacted by the
project is small compared to available
habitat. Further, to offset impacts to
reproductive behaviors by ringed seals
(e.g., lairing, pupping), Hilcorp would
follow a number of ice road BMPs
developed in coordination with NMFS
ringed seal experts. Hilcorp would also
not impact pile drive during the
bowhead whale hunt, thereby
minimizing impacts to whales during
peak migration periods (we note the
peak migratory pathway for bowhead
whales is well outside the McClure
Islands). Finally, for reasons described
above, the taking of two ringed seals, by
mortality, over the course of 5 years is
not expected to have impacts on the
species’ rates of recruitment and
survival.
In summary and as described above,
the following factors primarily support
our preliminary determination that the
impacts resulting from this activity are
not expected to adversely affect the
species or stock through effects on
annual rates of recruitment or survival:
• Only two ringed seals are
authorized to be taken by mortality over
5 years;
• Any PTS would be of a small
degree;
• The amount of takes, by
harassment, is low compared to
population sizes;
• The area ensonified by Hilcorp’s
activities does not provide important
areas and is a de minimis subset of
habitat used by and available to marine
mammals;
• Critical behaviors such as lairing
and pupping by ringed seals would be
avoided and minimized through
implementation of ice road BMPs; and
• Hilcorp would avoid noisegenerating activities during the
bowhead whale hunt; thereby
minimizing impact to critical behavior
(i.e., migration).
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
proposed monitoring and mitigation
measures, NMFS preliminarily finds
that the total marine mammal take from
the proposed activity will have a
negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted above, only small numbers
of incidental take may be authorized
under Section 101(a)(5)(A) of the MMPA
for specified activities. The MMPA does
not define small numbers and so, in
practice, where estimated numbers are
available, NMFS compares the number
of individuals taken to the most
appropriate estimation of abundance of
the relevant species or stock in our
determination of whether an
authorization is limited to small
numbers of marine mammals.
Additionally, other qualitative factors
may be considered in the analysis, such
as the temporal or spatial scale of the
activities.
The amount of total taking (i.e., Level
A harassment, Level B harassment, and,
for ringed seals, mortality) of any
marine mammal stock over the course of
5 years, is less than one percent of any
population (Table 12).
TABLE 12—AMOUNT OF PROPOSED AUTHORIZED TAKE RELATIVE TO POPULATION ESTIMATES (Nbest)
Population
estimate
Species
Stock
Bowhead whale ...............................................
Arctic ..............................................................
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16,820
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29MYP3
Percent of
population
Total take
12
<1
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TABLE 12—AMOUNT OF PROPOSED AUTHORIZED TAKE RELATIVE TO POPULATION ESTIMATES (Nbest)—Continued
Stock
Gray whale ......................................................
Beluga whale ..................................................
Ringed seal .....................................................
Bearded seal ...................................................
Spotted seal ....................................................
ENP ................................................................
Beaufort Sea ..................................................
Alaska .............................................................
Alaska .............................................................
Alaska .............................................................
Based on the analysis contained
herein of the proposed activity
(including the proposed mitigation and
monitoring measures) and the
anticipated take of marine mammals,
NMFS preliminarily finds that small
numbers of marine mammals will be
taken relative to the population sizes of
the affected species or stocks.
Impact on Availability of Affected
Species for Taking for Subsistence Uses
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Population
estimate
Species
As described in the Marine Mammal
section of the document, all species
potentially taken by Hilcorp’s specified
activities are key subsistence species, in
particular the bowhead whales and ice
seals. Hilcorp has proposed and NMFS
has included several mitigation
measures to address potential impacts
on the availability of marine mammals
for subsistence use. The AEWC
provided comments during the public
comment period on the Notice of
Receipt of Hilcorp’s application and as
a member of the peer review panel.
NMFS incorporated appropriate
mitigation to address AEWC’s concerns,
including requirements for Hilcorp to
remain a signatory to a follow protocols
contained with the POC. Hilcorp has
also indicated they would abide by a
CAA. In addition, mitigation measures
designed to minimize impacts on
marine mammals also minimize impacts
to subsistence users (e.g., avoid impact
pile driving during the fall bowhead
whale hunt). Hilcorp and NMFS have
also developed a comprehensive set of
BMPs to minimize impacts to ice seals
during ice-covered months. In
consideration of coordination with the
AEWC, Hilcorp’s proposed work
schedule (i.e., conducting the majority
of work in winter when bowhead
whales are not present) and the
incorporation of several mitigation
measures, we have preliminarily
determined that the total taking of
affected species or stocks would not
have an unmitigable adverse impact on
the availability of such species or stocks
for taking for subsistence purposes.
Adaptive Management
The regulations governing the take of
marine mammals incidental to Hilcorp’s
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LPDI construction and operational
activities would contain an adaptive
management component.
The reporting requirements associated
with this proposed rule are designed to
provide NMFS with monitoring data
from the previous year to allow
consideration of whether any changes
are appropriate. The use of adaptive
management allows NMFS to consider
new information from different sources
to determine (with input from Hilcorp
regarding practicability) on an annual or
biennial basis if mitigation or
monitoring measures should be
modified (including additions or
deletions). Mitigation measures could be
modified if new data suggests that such
modifications would have a reasonable
likelihood of reducing adverse effects to
marine mammals and if the measures
are practicable.
The following are some of the
possible sources of applicable data to be
considered through the adaptive
management process: (1) Results from
monitoring reports, as required by
MMPA authorizations; (2) results from
general marine mammal and sound
research; and (3) any information which
reveals that marine mammals may have
been taken in a manner, extent, or
number not authorized by these
regulations or subsequent LOAs.
Endangered Species Act (ESA)
The bowhead whale, ringed seal, and
bearded seal (Beringia DPS) are listed
under the ESA (Table 2). On July 31,
2018, NMFS Alaska Region (AKR)
issued a Biological Opinion to BOEM,
Environmental Protection Agency
(EPA), and U.S. Army Corps of
Engineers (USACE) for the permitting of
the LDPI Project in its entirety
(mobilization to decommissioning). The
Biological Opinion concluded
construction, operation, and
decommissioning of the LDPI would not
jeopardize the continued existence of
the aforementioned species or adversely
modify critical habitat. OPR has
requested consultation with NMFS
Alaska Regional Office under section 7
of the ESA on the promulgation of fiveyear regulations and the subsequent
issuance of LOAs to Hilcorp under
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20,990
39,258
170,000
299,174
423,625
Total take
7
130
406
64
64
Percent of
population
<1
<1
<1
<1
<1
section 101(a)(5)(A) of the MMPA. This
consultation will be concluded prior to
issuing any final rule.
Request for Information
NMFS requests interested persons to
submit comments, information, and
suggestions concerning Hilcorp’s
request and the proposed regulations
(see ADDRESSES). All comments will be
reviewed and evaluated as we prepare a
final rule and make final determinations
on whether to issue the requested
authorization. This notice and
referenced documents provide all
environmental information relating to
our proposed action for public review.
Classification
Pursuant to the procedures
established to implement Executive
Order 12866, the Office of Management
and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the
Regulatory Flexibility Act (RFA), the
Chief Counsel for Regulation of the
Department of Commerce has certified
to the Chief Counsel for Advocacy of the
Small Business Administration that this
proposed rule, if adopted, would not
have a significant economic impact on
a substantial number of small entities.
Hilcorp is the sole entity that would be
subject to the requirements in these
proposed regulations, and the Hilcorp is
not a small governmental jurisdiction,
small organization, or small business, as
defined by the RFA. Because of this
certification, a regulatory flexibility
analysis is not required and none has
been prepared.
Notwithstanding any other provision
of law, no person is required to respond
to nor shall a person be subject to a
penalty for failure to comply with a
collection of information subject to the
requirements of the Paperwork
Reduction Act (PRA) unless that
collection of information displays a
currently valid OMB control number.
This proposed rule contains collectionof-information requirements subject to
the provisions of the PRA. These
requirements have been approved by
OMB under control number 0648–0151
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and include applications for regulations,
subsequent LOAs, and reports.
List of Subjects in 50 CFR Part 218
Marine mammals, Wildlife,
Endangered and threatened species,
Alaska, Oil and gas exploration, Indians,
Reporting and recordkeeping
requirements, Administrative practice
and procedure.
Dated: May 21, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble,
50 CFR part 217 is proposed to be
amended as follows:
PART 217—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
Authority: 16 U.S.C. 1361 et seq.
2. Add subpart D to part 217 to read
as follows:
■
Subpart D—Taking Marine Mammals
Incidental to Construction and
Operation of the Liberty Drilling and
Production Island
Sec.
217.30 Specified activity and specified
geographical region.
217.31 Effective dates.
217.32 Permissible methods of taking.
217.33 Prohibitions.
217.34 Mitigation requirements.
217.35 Requirements for monitoring and
reporting.
217.36 Letters of Authorization.
217.37 Renewals and modifications of
Letters of Authorization.
217.38–217.39 [Reserved]
Subpart D—Taking Marine Mammals
Incidental to Construction and
Operation of the Liberty Drilling and
Production Island
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Permissible methods of taking.
Under LOAs issued pursuant to
§§ 216.106 of this chapter and 217.36,
the Holder of the LOA (hereinafter
‘‘Hilcorp’’) may incidentally, but not
intentionally, take marine mammals
within the area described in § 217.30(b)
by mortality, serious injury, Level A
harassment, or Level B harassment
associated with the LDPI construction
and operation activities, including
associated infrastructure, provided the
activities are in compliance with all
terms, conditions, and requirements of
the regulations in this subpart and the
appropriate LOA.
§ 217.34
§ 217.30 Specified activity and specified
geographical region.
(a) Regulations in this subpart apply
only to Hilcorp LLC (Hilcorp) and those
persons it authorizes or funds to
conduct activities on its behalf for the
taking of marine mammals that occurs
in the areas outlined in paragraph (b) of
this section and that occurs incidental
to construction, maintenance, and
operation of the Liberty Drilling and
Production Island (LDPI) and associated
infrastructure.
(b) The taking of marine mammals by
Hilcorp may be authorized in a Letter of
Authorization (LOA) only if it occurs
within the Beaufort Sea, Alaska.
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§ 217.32
Prohibitions.
Notwithstanding takings
contemplated in § 217.32 and
authorized by a LOA issued under
§§ 216.106 of this chapter and 217.36,
no person in connection with the
activities described in § 217.30 may:
(a) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or a LOA issued under
§§ 216.106 of this chapter and 217.36;
(b) Take any marine mammal not
specified in such LOAs;
(c) Take any marine mammal
specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified
in such LOAs if NMFS determines such
taking results in more than a negligible
impact on the species or stocks of such
marine mammal; or
(e) Take a marine mammal specified
in such LOAs if NMFS determines such
taking results in an unmitigable adverse
impact on the species or stock of such
marine mammal for taking for
subsistence uses.
1. The authority citation for part 217
continues to read as follows:
18:23 May 28, 2019
Effective dates.
Regulations in this subpart are
effective from December 1, 2020,
through November 30, 2025.
§ 217.33
■
VerDate Sep<11>2014
§ 217.31
Mitigation requirements.
When conducting the activities
identified in § 217.30(a), the mitigation
measures contained in any LOA issued
under § 216.106 of this chapter must be
implemented. These mitigation
measures shall include but are not
limited to:
(a) General conditions. (1) Hilcorp
must renew, on an annual basis, the
Plan of Cooperation (POC), throughout
the life of the regulations;
(2) A copy of any issued LOA must be
in the possession of Hilcorp, its
designees, and work crew personnel
operating under the authority of the
issued LOA;
(3) Hilcorp must conduct briefings for
construction and ice road supervisors
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and crews, and the marine mammal and
acoustic monitoring teams prior to the
start of annual ice road or LDPI
construction, and when new personnel
join the work, in order to explain
responsibilities, communication
procedures, the marine mammal
monitoring protocol, and operational
procedures;
(4) Hilcorp must allow subsistence
hunters to use the LDPI for safe harbor
during severe storms, if requested by
hunters;
(5) In the unanticipated event of an oil
spill during LDPI operational years,
Hilcorp must notify NMFS of the spill
within 48 hours, regardless of size, and
implement measures contained within
the Liberty Oil Spill Response Plan; and
(6) Hilcorp must strive to complete
pile driving and pipeline installation
during the ice-covered season.
(b) Ice road construction,
maintenance, and operation. (1) Hilcorp
must implement the NMFS-approved
Ice Road and Ice Trail Best Management
Practices (BMPs) and the Wildlife
Action Plan. These documents may be
updated as needed throughout the life of
the regulations, in consultation with
NMFS.
(2) [Reserved]
(c) Liberty Drilling Production Island
Construction. (1) For all pile driving,
Hilcorp shall implement a minimum
shutdown zone of a 10 meter (m) radius
from piles being driven. If a marine
mammal comes within or is about to
enter the shutdown zone, such
operations shall cease immediately;
(2) For all pile driving activity,
Hilcorp shall implement shutdown
zones with radial distances as identified
in any LOA issued under §§ 216.106 of
this chapter and 217.36. If a marine
mammal comes within or is about to
enter the shutdown zone, such
operations must cease immediately;
(3) Hilcorp must employ NMFSapproved protected species observers
(PSOs) and designate monitoring zones
with radial distances as identified in
any LOA issued under §§ 216.106 of this
chapter and 217.36. NMFS may adjust
the shutdown zones pending review and
approval of an acoustic monitoring
report (see § 217.35 Requirements for
Monitoring and Reporting);
(4) If a bowhead whale or other low
frequency cetacean enters the Level A
harassment zone, pile or pipe driving
must be shut down immediately. If a
beluga whale or pinniped enters the
Level A harassment zone while pile
driving is ongoing, work may continue
until the pile is completed (estimated to
require approximately 15–20 minutes),
but additional pile driving must not be
initiated until the animal has left the
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Level A harassment zone. During this
time, PSOs must monitor the animal
and record behavior;
(5) If a marine mammal is
approaching a Level A harassment zone
and pile driving has not commenced,
pile driving shall be delayed. Pile
driving may not commence or resume
until either the animal has voluntarily
left and been visually confirmed beyond
the shutdown zone; 15 minutes have
passed without subsequent detections of
small cetaceans and pinnipeds; or 30
minutes have passed without
subsequent detections of large
cetaceans;
(6) If a species for which
authorization has not been granted, or a
species for which authorization has
been granted but the authorized takes
are met, is observed approaching or
within the monitoring zone (which
equates to the Level B harassment zone),
pile driving and removal activities must
shut down immediately using delay and
shut-down procedures. Activities must
not resume until the animal has been
confirmed to have left the area or the
observation time period, as indicated in
217.34(c)(5), has elapsed;
(7) Hilcorp will use soft start
techniques when impact pile driving.
Soft start requires contractors to provide
an initial set of strikes at reduced
energy, followed by a thirty-second
waiting period, then two subsequent
reduced energy strike sets. A soft start
must be implemented at the start of each
day’s impact pile driving and at any
time following cessation of impact pile
driving for a period of thirty minutes or
longer;
(8) No impact driving must occur
during the Nuiqsut Cross Island
bowhead whale hunt. Hilcorp must
coordinate annually with subsistence
users on the dates of these hunts; and
(9) Should an ice seal be observed on
or near the LDPI by any Hilcorp
personnel, during construction or
operation, the sighting must be reported
to Hilcorp’s Environmental Specialist.
No construction activity should occur
within 10 m of an ice seal and any
vehicles used should use precaution
and not approach any ice seal within 10
m.
(d) Vessel restrictions. When
operating vessels, Hilcorp must:
(1) Reduce vessel speed to 5 knots
(kn) if a whale is observed with 500 m
(1641 feet (ft)) of the vessel and is on a
potential collision course with vessel, or
if a whale is within 275 m (902 ft) of
whales, regardless of course relative to
the vessel;
(2) Avoid multiple changes in vessel
direction;
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(3) Not approach within 800 m (2,624
ft) of a North Pacific right whale or
within 5.6 km (3 nautical miles) of
Steller sea lion rookeries or major
haulouts; and
(4) Avoid North Pacific right whale
critical habitat or, if critical habitat
cannot be avoided, reduce vessel speed
during transit.
§ 217.35 Requirements for monitoring and
reporting.
(a) All marine mammal and acoustic
monitoring must be conducted in
accordance to Hilcorp’s Marine
Mammal Mitigation and Monitoring
Plan (4MP). This plan may be modified
throughout the life of the regulations
upon NMFS review and approval.
(b) Monitoring must be conducted by
NMFS-approved PSOs, who must have
no other assigned tasks during
monitoring periods. At minimum, two
PSOs must be placed on elevated
platforms on the island during the openwater season when island construction
activities are occurring. These observers
will monitor for marine mammals and
implement shutdown or delay
procedures when applicable through
communication with the equipment
operator.
(c) One PSO will be placed on the
side where construction activities are
taking place and the other placed on the
opposite side of the LDPI; both
observers will be on elevated platforms.
(d) PSOs will rotate duties such that
they will observe for no more than 4
hours at a time and no more than 12
hours in a 24-hour period.
(e) An additional island-based PSO
will work with an aviation specialist to
use an unmanned aircraft system (UAS)
to detect marine mammals in the
monitoring zones during pile and pipe
driving and slope shaping. Should UAS
monitoring not be feasible or deemed
ineffective, a boat-based PSO must
monitor for marine mammals during
pile and pipe driving.
(f) During the open-water season,
marine mammal monitoring must take
place from 30 minutes prior to initiation
of pile and pipe driving activity through
30 minutes post-completion of pile
driving activity. Pile driving may
commence when observers have
declared the shutdown zone clear of
marine mammals. In the event of a delay
or shutdown of activity resulting from
marine mammals in the shutdown zone,
animals must be allowed to remain in
the shutdown zone (i.e., must leave of
their own volition) and their behavior
must be monitored and documented.
(g) After island construction is
complete but drilling activities are
occurring, a PSO will be stationed on
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the LDPI for approximately 4 weeks
during the month of August to monitor
for the presence of marine mammals
around the island in the monitoring
zone.
(1) Marine mammal monitoring
during pile driving and removal must be
conducted by NMFS-approved PSOs in
a manner consistent with the following:
(i) At least one observer must have
prior experience working as an observer;
(ii) Other observers may substitute
education (degree in biological science
or related field) or training for
experience;
(iii) Where a team of three or more
observers are required, one observer
must be designated as lead observer or
monitoring coordinator. The lead
observer must have prior experience
working as an observer; and
(iv) Hilcorp must submit PSO CVs for
approval by NMFS prior to the onset of
pile driving;
(2) PSOs must have the following
additional qualifications:
(i) Ability to conduct field
observations and collect data according
to assigned protocols;
(ii) Experience or training in the field
identification of marine mammals,
including the identification of
behaviors;
(iii) Sufficient training, orientation, or
experience with the construction
operation to provide for personal safety
during observations;
(iv) Writing skills sufficient to prepare
a report of observations including but
not limited to the number and species
of marine mammals observed; dates and
times when in-water construction
activities were conducted; dates, times,
and reason for implementation of
mitigation (or why mitigation was not
implemented when required); and
marine mammal behavior; and
(v) Ability to communicate orally, by
radio or in person, with project
personnel to provide real-time
information on marine mammals
observed in the area as necessary.
(h) Hilcorp must deploy autonomous
sound recorders on the seabed to
conduct underwater passive acoustic
monitoring in the open water season the
first four years of the project such that
island construction activities, including
pile driving, and drilling operations are
recorded. Acoustic monitoring will be
conducted for the purposes of sound
source verification, to verify distances
from noise sources at which underwater
sound levels reach thresholds for
potential marine mammal harassment.
(i) Hilcorp must submit incident and
monitoring reports.
(1) Hilcorp must submit a draft annual
marine mammal and acoustic summary
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report to NMFS not later than 90 days
following the end of each calendar year.
Hilcorp must provide a final report
within 30 days after receipt of NMFS’
comments on the draft report. The
reports must contain, at minimum, the
following:
(i) Date and time that monitored
activity begins or ends;
(ii) Description of construction
activities occurring during each
observation period;
(iii) Weather parameters (e.g., wind
speed, percent cloud cover, visibility);
(iv) Water conditions (e.g., sea state,
tide state);
(v) Species, numbers, and, if possible,
sex and age class of marine mammals;
(vi) Description of any observable
marine mammal behavior patterns,
including bearing and direction of travel
and distance from construction activity;
(vii) Distance from construction
activities to marine mammals and
distance from the marine mammals to
the observation point;
(viii) Histograms of the perpendicular
distance at which marine mammals
were sighted by the PSOs;
(ix) Description of implementation of
mitigation measures (e.g., shutdown or
delay);
(x) Locations of all marine mammal
observations;
(xi) An estimate of the effective strip
width of the island-based PSOs and the
UAS imagery; and
(xii) Sightings and locations of marine
mammals associated with acoustic
detections.
(2) Annually, Hilcorp must submit a
report within 90 days of ice road
decommissioning. The report must
include the following:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics (i.e.,
adult or pup, behavior (avoidance,
resting, etc.));
(iii) Activities occurring during
observation including equipment being
used and its purpose, and approximate
distance to ringed seal(s);
(iv) Actions taken to mitigate effects
of interaction emphasizing: (A) Which
BMPs were successful; (B) which BMPs
may need to be improved to reduce
interactions with ringed seals; (C) the
effectiveness and practicality of
implementing BMPs; (D) any issues or
concerns regarding implementation of
BMPs; and (E) potential effects of
interactions based on observation data;
(v) Proposed updates (if any) to the
NMFS-approved Wildlife Management
Plan(s) or the ice-road BMPs;
(vi) Reports should be able to be
queried for information;
(3) Hilcorp must submit a final 5-year
comprehensive summary report to
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18:23 May 28, 2019
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NMFS not later than 90 days following
expiration of these regulations and LOA.
(4) Hilcorp must submit acoustic
monitoring reports per the Acoustic
Monitoring Plan.
(5) Hilcorp must report on observed
injured or dead marine mammals.
(i) In the unanticipated event that the
activity defined in § 217.30 clearly
causes the take of a marine mammal in
a prohibited manner, Hilcorp must
immediately cease such activity and
report the incident to the Office of
Protected Resources (OPR), NMFS, and
to the Alaska Regional Stranding
Coordinator, NMFS. Activities must not
resume until NMFS is able to review the
circumstances of the prohibited take.
NMFS will work with Hilcorp to
determine what measures are necessary
to minimize the likelihood of further
prohibited take and ensure MMPA
compliance. Hilcorp may not resume
their activities until notified by NMFS.
The report must include the following
information:
(A) Time, date, and location (latitude/
longitude) of the incident;
(B) Description of the incident;
(C) Environmental conditions (e.g.,
wind speed and direction, Beaufort sea
state, cloud cover, visibility);
(D) Description of all marine mammal
observations in the 24 hours preceding
the incident;
(E) Species identification or
description of the animal(s) involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of
the animal(s). Photographs may be taken
once the animal has been moved from
the waterfront area.
(H) In the event that Hilcorp discovers
an injured or dead marine mammal and
determines that the cause of the injury
or death is unknown and the death is
relatively recent (e.g., in less than a
moderate state of decomposition),
Hilcorp must immediately report the
incident to OPR and the Alaska
Regional Stranding Coordinator, NMFS.
The report must include the information
identified in paragraph (k)(5) of this
section. Activities may continue while
NMFS reviews the circumstances of the
incident. NMFS will work with Hilcorp
to determine whether additional
mitigation measures or modifications to
the activities are appropriate.
(ii) In the event Hilcorp discovers an
injured or dead marine mammal and
determines that the injury or death is
not associated with or related to the
activities defined in § 217.30 (e.g.,
previously wounded animal, carcass
with moderate to advanced
decomposition, scavenger damage),
Hilcorp must report the incident to OPR
and the Alaska Regional Stranding
PO 00000
Frm 00043
Fmt 4701
Sfmt 4702
24967
Coordinator, NMFS, within 24 hours of
the discovery. Hilcorp must provide
photographs or video footage or other
documentation of the stranded animal
sighting to NMFS. Photographs may be
taken once the animal has been moved
from the waterfront area.
§ 217.36
Letters of Authorization.
(a) To incidentally take marine
mammals pursuant to these regulations,
Hilcorp must apply for and obtain an
LOA.
(b) An LOA, unless suspended or
revoked, may be effective for a period of
time not to exceed the expiration date
of these regulations.
(c) If an LOA expires prior to the
expiration date of these regulations,
Hilcorp may apply for and obtain a
renewal of the LOA.
(d) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
LOA, Hilcorp must apply for and obtain
a modification of the LOA as described
in § 217.37.
(e) The LOA shall set forth:
(1) Permissible methods of incidental
taking;
(2) Means of effecting the least
practicable adverse impact (i.e.,
mitigation) on the species, its habitat,
and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and
reporting.
(f) Issuance of the LOA shall be based
on a determination that the level of
taking will be consistent with the
findings made for the total taking
allowable under these regulations.
(g) Notice of issuance or denial of an
LOA shall be published in the Federal
Register within thirty days of a
determination.
§ 217.37 Renewals and modifications of
Letters of Authorization.
(a) An LOA issued under §§ 216.106
of this chapter and 217.36 for the
activity identified in § 217.30(a) shall be
renewed or modified upon request by
the applicant, provided that:
(1) The proposed specified activity
and mitigation, monitoring, and
reporting measures, as well as the
anticipated impacts, are the same as
those described and analyzed for these
regulations (excluding changes made
pursuant to the adaptive management
provision in paragraph (c)(1) of this
section); and
(2) NMFS determines that the
mitigation, monitoring, and reporting
measures required by the previous LOA
under these regulations were
implemented.
(b) For LOA modification or renewal
requests by the applicant that include
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changes to the activity or the mitigation,
monitoring, or reporting (excluding
changes made pursuant to the adaptive
management provision in paragraph
(c)(1) of this section) that do not change
the findings made for the regulations or
result in no more than a minor change
in the total estimated number of takes
(or distribution by species or years),
NMFS may publish a notice of proposed
LOA in the Federal Register, including
the associated analysis of the change,
and solicit public comment before
issuing the LOA.
(c) An LOA issued under §§ 216.106
of this chapter and 217.36 for the
activity identified in § 217.30(a) may be
modified by NMFS under the following
circumstances:
(1) Adaptive management. NMFS may
modify (including augment) the existing
VerDate Sep<11>2014
18:23 May 28, 2019
Jkt 247001
mitigation, monitoring, or reporting
measures (after consulting with Hilcorp
regarding the practicability of the
modifications) if doing so creates a
reasonable likelihood of more
effectively accomplishing the goals of
the mitigation and monitoring set forth
in the preamble for these regulations.
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in an LOA:
(A) Results from Hilcorp’s monitoring
from the previous year(s).
(B) Results from other marine
mammal and/or sound research or
studies.
(C) Any information that reveals
marine mammals may have been taken
in a manner, extent or number not
authorized by these regulations or
subsequent LOAs.
PO 00000
Frm 00044
Fmt 4701
Sfmt 9990
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS will publish a notice
of proposed LOA in the Federal
Register and solicit public comment.
(2) Emergencies. If NMFS determines
that an emergency exists that poses a
significant risk to the well-being of the
species or stocks of marine mammals
specified in LOAs issued pursuant to
§§ 216.106 of this chapter and 217.36,
an LOA may be modified without prior
notice or opportunity for public
comment. Notice would be published in
the Federal Register within thirty days
of the action.
§§ 217.38–217.39
[Reserved]
[FR Doc. 2019–10965 Filed 5–28–19; 8:45 am]
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[Federal Register Volume 84, Number 103 (Wednesday, May 29, 2019)]
[Proposed Rules]
[Pages 24926-24968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10965]
[[Page 24925]]
Vol. 84
Wednesday,
No. 103
May 29, 2019
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to Construction and Operation of the Liberty Drilling and Production
Island, Beaufort Sea, Alaska; Proposed Rule
Federal Register / Vol. 84 , No. 103 / Wednesday, May 29, 2019 /
Proposed Rules
[[Page 24926]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 180627584-9388-01]
RIN 0648-BI00
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Construction and Operation of the Liberty Drilling and
Production Island, Beaufort Sea, Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from Hilcorp Alaska (Hilcorp) for
authorization to take marine mammals incidental to construction and
operation of the Liberty Drilling and Production Island (LDPI), over
the course of five years. Pursuant to the Marine Mammal Protection Act
(MMPA), NMFS is proposing regulations to govern that take, and requests
comments on the proposed regulations. NMFS will consider public
comments prior to making any final decision on the issuance of the
requested MMPA authorization and agency responses will be summarized in
the final notice of our decision.
DATES: Comments and information must be received no later than June 28,
2019.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2018-0053, by any of the following methods:
Electronic submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0053 click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service, 1315 East West Highway, Silver
Spring, MD 20910.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Hilcorp's application and any supporting documents, as
well as a list of the references cited in this document, may be
obtained online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of
problems accessing these documents, please call the contact listed
above (see FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
NMFS received an application from Hilcorp requesting five-year
regulations and authorization to incidentally take multiple species of
marine mammals in Foggy Island Bay, Beaufort Sea, by Level A harassment
(non-serious injury) and Level B harassment (behavioral disturbance),
incidental to construction and operation of the LDPI and associated
infrastructure. Please see ``Background'' below for definitions of
harassment. In addition, a limited unintentional take involving the
mortality or serious injury of no more than two ringed seals (Phoca
hispida) would be authorized to occur during annual ice road
construction and maintenance. This proposed rule establishes a
framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to
allow for the authorization of take of marine mammals incidental to
Hilcorp's activities related to construction and operation of the LDPI.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
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 for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the ``Proposed Mitigation''
section), as well as monitoring and reporting requirements. Section
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR
part 216, subpart I provide the legal basis for issuing this proposed
rule containing five-year regulations, and for any subsequent Letters
of Authorization (LOAs). As directed by this legal authority, this
proposed rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Proposed Rule
Following is a summary of the major provisions of this proposed
rule Hilcorp would be required to implement. These measures include:
Use of soft start during impact pile driving to allow
marine mammals the opportunity to leave the area prior to beginning
impact pile driving at full power;
Implementation of shutdowns of construction activities
under certain circumstances to minimize harassment, including injury;
Prohibition on impact pile driving during the fall Cross
Island bowhead whale hunt and seasonal drilling restrictions to
minimize impacts to marine mammals and subsistence users;
Implementation of best management practices to avoid and
minimize ice seal and habitat disturbance during ice road construction,
maintenance, and use;
Use of marine mammal and acoustic monitoring to detect
marine mammals and verify predicted sound fields;
Coordination with subsistence users and adherence to a
Plan of Cooperation (POC); and
Limitation on vessel speeds and transit areas, where
appropriate.
Background
The MMPA prohibits the take of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to
[[Page 24927]]
harassment, a notice of a proposed incidental take authorization is
provided to the public for review. Under the MMPA, ``take'' is defined
as meaning to harass, hunt, capture, or kill, or attempt to harass,
hunt, capture, or kill any marine mammal. ``Harassment'' is statutorily
defined as any act of pursuit, torment, or annoyance which has the
potential to injure a marine mammal or marine mammal stock in the wild
(Level A harassment) or 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 but which does not have the potential
to injure a marine mammal or marine mammal stock in the wild (Level B
harassment).
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable
[adverse] impact'' on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance, and on the availability of such species or stocks
for taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
On August 23, 2018, the Bureau of Ocean Energy Management (BOEM)
released a Final Environmental Impact Statement (EIS) analyzing the
possible environmental impacts of Hilcorp's proposed Liberty
development and production plan (DPP). BOEM's Draft EIS was made
available for public comment from August 18, 2017 through December 8,
2017. The final EIS may be found at https://www.boem.gov/hilcorp-liberty/. NMFS is a cooperating agency on the EIS. Accordingly, NMFS
plans to adopt the EIS, provided our independent evaluation of the
document finds that it includes adequate information analyzing the
effects on the human environment of issuing the rule. We will review
all comments submitted in response to this notice prior to concluding
our NEPA process or making a final decision on the regulations request.
Summary of Request
On August 2, 2017, Hilcorp petitioned NMFS for rulemaking under
Section 101(a)(5)(A) of the MMPA to authorize the take of six species
of marine mammals incidental to construction and operation of the
proposed LDPI in Foggy Island Bay, Alaska. On April 26, 2018, Hilcorp
submitted a revised petition which NMFS deemed adequate and complete.
On May 9, 2018, we published a notice of receipt of Hilcorp's petition
in the Federal Register, requesting comments and information related to
the request for thirty days (83 FR 21276). We received comments from
the Center for Biological Diversity and 15,843 citizens opposing
issuance of the requested regulations and LOA. We also received
comments from the Alaska Eskimo Whaling Commission (AEWC) who
recommended we include subsistence related mitigation and coordination
requirements in the final rule. The comments and information received
were considered in development of this proposed rule and are available
online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. More recently,
Hilcorp provided subsequent additional information, including details
on a previously undescribed component of the project (installation of
foundation piles in the interior of the LDPI), and revised marine
mammal density and estimate take numbers on February 4, 2019. Hilcorp
also updated their proposed Marine Mammal Mitigation and Monitoring
Plan (4MP) on January 29, 2019.
To extract oil and gas in the Liberty Oil Field, Hilcorp is
proposing to construct a 9.3 acre artificial island (the LDPI) in 19
feet (ft) (5.8 meters (m)) of water in Foggy Island Bay, approximately
5 miles (mi) (8 kilometers (km)) north of the Kadleroshilik River and
install supporting infrastructure (e.g., ice roads, pipeline). Ice
roads would be constructed annually and begin December 2020. Island
construction, which requires impact and vibratory pile driving, is
proposed to commence and be completed in 2021. Pile driving would
primarily occur during ice-covered season (only ice seals are present
during this time period); however, up to two weeks of pile driving may
occur during the open-water season. Pipeline installation is
anticipated to occur in 2022. Drilling and production is proposed to
occur from 2022 through 2025.
Hilcorp requests, and NMFS is proposing to authorize, the take, by
Level A harassment and Level B harassment, of bowhead whales (Balaena
mysticetus), gray whales (Eschrichtius robustus), beluga whales
(Delphinapterus leucas), ringed seals (Phoca hispida), bearded seals
(Erignathus barbatus), and spotted seals (Phoca largha) incidental to
LDPI construction and operation activities (e.g., pile driving, ice
road and island construction). Hilcorp also requested, and NMFS is
proposing to authorize, mortality and serious injury of two ringed
seals incidental to annual ice road construction over a 5-year period.
The proposed regulations and LOA would be valid for five years from
December 1, 2020, through November 30, 2025.
Description of the Specified Activity
Overview
Hilcorp is proposing to construct and operate the LDPI, a self-
contained offshore drilling and production facility located on an
artificial gravel island. Infrastructure and facilities necessary to
drill wells and process and export approximately 60,000 to 70,000
barrels of oil per day to shore would be installed on the island. To
transport oil, a pipeline from the island would be installed, tying
into the existing Bandami pipeline located on shore between the
Sagavanirktok and Kadleroshilik Rivers on Alaska's North Slope. To
access the island and move vehicles and equipment, ice roads would be
constructed annually. All island construction and pipeline installation
would occur during winter months as much as possible; however, pile
driving and slope protection could occur during the open water season.
Drilling and production, once begun, would occur year round. After
island and pipeline construction, Hilcorp would commence and continue
drilling and production for approximately 20 to 25 years at which time
the island would be decommissioned. The proposed regulations and LOA
would cover the incidental take of marine mammals during LDPI
construction and operation for the first five years of work.
Thereafter, data collected during these five years (e.g., acoustic
monitoring during drilling, ice road marine mammal monitoring) would
determine
[[Page 24928]]
if future incidental take authorizations are warranted for continuing
operations.
Dates and Duration
The proposed regulations would be valid for a period of five years
from December 1, 2020, through November 30, 2025. Ice road construction
and pipeline installation would be limited to winter months. Island
construction would be conducted primarily during winter months;
however, given construction schedules are subject to delays for
multiple reasons. Hilcorp anticipates, at most, up to two weeks of
open-water pile driving may be required in the first year to complete
any pile driving not finished during the winter. Other work such as
island slope armoring may also occur during open-water conditions. All
island construction would commence and is expected to be completed in
the first year of the proposed regulations (December 2020 through
November 2021). Pipeline installation would occur in year 2 of the
proposed regulations (December 2021 through November 2022), while
drilling and production would begin in year 3 and continue through the
life of the proposed regulations. Ice road construction and maintenance
activities would occur each winter.
Specified Geographical Region
The Liberty field is located in Federal waters of Foggy Island Bay,
Beaufort Sea about 8.9 km (5.5 mi) offshore in 6.1 m (20 ft) of water
and approximately 8 to 13 km (5 to 8 mi) east of the existing Endicott
Satellite Drilling Island (SDI) and approximately 32 km (20 mi) east of
Prudhoe Bay. Hilcorp would construct the Liberty project on three
leases, OCS-Y-1650, OCS-Y-1886, and OCS-Y-1585. The proposed LDPI would
be constructed in 19 ft (5.8 m) of water about 5 mi (8 km) offshore in
Foggy Island Bay. The LDPI and all associated infrastructure (e.g., ice
roads) are located inside the McClure barrier island group which
separates Foggy Island Bay from the Beaufort Sea (Figure 1).
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[[Page 24929]]
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Detailed Description of Activities
The Liberty Prospect is located 8.85 km offshore in about 6 m of
water, inside the Beaufort Sea's barrier islands. Hilcorp, as the
Liberty operator, is proposing to develop the Liberty Oil Field
reservoir, located on the Outer Continental Shelf (OCS), in Foggy
Island Bay, Beaufort Sea, Alaska. The Liberty reservoir is the largest
delineated but undeveloped light oil reservoir on the North Slope. It
is projected to deliver a peak production rate of between 60,000 and
70,000 barrels of oil per day within two years of initial production.
Total recovery over an estimated field life of 15 to 20 years is
predicted to be in the range of 80 to 150 million stock tank barrels of
oil. The Liberty Oil Field leases were previously owned by BP
Exploration Alaska, Inc. (BPXA). In April 2014, BPXA announced the sale
of several North Slope assets to Hilcorp including the area where the
proposed LDPI would be constructed and other existing oil production
islands (Northstar, Endicott, Milne Point). The Liberty Project has
many similarities to previous oil and gas islands constructed on the
North Slope, including Endicott, Northstar and Oooguruk.
The proposed LDPI project includes development of a mine-site to
supply gravel for the construction of the LDPI, construction of the
island and annual ice roads, installation of an undersea pipeline that
reaches shore from the LDPI and then connects to the existing above-
ground Badami pipeline, drilling, production and operation (for
simplicity, hence forward we refer to both production and operation as
``production''). The mine site is located inland of marine mammal
habitat over which NMFS has jurisdiction; therefore, its development
will not be discussed further in this proposed rule as no impacts to
marine mammals under NMFS jurisdiction would be affected by this
project component. Here, we discuss those activities that have the
potential to take marine mammals: Ice road construction and
maintenance, island construction (pile driving and slope armoring),
pipeline installation, drilling and production. We also describe
auxiliary activities, including vessel and aircraft transportation. A
schedule of all phases on the project and summary of equipment and
activities involved are included in Table 1.
Table 1--LDPI Project Components, Schedule, and Associated Equipment
----------------------------------------------------------------------------------------------------------------
Regulation
Project component year Season Equipment and activity
----------------------------------------------------------------------------------------------------------------
Ice road construction, use, and 1-5 Ice-covered.............. Grader, ice auger, trucks
maintenance. (flood road, haul gravel,
general transit,
maintenance).
Island construction................... * 1 Ice-covered, open water.. Impact and vibratory pile and
pipe driving, backhoe
(digging), excavator (slope
shaping, armor installation,
ditchwitch (sawing ice).
Pipeline installation................. 2 Ice-covered.............. Ditchwitch (sawing ice),
backhoe (digging), trucks.
Drilling and production............... 3-5 Ice-covered, open water.. Drill rig, land-based
equipment on island (e.g.,
generators).
Marine vessel and aircraft support.... 1-5 Open-water, ice-covered Barge, tugs, crew boats,
(helicopter only). helicopter.
Emergency and oil response training... 1-5 Ice-covered, open water.. Vessels, hovercrafts, all-
terrain vehicles, snow
machines, etc.
----------------------------------------------------------------------------------------------------------------
* Hilcorp has indicated a goal to complete all LDPI construction in the first year the regulations would be
valid; however, they may need to install foundation piles in year 2.
Ice Road and Ice Pad Construction and Maintenance
Hilcorp will construct ice roads and perform maintenance, as
necessary. Ice roads are a route across sea ice created by clearing and
grading snow then pumping seawater from holes drilled through the
floating ice. Some roads may use grounded ice. Hilcorp would clear away
snow using a tractor, bulldozer, or similar piece of equipment then
pump seawater from holes drilled through floating ice, and then flood
the ice road. The ice roads will generally be constructed by pumper
units equipped with an ice auger to drill holes in the sea ice and then
pump water from under the ice to flood the surface of the ice. The ice
augers and pumping units will continue to move along the ice road
alignment to flood the entire alignment, returning to a previous area
as soon as the flooded water has frozen. The ice road will be
maintained and kept clean of gravel and other solids. Freshwater can be
sprayed onto the road surface to form a cap over the main road
structure for the top layer or to repair any cracks.
Ice roads will be used for onshore and offshore access, installing
the pipeline, hauling gravel used to construct the island, moving
equipment on/off island, personnel and supply transit, etc. Ice roads
are best constructed when weather is -20 degrees Fahrenheit (F) to -30
degrees F, but temperatures below 0 degree F are considered adequate
for ice road construction. Ice road construction can typically be
initiated in mid- to late-December and roads maintained until mid-May.
At the end of the season, ice roads will be barricaded by snow berm
and/or slotted at the entrance to prevent access and allowed to melt
naturally. Figure 1 shows the locations of the proposed ice roads.
Ice road # 1 will extend approximately 11.3 km (7 mi) over
shorefast sea ice from the Endicott SDI to the LDPI (the SDI to LDPI
ice road). It will be approximately 37 m wide (120 ft) with driving
lane of approximately 12 m (40 ft). It would cover approximately 160
acres of sea ice.
Ice road # 2 (approximately 11.3 km (7 mi)) will connect
the LDPI to the proposed Kadleroshilik River gravel mine site and then
will continue to the juncture with the Badami ice road (which is ice
road # 4). It will be approximately 15 m (50 ft) wide.
Ice road # 3 (approximately 9.6 km [6 mi], termed the
``Midpoint Access Road'') will intersect the SDI to LDPI ice road and
the ice road between the LDPI and the mine site. It will be
approximately 12 m (40 ft) wide.
Ice road # 4 (approximately 19.3 km (12 mi)), located
completely onshore, will parallel the Badami pipeline and connect the
mine site with the Endicott road.
All four ice roads would be constructed for the first three years
to support pipeline installation and transportation from existing North
Slope roads to the proposed gravel mine site, and from the mine site to
the proposed LDPI location in the Beaufort Sea. After year 3, only ice
road #1 would be constructed to allow additional materials and
equipment to be
[[Page 24930]]
mobilized to support LDPI, pipeline, and facility construction
activities as all island construction and pipeline installation should
be complete by year 3. Winter sea ice road/trail construction will
begin as early as possible (typically December 1 through mid-February).
It is anticipated that all ice road construction activities will be
initiated prior to March 1, before the time when female ringed seals
establish birth lairs.
In addition to the ice roads, three ice pads are proposed to
support construction activities (year 2 and 3). These would be used to
support LDPI, pipeline, (including pipe stringing and two stockpile/
disposal areas) and facilities construction. A fourth staging area ice
pad (approximately 350 feet by 700 feet) would be built on the sea ice
on the west side of the LDPI during production well drilling
operations.
Other on-ice activities occurring prior to March 1 could also
include spill training exercises, pipeline surveys, snow clearing, and
work conducted by other snow vehicles such as a Pisten Bully, snow
machine, or rollagon. Prior to March 1, these activities could occur
outside of the delineated ice road/trail and shoulder areas.
LDPI Construction
The LDPI will include a self-contained offshore drilling and
production facility located on an artificial gravel island with a
subsea pipeline to shore. The LDPI will be located approximately 8
kilometers (km) or 5 miles (mi) offshore in Foggy Island Bay and 11.7
km (7.3 mi) southeast of the existing SDI on the Endicott causeway (see
Figure 1). The LDPI will be constructed of reinforced gravel in 5.8
meters (m) (19 feet (ft)) of water and have a working surface of
approximately 3.8 hectares (ha) (9.3 acres (ac)). A steel sheet pile
wall would surround the island to stabilize the placed gravel and the
island would include slope protection bench, dock and ice road access
and a seawater intake area (Figure 2).
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Hilcorp would begin constructing the LDPI during the winter
immediately following construction of the ice road from the mine site
to the island location. Sections of sea ice at the island's location
would be cut using a ditchwitch and removed. A backhoe and support
trucks using the ice road would move ice away. Once the ice is removed,
gravel will be poured through the water column to the sea floor,
building the island structure from the bottom up. A conical pile of
gravel (hauled in from trucks from the mine site using the ice road)
will form on the sea floor until it reaches the surface of the ice.
Gravel hauling over the ice road to the LDPI construction site is
estimated to continue for 50 to 70 days, and conclude mid-April or
earlier depending on road conditions. The construction would continue
with a sequence of removing additional ice and pouring gravel until the
surface size is achieved. Following gravel placement, slope armoring
and protection installation would occur. Using island-based equipment
(e.g., backhoe, bucket-dredge) and divers, Hilcorp would create a slope
protection profile consisting of a 60-ft (18.3 m) wide bench covered
with a linked concrete mat that
[[Page 24931]]
extends from a sheet pile wall surrounding the island to slightly above
mean low low water (MLLW) (Figure 3). The linked concrete mat requires
a high strength, yet highly permeable woven polyester fabric under
layer to contain the gravel island fill. The filter fabric panels will
be overlapped and tied together side-by-side (requiring diving
operations) to prevent the panels from separating and exposing the
underlying gravel fill. Because fabric is overlapped and tied together,
no slope protection debris would enter the water column should it be
damaged. Above the fabric under layer, a robust geo-grid will be placed
as an abrasion guard to prevent damage to the fabric by the linked mat
armor. The concrete mat system would continue another at a 3:1 slope
another 86.5 ft into the water, terminating at a depth of -19 ft (-5.8
m). In total, from the sheet pile wall, the bench and concrete mat
would extend 146.5 ft. Island slope protection is required to assure
the integrity of the gravel island by protecting it from the erosive
forces of waves, ice ride-up, and currents. A detailed inspection of
the island slope protection system will be conducted annually during
the open-water season to document changes in the condition of the
island slope protection system that have occurred since the previous
year's inspection. Any damaged material would be removed. Above-water
activities will consist of a visual inspection of the dock and sheet
pile enclosure, and documenting the condition of the island bench and
ramps. The below-water slopes will be inspected by divers or if water
clarity allows, remotely by underwater cameras contracted separately by
Hilcorp. The results of the below water inspection will be recorded for
repair if needed. No vessels will be required. Multi-beam bathymetry
and side-scan sonar imagery of the below-water slopes and adjacent sea
bottom will be acquired using a bathymetry vessel. The sidescan sonar
would operate at a frequency between 200-400 kilohertz (kHz). The
single-beam echosounder would operate at a frequency of about 210 kHz.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TP29MY19.009
BILLING CODE 3510-22-C
Once the slope protection is in place, Hilcorp would install the
sheet pile wall around the perimeter of the island using vibratory and,
if necessary, impact hammers. Hilcorp anticipates driving up to 20
piles per day to a depth of 25 ft. A vibratory hammer would be used
first followed by an impact hammer to ``proof'' the pile. Hilcorp
anticipates each pile needing 100 hammer strikes over approximately 2
minutes of impact driving to obtain final desired depth for each sheet
pile. Per day, this equates to a maximum of 40 minutes and 2,000
strikes of impact hammering per day. For vibratory driving, pile
penetration speed can vary depending on ground conditions, but a
minimum sheet pile penetration speed is 20 inches (0.5 m) per minute to
avoid damage to pile or hammer (NASSPA 2005). For this project, the
anticipated duration is based on a preferred penetration speed greater
than 40 inches (1 m) per minute, resulting in 7.5 minutes to drive each
pile. Given the high storm surge and larger waves that are expected to
arrive at the LDPI site from the west and northwest, the wall will be
higher on the west side than on the east side. At the top of the sheet-
pile wall, overhanging steel ``parapet'' will be installed to prevent
wave passage over the wall.
[[Page 24932]]
Within the interior of the island, 16 steel conductor pipes would
be driven to a depth of 160 ft (49 m) to provide the initial stable
structural foundation for each oil well. They would be set in a well
row in the middle of the island. Depending on the substrate the
conductor pipes would be driven by impact or vibratory methods or both.
During construction of the nearby Northstar Island (located in deeper
water), it took 5 to 8.5 hours to drive one conductor pipe (Blackwell
et al., 2004). For the Liberty LDPI, Hilcorp anticipates it would take
two hours of active pile driving per day to install a conductor pipe
given the 5 to 8.5 hour timeframe at Northstar includes pauses in pile
driving and occurred in deeper water requiring deeper pile depths. In
addition, approximately 700 to 1,000 foundation piles may also be
installed within the interior of the island should engineering
determine they are necessary for island support.
Pipeline Installation
Hilcorp would install a pipe-in-pipe subsea pipeline consisting of
a 12-in diameter inner pipe and a 16-in diameter outer pipe to
transport oil from the LDPI to the existing Bandami pipeline. Pipeline
construction is planned for the winter after the island is constructed.
A schematic of the pipeline can be found in Figure 2-3 of BOEM's Final
EIS available at https://www.boem.gov/Hilcorp-Liberty/. The pipeline
will extend from the LDPI, across Foggy Island Bay, and terminate
onshore at the existing Badami Pipeline tie-in location. For the marine
segment, construction will progress from shallower water to deeper
water with multiple construction spreads.
To install the pipeline, a trench will be excavated using ice-road
based long reach excavators with pontoon tracks. The pipeline bundle
will be lowered into the trench using side booms to control its
vertical and horizontal position, and the trench will be backfilled by
excavators using excavated trench spoils and select backfill. Hilcorp
intends to place all material back in the trench slot. All work will be
done from ice roads using conventional excavation and dirt-moving
construction equipment. The target trench depth is 9 to 11 ft (2.7 to
3.4 m) with a proposed maximum depth of cover of approximately 7 ft
(2.1 m). The pipeline will be approximately 5.6 mi (9 km) long. Hydro-
testing (pressure testing using sea water) of the entire pipeline will
be completed prior to commissioning.
Drilling and Production
The final drill rig has yet to be chosen by Hilcorp but has been
narrowed to two options and will accommodate drilling of 16 wells. The
first option is the use of an existing platform-style drilling unit
that Hilcorp owns and operates in the Cook Inlet. Designated as Rig
428, the rig has been used recently and is well suited in terms of
depth and horsepower rating to drill the wells at Liberty. A second
option that is being investigated is a new build drilling unit that
would be built to not only drill Liberty development wells, but would
be more portable and more adaptable to other applications on the North
Slope. Regardless of drill rig type, the well row arrangement on the
island is designed to accommodate up to 16 wells. We note that while
Hilcorp is proposing a 16 well design, only 10 wells would be drilled.
The 6 additional well slots would be available as backups or for
potential in-fill drilling if needed during the project life.
Process facilities on the island will separate crude oil from
produced water and gas. Gas and water will be injected into the
reservoir to provide pressure support and increase recovery from the
field. A single-phase subsea pipe-in-pipe pipeline will transport
sales-quality crude from the LDPI to shore, where an aboveground
pipeline will transport crude to the existing Badami pipeline. From
there, crude will be transported to the Endicott Sales Oil Pipeline,
which ties into Pump Station 1 of the TransAlaska Pipeline System
(TAPS) for eventual delivery to a refinery.
Description of Marine Mammals in the Area of the Specified Activity
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (www.nmfs.noaa.gov/pr/species/mammals/). Additional information
may be found in BOEM's Final EIS for the project which is available
online at https://www.boem.gov/Hilcorp-Liberty/.
Table 2 lists all species with expected potential for occurrence in
Foggy Island Bay and surrounding Beaufort Sea and summarizes
information related to the population or stock, including regulatory
status under the MMPA and ESA and potential biological removal (PBR),
where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR
is defined by the MMPA as the maximum number of animals, not including
natural mortalities, that may be removed from a marine mammal stock
while allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS' SARs). PBR and annual serious injury
and mortality from anthropogenic sources are included here as gross
indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. 2017 SAR for Alaska (Muto et al., 2018). All values
presented in Table 2 are the most recent available at the time of
publication and are available in the 2017 SARs (Muto et al., 2018).
[[Page 24933]]
Table 2--Marine Mammals With Expected Potential Occurrence in Beaufort Sea, Alaska
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance ) (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale.......................... Eschrichtius robustus.. Eastern North Pacific.. -;N 20,990 (0.05, 20,125, 624 132
2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bowhead whale....................... Balaena mysticetus..... Western Arctic......... E/D; Y 16,820 (0.052, 16,100, 161 46
2011).
Humpback whale...................... Megaptera novaeangliae. Central North Pacific E/D; Y 10,103 (0.3, 7,891, 83 26
Stock. 2006).
Minke whale......................... ....................... Alaska................. -;N unk................... undet 0
Fin whale........................... ....................... Northeast Pacific...... E/D; Y 3,168 (0.26, 2,554, 5.1 0.6
2013) \6\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beluga whale........................ Delphinapterus leucas.. Beaufort Sea........... -; N 39,258 (0.229, N/A, Und 139
1992).
....................... Eastern Chukchi........ -; N 20,752 (0.70, 12,194, 244 67
2012).
Killer whale........................ Orcinus orcas.......... Eastern North Pacific -;N 587 (n/a, 587, 2012).. 5.9 0
Gulf of Alaska,
Aleutian Islands, and
Bering Sea Transient.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steller sea lion.................... Eumatopias jubatus..... Eastern U.S............ -; N 41,638 (-, 41,638, 2,498 108
2015).
....................... Western U.S............ E/D;Y 53,303 (-, 53,303, 320 241
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ringed Seal......................... Pusa hispida........... Alaska................. T, D; Y 170,000 (-, 170,000, Und 1,054
2012) \4\.
Bearded seal........................ Erignathus barbatus.... Alaska................. T, D; Y 299,174 (-, 273,676) Und 391
\5\.
Spotted seal........................ Phoca largha........... Alaska................. .................. 423,625 (-, 423,237, 12,697 329
2013).
Ribbon seal......................... Histriophoca fasciata.. Alaska................. .................. 184,000 (-, 163,086, 9,785 3.9
2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
stock abundance.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
subsistence use, commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum
value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The population provided here was derived using a using a very limited sub-sample of the data collected from the U.S. portion of the Bering Sea in
2012 (Conn et al., 2014). Thus, the actual number of ringed seals in the U.S. sector of the Bering Sea is likely much higher, perhaps by a factor of
two or more (Muto et al., 2018). Reliable estimates of abundance are not available for the Chukchi and Beaufort seas (Muto et al., 2018).
\5\ 5. In spring of 2012 and 2013, surveys were conducted in the Bering Sea and Sea of Okhotsk; these data do not include seals in the Chukchi and
Beaufort Seas at the time of the survey.
\6\ NBEST, NMIN, and PBR have been calculated for this stock; however, important caveats exist. See Stock Assessment Report text for details.
Note--Italicized species are not expected to be taken or proposed for authorization.
All species that could potentially occur in the Beaufort Sea are
included in Table 2. However, the temporal and/or spatial occurrence of
minke, fin, humpback whales, killer whales, narwhals, harbor porpoises,
and ribbon seals are such that take is not expected to occur, and they
are not discussed further beyond the explanation provided here. These
species, regularly occur in the Chukchi Sea but not as commonly in the
Beaufort Sea. Narwhals, Steller sea lions, and hooded seals are
considered extralimital to the proposed action area These species could
occur in the Beaufort Sea, but are either uncommon or extralimital east
of Barrow (located in the Foggy Island Bay area and surveys within the
Bay have revealed zero sightings).
In addition, the polar bear may be found in Foggy Island Bay.
However, this species is managed by the U.S. Fish and Wildlife Service
and is not considered further in this document.
On October 11, 2016, NOAA released the Final Environmental Impact
Statement (FEIS) for the Effects of Oil and Gas Activities in the
Arctic Ocean (81 FR 72780, October 21, 2016) regarding geological and
geophysical (i.e., seismic) activities, ancillary activities, and
exploratory drilling. The Final EIS may be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/environmental-impact-statement-eis-effects-oil-and-gas-activities. Although no
seismic activities are proposed by Hilcorp, the EIS contains detailed
[[Page 24934]]
information on marine mammal species proposed to be potentially taken
by Hilcorp's specified activities. More recently, BOEM released a final
EIS on the Liberty Project. We incorporate by reference the information
on the species proposed to be potentially taken by Hilcorp's specified
activities from these documents and provide a summary and any relevant
updates on species status here.
Bowhead Whale
The only bowhead whale stock found within U.S. waters is the
Western Arctic stock, also known as the Bering-Chukchi-Beaufort stock
(Rugh et al., 2003) or Bering Sea stock (Burns et al., 1993). The
majority of the Western Arctic stock migrates annually from wintering
areas (December to March) in the northern Bering Sea, through the
Chukchi Sea in the spring (April through May), to the eastern Beaufort
Sea where they spend much of the summer (June through early to mid-
October) before returning again to the Bering Sea in the fall
(September through December) to overwinter (Braham et al., 1980, Moore
and Reeves 1993, Quakenbush et al., 2010a, Citta et al., 2015). Some
bowhead whales are found in the western Beaufort, Chukchi, and Bering
seas in summer, and these are thought to be a part of the expanding
Western Arctic stock (Rugh et al., 2003; Clarke et al., 2013, 2014,
2015; Citta et al., 2015). The most recent population parameters (e.g.,
abundance, PBR) of western Arctic bowhead whales are provided in Table
2.
Bowhead whale distribution in the Beaufort Sea during summer-fall
has been studied by aerial surveys through the Bowhead Whale Aerial
Survey Project (BWASP). This project was funded or contracted by the
Minerals Management Service (MMS)/Bureau of Ocean Energy Management
(BOEM) and Bureau of Land Management (BLM) annually from 1979 to 2010.
The focus of the BWASP aerial surveys was the autumn migration of
bowhead whales through the Alaskan Beaufort Sea, although data were
collected on all marine mammals sighted. The NMFS National Marine
Mammal Laboratory (NMML) began coordinating BWASP in 2007, with funding
from MMS. In 2011, an Interagency Agreement between the BOEM and NMML
combined BWASP with COMIDA under the auspices of a single survey called
Aerial Surveys of Arctic Marine Mammals (ASAMM) (Clarke et al., 2012);
both studies are funded by BOEM. In September to mid-October bowheads
begin their western migration out of the Canadian Beaufort Sea to the
Chukchi Sea (Figure 3.2-10). Most westward travel across the Beaufort
Sea by tagged whales was over the shelf, within 100 km (62 mi) of
shore, although a few whales traveled farther offshore (Quakenbush et
al., 2012).
During winter and spring, bowhead whales are closely associated
with sea ice (Moore and Reeves 1993, Quakenbush et al., 2010a, Citta et
al., 2015). The bowhead whale spring migration follows fractures in the
sea ice around the coast of Alaska, generally in the shear zone between
the shorefast ice and the mobile pack ice. During summer, most of the
population is in relatively ice-free waters in the southeastern
Beaufort Sea (Citta et al., 2015), an area often exposed to industrial
activity related to petroleum exploration (e.g., Richardson et al.,
1987, Davies, 1997). Summer aerial surveys conducted in the western
Beaufort Sea during July and August of 2012-2014 have had relatively
high sighting rates of bowhead whales, including cows with calves and
feeding animals (Clarke et al., 2013, 2014, 2015). During the autumn
migration through the Beaufort Sea, bowhead whales generally select
shelf waters (Citta et al., 2015). In winter in the Bering Sea, bowhead
whales often use areas with ~100 percent sea-ice cover, even when
polynyas are available (Quakenbush et al., 2010a, Citta et al., 2015).
From 2006 through 2014, median distance of bowhead whales from
shore was 23.6 km (14.7 mi) in the East Region and 24.2 km (15.0 mi) in
the West Region during previous low-ice years, with annual median
distances ranging from as close as 6.3 km (3.9 mi) in 2009 to 37.6 km
(23.4 mi) in 2013 (Clarke et al., 2015b). Median depth of sightings
during previous low-ice years was 39 m (128 ft) in the East Region and
21 m (69 ft) in the West Region; in 2014, median depth of on-transect
sightings was 20 m (66 ft) and 19 m (62 ft), respectively (Clarke et
al., 2015b). In September and October 2014, bowhead whales in the East
Region of the study area were sighted in shallower water and closer to
shore than in previous years of light sea ice cover; in the West
Region, bowhead sightings in fall 2014 were in shallower water than in
previous light ice years, but the distance from shore did not differ
(Clarke et al., 2015b). Behaviors included milling, swimming, and
feeding, to a lesser degree. Highest numbers of sightings were in the
central Beaufort Sea and east of Point Barrow. Overall, the most
shoreward edge of the bowhead migratory corridor for bowhead extends
approximately 40 km (25 mi) north from the barrier islands, which are
located approximately 7 km (4 mi) north of Liberty Project. The closest
approach of a tagged whale occurred in August 2016 when it came within
16 km of the proposed LDPI (Quakenbush, 2018).
Historically, there have been few spring, summer, or autumn
observations of bowheads in larger bays such as Camden, Prudhoe, and
Harrison Bays, although some groups or individuals have occasionally
been observed feeding around the periphery of or, less commonly, inside
the bays as migration demands and feeding opportunities permit.
Observations indicate that juvenile, sub-adult, and cow-calf pairs of
bowheads are the individuals most frequently observed in bays and
nearshore areas of the Beaufort, while more competitive whales are
found in the Canadian Beaufort and Barrow Canyon, as well as deeper
offshore waters (Clarke et al., 2011b, 2011c, 2011d, 2012, 2013, 2014,
2015b; Koski and Miller, 2009; Quakenbush et al., 2010).
Clarke et al. (2015) evaluated biologically important areas (BIAs)
for bowheads in the U.S. Arctic region and identified nine BIAs. The
spring (April-May) migratory corridor BIA for bowheads is far offshore
of the LDPI but within the transit portion of the action area, while
the fall (September-October) migratory corridor BIA (western Beaufort
on and north of the shelf) for bowheads is further inshore and closer
to the LDPI. Clarke et al. (2015) also identified four BIAs for
bowheads that are important for reproduction and encompassed areas
where the majority of bowhead whales identified as calves were observed
each season; none of these reproductive BIAs overlap with the LDPI, but
may be encompassed in indirect areas such as vessel transit route.
Finally, three bowhead feeding BIAs were identified. Again, there is no
spatial overlap of the activity area with these BIAs.
From July 8, 2008, through August 25, 2008, BPXA conducted a 3D
seismic survey in the Liberty Prospect, Beaufort Sea. During the August
survey a mixed-species group of whales was observed in one sighting
near the barrier islands that included bowhead and gray whales (Aerts
et al., 2008). This is the only known survey sighting of bowhead whales
within Foggy Island Bay despite industry surveys occurring during the
open water season in 2010, 2014, and 2015 and NMFS aerial surveys flown
inside Foggy Island Bay in 2016 and 2017.
Alaska Natives have been taking bowhead whales for subsistence
purposes for at least 2,000 years (Marquette and Bockstoce, 1980,
Stoker
[[Page 24935]]
and Krupnik, 1993). Subsistence takes have been regulated by a quota
system under the authority of the IWC since 1977. Alaska Native
subsistence hunters, primarily from 11 Alaska communities, take
approximately 0.1-0.5 percent of the population per annum (Philo et
al., 1993, Suydam et al., 2011). The average annual subsistence take
(by Natives of Alaska, Russia, and Canada) during the 5-year period
from 2011 through 2015 is 43 landed bowhead whales (Muto et al., 2018).
Gray Whale
The eastern North Pacific population of gray whales migrates along
the coasts of eastern Siberia, North America, and Mexico (Allen and
Angliss 2010; Weller et al., 2002) and population size has been
steadily increasing, potentially reaching carrying capacity (Allen and
Angliss, 2010, 2012). Abundance estimates will likely rise and fall in
the future as the population finds a balance with the carrying-capacity
of the environment (Rugh et al., 2005). The steadily increasing
population abundance warranted delisting of the eastern North Pacific
gray whale stock in 1994, as it was no longer considered endangered or
threatened under the ESA (Rugh et al., 1999). A five-year status review
determined that the stock was neither in danger of extinction nor
likely to become endangered in the foreseeable future, thus, retaining
the non-threatened classification (Rugh et al., 1999). Table 2 provided
population parameters for this stock.
The gray whale migration may be the longest of any mammalian
species. They migrate over 8,000 to 10,000 km (5,000 to 6,200 mi)
between breeding lagoons in Mexico and Arctic feeding areas each spring
and fall (Rugh et al., 1999). The southward migration out of the
Chukchi Sea generally begins during October and November, passing
through Unimak Pass in November and December, then continues along a
coastal route to Baja California (Rice et al., 1984). The northward
migration usually begins in mid-February and continues through May
(Rice et al. 1984).
Gray whales are the most coastal of all the large whales and
inhabit primarily inshore or shallow, offshore continental shelf waters
(Jones and Swartz, 2009); however, they are more common in the Chukchi
than in the Beaufort Sea. Throughout the summers of 2010 and 2011, gray
whales regularly occurred in small groups north of Point Barrow and
west of Barrow (George et al., 2011; Shelden et al., 2012). In 2011,
there were no sightings of gray whales east of Point Barrow during
ASAMM aerial surveys (Clarke et al., 2012); however, they were observed
east of Point Barrow, primarily in the vicinity of Barrow Canyon, from
August to October 2012 (Clarke et al., 2013). Gray whales were again
observed east of Point Barrow in 2013, with all sightings in August
except for one sighting in late October (Clarke et al., 2014). In 2014,
sightings in the Beaufort Sea included a few whales east of Point
Barrow and one north of Cross Island near Prudhoe Bay (Clarke et al.,
2015b). Gray whales prefer shoal areas (<60 m (197 ft) deep) with low
(<7 percent) ice cover (Moore and DeMaster, 1997). These areas provide
habitat rich in gray whale prey (amphipods, decapods, and other
invertebrates).
From July 8, 2008 through August 25, 2008, BPXA conducted a 3D
seismic survey in the Liberty Prospect, Beaufort Sea. During the August
survey a mixed-species group of whales was observed in one sighting
near the barrier islands that included bowhead and gray whales (Aerts
et al., 2008). This is the only known survey sighting of gray whales
within Foggy Island Bay despite industry surveys occurring during the
open water season in 2010, 2014, and 2015 and NMFS aerial surveys flown
inside Foggy Island Bay in 2016 and 2017.
Beluga Whale
Five beluga whale stocks are present in Alaska including the Cook
Inlet, Bristol Bay, eastern Bering Sea, eastern Chukchi Sea, and
Beaufort Sea stocks (O'Corry-Crowe et al., 1997, Allen and Angliss,
2015). The eastern Chukchi and Beaufort Sea stocks are thought to
overlap in the Beaufort Sea. Both stocks are closely associated with
open leads and polynyas in ice-covered regions throughout Arctic and
sub-Arctic waters of the Northern Hemisphere. Distribution varies
seasonally. Whales from both the Beaufort Sea and eastern Chukchi Sea
stocks overwinter in the Bering Sea. Belugas of the eastern Chukchi may
winter in offshore, although relatively shallow, waters of the western
Bering Sea (Richard et al., 2001), and the Beaufort Sea stock may
winter in more nearshore waters of the northern Bering Sea (R. Suydam,
pers. comm. 2012c). In the spring, belugas migrate to coastal
estuaries, bays, and rivers. Annual migrations may cover thousands of
kilometers (Allen and Angliss, 2010, 2012a).
Satellite telemetry data from 23 whales tagged in Kaseguluk Lagoon
in 1998 through 2002 provided information on movements and migrations
of eastern Chukchi Sea belugas. Animals initially traveled north and
east into the northern Chukchi and western Beaufort seas after capture
(Suydam et al., 2001, 2005). Movement patterns between July and
September vary by age and/or sex classes. Adult males frequent deeper
waters of the Beaufort Sea and Arctic Ocean (79-80[deg] N), where they
remain throughout the summer. Immature males moved farther north than
immature females but not as far north as adult males. All of the
belugas frequented water deeper than 200 m (656 ft) along and beyond
the continental shelf break. Use of the inshore waters within the
Beaufort Sea Outer Continental Shelf lease sale area was rare (Suydam
et al., 2005).
Most information on distribution and movements of belugas of the
Beaufort Sea stock was similarly derived using satellite tags. A total
of 30 belugas were tagged in the Mackenzie River Delta, Northwest
Territories, Canada, during summer and autumn in 1993, 1995, and 1997
(Richard et al., 2001). Approximately half of the tagged whales
traveled far offshore of the Alaskan coastal shelf, while the remainder
traveled on the shelf or near the continental slope (Richard et al.,
2001). Migration through Alaskan waters lasted an average of 15 days.
In 1997, all of the tagged belugas reached the western Chukchi Sea
(westward of 170[deg] W) between September 15 and October 9. Overall,
the main fall migration corridor for beluga whales is believed to be
approximately 62 mi (100 km) north of the Project Area (Richard et al.,
1997, 2001). Both the spring (April-May) and fall (September-October)
migratory corridor BIAs for belugas are far north of the proposed
action area because sightings of belugas from aerial surveys in the
western Beaufort Sea are primarily on the continental slope, with
relatively few sightings on the shelf (Clarke et al., 2015). No
reproductive and feeding BIAs exist for belugas in the action area
(Clarke et al., 2015).
O'Corry et al. (2018) studied genetic marker sets in 1,647 beluga
whales. The data set was from over 20 years and encompassed all of the
whales' major coastal summering regions in the Pacific Ocean. The
genetic marker analysis of the migrating whales revealed that while
both the wintering and summering areas of the eastern Chukchi Sea and
eastern Beaufort Sea subpopulations may overlap, the timing of spring
migration differs such that the whales hunted at coastal sites in
Chukotka, the Bering Strait (i.e., Diomede), and northwest Alaska
(i.e., Point Hope) in the spring and off of Alaska's Beaufort Sea coast
in summer were predominantly from the eastern Beaufort Sea population.
Earlier genetic investigations and recent telemetry
[[Page 24936]]
studies show that the spring migration of eastern Beaufort whales
occurs earlier and through denser sea ice than eastern Chukchi Sea
belugas. The discovery that a few individual whales found at some of
these spring locations had higher likelihood of having eastern Chukchi
Sea ancestry or being of mixed-ancestry, indicates that the Bering
Strait region is also an area where the stock mix in spring. Citta et
al. (2016) also observed that tagged eastern Beaufort Sea whales
migrated north in spring through the Bering Strait earlier than the
eastern Chukchi belugas so they had to pass through the latter's
primary wintering area. Therefore, the eastern Chukchi stock should not
be present in the action area at any time in general, but especially
during summer-late fall, when the beluga exposures would be anticipated
for this project. Therefore, we assume all belugas impacted by the
proposed project are from the Beaufort Sea stock.
Beluga whales were regularly sighted during the September-October
BWASP and the more recent ASAMM aerial surveys of the Alaska Beaufort
Sea coast. Burns and Seaman (1985) suggest that beluga whales are
strongly associated with the ice fringe and that the route of the
autumn migration may be mainly determined by location of the drift ice
margin. Relatively few beluga whales have been observed in the
nearshore areas (on the continental shelf outside of the barrier
islands) of Prudhoe Bay. However, groups of belugas have been detected
nearshore in September (Clarke et al., 2011a) and opportunistic
sightings have been recorded from Northstar Island and Endicott. These
sightings are part of the fall migration which generally occurs farther
offshore although a few sightings of a few individuals do occur closer
to the shore, and occasionally inside the barrier islands of Foggy
Island Bay. During the 2008 seismic survey in Foggy Island Bay, three
sightings of eight individuals were observed at a location about 3 mi
(4.8 km) east of the Endicott Satellite Drilling Island (Aerts et al.,
2008). In 2014, during a BPXA 2D HR shallow geohazard survey in July
and August, PSOs recorded eight groups of approximately 19 individual
beluga whales, five of which were juveniles (Smultea et al., 2014).
During the open water season July 9 through July 19, 2015, five
sightings of belugas occurred (Cate et al., 2015). Also in 2015,
acoustic monitoring was conducted in Foggy Island Bay between July 6
and September 22, 2015, to characterize ambient sound conditions and to
determine the acoustic occurrence of marine mammals near Hilcorp's
Liberty Prospect in Foggy Island Bay (Frouin-Jouy et al., 2015). Two
recorders collected underwater sound data before, during, and after
Hilcorp's 2015 geohazard survey (July 6-Sept. 22). Detected marine
mammal vocalizations included those from beluga whales and pinnipeds.
Belugas were detected on five days by passive-recorders inside the bay
during the three-month survey period (Frouin-Jouy et al., 2015). During
the 2016 and 2017 ASAMM surveys flown inside Foggy Island Bay, no
belugas were observed. Beluga whales are the cetacean most likely to be
encountered during the open-water season in Foggy Island Bay, albeit
few in abundance.
Ringed Seal
One of five Arctic ringed seal stocks, the Alaska stock, occurs in
U.S. waters. The Arctic subspecies of ringed seals was listed as
threatened under the ESA on December 28, 2012, primarily due to
expected impacts on the population from declines in sea and snow cover
stemming from climate change within the foreseeable future (77 FR
76706). However, on March 11, 2016, the U.S. District Court for the
District of Alaska issued a decision in a lawsuit challenging the
listing of ringed seals under the ESA (Alaska Oil and Gas Association
et al. v. National Marine Fisheries Service, Case No. 4:14-cv-00029-
RRB). The decision vacated NMFS' listing of Arctic ringed seals as a
threatened species. However, on February 12, 2018, in Alaska Oil & Gas
Association v. Ross, Case No. 16-35380, the U.S. Court of Appeals for
the Ninth Circuit reversed the district court's 2016 decision. As such,
Arctic ringed seals remain listed as threatened under the ESA.
During winter and spring in the United States, ringed seals are
found throughout the Beaufort and Chukchi Seas; they occur in the
Bering Sea as far south as Bristol Bay in years of extensive ice
coverage. Most ringed seals that winter in the Bering and Chukchi Seas
are thought to migrate northward in spring with the receding ice edge
and spend summer in the pack ice of the northern Chukchi and Beaufort
Seas.
Ringed seals are resident in the Beaufort Sea year-round, and based
on results of previous surveys in Foggy Island Bay (Aerts et al., 2008,
Funk et al., 2008, Savarese et al., 2010, Smultea et al., 2014), and
monitoring from Northstar Island (Aerts and Richardson, 2009, 2010),
they are expected to be the most commonly occurring pinniped in the
action area year-round.
Ringed seals are present in the nearshore and sea ice year-round,
maintaining breathing holes and excavating subnivean lairs in the
landfast ice during the ice-covered season. Ringed seals overwinter in
the landfast ice in and around the LDPI action area. There is some
evidence indicating that ringed seal densities are low in water depths
of less than 3 m, where landfast ice extending from the shoreline
generally freezes to the sea bottom in very shallow waters during the
course of the winter (Moulton et al., 2002a, Moulton et al., 2002b,
Richardson and Williams, 2003). Ringed seals that breed on shorefast
ice may either forage within 100 km (62.1 mi) of their breeding habitat
or undertake extensive foraging trips to more productive areas at
distances of between 100-1,000 kilometers (Kelly et al., 2010b). Adult
Arctic ringed seals show site fidelity, returning to the same subnivean
site after the foraging period ends. Movements are limited during the
ice-bound months, including the breeding season, which limits their
foraging activities and may minimize gene flow within the species
(Kelly et al. 2010b). During April to early June (the reproductive
period), radio-tagged ringed seals inhabiting shorefast ice near
Prudhoe Bay had home range sizes generally less than 1,336 ac (500 ha)
in area (Kelly et al., 2005). Sub-adults, however, were not constrained
by the need to defend territories or maintain birthing lairs and
followed the advancing ice southward to winter along the Bering Sea ice
edge where there may be enhanced feeding opportunities and less
exposure to predation (Crawford et al., 2012). Sub-adult ringed seals
tagged in the Canadian Beaufort Sea similarly undertook lengthy
migrations across the continental shelf of the Alaskan Beaufort Sea
into the Chukchi Sea, passing Point Barrow prior to freeze-up in the
central Chukchi Sea (Harwood et al., 2012). Factors most influencing
seal densities during May through June in the central Beaufort Sea
between Oliktok Point and Kaktovik were water depth, distance to the
fast ice edge, and ice deformation. Highest densities of seals were at
depths of 5 to 35 m (16 to 144 ft) and on relatively flat ice near the
fast ice edge (Frost et al., 2004).
Sexual maturity in ringed seals varies with population status. It
can be as early as 3 years for both sexes and as late as 7 years for
males and 9 years for females. Ringed seals breed annually, with timing
varying regionally. Mating takes place while mature females are still
nursing their pups on the ice and
[[Page 24937]]
is thought to occur under the ice near birth lairs. In all subspecies
except the Okhotsk, females give birth to a single pup hidden from view
within a snow-covered birth lair. Ringed seals are unique in their use
of these birth lairs. Pups learn how to dive shortly after birth. Pups
nurse for 5 to 9 weeks and, when weaned, are four times their birth
weights. Ringed seal pups are more aquatic than other ice seal pups and
spend roughly half their time in the water during the nursing period
(Lydersen and Hammill, 1993). Pups are normally weaned before the
break-up of spring ice.
Ringed seals are an important resource for Alaska Native
subsistence hunters. Approximately 64 Alaska Native communities in
western and northern Alaska, from Bristol Bay to the Beaufort Sea,
regularly harvest ice seals (Ice Seal Committee, 2016). Based on the
harvest data from 12 Alaska Native communities, a minimum estimate of
the average annual harvest of ringed seals in 2009-2013 is 1,050 seals
(Muto et al., 2016).
Other sources of mortality include commercial fisheries and
predation by marine and terrestrial predators including polar bears,
arctic foxes, walrus, and killer whales. During 2010-2014, incidental
mortality and serious injury of ringed seals was reported in 4 of the
22 federally-regulated commercial fisheries in Alaska monitored for
incidental mortality and serious injury by fisheries observers: the
Bering Sea/Aleutian Islands flatfish trawl, Bering Sea/Aleutian Islands
pollock trawl, Bering Sea/Aleutian Islands Pacific cod trawl, and
Bering Sea/Aleutian Islands Pacific cod longline fisheries (Muto et
al., 2016). From May 1, 2011 to December 31, 2016, 657 seals, which
included 233 dead stranded seals, 179 subsistence hunted seals, and 245
live seals, stranded or were sampled during permitted health
assessments studies. Species involved were primarily ice seals
including ringed, bearded, ribbon, and spotted seals in northern and
western Alaska. The investigation identified that clinical signs were
likely due to an abnormality of the molt, but a definitive cause for
the abnormal molt was not determined.
Bearded Seal
Two subspecies of bearded seal have been described: E. b. barbatus
from the Laptev Sea, Barents Sea, North Atlantic Ocean, and Hudson Bay
(Rice 1998); and E. b. nauticus from the remaining portions of the
Arctic Ocean and the Bering and Okhotsk seas (Ognev, 1935, Scheffer,
1958, Manning, 1974, Heptner et al., 1976). On December 28, 2012, NMFS
listed two distinct population segments (DPSs) of the E. b. nauticus
subspecies of bearded seals--the Beringia DPS and Okhotsk DPS--as
threatened under the ESA (77 FR 76740). Similar to ringed seals, the
primary concern for these DPSs is the ongoing and projected loss of
sea-ice cover stemming from climate change, which is expected to pose a
significant threat to the persistence of these seals in the foreseeable
future (based on projections through the end of the 21st century;
Cameron et al., 2010). Similar to ringed seals, the ESA listing of the
Beringia and Okhotsk DPSs of bearded seal was challenged in the U.S.
District Court for the District of Alaska, and on July 25, 2014, the
court vacated NMFS' listing of those DPSs of bearded seals as
threatened under the ESA (Alaska Oil and Gas Association et al. v.
Pritzker, Case No. 4:13-cv-00018-RRB). However, the U.S. Court of
Appeals for the Ninth Circuit reversed the district court's 2016
decision on October 24, 2016 (Alaska Oil & Gas Association v. Pritzer,
Case No. 14-35806). As such, the Beringia and Okhotsk DPSs of bearded
seal remain listed as threatened under the ESA.
For the purposes of MMPA stock assessments, the Beringia DPS is
considered the Alaska stock of the bearded seal (Muto et al., 2016).
The Beringia DPS of the bearded seal includes all bearded seals from
breeding populations in the Arctic Ocean and adjacent seas in the
Pacific Ocean between 145[deg] E longitude (Novosibirskiye) in the East
Siberian Sea and 130[deg] W longitude in the Canadian Beaufort Sea,
except west of 157[deg] W longitude in the Bering Sea and west of the
Kamchatka Peninsula (where the Okhotsk DPS is found). They generally
prefer moving ice that produces natural openings and areas of open-
water (Heptner et al., 1976, Fedoseev, 1984, Nelson et al., 1984). They
usually avoid areas of continuous, thick, shorefast ice and are rarely
seen in the vicinity of unbroken, heavy, drifting ice or large areas of
multi-year ice (Fedoseev, 1965, Burns and Harbo, 1972, Burns and Frost,
1979, Burns, 1981, Smith, 1981, Fedoseev, 1984, Nelson et al., 1984).
Spring surveys conducted in 1999-2000 along the Alaska coast
indicate that bearded seals are typically more abundant 20-100 nautical
miles (nmi) from shore than within 20 nmi from shore, except for high
concentrations nearshore to the south of Kivalina (Bengtson et al.,
2005; Simpkins et al., 2003).
Although bearded seal vocalizations (produced by adult males) have
been recorded nearly year-round in the Beaufort Sea (MacIntyre et al.,
2013, MacIntyre et al., 2015), most bearded seals overwinter in the
Bering Sea. In addition, during late winter and early spring, Foggy
Island Bay is covered with shorefast ice and the nearest lead systems
are at least several kilometers away, making the area unsuitable
habitat for bearded seals. Therefore, bearded seals are not expected to
be encountered in or near the LDPI portion of the action area during
this time (from late winter through early spring).
During the open-water period, the Beaufort Sea likely supports
fewer bearded seals than the Chukchi Sea because of the more extensive
foraging habitat available to bearded seals in the Chukchi Sea. In
addition, as a result of shallow waters, the sea floor in Foggy Island
Bay south of the barrier islands is often scoured by ice, which limits
the presence of bearded seal prey species. Nevertheless, aerial and
vessel-based surveys associated with seismic programs, barging, and
government surveys in this area between 2005 and 2010 reported several
bearded seal sightings (Green and Negri, 2005, Green and Negri 2006,
Green et al., 2007, Funk et al., 2008, Hauser et al., 2008, Savarese et
al., 2010, Clarke et al., 2011, Reiser et al., 2011). In addition,
eight bearded seal sightings were documented during shallow geohazard
seismic and seabed mapping surveys conducted in July and August 2014
(Smultea et al., 2014). Frouin-Mouy et al. (2016) conducted acoustic
monitoring in Foggy Island Bay from early July to late September 2014,
and detected pinniped vocalizations on 10 days via the nearshore
recorder and on 66 days via the recorder farther offshore. Although the
majority of these detections were unidentified pinnipeds, bearded seal
vocalizations were positively identified on two days (Frouin-Mouy et
al., 2016).
Bearded seals are an important resource for Alaska Native
subsistence hunters. Approximately 64 Alaska Native communities in
western and northern Alaska, from Bristol Bay to the Beaufort Sea,
regularly harvest ice seals (Ice Seal Committee, 2016). However, during
2009-2013, only 12 of 64 coastal communities were surveyed for bearded
seals; and, of those communities, only 6 were surveyed for two or more
consecutive years (Ice Seal Committee, 2016). Based on the harvest data
from these 12 communities (Table 2), a minimum estimate of the average
annual harvest of bearded seals in 2009-2013 is 390 seals. Harvest
surveys are designed to estimate harvest within the surveyed community,
but because of differences in seal availability, cultural hunting
practices, and environmental
[[Page 24938]]
conditions, extrapolating harvest numbers beyond that community is not
appropriate (Muto et al., 2016).
Of the 22 federally-regulated U.S. commercial fisheries in Alaska
monitored for incidental mortality and serious injury by fisheries
observers, 12 fisheries could potentially interact with bearded seals.
During 2010-2014, incidental mortality and serious injury of bearded
seals occurred in three fisheries: The Bering Sea/Aleutian Islands
pollock trawl, Bering Sea/Aleutian Islands flatfish trawl, and Bering
Sea/Aleutian Islands Pacific cod trawl fisheries (Muto et al., 2016).
This species was also part of the aforementioned 2011-2016 UME.
Spotted Seal
Spotted seals are distributed along the continental shelf of the
Bering, Chukchi, and Beaufort seas, and the Sea of Okhotsk south to the
western Sea of Japan and northern Yellow Sea. Eight main areas of
spotted seal breeding have been reported (Shaughnessy and Fay, 1977)
and Boveng et al. (2009) grouped those breeding areas into three DPSs:
The Bering DPS, which includes breeding areas in the Bering Sea and
portions of the East Siberian, Chukchi, and Beaufort seas that may be
occupied outside the breeding period; the Okhotsk DPS; and the Southern
DPS, which includes spotted seals breeding in the Yellow Sea and Peter
the Great Bay in the Sea of Japan. For the purposes of MMPA stock
assessments, NMFS defines the Alaska stock of spotted seals to be that
portion of the Bering DPS in U.S. waters.
The distribution of spotted seals is seasonally related to specific
life-history events that can be broadly divided into two periods: Late-
fall through spring, when whelping, nursing, breeding, and molting
occur in association with the presence of sea ice on which the seals
haul out, and summer through fall when seasonal sea ice has melted and
most spotted seals use land for hauling out (Boveng et al., 2009).
Spotted seals are most numerous in the Bering and Chukchi seas
(Quakenbush, 1988), although small numbers do range into the Beaufort
Sea during summer (Rugh et al., 1997; Lowry et al., 1998).
At Northstar, few spotted seals have been observed. A total of 12
spotted seals were positively identified near the source-vessel during
open-water seismic programs in the central Alaskan Beaufort Sea,
generally occurring near Northstar from 1996 to 2001 (Moulton and
Lawson, 2002). The number of spotted seals observed per year ranged
from zero (in 1998 and 2000) to four (in 1999).
During a seismic survey in Foggy Island Bay, PSOs recorded 18
pinniped sightings, of which one was confirmed as a spotted seal (Aerts
et al., 2008). Spotted seals were the second most abundant seal species
observed by PSOs during Hilcorp's geohazard surveys in July-August 2014
(Smultea et al., 2014) and in July 2015 (Cate et al., 2015). Given
their seasonal distribution and low numbers in the nearshore waters of
the central Alaskan Beaufort Sea, no spotted seals are expected in the
action area during late winter and spring, but could be present in low
numbers during the summer or fall.
Similar to other ice seal species, spotted seals are an important
resource for Alaska Native subsistence hunters. Of the 12 communities
(out of 64) surveyed during 2010-2014, the minimum annual spotted seal
harvest estimates totaled across 12 out of 64 user communities surveyed
ranged from 83 (in 2 communities) to 518 spotted seals (in 10
communities). Based on the harvest data from these 12 communities, a
minimum estimate of the average annual harvest of spotted seals in
2010-2014 is 328 seals.
From 2011-2015, incidental mortality and serious injury of spotted
seals occurred in 2 of the 22 federally-regulated U.S. commercial
fisheries in Alaska monitored for incidental mortality and serious
injury by fisheries observers: The Bering Sea/Aleutian Islands flatfish
trawl and Bering Sea/Aleutian Islands Pacific cod longline fisheries.
In 2014, there was one report of a mortality incidental to research on
the Alaska stock of spotted seals, resulting in a mean annual mortality
and serious injury rate of 0.2 spotted seals from this stock in 2011-
2015. This species was also part of the aforementioned 2011-2016 UME.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007 and 2019) recommended that marine mammals
be divided into functional hearing groups based on directly measured or
estimated hearing ranges on the basis of available behavioral response
data, audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with an exception
for lower limits for low-frequency cetaceans where the result was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. The functional groups and the associated
frequencies are indicated below (note that these frequency ranges
correspond to the range for the composite group, with the entire range
not necessarily reflecting the capabilities of every species within
that group):
Low-frequency cetaceans (mysticetes): Generalized hearing
is estimated to occur between approximately 7 (hertz) Hz and 35 kHz;
Mid-frequency cetaceans (larger toothed whales, beaked
whales, and most delphinids): Generalized hearing is estimated to occur
between approximately 150 Hz and 160 kHz;
High-frequency cetaceans (porpoises, river dolphins, and
members of the genera Kogia and Cephalorhynchus; including two members
of the genus Lagenorhynchus, on the basis of recent echolocation data
and genetic data): Generalized hearing is estimated to occur between
approximately 275 Hz and 160 kHz;
Pinnipeds in water; Phocidae (true seals): Functional
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
and
Pinnipeds in water; Otariidae (eared seals): Functional
hearing is estimated to occur between approximately 60 Hz and 39 kHz.
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Six marine mammal species (three cetacean and three phocid pinniped)
have the potential to co-occur with Hilcorp's LDPI project. Of the
three cetacean species that may be present, two are classified as low-
frequency cetaceans (i.e., all mysticete species) and one is classified
as a mid-frequency cetacean (beluga whale).
[[Page 24939]]
Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat
This section includes a summary and discussion of the ways that
components of the specified activity may impact marine mammals and
their habitat. The Estimated Take by Incidental Harassment section
later in this document includes a quantitative analysis of the number
of individuals that are expected to be taken by this activity. The
Negligible Impact Analysis and Determination section considers the
content of this section, the Estimated Take by Incidental Harassment
section, and the Proposed Mitigation section, to draw conclusions
regarding the likely impacts of these activities on the reproductive
success or survivorship of individuals and how those impacts on
individuals are likely to impact marine mammal species or stocks.
The potential impacts of the proposed LDPI on marine mammals
involve both non-acoustic and acoustic effects. Potential non-acoustic
effects could result from the physical presence of personnel,
structures and equipment, construction or maintenance activities, and
the occurrence of oil spills. The LDPI project also has the potential
to result in mortality and serious injury of ringed seals via direct
physical interaction on ice roads and harass (by Level A harassment and
Level B harassment) cetaceans and seals via acoustic disturbance. We
first discuss the effects of ice road and ice trail construction and
maintenance on ringed seals with respect to direct human interaction
followed by an in-depth discussion on sound and potential effects on
marine mammals from acoustic disturbance. The potential for and
potential impacts from both small and large oil spills are discussed in
more detail later in this section; however, please note Hilcorp did not
request, nor is NMFS proposing to authorize, take from oil spills.
Mortality, Serious Injury and Non-Acoustic Harassment--Ice Seals
This section discusses the potential impacts of ice road
construction, use and maintenance on ringed seals, the only species
likely to be encountered during this activity. Acoustic impacts from
this and other activities (e.g., pile driving) are provided later in
the document. To assess the potential impacts from ice roads, one must
understand sea ice dynamics, the influence of ice roads on sea ice, and
ice seal ecology.
Sea ice is constantly moving and flexing due to winds, currents,
and snow load. Sea ice grows (thickens) to its maximum in March, then
begins to degrade once solar heating increases above the necessary
threshold. Sea ice will thin and crack due to atmospheric pressure and
temperature changes. In the absence of ice roads, sea ice is constantly
cracking, deforming (creating pressure ridges and hummocks), and
thickening or thinning. Ice road construction interrupts this dynamic
by permanently thickening and stabilizing the sea ice for the season;
however, it thins and weakens sea ice adjacent to ice roads due to
weight of the ice road and use as speed and load of vehicles using the
road creates pressure waves in the ice, cracking natural ice adjacent
to the road (pers. comm., M. Williams, August 17, 2018). These cracks
and thinned ice, occurring either naturally or adjacent to ice roads,
are easily exploitable habitat for ringed seals.
As discussed in the Description of Marine Mammal section, ringed
seals build lairs which are typically concentrated along pressure
ridges, cracks, leads, or other surface deformations (Smith and
Stirling 1975, Hammill and Smith, 1989, Furgal et al., 1996). To build
a lair, a pregnant female will first excavate a breathing hole, most
easily in cracked or thin ice. The lair will then be excavated (snow
must be present for lair construction). Later in the season, basking
holes may be created from collapsed lairs or new basking holes will be
excavated; both of which must have breathing holes and surface access
(pers. comm., M. Williams, August 17, 2018).
Williams et al. (2006) provides the most in-depth discussion of
ringed seal use around Northstar Island, the first offshore oil and gas
production facility seaward of the barrier islands in the Alaskan
Beaufort Sea. Northstar is located 9.5 km from the mainland on a
manmade gravel island in 12 m of water. In late 2000 and early 2001,
sea ice in areas near Northstar Island where summer water depth was
greater than 1.5 m was searched for ringed seal structures. At
Northstar, ringed seals were documented creating and using sea ice
structures (basking holes, breathing holes, or birthing lairs) within
11 to 3,500 m (36 to 11,482 ft) of Northstar infrastructure which
includes ice roads, pipeline, and the island itself (Williams et al.,
2006). Birth lairs closest to Northstar infrastructure were 882 m and
144 m (2,894 and 374 ft) from the island and ice road, respectively
(Williams et al., 2006). Two basking holes were found within 11 and 15
m (36 and 49 ft) from the nominal centerline of a Northstar ice road
and were still in use by the end of the study (Williams et al., 2006).
Although located in deeper water outside of the barrier islands, we
anticipate ringed seals would use ice around the LDPI and associated
ice roads in a similar manner.
Since 1998, there have been three documented incidents of ringed
seal interactions on North Slope ice roads, with one recorded
mortality. On April 17, 1998, during a vibroseis on-ice seismic
operation outside of the barrier islands east of Bullen Point in the
eastern Beaufort Sea, a ringed seal pup was killed when its lair was
destroyed by a Caterpillar tractor clearing an ice road. The lair was
located on ice over water 9 m (29 ft) deep with an ice thickness of 1.3
m (4.3 ft). It was reported that an adult may have been present in the
lair when it was destroyed. Crew found blood on the ice near an open
hole approximately 1.3 km (0.8 mi) from the destroyed lair; this could
have been from a wounded adult (MacLean, 1998). On April 24, 2018, a
Tucker (a tracked vehicle used in snow conditions) traveling on a
Northstar sea ice trail broke through a brine pocket. After moving the
Tucker, a seal pup climbed out of the hole in the ice, but no adult was
seen in the area. The seal pup remained in the area for the next day
and a half. This seal was seen in an area with an estimated water depth
of 6 to 7 m (20 to 24 ft) (Hilcorp, 2018b). The third reported incident
occurred on April 28, 2018, when a contractor performing routine
maintenance activities to relocate metal plates beneath the surface of
the ice road from Oliktok Point to Spy Island Drill site spotted a
ringed seal pup next to what may have been a lair site. No adult was
observed in the area. The pup appeared to be acting normally and was
seen going in and out of the opening several times (Eni, 2018).
Overall, NMFS does not anticipate the potential for mortality or
serious injury of ringed seals to be high given there has been only one
documented mortality over 25 years of ice road construction in the
Arctic. However, the potential does exist; therefore, we are including
a small amount of mortality or serious injury (n = 2) in this proposed
rule over the five-year life of the regulations. To mitigate this risk,
NMFS and Hilcorp have developed a number of best management practices
(BMPs) aimed at reducing the potential of disturbing (e.g., crushing)
ice seal structures on ice roads (see Proposed Mitigation and
Monitoring).
Potential Acoustic Impacts--Level A Harassment and Level B Harassment
In the following discussion, we provide general background
information
[[Page 24940]]
on sound before considering potential effects to marine mammals from
sound produced by construction and operation of the LDPI.
Description of Sound Sources
This section contains a brief technical background on sound, on the
characteristics of certain sound types, and on metrics used in this
proposal inasmuch as the information is relevant to the specified
activity and to a discussion of the potential effects of the specified
activity on marine mammals found later in this document. For general
information on sound and its interaction with the marine environment,
please see, e.g., Au and Hastings (2008); Richardson et al. (1995);
Urick (1983).
Sound travels in waves, the basic components of which are
frequency, wavelength, velocity, and amplitude. Frequency is the number
of pressure waves that pass by a reference point per unit of time and
is measured in Hz or cycles per second. Wavelength is the distance
between two peaks or corresponding points of a sound wave (length of
one cycle). Higher frequency sounds have shorter wavelengths than lower
frequency sounds, and typically attenuate (decrease) more rapidly,
except in certain cases in shallower water. Amplitude is the height of
the sound pressure wave or the ``loudness'' of a sound and is typically
described using the relative unit of the decibel (dB). A sound pressure
level (SPL) in dB is described as the ratio between a measured pressure
and a reference pressure (for underwater sound, this is 1 microPascal
([mu]Pa)), and is a logarithmic unit that accounts for large variations
in amplitude; therefore, a relatively small change in dB corresponds to
large changes in sound pressure. The source level (SL) represents the
SPL referenced at a distance of 1 m from the source (referenced to 1
[mu]Pa), while the received level is the SPL at the listener's position
(referenced to 1 [mu]Pa).
Root mean square (rms) is the quadratic mean sound pressure over
the duration of an impulse. Root mean square is calculated by squaring
all of the sound amplitudes, averaging the squares, and then taking the
square root of the average (Urick, 1983). Root mean square accounts for
both positive and negative values; squaring the pressures makes all
values positive so that they may be accounted for in the summation of
pressure levels (Hastings and Popper, 2005). This measurement is often
used in the context of discussing behavioral effects, in part because
behavioral effects, which often result from auditory cues, may be
better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s)
represents the total energy in a stated frequency band over a stated
time interval or event, and considers both intensity and duration of
exposure. The per-pulse SEL is calculated over the time window
containing the entire pulse (i.e., 100 percent of the acoustic energy).
SEL is a cumulative metric; it can be accumulated over a single pulse,
or calculated over periods containing multiple pulses. Cumulative SEL
represents the total energy accumulated by a receiver over a defined
time window or during an event. Peak sound pressure (also referred to
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous
sound pressure measurable in the water at a specified distance from the
source, and is represented in the same units as the rms sound pressure.
When underwater objects vibrate or activity occurs, sound-pressure
waves are created. These waves alternately compress and decompress the
water as the sound wave travels. Underwater sound waves radiate in a
manner similar to ripples on the surface of a pond and may be either
directed in a beam or beams or may radiate in all directions
(omnidirectional sources), as is the case for sound produced by the
pile driving activity considered here. The compressions and
decompressions associated with sound waves are detected as changes in
pressure by aquatic life and man-made sound receptors such as
hydrophones.
Even in the absence of sound from the specified activity, the
underwater environment is typically loud due to ambient sound, which is
defined as environmental background sound levels lacking a single
source or point (Richardson et al., 1995). The sound level of a region
is defined by the total acoustical energy being generated by known and
unknown sources. These sources may include physical (e.g., wind and
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds
produced by marine mammals, fish, and invertebrates), and anthropogenic
(e.g., vessels, dredging, construction) sound. A number of sources
contribute to ambient sound, including wind and waves, which are a main
source of naturally occurring ambient sound for frequencies between 200
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to
increase with increasing wind speed and wave height. Precipitation can
become an important component of total sound at frequencies above 500
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can
contribute significantly to ambient sound levels, as can some fish and
snapping shrimp. The frequency band for biological contributions is
from approximately 12 Hz to over 100 kHz. Sources of ambient sound
related to human activity include transportation (surface vessels),
dredging and construction, oil and gas drilling and production,
geophysical surveys, sonar, and explosions. Vessel noise typically
dominates the total ambient sound for frequencies between 20 and 300
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz
and, if higher frequency sound levels are created, they attenuate
rapidly.
The sum of the various natural and anthropogenic sound sources that
comprise ambient sound at any given location and time depends not only
on the source levels (as determined by current weather conditions and
levels of biological and human activity) but also on the ability of
sound to propagate through the environment. In turn, sound propagation
is dependent on the spatially and temporally varying properties of the
water column and sea floor, and is frequency-dependent. As a result of
the dependence on a large number of varying factors, ambient sound
levels can be expected to vary widely over both coarse and fine spatial
and temporal scales. Sound levels at a given frequency and location can
vary by 10-20 decibels (dB) from day to day (Richardson et al., 1995).
The result is that, depending on the source type and its intensity,
sound from the specified activity may be a negligible addition to the
local environment or could form a distinctive signal that may affect
marine mammals.
Sounds are often considered to fall into one of two general types:
Pulsed and non-pulsed (defined in the following). The distinction
between these two sound types is important because they have differing
potential to cause physical effects, particularly with regard to
hearing (e.g., Ward, 1997 in Southall et al., 2007). See Southall et
al. (2007) for an in-depth discussion of these concepts. The
distinction between these two sound types is not always obvious, as
certain signals share properties of both pulsed and non-pulsed sounds.
A signal near a source could be categorized as a pulse, but due to
propagation effects as it moves farther from the source, the signal
duration becomes longer (e.g., Greene and Richardson, 1988).
Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic
booms, impact pile driving) produce signals
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that are brief (typically considered to be less than one second),
broadband, atonal transients (ANSI, 1986, 2005; Harris, 1998; NIOSH,
1998; ISO, 2003) and occur either as isolated events or repeated in
some succession. Pulsed sounds are all characterized by a relatively
rapid rise from ambient pressure to a maximal pressure value followed
by a rapid decay period that may include a period of diminishing,
oscillating maximal and minimal pressures, and generally have an
increased capacity to induce physical injury as compared with sounds
that lack these features.
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or
prolonged, and may be either continuous or intermittent (ANSI, 1995;
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals
of short duration but without the essential properties of pulses (e.g.,
rapid rise time). Examples of non-pulsed sounds include those produced
by vessels, aircraft, machinery operations such as drilling or
dredging, vibratory pile driving, and active sonar systems. The
duration of such sounds, as received at a distance, can be greatly
extended in a highly reverberant environment.
The impulsive sound generated by impact hammers is characterized by
rapid rise times and high peak levels. Vibratory hammers produce non-
impulsive, continuous noise at levels significantly lower than those
produced by impact hammers. Rise time is slower, reducing the
probability and severity of injury, and sound energy is distributed
over a greater amount of time (e.g., Nedwell and Edwards, 2002; Carlson
et al., 2005).
Acoustic Effects
We previously provided general background information on marine
mammal hearing (see ``Description of Marine Mammals in the Area of the
Specified Activity''). Here, we discuss the potential effects of sound
on marine mammals.
Potential Effects of Underwater Sound--Note that, in the following
discussion, we refer in many cases to a review article concerning
studies of noise-induced hearing loss conducted from 1996-2015 (i.e.,
Finneran, 2015). For study-specific citations, please see that work.
Anthropogenic sounds cover a broad range of frequencies and sound
levels and can have a range of highly variable impacts on marine life,
from none or minor to potentially severe responses, depending on
received levels, duration of exposure, behavioral context, and various
other factors. The potential effects of underwater sound from active
acoustic sources can potentially result in one or more of the
following: Temporary or permanent hearing impairment, non-auditory
physical or physiological effects, behavioral disturbance, stress, and
masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al.,
2007; Southall et al., 2007; G[ouml]tz et al., 2009). The degree of
effect is intrinsically related to the signal characteristics, received
level, distance from the source, and duration of the sound exposure. In
general, sudden, high level sounds can cause hearing loss, as can
longer exposures to lower level sounds. Temporary or permanent loss of
hearing will occur almost exclusively for noise within an animal's
hearing range. We first describe specific manifestations of acoustic
effects before providing discussion specific to pile driving.
Richardson et al. (1995) described zones of increasing intensity of
effect that might be expected to occur, in relation to distance from a
source and assuming that the signal is within an animal's hearing
range. First is the area within which the acoustic signal would be
audible (potentially perceived) to the animal but not strong enough to
elicit any overt behavioral or physiological response. The next zone
corresponds with the area where the signal is audible to the animal and
of sufficient intensity to elicit behavioral or physiological
responsiveness. Third is a zone within which, for signals of high
intensity, the received level is sufficient to potentially cause
discomfort or tissue damage to auditory or other systems. Overlaying
these zones to a certain extent is the area within which masking (i.e.,
when a sound interferes with or masks the ability of an animal to
detect a signal of interest that is above the absolute hearing
threshold) may occur; the masking zone may be highly variable in size.
Potential effects from impulsive sound sources can range in
severity from effects such as behavioral disturbance or tactile
perception to physical discomfort, slight injury of the internal organs
and the auditory system, or mortality (Yelverton et al., 1973). Non-
auditory physiological effects or injuries that theoretically might
occur in marine mammals exposed to high level underwater sound or as a
secondary effect of extreme behavioral reactions (e.g., change in dive
profile as a result of an avoidance reaction) caused by exposure to
sound include neurological effects, bubble formation, resonance
effects, and other types of organ or tissue damage (Cox et al., 2006;
Southall et al., 2007; Zimmer and Tyack, 2007; Tal et al., 2015). The
construction and operational activities associated with the LDPI do not
involve the use of devices such as explosives or mid-frequency tactical
sonar that are associated with these types of effects.
Auditory Threshold Shifts
NMFS defines threshold shift (TS) as a change, usually an increase,
in the threshold of audibility at a specified frequency or portion of
an individual's hearing range above a previously established reference
level (NMFS, 2018). The amount of threshold shift is customarily
expressed in decibels (ANSI, 1995). Threshold shift can be permanent
(PTS) or temporary (TTS). As described in NMFS (2018), there are
numerous factors to consider when examining the consequence of TS,
including, but not limited to, the signal temporal pattern (e.g.,
impulsive or non-impulsive), likelihood an individual would be exposed
for a long enough duration or to a high enough level to induce a TS,
the magnitude of the TS, time to recovery (seconds to minutes or hours
to days), the frequency range of the exposure (i.e., spectral content),
the hearing and vocalization frequency range of the exposed species
relative to the signal's frequency spectrum (i.e., how animal uses
sound within the frequency band of the signal; e.g., Kastelein et al.,
2014b), and their overlap (e.g., spatial, temporal, and spectral).
Marine mammals exposed to high-intensity sound, or to lower-
intensity sound for prolonged periods, can experience hearing threshold
shift (TS), which is the loss of hearing sensitivity at certain
frequency ranges (Finneran, 2015). TS can be permanent (PTS), in which
case the loss of hearing sensitivity is not fully recoverable, or
temporary (TTS), in which case the animal's hearing threshold would
recover over time (Southall et al., 2007). Repeated sound exposure that
leads to TTS could cause PTS. In severe cases of PTS, there can be
total or partial deafness, while in most cases the animal has an
impaired ability to hear sounds in specific frequency ranges (Kryter,
1985).
When PTS occurs, there is physical damage to the sound receptors in
the ear (i.e., tissue damage), whereas TTS represents primarily tissue
fatigue and is reversible (Southall et al., 2007). In addition, other
investigators have suggested that TTS is within the normal bounds of
physiological variability and tolerance and does not represent physical
injury (e.g., Ward, 1997).
[[Page 24942]]
Therefore, NMFS does not consider TTS to constitute auditory injury.
Relationships between TTS and PTS thresholds have not been studied
in marine mammals, and there is no PTS data for cetaceans, but such
relationships are assumed to be similar to those in humans and other
terrestrial mammals. PTS typically occurs at exposure levels at least
several decibels above (a 40-dB threshold shift approximates PTS onset;
e.g., Kryter et al., 1966; Miller, 1974) that inducing mild TTS (a 6-dB
threshold shift approximates TTS onset; e.g., Southall et al. 2007).
Based on data from terrestrial mammals, a precautionary assumption is
that the PTS thresholds for impulse sounds (such as impact pile driving
pulses as received close to the source) are at least 6 dB higher than
the TTS threshold on a peak-pressure basis and PTS cumulative sound
exposure level thresholds are 15 to 20 dB higher than TTS cumulative
sound exposure level thresholds (Southall et al., 2007). Given the
higher level of sound or longer exposure duration necessary to cause
PTS as compared with TTS, it is considerably less likely that PTS could
occur.
TTS is the mildest form of hearing impairment that can occur during
exposure to sound (Kryter, 1985). While experiencing TTS, the hearing
threshold rises, and a sound must be at a higher level in order to be
heard. In terrestrial and marine mammals, TTS can last from minutes or
hours to days (in cases of strong TTS). In many cases, hearing
sensitivity recovers rapidly after exposure to the sound ends. Few data
on sound levels and durations necessary to elicit mild TTS have been
obtained for marine mammals.
Marine mammal hearing plays a critical role in communication with
conspecifics, and interpretation of environmental cues for purposes
such as predator avoidance and prey capture. Depending on the degree
(elevation of threshold in dB), duration (i.e., recovery time), and
frequency range of TTS, and the context in which it is experienced, TTS
can have effects on marine mammals ranging from discountable to
serious. For example, a marine mammal may be able to readily compensate
for a brief, relatively small amount of TTS in a non-critical frequency
range that occurs during a time where ambient noise is lower and there
are not as many competing sounds present. Alternatively, a larger
amount and longer duration of TTS sustained during time when
communication is critical for successful mother/calf interactions could
have more serious impacts.
Currently, TTS data only exist for four species of cetaceans
(bottlenose dolphin (Tursiops truncatus), beluga whale (Delphinapterus
leucas), harbor porpoise, and Yangtze finless porpoise (Neophocoena
asiaeorientalis)) and three species of pinnipeds (northern elephant
seal, harbor seal, and California sea lion) exposed to a limited number
of sound sources (i.e., mostly tones and octave-band noise) in
laboratory settings (Finneran, 2015). TTS was not observed in trained
spotted (Phoca largha) and ringed (Pusa hispida) seals exposed to
impulsive noise at levels matching previous predictions of TTS onset
(Reichmuth et al., 2016). In general, harbor seals and harbor porpoises
have a lower TTS onset than other measured pinniped or cetacean species
(Finneran, 2015). Additionally, the existing marine mammal TTS data
come from a limited number of individuals within these species. There
are no data available on noise-induced hearing loss for mysticetes. For
summaries of data on TTS in marine mammals or for further discussion of
TTS onset thresholds, please see Southall et al. (2007), Finneran and
Jenkins (2012), Finneran (2015), and NMFS (2018).
NMFS defines TTS as ``a temporary, reversible increase in the
threshold of audibility at a specified frequency or portion of an
individual's hearing range above a previously established reference
level'' (NMFS, 2016). A TTS of 6 dB is considered the minimum threshold
shift clearly larger than any day-to-day or session-to-session
variation in a subject's normal hearing ability (Schlundt et al., 2000;
Finneran et al., 2000; Finneran et al., 2002, as reviewed in Southall
et al., 2007 for a review). TTS can last from minutes or hours to days
(i.e., there is recovery), occur in specific frequency ranges (i.e., an
animal might only have a temporary loss of hearing sensitivity between
the frequencies of 1 and 10 kHz)), and can be of varying amounts (for
example, an animal's hearing sensitivity might be temporarily reduced
by only 6 dB or reduced by 30 dB). Currently, TTS measurements exist
for only four species of cetaceans (bottlenose dolphins, belugas,
harbor porpoises, and Yangtze finless porpoise) and three species of
pinnipeds (Northern elephant seal, harbor seal, and California sea
lion). These TTS measurements are from a limited number of individuals
within these species.
Depending on the degree (elevation of threshold in dB), duration
(i.e., recovery time), and frequency range of TTS, and the context in
which it is experienced, TTS can have effects on marine mammals ranging
from discountable to serious (similar to those discussed in auditory
masking, below). For example, a marine mammal may be able to readily
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal
is traveling through the open ocean, where ambient noise is lower and
there are not as many competing sounds present. Alternatively, a larger
amount and longer duration of TTS sustained during time when
communication is critical for successful mother/calf interactions could
have more serious impacts. We note that reduced hearing sensitivity as
a simple function of aging has been observed in marine mammals, as well
as humans and other taxa (Southall et al., 2007), so we can infer that
strategies exist for coping with this condition to some degree, though
likely not without cost.
Behavioral Effects--Behavioral disturbance from elevated noise
exposure may include a variety of effects, including subtle changes in
behavior (e.g., minor or brief avoidance of an area or changes in
vocalizations), more conspicuous changes in similar behavioral
activities, and more sustained and/or potentially severe reactions,
such as displacement from or abandonment of high-quality habitat.
Behavioral responses to sound are highly variable and context-specific
and any reactions depend on numerous intrinsic and extrinsic factors
(e.g., species, state of maturity, experience, current activity,
reproductive state, auditory sensitivity, time of day), as well as the
interplay between factors (e.g., Richardson et al., 1995; Wartzok et
al., 2003; Southall et al., 2007; Weilgart, 2007). Behavioral reactions
can vary not only among individuals but also within an individual,
depending on previous experience with a sound source, context, and
numerous other factors (Ellison et al., 2012), and can vary depending
on characteristics associated with the sound source (e.g., whether it
is moving or stationary, number of sources, distance from the source).
Please see Appendices B-C of Southall et al. (2007) for a review of
studies involving marine mammal behavioral responses to sound.
Habituation can occur when an animal's response to a stimulus wanes
with repeated exposure, usually in the absence of unpleasant associated
events (Wartzok et al., 2003). Animals are most likely to habituate to
sounds that are predictable and unvarying. It is important to note that
habituation is appropriately considered as a ``progressive reduction in
response to
[[Page 24943]]
stimuli that are perceived as neither aversive nor beneficial,'' rather
than as, more generally, moderation in response to human disturbance
(Bejder et al., 2009). The opposite process is sensitization, when an
unpleasant experience leads to subsequent responses, often in the form
of avoidance, at a lower level of exposure. As noted, behavioral state
may affect the type of response. For example, animals that are resting
may show greater behavioral change in response to disturbing sound
levels than animals that are highly motivated to remain in an area for
feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003).
Controlled experiments with captive marine mammals have showed
pronounced behavioral reactions, including avoidance of loud sound
sources (Ridgway et al., 1997; Finneran et al., 2003). Observed
responses of wild marine mammals to loud pulsed sound sources
(typically airguns or acoustic harassment devices) have been varied but
often consist of avoidance behavior or other behavioral changes
suggesting discomfort (Morton and Symonds, 2002; see also Richardson et
al., 1995; Nowacek et al., 2007). However, many delphinids approach
low-frequency airgun source vessels with no apparent discomfort or
obvious behavioral change (e.g., Barkaszi et al., 2012), indicating the
importance of frequency output in relation to the species' hearing
sensitivity.
Available studies show wide variation in response to underwater
sound; therefore, it is difficult to predict specifically how any given
sound in a particular instance might affect marine mammals perceiving
the signal. If a marine mammal does react briefly to an underwater
sound by changing its behavior or moving a small distance, the impacts
of the change are unlikely to be significant to the individual, let
alone the stock or population. However, if a sound source displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on individuals and populations could be
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC,
2005). However, there are broad categories of potential response, which
we describe in greater detail here, that include alteration of dive
behavior, alteration of foraging behavior, effects to breathing,
interference with or alteration of vocalization, avoidance, and flight.
Changes in dive behavior can vary widely and may consist of
increased or decreased dive times and surface intervals as well as
changes in the rates of ascent and descent during a dive (e.g., Frankel
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et
al.; 2004; Goldbogen et al., 2013a, 2013b). Variations in dive behavior
may reflect interruptions in biologically significant activities (e.g.,
foraging) or they may be of little biological significance. The impact
of an alteration to dive behavior resulting from an acoustic exposure
depends on what the animal is doing at the time of the exposure and the
type and magnitude of the response.
Disruption of feeding behavior can be difficult to correlate with
anthropogenic sound exposure, so it is usually inferred by observed
displacement from known foraging areas, the appearance of secondary
indicators (e.g., bubble nets or sediment plumes), or changes in dive
behavior. As for other types of behavioral response, the frequency,
duration, and temporal pattern of signal presentation, as well as
differences in species sensitivity, are likely contributing factors to
differences in response in any given circumstance (e.g., Croll et al.,
2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al.,
2007). A determination of whether foraging disruptions incur fitness
consequences would require information on or estimates of the energetic
requirements of the affected individuals and the relationship between
prey availability, foraging effort and success, and the life history
stage of the animal.
Variations in respiration naturally vary with different behaviors
and alterations to breathing rate as a function of acoustic exposure
can be expected to co-occur with other behavioral reactions, such as a
flight response or an alteration in diving. However, respiration rates
in and of themselves may be representative of annoyance or an acute
stress response. Various studies have shown that respiration rates may
either be unaffected or could increase, depending on the species and
signal characteristics, again highlighting the importance in
understanding species differences in the tolerance of underwater noise
when determining the potential for impacts resulting from anthropogenic
sound exposure (e.g., Kastelein et al., 2001, 2005, 2006; Gailey et
al., 2007; Gailey et al., 2016).
Marine mammals vocalize for different purposes and across multiple
modes, such as whistling, echolocation click production, calling, and
singing. Changes in vocalization behavior in response to anthropogenic
noise can occur for any of these modes and may result from a need to
compete with an increase in background noise or may reflect increased
vigilance or a startle response. For example, in the presence of
potentially masking signals, humpback whales and killer whales have
been observed to increase the length of their songs (Miller et al.,
2000; Foote et al., 2004), while right whales have been observed to
shift the frequency content of their calls upward while reducing the
rate of calling in areas of increased anthropogenic noise (Parks et
al., 2007). In some cases, animals may cease sound production during
production of aversive signals (Bowles et al., 1994).
Avoidance is the displacement of an individual from an area or
migration path as a result of the presence of a sound or other
stressors, and is one of the most obvious manifestations of disturbance
in marine mammals (Richardson et al., 1995). For example, gray whales
are known to change direction--deflecting from customary migratory
paths--in order to avoid noise from airgun surveys (Malme et al.,
1984). Avoidance may be short-term, with animals returning to the area
once the noise has ceased (e.g., Bowles et al., 1994; Goold, 1996;
Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007).
Longer-term displacement is possible, however, which may lead to
changes in abundance or distribution patterns of the affected species
in the affected region if habituation to the presence of the sound does
not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann
et al., 2006).
A flight response is a dramatic change in normal movement to a
directed and rapid movement away from the perceived location of a sound
source. The flight response differs from other avoidance responses in
the intensity of the response (e.g., directed movement, rate of
travel). Relatively little information on flight responses of marine
mammals to anthropogenic signals exist, although observations of flight
responses to the presence of predators have occurred (Connor and
Heithaus, 1996). The result of a flight response could range from
brief, temporary exertion and displacement from the area where the
signal provokes flight to, in extreme cases, marine mammal strandings
(Evans and England, 2001). However, it should be noted that response to
a perceived predator does not necessarily invoke flight (Ford and
Reeves, 2008), and whether individuals are solitary or in groups may
influence the response.
Behavioral disturbance can also impact marine mammals in more
subtle ways. Increased vigilance may result in costs related to
diversion of focus and attention (i.e., when a response consists of
increased vigilance, it may come at
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the cost of decreased attention to other critical behaviors such as
foraging or resting). These effects have generally not been
demonstrated for marine mammals, but studies involving fish and
terrestrial animals have shown that increased vigilance may
substantially reduce feeding rates (e.g., Beauchamp and Livoreil, 1997;
Fritz et al., 2002; Purser and Radford, 2011). In addition, chronic
disturbance can cause population declines through reduction of fitness
(e.g., decline in body condition) and subsequent reduction in
reproductive success, survival, or both (e.g., Harrington and Veitch,
1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et
al. (2006) reported that increased vigilance in bottlenose dolphins
exposed to sound over a five-day period did not cause any sleep
deprivation or stress effects.
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hour cycle). Disruption
of such functions resulting from reactions to stressors such as sound
exposure are more likely to be significant if they last more than one
diel cycle or recur on subsequent days (Southall et al., 2007).
Consequently, a behavioral response lasting less than one day and not
recurring on subsequent days is not considered particularly severe
unless it could directly affect reproduction or survival (Southall et
al., 2007). Note that there is a difference between multi-day
substantive behavioral reactions and multi-day anthropogenic
activities. For example, just because an activity lasts for multiple
days does not necessarily mean that individual animals are either
exposed to activity-related stressors for multiple days or, further,
exposed in a manner resulting in sustained multi-day substantive
behavioral responses.
Stress Responses--An animal's perception of a threat may be
sufficient to trigger stress responses consisting of some combination
of behavioral responses, autonomic nervous system responses,
neuroendocrine responses, or immune responses (e.g., Seyle, 1950;
Moberg, 2000). In many cases, an animal's first and sometimes most
economical (in terms of energetic costs) response is behavioral
avoidance of the potential stressor. Autonomic nervous system responses
to stress typically involve changes in heart rate, blood pressure, and
gastrointestinal activity. These responses have a relatively short
duration and may or may not have a significant long-term effect on an
animal's fitness.
Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that
are affected by stress--including immune competence, reproduction,
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been
implicated in failed reproduction, altered metabolism, reduced immune
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha,
2000). Increases in the circulation of glucocorticoids are also equated
with stress (Romano et al., 2004).
The primary distinction between stress (which is adaptive and does
not normally place an animal at risk) and ``distress'' is the cost of
the response. During a stress response, an animal uses glycogen stores
that can be quickly replenished once the stress is alleviated. In such
circumstances, the cost of the stress response would not pose serious
fitness consequences. However, when an animal does not have sufficient
energy reserves to satisfy the energetic costs of a stress response,
energy resources must be diverted from other functions. This state of
distress will last until the animal replenishes its energetic reserves
sufficient to restore normal function.
Relationships between these physiological mechanisms, animal
behavior, and the costs of stress responses are well-studied through
controlled experiments and for both laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003;
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to
exposure to anthropogenic sounds or other stressors and their effects
on marine mammals have also been reviewed (Fair and Becker, 2000;
Romano et al., 2002b) and, more rarely, studied in wild populations
(e.g., Romano et al., 2002a). For example, Rolland et al. (2012) found
that noise reduction from reduced ship traffic in the Bay of Fundy was
associated with decreased stress in North Atlantic right whales. These
and other studies lead to a reasonable expectation that some marine
mammals will experience physiological stress responses upon exposure to
acoustic stressors and that it is possible that some of these would be
classified as ``distress.'' In addition, any animal experiencing TTS
would likely also experience stress responses (NRC, 2003).
Auditory Masking--Sound can disrupt behavior through masking, or
interfering with, an animal's ability to detect, recognize, or
discriminate between acoustic signals of interest (e.g., those used for
intraspecific communication and social interactions, prey detection,
predator avoidance, navigation) (Richardson et al., 1995; Erbe et al.,
2016). Masking occurs when the receipt of a sound is interfered with by
another coincident sound at similar frequencies and at similar or
higher intensity, and may occur whether the sound is natural (e.g.,
snapping shrimp, wind, waves, precipitation) or anthropogenic (e.g.,
shipping, sonar, seismic exploration) in origin. The ability of a noise
source to mask biologically important sounds depends on the
characteristics of both the noise source and the signal of interest
(e.g., signal-to-noise ratio, temporal variability, direction), in
relation to each other and to an animal's hearing abilities (e.g.,
sensitivity, frequency range, critical ratios, frequency
discrimination, directional discrimination, age or TTS hearing loss),
and existing ambient noise and propagation conditions.
Under certain circumstances, marine mammals experiencing
significant masking could also be impaired from maximizing their
performance fitness in survival and reproduction. Therefore, when the
coincident (masking) sound is man-made, it may be considered harassment
when disrupting or altering critical behaviors. It is important to
distinguish TTS and PTS, which persist after the sound exposure, from
masking, which occurs during the sound exposure. Because masking
(without resulting in TS) is not associated with abnormal physiological
function, it is not considered a physiological effect, but rather a
potential behavioral effect.
The frequency range of the potentially masking sound is important
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation
sounds produced by odontocetes but are more likely to affect detection
of mysticete communication calls and other potentially important
natural sounds such as those produced by surf and some prey species.
The masking of communication signals by anthropogenic noise may be
considered as a reduction in the communication space of animals (e.g.,
Clark et al., 2009) and may result in energetic or other costs as
animals change their vocalization behavior (e.g., Miller et al., 2000;
Foote et al., 2004; Parks et al., 2007; Di Iorio and Clark, 2009; Holt
et al., 2009). Masking can be reduced in situations where the signal
and noise come from different directions (Richardson et al., 1995),
through amplitude modulation of the signal, or through other
compensatory behaviors (Houser and Moore, 2014). Masking can
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be tested directly in captive species (e.g., Erbe, 2008), but in wild
populations it must be either modeled or inferred from evidence of
masking compensation. There are few studies addressing real-world
masking sounds likely to be experienced by marine mammals in the wild
(e.g., Branstetter et al., 2013).
Masking affects both senders and receivers of acoustic signals and
can potentially have long-term chronic effects on marine mammals at the
population level as well as at the individual level. Low-frequency
ambient sound levels have increased by as much as 20 dB (more than
three times in terms of SPL) in the world's ocean from pre-industrial
periods, with most of the increase from distant commercial shipping
(Hildebrand, 2009). All anthropogenic sound sources, but especially
chronic and lower-frequency signals (e.g., from vessel traffic),
contribute to elevated ambient sound levels, thus intensifying masking.
Potential Effects of Hilcorp's Activity--As described previously
(see ``Description of the Specified Activity''), Hilcorp proposes to
build ice roads, install a pipeline, construct and operate a gravel
island using impact and vibratory pile driving, and drill for oil in
Foggy Island Bay. These activities would occur under ice and open water
conditions (with the exception of ice roads). These activities have the
potential to harass marine mammals from acoustic disturbance (all
species) and via human disturbance/presence on ice (ice seals). There
is also potential for ice seals, specifically ringed seals, to be
killed in the event a lair is crushed during ice road construction and
maintenance in undisturbed areas after March 1, annually.
NMFS analyzed the potential effects of oil and gas activities,
including construction of a gravel island and associated
infrastructure, in its 2016 EIS on the Effects of Oil and Gas
Activities in the Arctic Ocean (NMFS, 2016; available at https://www.fisheries.noaa.gov/resource/document/effects-oil-and-gas-activities-arctic-ocean-final-environmental-impact). Although that
document focuses on seismic exploration, there is a wealth of
information in that document on marine mammal impacts from
anthropogenic noise. More specific to the proposed project, BOEM
provides a more detailed analysis on the potential impacts of the
Liberty LDPI in its' EIS on the Liberty Development and Production
Plan, Beaufort Sea, Alaska, on which NMFS was a cooperating agency
(BOEM, 2018; available at https://www.boem.gov/Hilcorp-Liberty/). We
refer to those documents, specifically Chapter 4 of each of those
documents, as a comprehensive impact assessment but provide a summary
and complimentary analysis here.
The effects of pile driving on marine mammals are dependent on
several factors, including the size, type, and depth of the animal; the
depth, intensity, and duration of the pile driving sound; the depth of
the water column; the substrate of the habitat; the standoff distance
between the pile and the animal; and the sound propagation properties
of the environment. With both types of pile driving, it is likely that
the onset of pile driving could result in temporary, short term changes
in an animal's typical behavioral patterns and/or avoidance of the
affected area. These behavioral changes may include (as summarized in
Richardson et al., 1995): Changing durations of surfacing and dives,
number of blows per surfacing, or moving direction and/or speed;
reduced/increased vocal activities; changing/cessation of certain
behavioral activities (such as socializing or feeding); visible startle
response or aggressive behavior (such as tail/fluke slapping or jaw
clapping); avoidance of areas where sound sources are located; and/or
flight responses.
For all noise-related activities, bowhead and gray whales are not
anticipated to be exposed to noise above NMFS harassment threshold
often. As previously described, Hilcorp aims to conduct all pile
driving during the ice-covered season, as was done at Northstar;
however, they are allowing for unforeseen scheduling delays. Bowheads
are not present near LDPI during the winter and are not normally found
in the development area during mid-summer (July through mid-August)
when the whales are further east in the Canadian Beaufort. Therefore
there are no impacts on foraging habitat for bowhead whales during mid-
summer. Starting in late August and continuing until late October,
bowheads may be exposed to sounds from the proposed activities at LDPI
or may encounter vessel traffic to and from the island. It is unlikely
that any whales would be displaced from sounds generated by activities
at the LDPI due to their distance from the offshore migrating whales,
and the effects of buffering from the barrier islands. Any displacement
would be subtle and involve no more than a small proportion of the
passing bowheads, likely less than that found at Northstar (Richardson,
2003, 2004; Mcdonald et al., 2012). This is due to the baffling-effect
of the barrier island between the construction activity and the main
migratory pathway of bowhead whales. Moreover, mitigation such as
avoiding pile driving during the fall bowhead whale hunt further
reduces potential for harassment as whales are migrating offshore.
Ongoing activities such as drilling may also harass marine mammals;
however, drilling sounds from artificial islands are relatively low. As
summarized in Richardson et al. (1995), beluga whales (the cetacean
most likely to occur in Foggy Island Bay) are often observed near
drillsites within 100 to 150 m (328.1 to 492.1 ft) from artificial
islands. Drilling operations at Northstar facility during the open-
water season resulted in brief, minor localized effects on ringed seals
with no consequences to ringed seal populations (Richardson and
Williams, 2004). Adult ringed seals seem to tolerate drilling
activities. Brewer et al. (1993) noted ringed seals were the most
common marine mammal sighted and did not seem to be disturbed by
drilling operations at the Kuvlum 1 project in the Beaufort Sea.
Southall et al. (2007) reviewed literature describing responses of
pinnipeds to continuous sound and reported that the limited data
suggest exposures between ~90 and 140 dB re 1 [mu]Pa generally do not
appear to induce strong behavioral responses in pinnipeds exposed to
continuous sounds in water. Hilcorp will conduct acoustic monitoring
during drilling to determine if future incidental take authorizations
are warranted from LDPI operation.
The biological significance of many of these behavioral
disturbances is difficult to predict, especially if the detected
disturbances appear minor. However, the consequences of behavioral
modification could be expected to be biologically significant if the
change affects growth, survival, or reproduction. Significant
behavioral modifications that could lead to effects on growth,
survival, or reproduction, such as drastic changes in diving/surfacing
patterns or significant habitat abandonment are extremely unlikely in
this area (i.e., shallow waters in modified industrial areas).
The onset of behavioral disturbance from anthropogenic sound
depends on both external factors (characteristics of sound sources and
their paths) and the specific characteristics of the receiving animals
(hearing, motivation, experience, demography) and is difficult to
predict (Southall et al., 2007).
Whether impact or vibratory driving, sound sources would be active
for relatively short durations, with relation to the durations animals
use sound (either emitting or receiving) on a daily basis, and over a
small spatial scale
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relative to marine mammal ranges. Therefore, the potential impacts from
masking are limited in both time and space. Further, the frequencies
output of pile driving are low relative to the range of frequencies
used by most species for vital life functions such as communication or
foraging. In summary, we expect some masking to occur; however, the
biological impacts of any potential masking are anticipated to be
negligible. Finally, any masking that might rise to Level B harassment
under the MMPA would occur concurrently within the zones of behavioral
harassment already estimated for vibratory and impact pile driving, and
which have already been taken into account in the exposure analysis.
Oil Spills
During the life of the proposed regulations, Hilcorp would be
actively drilling for crude oil in Foggy Island Bay and transporting
that oil via a single-phase subsea pipe-in-pipe pipeline from the LDPI
to shore, where an aboveground pipeline will transport crude to the
existing Badami pipeline. From there, crude will be transported to the
Endicott Sales Oil Pipeline, which ties into Pump Station 1 of the
TransAlaska Pipeline System (TAPS) for eventual delivery to a refinery.
Whenever oil is being extracted or transported, there is potential for
a spill. Accidental oil spills have a varying potential to occur and
with varying impacts on marine mammals. For example, if a spill or
pipeline leak occurs during the winter, oil would be trapped by the
ice. However, response may be more difficult due in part to the
presence of ice. If a spill or leak occurs during the open-water
season, oil may disperse more widely; however, response time may be
more prompt. Spills may also be large or small. Small spills are
defined as spills of less than 1,000 barrels (bbls), and a large spill
is greater than 1,000 bbls. For reference, 1 bbl equates to 42 gallons.
Based on BOEM's oil spill analyses in its EIS, the only sized
spills that are reasonably likely to occur in association with the
proposed action are small spills (<1,000 bbls) (BOEM, 2017a). Small
spills, although accidental, occur during oil and gas activities with
generally routine frequency and are considered likely to occur during
development, production, and/or decommissioning activities associated
with the proposed action. BOEM estimates about 70 small spills, most of
which would be less than 10 bbls, would occur over the life of the
Liberty Project. Small crude oil spills would not likely occur before
drilling operations begin. Small refined oil spills may occur during
development, production, and decommissioning. The majority of small
spills are likely to occur during the approximate 22-year production
period, which is an average of about 3 spills per year.
The majority of small spills would be contained on the proposed
LDPI or landfast ice (during winter). BOEM anticipates that small
refined spills that reach the open water would be contained by booms or
absorbent pads; these small spills would also evaporate and disperse
within hours to a few days. A 3 bbl refined oil spill during summer is
anticipated to evaporate and disperse within 24 hours, and a 200 bbl
refined oil spill during summer is anticipated to evaporate and
disperse within 3 days (BOEM, 2017a).
A large spill is a statistically unlikely event. The average number
of large spills for the proposed action was calculated by multiplying
the spill rate (Bercha International Inc., 2016; BOEM, 2017a), by the
estimated barrels produced (0.11779 bbl or 117.79 Million Barrels). By
adding the mean number of large spills from the proposed LDPI and wells
(~0.0043) and from pipelines (~0.0024), a mean total of 0.0067 large
spills were calculated for the proposed action. Based on the mean spill
number, a Poisson distribution indicates there is a 99.33 percent
chance that no large spill occurs over the development and production
phases of the project, and a 0.67 percent chance of one or more large
spills occurring over the same period. The statistical distribution of
large spills and gas releases shows that it is much more likely that no
large spills or releases occur than that one or more occur over the
life of the project. However, a large spill has the potential to
seriously harm ESA-listed species and their environment. Assuming one
large spill occurs instead of zero allows BOEM to more fully estimate
and describe potential environmental effects (BOEM, 2017a).
Hilcorp is currently developing its oil spill response plan in
coordination with the Bureau of Safety and Environmental Enforcement
(BSEE) who must approve the plan. BSEE oversees oil spill planning and
preparedness for oil and gas exploration, development, and production
facilities in both state and Federal offshore waters of the United
States. NMFS provided BSEE with its recommended marine mammal oil spill
response protocols available at https://www.fisheries.noaa.gov/resource/document/pinniped-and-cetacean-oil-spill-response-guidelines.
NMFS has provided BSEE with recommended marine mammal protocols should
a spill occur. BSEE has indicated NMFS will have opportunity to provide
comments on Hilcorp's plan during a Federal agency public comment
period. As noted above, Hilcorp did not request, and NMFS is not
proposing to authorize, take of marine mammals incidental to oil
spills. NMFS does not authorize incidental take from oil spills under
section 101(a)(5)(A) of the MMPA in general, and oil spills are not
part of the specified activity in this case.
Cetaceans
While direct mortality of cetaceans is unlikely, exposure to
spilled oil could lead to skin irritation, baleen fouling (which might
reduce feeding efficiency), respiratory distress from inhalation of
hydrocarbon vapors, consumption of some contaminated prey items, and
temporary displacement from contaminated feeding areas. Geraci and St.
Aubin (1990) summarize effects of oil on marine mammals, and Bratton et
al. (1993) provides a synthesis of knowledge of oil effects on bowhead
whales. The number of whales that might be contacted by a spill would
depend on the size, timing, and duration of the spill. Whales may not
avoid oil spills, and some have been observed feeding within oil slicks
(Goodale et al., 1981).
The potential effects on cetaceans are expected to be less than
those on seals (described later in this section of the document).
Cetaceans tend to occur well offshore where cleanup activities (in the
open-water season) are unlikely to be as concentrated. Also, cetaceans
are transient and, during the majority of the year, absent from the
area. Further, drilling would be postponed during the bowhead whale
hunt every fall; therefore, the risk to cetaceans during this time,
when marine mammal presence and subsistence use is high, has been fully
mitigated.
Pinnipeds
Ringed, bearded, and spotted seals are present in open-water areas
during summer and early autumn, and ringed seals remain in the area
through the ice-covered season. Therefore, an oil spill from LDPI or
its pipeline could affect seals. Any oil spilled under the ice also has
the potential to directly contact seals. The most relevant data of
pinnipeds exposed to oil is from the Exxon Valdez oil spill (EVOS).
The largest documented impact of a spill, prior to the EVOS, was on
young seals in January in the Gulf of St. Lawrence (St. Aubin, 1990).
Intensive and long-term studies were conducted after the EVOS in
Alaska. There may
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have been a long-term decline of 36 percent in numbers of molting
harbor seals at oiled haulout sites in Prince William Sound following
EVOS (Frost et al., 1994a). However, in a reanalysis of those data and
additional years of surveys, along with an examination of assumptions
and biases associated with the original data, Hoover-Miller et al.
(2001) concluded that the EVOS effect had been overestimated. Harbor
seal pup mortality at oiled beaches was 23% to 26%, which may have been
higher than natural mortality, although no baseline data for pup
mortality existed prior to EVOS (Frost et al., 1994a).
Adult seals rely on a layer of blubber for insulation, and oiling
of the external surface does not appear to have adverse
thermoregulatory effects (Kooyman et al., 1976, 1977; St. Aubin, 1990).
However, newborn seal pups rely on their fur for insulation. Newborn
ringed seal pups in lairs on the ice could be contaminated through
contact with oiled mothers. There is the potential that newborn ringed
seal pups that were contaminated with oil could die from hypothermia.
Further, contact with oil on the external surfaces can potentially
cause increased stress and irritation of the eyes of ringed seals
(Geraci and Smith, 1976; St. Aubin, 1990). These effects seemed to be
temporary and reversible, but continued exposure of eyes to oil could
cause permanent damage (St. Aubin, 1990). Corneal ulcers and abrasions,
conjunctivitis, and swollen nictitating membranes were observed in
captive ringed seals placed in crude oil-covered water (Geraci and
Smith, 1976), and in seals in the Antarctic after an oil spill (Lillie,
1954).
Marine mammals can ingest oil if their food is contaminated. Oil
can also be absorbed through the respiratory tract (Geraci and Smith,
1976; Engelhardt et al., 1977). Some of the ingested oil is voided in
vomit or feces but some is absorbed and could cause toxic effects
(Engelhardt, 1981). When returned to clean water, contaminated animals
can depurate this internal oil (Engelhardt, 1978, 1982, 1985). In
addition, seals exposed to an oil spill are unlikely to ingest enough
oil to cause serious internal damage (Geraci and St. Aubin, 1980,
1982).
Since ringed seals are found year-round in the U.S. Beaufort Sea
and more specifically in the project area, an oil spill at any time of
year could potentially have effects on ringed seals. However, they are
more widely dispersed during the open-water season. Spotted seals are
unlikely to be found in the project area during late winter and spring.
Therefore, they are more likely to be affected by a spill in the summer
or fall seasons. Bearded seals typically overwinter south of the
Beaufort Sea. However, some have been reported around Northstar during
early spring (Moulton et al., 2003b).
Oil Spill Cleanup Activities
Oil spill cleanup activities could increase disturbance effects on
either whales or seals, causing temporary disruption and possible
displacement (BOEM, 2018). General issues related to oil spill cleanup
activities are discussed earlier in this section for cetaceans. In the
event of a large spill contacting and extensively oiling coastal
habitats, the presence of response staff, equipment, and the many
aircraft involved in the cleanup could (depending on the time of the
spill and the cleanup) potentially displace seals. If extensive cleanup
operations occur in the spring, they could cause increased stress and
reduced pup survival of ringed seals. Oil spill cleanup activity could
exacerbate and increase disturbance effects on subsistence species,
cause localized displacement of subsistence species, and alter or
reduce access to those species by hunters. On the other hand, the
displacement of marine mammals away from oil-contaminated areas by
cleanup activities would reduce the likelihood of direct contact with
oil. Impacts to subsistence uses of marine mammals are discussed later
in this document (see the ``Impact on Availability of Affected Species
or Stock for Taking for Subsistence Uses'' section).
Potential Take From Oil Spills
Hilcorp did not request, and NMFS is not proposing to authorize,
take of marine mammals incidental to oil spills. Should an oil spill
occur and marine mammals are killed, injured, or harassed by the spill,
the ``taking'' would be unauthorized. However, NMFS is including
mitigation and reporting measures within these proposed regulations to
minimize risk to marine mammals. Should an oil spill occur at the drill
site and that oil enter the marine environment such that marine mammals
are at risk of exposure, NMFS is proposing to include a mitigation
measure that Hilcorp notify NMFS immediately and cease drilling until
NMFS can assess the severity of the spill and potential impacts to
marine mammals. Should the pipeline leak, crude oil transport via the
pipeline would also cease immediately until the pipeline is repaired.
In the case of any spill, Hilcorp would immediately initiate
communication and response protocol per its Oil Spill Response Plan.
Finally, Hilcorp must maintain the frequency of oil spill response
training at no less than one two hour session per week.
Anticipated Effects on Marine Mammal Habitat
The footprint of the LPDI would result in permanent impacts to
habitats used directly by marine mammals; however, the footprint is
minimal compared to available habitat within Foggy Island Bay and,
further, few cetaceans use Foggy Island Bay. BOEM has also required
mitigation designed to reduce impacts to marine mammal habitat,
including water quality and habitat disturbance. For example, initial
island construction (fill placement phase) and pipeline installation/
backfill will occur in winter when fewer fish species are present and
when water currents are low, which will reduce total suspended solids
(TSS) distribution. In addition, island armoring will serve to reduce
erosion and the spread of silt or gravel over potential prey habitat.
However, increased turbidity and suspended solids resulting from
artificial island construction or exploratory drilling discharges could
have adverse impacts on water quality and, if increases persisted for
extended periods of time; these impacts would be localized but could be
long term (NOAA, 2016). If oil and gas industry operators comply with
the U.S. Environmental Protection Agency's Clean Water Act
requirements, then elevations in turbidity and concentrations of total
suspended solids resulting from exploratory drilling activity would not
result in unreasonable degradation of the marine environment (NOAA,
2016).
The proposed activities could also affect acoustic habitat (see
Auditory Masking discussion above), but meaningful impacts are unlikely
given the low usage of the area by marine mammals and limited pile
driving during open-water conditions (approximately 2 weeks). There are
no known foraging hotspots, or habitats of significant biological
importance to marine mammals present in the marine waters in Foggy
Island Bay. Migratory pathways for cetaceans exist outside the McClure
Island group; however, the majority of noise from the project would be
confined to Foggy Island Bay with low levels potentially propagating
outside of but close to the McClure Islands during vibratory pile
driving only (see Figure 5 in Appendix A of Hilcorp's application). In
addition, pile driving would not occur during the fall bowhead whale
migration (see Proposed Mitigation section); therefore, no impacts to
migratory habitats during use is anticipated during this time period.
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Effects to Prey--Sound may affect marine mammals through impacts on
the abundance, behavior, or distribution of prey species (e.g.,
crustaceans, cephalopods, fish, zooplankton). Marine mammal prey varies
by species, season, and location and, for some, is not well documented.
Here, we describe studies regarding the effects of noise on known
marine mammal prey.
Fish utilize the soundscape and components of sound in their
environment to perform important functions such as foraging, predator
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy and peripheral sensory structures,
which vary among species, fishes hear sounds using pressure and
particle motion sensitivity capabilities and detect the motion of
surrounding water (Fay et al., 2008). The potential effects of noise on
fishes depends on the overlapping frequency range, distance from the
sound source, water depth of exposure, and species-specific hearing
sensitivity, anatomy, and physiology. Key impacts to fishes may include
behavioral responses, hearing damage, barotrauma (pressure-related
injuries), and mortality.
Fish react to sounds which are especially strong and/or
intermittent low-frequency sounds, and behavioral responses such as
flight or avoidance are the most likely effects. Short duration, sharp
sounds can cause overt or subtle changes in fish behavior and local
distribution. The reaction of fish to noise depends on the
physiological state of the fish, past exposures, motivation (e.g.,
feeding, spawning, migration), and other environmental factors.
Hastings and Popper (2005) identified several studies that suggest fish
may relocate to avoid certain areas of sound energy. Additional studies
have documented effects of pile driving on fish, although several are
based on studies in support of large, multiyear bridge construction
projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings,
2009). Several studies have demonstrated that impulse sounds might
affect the distribution and behavior of some fishes, potentially
impacting foraging opportunities or increasing energetic costs (e.g.,
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al.,
1992; Santulli et al., 1999; Paxton et al., 2017). However, some
studies have shown no or slight reaction to impulse sounds (e.g., Pena
et al., 2013; Wardle et al., 2001; Jorgenson and Gyselman, 2009). More
commonly, though, the impacts of noise on fish are temporary.
SPLs of sufficient strength have been known to cause injury to fish
and fish mortality. However, in most fish species, hair cells in the
ear continuously regenerate and loss of auditory function likely is
restored when damaged cells are replaced with new cells. Halvorsen et
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours
for one species. Impacts would be most severe when the individual fish
is close to the source and when the duration of exposure is long.
Injury caused by barotrauma can range from slight to severe and can
cause death, and is most likely to occur in fish with swim bladders.
Barotrauma injuries have been documented during controlled exposure to
impact pile driving (Halvorsen et al., 2012b; Casper et al., 2013).
The most likely impact to fish from pile driving activities at the
project areas would be temporary behavioral avoidance of the area. The
duration of fish avoidance of an area after pile driving stops is
unknown, but a rapid return to normal recruitment, distribution and
behavior is anticipated. In general, impacts to marine mammal prey
species are expected to be minor and temporary due to the expected
short daily duration of individual pile driving events and the
relatively small areas being affected.
The area likely impacted by the activities is relatively small
compared to the available habitat in inland waters in the region. Any
behavioral avoidance by fish of the disturbed area would still leave
significantly large areas of fish and marine mammal foraging habitat in
the nearby vicinity. As described in the preceding, the potential for
the LDPI to affect the availability of prey to marine mammals or to
meaningfully impact the quality of physical or acoustic habitat is
considered to be insignificant.
Estimated Take
This section provides an estimate of the number of incidental takes
proposed for authorization through this proposed rule, which will
inform both NMFS' consideration of ``small numbers'' and the negligible
impact determination.
Except with respect to certain activities not pertinent here,
section 3(18) of the MMPA defines ``harassment'' as: Any act of
pursuit, torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use
of pile hammers, drill rigs, and ice-based equipment (e.g., augers,
trucks) have the potential to result in disruption of behavioral
patterns for individual marine mammals. There is also some potential
for auditory injury (Level A harassment) to result during pile driving.
The proposed mitigation and monitoring measures are expected to
minimize the severity of such taking to the extent practicable.
No mortality or serious injury is anticipated as a result of
exposure to acoustic sources; however, mortality and serious injury of
ringed seals may occur from ice road construction, use, and maintenance
conducted after March 1, annually. Below we describe how we estimated
mortality and serious injury from ice road work followed by a detailed
acoustic harassment estimation method.
Mortality/Serious Injury (Ice Seals)
The only species with the potential to incur serious injury or
mortality during the proposed project are ringed seals during ice road
construction, use, and maintenance. Other ice seal species are not
known to use ice roads within the action area. As described in the
Description of Marine Mammals section, pregnant ringed seals establish
lairs in shorefast sea ice beginning in early March where pups are born
and nursed throughout spring (March through May).
As described in the Potential Effects of the Specified Activity on
Marine Mammals and Their Habitat section above, there have been only
three documented interactions with ringed seals despite over 20 years
of ice road construction on the North Slope; one mortality in 1998 and
two non-lethal interactions in 2018. All three animals involved were
seal pups in or near their lairs. The two recent interactions in 2018
led NMFS to work with the companies involved in the interactions,
including Hilcorp, to better understand the circumstances behind the
interactions and to develop a list of BMPs designed to avoid and
minimize potential harassment. Hilcorp has adopted these BMPs (see
Proposed Mitigation and Monitoring section); however, the potential for
mortality remains, albeit low. Because lairs can include both a pup and
its mother, but interactions with ringed seals are relatively uncommon,
NMFS is proposing to authorize the taking, by mortality or serious
injury, of two ringed seals over the course of five years of ice road
construction.
[[Page 24949]]
Acoustic Harassment
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the proposed take
estimate.
Acoustic Thresholds
Using the best available science, NMFS has developed acoustic
thresholds that identify the received level of underwater sound above
which exposed marine mammals would be reasonably expected to be
behaviorally harassed (equated to Level B harassment) or to incur PTS
of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (e.g., hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of Level B harassment. NMFS predicts that marine mammals are
likely to be harassed in a manner we consider Level B harassment when
exposed to underwater anthropogenic noise above received levels of 120
dB re 1 [mu]Pa (rms) for continuous (e.g., vibratory pile-driving,
drilling) and above 160 dB re 1 [mu]Pa (rms) for non-explosive
impulsive (e.g., seismic airguns) or intermittent (e.g., scientific
sonar) sources.
Hilcorp's Liberty Project includes the use of continuous, non-
impulsive (vibratory pile driving, drilling, auguring) and
intermittent, impulsive (impact pile driving) sources, and therefore
the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). Hilcorp's proposed activity includes the
use of impulsive (e.g., impact pile driving) and non-impulsive (e.g.,
vibratory pile driving, slope shaping, trenching) sources.
These thresholds are provided in Table 3. The references, analysis,
and methodology used in the development of the thresholds are described
in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing Group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential to exceed the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
In shallow water noise propagation is highly dependent on the
properties of the bottom and the surface, among other things.
Parameters such as depth and the bottom properties can vary with
distance from the source. There is a low-frequency cut-off related to
the water depth, below which energy is transferred directly into the
sea floor. Overall, the transmission loss in shallow water is a
combination of cylindrical spreading effects, bottom interaction
effects at lower frequencies and scattering losses at high frequencies.
To estimate ensonfied area, Hilcorp used the parabolic equation (PE)
modelling algorithm RAMGeo (Collins, 1993) to calculate the
transmission loss between the source and the receiver (SLR, 2017). The
full modeling report, including details on modeling methodology and
procedure and ensonification area figures, can be found in the
Underwater and Airborne Noise Modelling Report attached as Appendix A
in Hilcorp's application. We provide a summary here.
RAMGeo is an efficient and reliable PE algorithm for solving range-
[[Page 24950]]
dependent acoustic problems with fluid seabed geo-acoustic properties.
The noise sources were assumed to be omnidirectional and modelled as
point sources. In practice many sources are directional, this
assumption is conservative. To estimate Level A harassment and Level B
harassment threshold distances, Hilcorp first obtained one-third octave
source spectral levels via reference spectral curves with their
subsequent corrections based on their corresponding overall source
levels. Table 4 contains estimated source levels and Appendix B in
Hilcorp's acoustic modeling report contains source spectrum shape used
in the model (SLR, 2018).
Table 4--Estimated Source Levels and Duration
--------------------------------------------------------------------------------------------------------------------------------------------------------
Underwater source levels (db
re: 1 [micro]Pa)
Activity -------------------------------- Airborne (db re: 20[micro]Pa) Number of Max. duration per day
Ice-covered Open-water piles per day
season season
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pipeline installation (trucks on ice, 169.6-179.1 N/A 74.8-78 @100 m................. N/A 12 hrs.
backhoe, ditchwitch).
Sheet pile--vibratory................... 221 185 81 @100 m...................... 20 2.5 hrs.\1\
Sheet pile--impact...................... 235.7 210 93 @160 m...................... .............. 40 min.\2\
Conductor pipe--vibratory............... .............. .............. ............................... 16 2.5 hrs (proxy from sheet
piles).
Conductor pipes/foundation piles--impact 171.7 196 ............................... .............. 2 hrs.\3\
Slope shaping/armoring.................. n/a 167 64.7 @100 m.................... n/a 9.6 hrs.
Drilling and production................. 170.5 151 80 @200 m...................... n/a 24 hrs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Estimated based on 20 piles per day, 7.5 min per pile.
\2\ Average duration estimate is 20 min per day.
\3\ Hilcorp estimates 440-6,300 strikes per day.
Hilcorp relied on operational data from Northstar construction
activities to estimate LDPI construction activity methods and
durations. Greene et al. (2008) indicates impact pile driving at
Northstar was required only to finish off each pile after vibratory
driving it into the frozen material of old Seal Island. Since Liberty
will be a newly constructed gravel island, driving sheet piles should
be easier than was the case at Northstar. Impact sheet pile driving
therefore may not be required at Liberty and is included in the
application as a precaution. Hilcorp assumed approximately 2 minutes
and 100 strikes per pile with a maximum of 20 piles installed per day.
Blackwell et al. (2004a) observed impact pipe driving at Northstar. On
most days, one conductor pipe was driven in a day over a period of 5 to
8.5 hours. The longest day of observation was 10.5 hours in which time
two pipes were driven. The observation period each day included all
pipe driving time, but driving was never continuous during the entire
observation period. Hilcorp applied a correction factor to the
Northstar duration, assuming pipe driving at the LDPI would actually
occur for 20 percent of the total installation time logged at
Northstar.
The scenarios with theoretical potential for PTS onset are slope
shaping, vibratory driving, and impact pile driving and pipe driving
during the open water season. Hilcorp did not model distances to PTS
thresholds during ice-covered conditions because no cetaceans are
present in the region during this time and noise levels are expected to
attenuate very rapidly under ice conditions. Hilcorp did not request,
nor does NMFS anticipate, take by Level A harassment (PTS) during
island construction conducted under ice conditions. The following
discussion on PTS potential is limited to the open-water season.
Table 5 summarizes Hilcorp's modeled distances to NMFS PTS
thresholds using the maximum durations identified above (see also
Tables 16 through 18 in Appendix A of Hilcorp's application for shorter
durations). We note marine mammals would have to be extremely close to
the island during slope shaping and pile driving for an extended period
of time to potentially incur PTS. We find these durations at distance
are highly unlikely and have concluded the potential for PTS from slope
shaping and vibratory pile driving for any marine mammal hearing group
does not exist. Table 6 summarizes distances and ensonified areas to
NMFS Level B harassment thresholds during ice-covered and open water
conditions.
Table 5--Radial Distances to NMFS Level A Harassment Thresholds and Ensonified Area During the Open-Water Season
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Activity (duration) and distance to threshold (ensonified area)
Marine mammal hearing group ------------------------------------------------------------------------------------------------------------------------------------------------------------
(species) Slope shaping (9.6 hrs) Vibratory sheet piling (2.5 hrs) Impact sheet piling (40 min) Impact pipe driving (2 hrs)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Low frequency cetaceans (bowhead, <10 m (0 km\2\)....................... 50 m (164 ft)........................ 1,940 (11.8 km\2\)................... 87 m (2.38 km\2\)
gray whales).
Mid frequency cetaceans (belugas).. n/a................................... <10 m (0 km\2\)...................... 60 m (0.01 km\2\).................... 27 m (0.002 km\2\)
Phocid Pinnipeds (bearded, ringed, <10 m (0 km\2\)....................... 20 m (66 ft)......................... 526 m (0.87 km\2\)................... 240 m (0.18 km\2\)
spotted seals).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 24951]]
Table 6--Radial Distances to NMFS Level B Harassment Thresholds and Ensonified Area
----------------------------------------------------------------------------------------------------------------
Ice-covered Open water \1\
----------------------------------------------------------------
Activity Underwater Airborne noise
noise--ice- Min (m) Median (m) Max (m)
covered (m)
----------------------------------------------------------------------------------------------------------------
Ice road construction and 170 n/a n/a n/a <15
maintenance....................
Pipeline construction........... 210 n/a n/a n/a <15
Sheet pile driving--vibratory... 390 12,000 14,800 17,500 15
Sheet pile driving--impact...... 90 1,700 2,050 2,250 100
Conductor pipe/foundation pile 11 300 315 400 100
driving--impact................
Slope shaping/armoring.......... n/a 880 1,160 1,260 <15
Helicopter (take-off/landing)... n/a n/a n/a n/a 67
Drilling and Production......... 230 20 55 85 30
----------------------------------------------------------------------------------------------------------------
\1\ Open water results are minimum, median and maximum distance to the appropriate noise threshold across all
depths calculated in the direction of maximum noise propagation from the source, away from shore. Median
distances were used to estimate ensonified areas and take calculations.
Marine Mammal Occurrence
Each fall and summer, NMFS and BOEM conduct an aerial survey in the
Arctic, the Aerial Survey of Arctic Marine Mammals (ASAMM) surveys. The
goal of these surveys is to document the distribution and relative
abundance of bowhead, gray, right, fin and beluga whales and other
marine mammals in areas of potential oil and natural gas exploration,
development, and production activities in the Alaskan Beaufort and
northeastern Chukchi Seas. Traditionally, only fall surveys were
conducted but then, in the summer of 2012 (mid-July), the first
dedicated summer survey effort began in the ASAMM Beaufort Sea study
area. Hilcorp used these ASAMM surveys as the data source to estimate
seasonal densities of cetaceans (bowhead, gray and beluga whales) in
the project area. The ASAMM surveys are conducted within blocks that
overlay the Beaufort and Chukchi Seas oil and gas lease sale areas
offshore of Alaska (Figure 6-1 in Hilcorp's application), and provide
sighting data for bowhead, gray, and beluga whales during summer and
fall months. During the summer and fall, NMFS observed for marine
mammals on effort for 7,990 km and 9,244 km, respectively, from 2011
through 2016. Data from those surveys are used for this analysis. We
note the location of the proposed LDPI project is in ASAMM survey block
1; the inshore boundary of this block terminates at the McClure Island
group. It was not until 2016 that on-effort surveys began inside the
McClure Island group (i.e., Foggy Island Bay) since bowhead whales, the
focus of the surveys, are not likely to enter the bay. During ASAMM
surveys in Foggy Island Bay, no marine mammals have been observed.
Therefore, the density estimates provided here are an overestimate
because they rely on offshore surveys where marine mammals are
concentrated.
Bowhead Whale
Summer and fall bowhead whale densities were calculated using the
results from ASAMM surveys from 2011 through 2017. The surveys provided
sightings and effort data by month and season (summer and fall), as
well as each survey block (Clarke et al., 2012, 2013a, 2014, 2015,
2017). Bowhead whale densities were calculated in a two-step approach;
they first calculated a sighting rate of whales per km, then they
multiplied the transect length by the effective strip width using the
modeled species-specific effective strip width for an aero commander
aircraft calculated by Ferguson and Clarke (2013). Where the effective
strip width is the half-strip width, it must be multiplied by 2 in
order to encompass both sides of the transect line. Thus whale density
was calculated as follows: Whales per km\2\ = whales per kilometer/(2 x
the effective strip width). The effective strip width for bowhead
whales was calculated to be 1.15 km (CV=0.08). Table 7 contains pooled
data from 2011 through 2017 Block 1 ASAMM surveys and resulting
densities.
The resulting densities are expected to be overestimates for the
LDPI analysis because data is based on sighting effort outside the
barrier islands, and bowhead and gray whales rarely occur within the
barrier islands, while belugas also are found in higher abundance
outside of Foggy Island Bay.
Table 7--Bowhead Whale Sighting Data From 2011 Through 2017 and Resulting Densities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transect Number of
Year Season Month effort (km) whale sighted Whale/km Whale/km\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011................................. Summer.................. Jul-Aug................ 346 1 0.003 0.001
Fall.................... Sept-Oct............... 1,476 24 0.016 0.007
2012................................. Summer.................. Jul-Aug................ 1,493 5 0.003 0.001
Fall.................... Sept-Oct............... 1,086 14 0.013 0.006
2013................................. Summer.................. Jul-Aug................ 1,582 21 0.013 0.006
Fall.................... Sept-Oct............... 1,121 21 0.019 0.008
2014................................. Summer.................. Jul-Aug................ 1,393 17 0.012 0.005
Fall.................... Sept-Oct............... 1,538 79 0.051 0.022
2015................................. Summer.................. Jul-Aug................ 1,262 15 0.012 0.005
Fall.................... Sept-Oct............... 1,663 17 0.010 0.004
2016................................. Summer.................. Jul-Aug................ 1,914 74 0.039 0.017
Fall.................... Sept-Oct............... 2,360 19 0.008 0.004
2017................................. Summer.................. Jul-Aug................ 3,003 8 0.003 0.001
[[Page 24952]]
Fall.................... Sept-Oct............... 1,803 85 0.047 0.020
------------------------------------------------------------------------------------------------------------------
Total............................ Summer 10,993 141 \1\ 0.012 \1\ 0.005
Fall 11,047 259 \1\ 0.023 \1\ 0.0010
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Value represents average, not total, across all years per relevant season.
Gray Whales
Gray whales are rare in the project area and ASAMM aerial survey
block 1. From 2011 through 2017 only two gray whales have been observed
during ASAMM block 1 surveys despite over 21,000 miles of trackline
effort, for a resulting density of zero (Table 8). However, a group of
baleen whales comprised of both bowhead and gray whales was observed
during industry marine mammal surveys in Foggy Island Bay in 2008.
Therefore, Hilcorp has requested, and NMFS proposes to authorize, take,
by Level B harassment, of two gray whales annually during the effective
period of the proposed regulations on the chance gray whales enter the
ensonified zone during LDPI activities.
Table 8--Gray Whale Sighting Data From 2011 Through 2017 and Resulting Densities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transect Number of
Year Season Month effort (km) whales sighted Whale/km Whale/km\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011................................. Summer.................. Jul-Aug................ 346 0 0.000 0.000
Fall.................... Sept-Oct............... 1,476 0 0.000 0.000
2012................................. Summer.................. Jul-Aug................ 1,493 0 0.000 0.000
Fall.................... Sept-Oct............... 1,086 0 0.000 0.000
2013................................. Summer.................. Jul-Aug................ 1,582 0 0.000 0.000
Fall.................... Sept-Oct............... 1,121 0 0.000 0.000
2014................................. Summer.................. Jul-Aug................ 1,393 0 0.000 0.000
Fall.................... Sept-Oct............... 1,538 1 0.001 0.000
2015................................. Summer.................. Jul-Aug................ 1,262 0 0.000 0.000
Fall.................... Sept-Oct............... 1,663 0 0.000 0.000
2016................................. Summer.................. Jul-Aug................ 1,914 1 0.001 0.000
Fall.................... Sept-Oct............... 2,360 0 0.000 0.000
2017................................. Summer.................. Jul-Aug................ 3,003 0 0.001 0.000
Fall.................... Sept-Oct............... 1,803 0 0.000 0.000
------------------------------------------------------------------------------------------------------------------
Total............................ Summer 10,993 1 0 0.000
Fall 11,047 1 0 0.000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beluga Whales
As with the large whales, beluga whale presence is anticipated to
be higher outside the barrier islands. Sighting data collected during
industry marine mammal surveys in Foggy Island Bay (as described in the
Description of Marine Mammals section) are used to estimate likelihood
of presence when deriving final proposed take numbers; however, these
data were not collected in a manner that allows for a derivation of
density inside the bay or integration into the ASAMM survey data. The
ASAMM surveys were recently extended into Foggy Island Bay; however, no
beluga whales or any other cetaceans were observed while within the
Bay. Table 9 presents block 1 ASAMM survey data and resulting densities
for beluga whales. We note the 2012 and 2013 ASAMM reports stratified
beluga whale sightings by depth rather than by survey block. Because
the final beluga whale take numbers presented in this proposed rule are
adjusted based on expected presence in the entire bay based on marine
mammal monitoring by industry in Foggy Island Bay, NMFS did not pursue
investigating the raw data further and believe the values here are a
reasonable and conservative representation of density in survey block 1
based on comparison to other ASAMM survey year sighting rates where
sightings by blocks are available.
Table 9--Beluga Whale Sighting Data From 2011 Through 2017 and Resulting Densities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transect Number of
Year Season Month effort (km) whales sighted Whale/km Whale/km\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011................................. Summer.................. Jul-Aug................ 346 0 0.000 0.000
Fall.................... Sept-Oct............... 1,476 0 0.000 0.000
2012................................. Summer.................. Jul-Aug................ 5,001 47 0.009 0.008
Fall.................... Sept-Oct............... 4,868 5 0.001 0.001
2013................................. Summer.................. Jul-Aug................ 4,270 75 0.018 0.014
Fall.................... Sept-Oct............... 3,372 2 0.001 0.0005
2014................................. Summer.................. Jul-Aug................ 1,393 13 0.009 0.008
Fall.................... Sept-Oct............... 1,538 9 0.006 0.005
[[Page 24953]]
2015................................. Summer.................. Jul-Aug................ 1,262 37 0.029 0.024
Fall.................... Sept-Oct............... 1,663 3 0.002 0.001
2016................................. Summer.................. Jul-Aug................ 1,914 349 0.182 0.148
Fall.................... Sept-Oct............... 2,360 15 0.006 0.005
2017................................. Summer.................. Jul-Aug................ 3,003 4 0.001 0.001
Fall.................... Sept-Oct............... 1,803 0 0.000 0.000
------------------------------------------------------------------------------------------------------------------
Total............................ Summer 17,189 521 0 0.029
Fall 17,080 34 0 0.002
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ringed Seals
Limited data are available on ringed seal densities in the southern
Beaufort Sea during the winter months; however, ringed seals winter
ecology studies conducted in the 1980s (Kelly et al., 1986, Frost and
Burns, 1989) and surveys associated with the Northstar development
(Williams et al., 2001) provide information on both seal ice-structure
use (where ice structures include both breathing holes and subnivean
lairs), and on the density of ice structures.
Kelly et al. (1986) found that in the southern Beaufort Sea and
Kotzebue Sound, radio-tagged seals used between 1 and at least 4
subnivean lairs. The distances between lairs was up to 4 km (10 mi),
with numerous breathing holes in-between (Kelly et al., 1986). While
Kelly et al. (1986) calculated the average number of lairs used per
seal to be 2.85, they also suggested that this was likely to be an
underestimate. To estimate winter ringed seal density within the
project area, the average ice structure density of 1.45/km\2\ was
divided by the average number of ice structures used by an individual
seal of 2.85 (SD=2.51; Kelly et al., 1986). This results in an
estimated density of 0.510 ringed seals/km\2\ during the winter months.
This density is likely to be overestimated due to Kelly et al. (1986)'s
suggestion that their estimate of the average number of lairs used by a
seal was an underestimate (the denominator used).
For spring ringed seal densities, aerial surveys flown in 1997
through 2002 over Foggy Island Bay and west of Prudhoe Bay during late
May and early June (Frost et al., 2002, Moulton et al., 2002b,
Richardson and Williams, 2003), when the greatest percentage of seals
have abandoned their lairs and are hauled out on the ice (Kelly et al.,
2010), provides the best available information on ringed seal
densities.
Because densities were consistently very low where water depth was
less than 3 m (and these areas are generally frozen solid during the
ice-covered season) densities have been calculated where water depth
was greater than 3 m deep (Moulton et al., 2002a, Moulton et al.,
2002b, Richardson and Williams, 2003). Based on the average density of
surveys flown 1997 to 2002, the uncorrected average density of ringed
seals during the spring is expected to be 0.548 ringed seals/km\2\.
Because the number of seals is expected to be much lower during the
open water season, we estimated summer (open-water) ringed seal density
to be 50 percent of the spring densities, resulting in an estimated
density of 0.27 ringed seals/km\2\. Ringed seals remain in the water
through the fall and in to the winter, however, due to the lack of
available data on fall densities within the LDPI action area we have
assumed the same density of ringed seals as in the summer; 0.27 ringed
seals/km\2\ (see Hilcorp's application and NMFS (2018) for more data
details).
Bearded Seals
Industry monitoring surveys for the Northstar development during
the spring seasons in 1999 (Moulton et al., 2000), 2000 (Moulton et
al., 2001), 2001 (Moulton et al., 2002a), and 2002 (Moulton et al.,
2003) counted 47 bearded seals (annual mean of 11.75 seals during an
annual mean of 3,997.5 km\2\ of effort); these data were insufficient
to calculate a reliable density estimate in each year, no other on
bearded seal presence were available. Annual reports (Richardson, 2008)
for years 2000 through 2002 include similar figures. A winter and
spring density using the four years of Northstar development data
equates to 0.003 bearded seals per km\2\.
For the open-water season (summer and fall), bearded seal density
was calculated as a proportion of the ringed seal summer density based
on the percentage of pinniped sightings during monitoring surveys in
1996 (Harris et al., 2001), 2008 (Aerts et al., 2008, Hauser et al.,
2008), and 2012 (HDR, 2012). During these surveys, 63 percent were
ringed seals, 17 percent were bearded seals and 20 percent were spotted
seals. Thus, the density of bearded seals during the open water season
(summer and fall) was calculated as 17 percent of the ringed seal
density of 0.27 seals/km\2\. This results in an estimated summer
density for bearded seals of 0.05 seals/km\2\.
Spotted Seals
Given their seasonal distribution and low numbers in the nearshore
waters of the central Alaskan Beaufort Sea, no spotted seals are
expected in the action area during late winter and spring, but a few
individuals could be expected during the summer or fall. Using the same
monitoring data described in the bearded seal section above, spotted
seal density during the open water season (summer and fall) was
calculated as 20 percent of the ringed seal summer density estimate
(0.27 seals/km\2\) in the LDPI Project Area. This results in an
estimated density of 0.05 seals/km\2\.
A summary of marine mammal densities used to estimate exposures is
provided, by season and species, in Table 10.
Table 10--Summary of Marine Mammal Densities
----------------------------------------------------------------------------------------------------------------
Winter (Nov- Spring (Apr- Summer (Jul- Fall (Sept-
Species Stock Mar) Jun) Aug) Oct)
----------------------------------------------------------------------------------------------------------------
Bowhead whale................. Western Arctic.. 0 0 0.006 0.009
[[Page 24954]]
Gray whale.................... Eastern N 0 0 0 0
Pacific.
Beluga whale.................. Beaufort Sea.... 0 0 0.029 0.002
Ringed seal................... Alaska.......... 0.51 0.548 0.27 0.27
Bearded seal.................. Alaska.......... 0.003 0.003 0.05 0.05
Spotted seal.................. Alaska.......... 0 0 0.05 0
----------------------------------------------------------------------------------------------------------------
Exposure Estimates
To quantitatively assess exposure of marine mammals to noise from
the various activities associated with the Liberty Project, Hilcorp
used the median range to which Level A harassment and Level B
harassment thresholds were reached for ice road construction and
maintenance, island construction, vibratory and impact sheet pile
driving, impact conductor pipe driving, slope shaping, drilling, and
production. Hilcorp considered the potential for take on any given day
based on the largest Level B harassment zone for that day.
For each species, exposure estimates were calculated in a multi-
step process. On any given day of the year, the expected take for that
day per species was calculated as: Density x ensonified area (of the
largest Level B harassment zone for that day). Results were then summed
for the year to provide total exposure estimates per species.
In some cases, however, the calculated densities alone do not
reflect the full potential of exposure. For example, beluga whale
densities are quite low; however, previous marine mammal surveys in
Foggy Island Bay have identified the potential for them to be there in
greater numbers than reflected based on NMFS survey data alone. In
other cases, the potential for exposure is almost discountable (e.g.,
calculated gray whale takes are zero) but given they could appear in
Foggy Island Bay, Hilcorp has requested take authorization. Hilcorp
also requested take authorization for bowhead whales despite the lack
of project-related noise above NMFS harassment thresholds extending
much beyond the McClure Islands (e.g., see Figure 02 in Appendix D of
Hilcorp's application) where bowheads are more likely to be found. As
described in the Marine Mammal Occurrence section, we used density
based on surveys conducted outside of the McClure Islands; therefore,
Hilcorp has likely overestimated potential take. However, given the
sensitivities surrounding this species in the Arctic, we believe a
precautionary approach is appropriate here to conservatively assess the
potential effects on the stock and subsistence use.
Bowhead, gray, and beluga whales have the potential to be present
and exposed to noise during the open-water season. Work during ice
conditions (e.g., pipeline installation, ice road construction) does
not have the potential to harass cetaceans because they are not present
in the action area. Hilcorp anticipates conducting a maximum of 15 days
of open-water pile driving and could conduct slope shaping throughout
the summer. The method described above was used to estimate take, by
Level B harassment, in year 1 when the LDPI would be constructed.
There is a very low potential for large whale Level A harassment
(PTS) from the specified activities given the rarity of bowhead and
gray whales entering Foggy Island Bay. However, in an abundance of
caution, Hilcorp has requested, and NMFS proposes to authorize, limited
Level A harassment takes per year of each species potentially exposed
to impact pile driving noise (Table 11). Group size was considered in
Level B harassment take requests in cases where sighting data and group
size indicate potential for a greater amount of take than calculated
based on density (e.g., beluga whale take request is higher than
calculated take estimate). A small amount of the Level B harassment
exposures were allocated to Level A harassment for the first year of
work (i.e., pile driving during open water).
For seals, a straight density estimate was used following the
method described above. In assessing the calculated results; there was
no need to adjust take numbers for Level B harassment.
The amount and manner of take Hilcorp requested, and NMFS proposes
to authorize, for each species is summarized in Table 11 below. In
addition to the takes listed below, Hilcorp requests, and NMFS is
proposing to authorize, a total of two ringed seal mortalities over the
life of the proposed regulations incidental to ice road construction,
use, and maintenance.
Table 11--Annual and Total Amount of Proposed Take Incidental to Hilcorp's LDPI Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species (stock)
-----------------------------------------------------------------------------------------------
Year Bowhead (W Beluga Ringed seal Bearded seal Spotted seal
Arctic) Gray (ENP) (Beaufort) (AK) (AK) (AK)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 2 2 10 5 2 2
2....................................................... 0 0 0 0 0 0
3....................................................... 0 0 0 0 0 0
4....................................................... 0 0 0 0 0 0
5....................................................... 0 0 0 0 0 0
-----------------------------------------------------------------------------------------------
Total Level A harassment............................ 2 2 10 5 2 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level B harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 6 1 40 336 58 58
[[Page 24955]]
2....................................................... 1 1 20 8 1 1
3....................................................... 1 1 20 22 1 1
4....................................................... 1 1 20 18 1 1
5....................................................... 1 1 20 17 1 1
-----------------------------------------------------------------------------------------------
Total Level B harassment............................ 10 5 120 401 62 62
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed Mitigation
In order to issue an IHA under Section 101(a)(5)(A) and (D) of the
MMPA, NMFS must set forth the permissible methods of taking pursuant to
such activity, and other means of effecting the least practicable
impact on such species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stock for
taking for certain subsistence uses.
NMFS regulations require applicants for incidental take
authorizations to include information about the availability and
feasibility (economic and technological) of equipment, methods, and
manner of conducting such activity or other means of effecting the
least practicable adverse impact upon the affected species or stocks
and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat, as
well as subsistence uses. This considers the nature of the potential
adverse impact being mitigated (likelihood, scope, range). It further
considers the likelihood that the measure will be effective if
implemented (probability of accomplishing the mitigating result if
implemented as planned) the likelihood of effective implementation
(probability implemented as planned) and;
(2) the practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
The mitigation measures presented here are a product of Hilcorp's
application, recommendations from the Arctic peer review panel
(available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act), NMFS'
recommendations, and public comments on the Federal Register Notice of
Receipt.
Construction Mitigation Measures
Hilcorp will aim to construct the island, including completing all
pile driving, during the ice-covered season (as was done for
Northstar). Should an ice seal be observed on or near the LDPI by any
Hilcorp personnel, the sighting will be reported to Hilcorp's
Environmental Specialist. No construction activity should occur within
10 m of an ice seal and any vehicles used should use precaution and not
approach any ice seal within 10 m.
During the open-water season, the following mitigation measures
apply: Hilcorp will station two protected species observers (PSOs) on
elevated platforms on the island during all pile driving in open-water
conditions (see Proposed Monitoring and Reporting for more details).
Marine mammal monitoring shall take place from 30 minutes prior to
initiation of pile driving activity through 30 minutes post-completion
of pile driving activity. Pre-activity monitoring shall be conducted
for 30 minutes to ensure that the shutdown zone is clear of marine
mammals, and pile driving may commence when observers have declared the
shutdown zone (which equates to the Level A harassment zone in Table 5)
is clear of marine mammals. In the event of a delay or shutdown of
activity resulting from marine mammals in the shutdown zone, animals
shall be allowed to remain in the shutdown zone (i.e., must leave of
their own volition) and their behavior shall be monitored and
documented.
If a marine mammal is approaching a Level A harassment zone and
pile driving has not commenced, pile driving shall be delayed. Pile
driving may not commence or resume until either the animal has
voluntarily left and been visually confirmed beyond the shutdown zone;
15 minutes have passed without subsequent detections of small cetaceans
and pinnipeds; or 30 minutes have passed without subsequent detections
of large cetaceans. NMFS may adjust the shutdown zones pending review
and approval of an acoustic monitoring report (see Monitoring and
Reporting).
Hilcorp will use soft start techniques when impact pile driving.
Soft start requires contractors to provide an initial set of strikes at
reduced energy, followed by a thirty-second waiting period, then two
subsequent reduced energy strike sets. A soft start must be implemented
at the start of each day's impact pile driving and at any time
following cessation of impact pile driving for a period of thirty
minutes or longer.
In the unlikely event a low frequency cetacean (bowhead or gray
whale) approaches or enters the Level A harassment zone, pile driving
would be shut down. If a mid-frequency cetacean (beluga) or pinniped
(seal) enters the Level A harassment zone during pile driving, Hilcorp
proposes to complete setting the pile (which takes ten to fifteen
minutes from commencement) but not initiate additional pile driving of
new piles until the marine mammal has left and is on a path away from
the Level A harassment zone. Hilcorp would not commence pile driving if
any species is observed approaching or within the Level A harassment
zone during the pre-construction monitoring period.
If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
takes are met, is observed approaching or within the monitoring zone
(which equates to the Level B harassment zone in Table 6),
[[Page 24956]]
pile driving and removal activities must shut down immediately using
delay and shut-down procedures. Activities must not resume until the
animal has been confirmed to have left the area or the observation time
period, as indicated in above, has elapsed.
Hilcorp shall install the pipeline during the ice-covered season,
thereby minimizing noise impacts to marine mammals as noise does not
propagate well in ice and cetaceans are not present in the action area
during winter.
Proposed Mitigation for Ice Road Construction, Maintenance, and Use
During ice road construction, Hilcorp would follow several BMPs
recently developed through a collaborative effort with NMFS. These BMPs
are informed by the best available information on how ice roads are
constructed and maintained and ice seal lairing knowledge. They are
designed to minimize disturbance and set forth a monitoring and
reporting plan to improve knowledge. The complete BMP document is
available on our website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
The ice road BMPs are applicable to construction and maintenance of
Liberty sea ice roads and sea ice trails in areas where water depth is
greater than 10 feet (ft) (the minimum depth required to establish
ringed seal lairs) as well as any open leads in the sea ice requiring a
temporary bridge during the ice road season. They are organized into
the following categories: (1) Wildlife training; (2) general BMPs
implemented throughout the ice road season; (3) BMPs to be implemented
prior to March 1st; (4) BMPs to be implemented after March 1; and (4)
reporting. We refer the reader to the complete BMP document on our
website but provide a summary of provisions here.
Timing--Hilcorp will construct sea ice roads as early as possible
(typically December 1 through mid-February) so that the entire corridor
is disturbed prior to March 1, the known onset of lairing season.
Blading and snow blowing of ice roads/trails will be limited to the
previously disturbed and delineated areas to the extent safe and
practicable. Snow will be plowed or blown from the ice surface so as to
preserve the safety and integrity of the ice surface for continued use.
After March 1, annually, blading and snow blowing of ice roads will
be limited to the previously disturbed ice road/shoulder areas to the
extent safe and practicable. However, when safety requires a new ice
trail to be constructed after March 1st, construction activities such
as drilling holes in the ice to determine ice quality and thickness,
will be conducted only during daylight hours with good visibility.
Ringed seal structures will be avoided by a minimum of 150 ft during
ice testing and new trail construction.
Personnel--Hilcorp will employ a NMFS-approved, trained
environmental field specialist who will serve as the primary ice seal
monitor and main point of contact for any ice seal observations made by
other Hilcorp staff, employees, or contractors. This person shall be in
charge of conducting monitoring surveys every other day while the ice
road is being actively used. The specialist will also be responsible
for alerting all crew to ice seal sightings and reporting to the
appropriate officials.
Training--Prior to initiation of annual sea ice road activities,
all project personnel associated with ice road construction or use
(i.e., construction workers, surveyors, vehicle drivers security
personnel, and the environmental team) will receive annual training on
these BMPs. Annual training also includes reviewing the company's
Wildlife Interaction Plan which has been modified to include reference
to the BMPs and reporting protocol. In addition to the BMPs, other
topics in the training may include ringed seal reproductive ecology
(e.g., temporal and spatial lairing behavior, habitat characteristics,
potential disturbance effect, etc.) and summary of applicable laws and
regulatory requirements including, but not limited to, MMPA incidental
take authorization requirements.
General BMPs To Be Implemented Throughout Season--Hilcorp would
establish ice road speed limits, delineate the roadways with highly
visible markers (to avoid vehicles from driving off roadway where ice
seals may be more likely to lair), and clearly mark corners of rig
mats, steel plates, and other materials used to bridge sections of
hazardous ice (to allow for easy location of materials when removed,
minimizing disturbance to potentially nearby ice seals). Construction,
maintenance or decommissioning activities associated with ice roads and
trails will not occur within 150 ft of the observed ring seal, but may
proceed as soon as the ringed seal, of its own accord, moves farther
than 150 ft distance away from the activities or has not been observed
within that area for at least 24 hours. All personnel would be
prohibited from closely approaching any seal and would be required to
report all seals sighted within 150 ft of the center of the ice road to
the designated Environmental Specialist.
Once the new ice trail is established, tracked vehicle operation
will be limited to the disturbed area to the extent practicable and
when safety of personnel is ensured. If an ice road or trail is being
actively used under daylight conditions with good visibility, a
dedicated observer (not the vehicle operator) will conduct a survey
along the sea ice road/trail to observe if any ringed seals are within
500 ft of the roadway corridor.
Mitigation for Subsistence Uses of Marine Mammals or Plan of
Cooperation
Regulations at 50 CFR 216.104(a)(12) further require incidental
take authorization (ITA) applicants conducting activities that take
place in Arctic waters to provide a Plan of Cooperation (POC) or
information that identifies what measures have been taken and/or will
be taken to minimize adverse effects on the availability of marine
mammals for subsistence purposes. A plan must include the following:
A statement that the applicant has notified and provided
the affected subsistence community with a draft plan of cooperation;
A schedule for meeting with the affected subsistence
communities to discuss proposed activities and to resolve potential
conflicts regarding any aspects of either the operation or the plan of
cooperation;
A description of what measures the applicant has taken
and/or will take to ensure that proposed activities will not interfere
with subsistence whaling or sealing; and
What plans the applicant has to continue to meet with the
affected communities, both prior to and while conducting the activity,
to resolve conflicts and to notify the communities of any changes in
the operation.
Hilcorp submitted a POC to NMFS, dated April 18, 2018, which
includes all the required elements included in the aforementioned
regulations (available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act). The
POC documents Hilcorp's stakeholder engagement activities, which began
in 2014 for this project, with subsistence communities within the North
Slope Region including Nuiqsut, Barrow and Kaktovik, the closest
villages to the Project Area. The POC includes a description of the
project, how access to the Project Area will occur, pipeline and island
construction techniques, and drilling operations. The plan also
describes the ongoing community outreach cooperation and coordination
[[Page 24957]]
and measures that will be implemented by Hilcorp to minimize adverse
effects on marine mammal subsistence. The POC is a living document and
will be updated throughout the LDPI review and permitting process. As
such, Hilcorp intends to maintain open communication with all
stakeholders throughout the Liberty permitting and development process.
In addition, Hilcorp, along with several other North Slope Industry
participants, has entered into a Conflict Avoidance Agreement (CAA)
with the AEWC for all North Slope oil and gas activities to minimize
potential interference with bowhead subsistence hunting. By nature of
the measures, the mitigation described above also minimizes impacts to
subsistence users and is not repeated here. Additional mitigation
measures specific to subsistence use include:
Avoid impact pile driving during the Cross Island bowhead
whale hunt which usually occurs from the last week of August through
mid-September;
Schedule all non-essential boat, hovercraft, barge, and
air traffic to avoid conflicting with the timing of the Cross Island
bowhead hunt; and
Adhere to all communication and coordination measures
described in the POC.
During the comment period on BOEM's EIS for this project and our
NOR announcing receipt of Hilcorp's application, the AEWC submitted
comments pertaining to potential effects on subsistence use. The AEWC
indicated Hilcorp's continued participation in the Open Water Season
CAA and the Good Neighbor Policy (GNP), along with its willingness to
work with the Nuiqsut Whaling Captains to mitigate subsistence harvest
concerns are central to the AEWC's support for the Liberty Project.
Further, recommendations from the peer-review panel recommended the
existing POC and CAA should be renewed and implemented annually to
ensure that project activities are coordinated with the North Slope
Borough and Alaska Native whaling captains. Therefore, in addition to
the activity specific mitigation measures above, NMFS is requiring
Hilcorp to abide by the POC, and remain committed to the GNP throughout
the life of the regulations. In addition, Hilcorp has committed to
following the CAA.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means effecting the least practicable impact on the
affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stock for
subsistence uses.
Proposed Monitoring and Reporting
In order to issue an LOA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of the authorized taking. NMFS' MMPA
implementing regulations further describe the information that an
applicant should provide when requesting an authorization (50 CFR
216.104(a)(13)), including the means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and the level of taking or impacts on populations of marine
mammals.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of significant interactions with marine mammal
species in action area (e.g., animals that came close to the vessel,
contacted the gear, or are otherwise rare or displaying unusual
behavior);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or important physical components of marine
mammal habitat); and
Mitigation and monitoring effectiveness.
Marine Mammal Monitoring During the Open-Water Season
Hilcorp shall employ NMFS approved PSOs and conduct marine mammal
monitoring per the Marine Mammal Monitoring Plan, dated February 12,
2019. Two PSOs will be placed on either side of the island where pile/
pipe-driving or slope shaping activities are occurring. For example,
one PSO would be placed on the side where construction activities are
taking place and the other placed on the opposite side to provide
complete observer coverage around the island. PSO stations will be
moved around the island as needed during construction activities to
provide full coverage. PSOs will be switched out such that they will
observe for no more than 4 hours at a time and no more than 12 hours in
a 24-hour period.
A third island-based PSO will work closely with an aviation
specialist to monitor the Level B harassment zone during all open-water
pile and pipe driving using an unmanned aircraft system (UAS). This
third PSO and the UAS pilot will be located on the island. UAS
monitoring will also be used during slope shaping, which may occur in
open water intermittently until August 31 the first year the proposed
regulations are valid. Should foundation piles be installed the
subsequent year, the requirement for UAS will be dependent upon the
success of the program in the previous year and results of any
preliminary acoustic analysis during year 1 construction (e.g., impact
driving conductor pipes). Should UAS not be deemed effective and
construction is ongoing during the open-water season, a vessel-based
PSO shall observe the monitoring zone during pile and pipe driving.
During the open-water season, marine mammal monitoring will take
place from 30 minutes prior to initiation of pile and pipe driving
activity through 30 minutes post-completion of pile driving activity.
Pile driving may commence when observers have declared the shutdown
zone clear of marine mammals. In the event of a delay or shutdown of
activity resulting from marine mammals in the shutdown zone, animals
must be allowed to remain in the shutdown zone (i.e., must leave of
their own volition) and their behavior must be monitored and
documented.
During the ice-covered season, in addition to ice road monitoring
(see below), Hilcorp personnel will report any ice seal sightings on or
near the LDPI to Hilcorp's Environmental Specialist.
Acoustic Monitoring During the Open-Water Season
Hilcorp will conduct acoustic monitoring of island construction
activities during the open-water season in accordance with its Acoustic
[[Page 24958]]
Monitoring Plan available on our website. In summary, Hilcorp proposes
to annually conduct underwater acoustic monitoring during the open
water season (July through the beginning of October) using Directional
Autonomous Seafloor Acoustic Recorders (DASARs). One or more DASARs
will be deployed at a pre-determined GPS location(s) away from the
LDPI. Each DASAR will be connected by a ground line to an anchor on the
seafloor. At the end of the open water season, the DASAR will be
retrieved by dragging grappling hooks on the seafloor, perpendicular to
and over the location of the ground line, as defined by the GPS
locations of the anchor and DASAR. All activities conducted during the
open water season will be monitored. Goals of the acoustic monitoring
plan are to characterize LDPI construction and operation noises,
ambient sound levels, and verify (or amend) modeled distances to NMFS
harassment thresholds. Recorder arrangement will be configured each
year based on the anticipated activities for that season and the
modelled sound propagation estimates for the relevant sources.
Hilcorp's acoustic monitoring plan can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
Marine Mammal Monitoring During Ice Road Construction, Maintenance and
Use
Hilcorp has prepared a comprehensive ice seal monitoring and
mitigation plan via development of a BMP document which is available at
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Hilcorp would be required to
implement these BMPs; we provide a summary here but encourage the
public to review the full BMP document.
Seal surveys will be conducted every other day during daylight
hours. Observers for ice road activities need not be trained PSOs, but
they must have received the species observation training and understand
the applicable sections of Hilcorp's Wildlife Management Plan. In
addition, they must be capable of detecting, observing and monitoring
ringed seal presence and behaviors, and accurately and completely
recording data. Observers will have no other primary duty than to watch
for and report observations related to ringed seals during this survey.
If weather conditions become unsafe, the observer may be removed from
the monitoring activity.
Construction, maintenance or decommissioning activities associated
with ice roads and trails will not occur within 150 ft of the observed
ring seal, but may proceed as soon as the ringed seal, of its own
accord, moves farther than 150 ft distance away from the activities or
has not been observed within that area for at least 24 hours. Transport
vehicles (i.e., vehicles not associated with construction, maintenance
or decommissioning) may continue their route within the designated
road/trail without stopping.
If a ringed seal structure (i.e., breathing hole or lair) is
observed within 150 ft of the ice road/trail, the location of the
structure will be reported to the Environmental Specialist who will
then carry out a notification protocol. A qualified observer will
monitor the structure every six hours on the day of the initial
sighting to determine whether a ringed seal is present. Monitoring for
the seal will occur every other day the ice road is being used unless
it is determined the structure is not actively being used (i.e., a seal
is not sighted at that location during monitoring).
Monitoring Plan Peer Review
The MMPA requires that monitoring plans be independently peer
reviewed where the proposed activity may affect the availability of a
species or stock for taking for subsistence uses (16 U.S.C.
1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing
regulations state, upon receipt of a complete monitoring plan, and at
its discretion, NMFS will either submit the plan to members of a peer
review panel for review or within 60 days of receipt of the proposed
monitoring plan, schedule a workshop to review the plan (50 CFR
216.108(d)).
NMFS established an independent peer review panel (PRP) to review
Hilcorp's 4MP for the proposed LDPI project in Foggy Island Bay. NMFS
provided the PRP with Hilcorp's ITA application and monitoring plan and
asked the panel to answer the following questions:
1. Will the applicant's stated objectives effectively further the
understanding of the impacts of their activities on marine mammals and
otherwise accomplish the goals stated above? If not, how should the
objectives be modified to better accomplish the goals above?
2. Can the applicant achieve the stated objectives based on the
methods described in the plan?
3. Are there technical modifications to the proposed monitoring
techniques and methodologies proposed by the applicant that should be
considered to better accomplish their stated objectives?
4. Are there techniques not proposed by the applicant (i.e.,
additional monitoring techniques or methodologies) that should be
considered for inclusion in the applicant's monitoring program to
better accomplish their stated objectives?
5. What is the best way for an applicant to present their data and
results (formatting, metrics, graphics, etc.) in the required reports
that are to be submitted to NMFS (i.e., 90-day report and comprehensive
report)?
The PRP met in May 2018 and subsequently provided a final report to
NMFS containing recommendations that the panel members felt were
applicable to Hilcorp's monitoring plans. The PRP concluded the
objectives for both the visual and acoustic monitoring are appropriate,
and agrees that the objective of real-time mitigation of potential
disturbance of marine mammals would be met through visual monitoring.
The PRP's primary recommendations and comments are summarized and
addressed below. The PRP's full report is available on our website at
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
The PRP recommended Hilcorp consult with biologists at the NMFS
Marine Mammal Laboratory and other scientists and users familiar with
the use and limitations of UAS technology for studying marine mammals
at sea regarding appropriate protocols and procedures for the proposed
project. Hilcorp has worked, and will continue to work, with NMFS to
develop a safe, effective UAS monitoring program.
The PRP noted marine mammal monitoring would not be conducted
during the ice-covered season. Since the PRP met, Hilcorp has developed
a marine mammal monitoring plan that would be enacted during ice-
covered months along the ice roads and ice trails. These roads lead up
to the LDPI; therefore, marine mammal monitoring would occur during the
ice-covered season and occur at the LDPI. NMFS has also included a
provision that should ice seals be observed on or near the LDPI, they
shall be reported to Hilcorp's Environmental Specialist and no
personnel shall approach or operate equipment within 10 m of the seal.
The PRP was concerned no acoustic monitoring would be conducted
during the winter months and recommended Hilcorp deploy multiple
acoustic recorders during ice-covered periods to obtain data on both
presence of marine
[[Page 24959]]
mammals and sound levels generated during pile driving activities.
Hilcorp is not proposing to deploy long-term bottom mounted hydrophones
but will collect measurements using hand-held hydrophones lowered in a
hole drilled through the ice.
The PRP also encouraged Hilcorp to consider deployment of
additional acoustic recorders during the open-water season
approximately 15 km northwest of the project area to facilitate a
broader, multi-year approach to analyzing the effect of sound exposure
on marine mammals by various LDPI and non-LDPI sources. The deployment
of multiple recorders would provide a measure of redundancy and avoid
the risk of losing all of the season's data if the recorders are lost
or malfunction. Hilcorp is proposing to position multiple recorders
simultaneously to record sound levels at multiple ranges from the
project activities. Data recorded during times with no project
activities, if such times exist, will be analyzed for ambient sound
level statistics. The recorder arrangement will be configured each year
based on the anticipated activities for that season.
The PRP recommended that the existing POC and CAA be renewed and
implemented annually to ensure that project activities are coordinated
with the North Slope Borough and Alaska Native whaling captains.
Hilcorp is required to implement the POC and has agreed to implement a
CAA with the AEWC.
Reporting
General--A draft report would be submitted to NMFS within 90 days
of the completion of monitoring for each year the regulations are
valid. The report will include marine mammal observations pre-activity,
during-activity, and post-activity during pile driving days, and will
also provide descriptions of any behavioral responses to construction
activities by marine mammals and a complete description of all
mitigation shutdowns and the results of those actions and an
extrapolated total take estimate based on the number of marine mammals
observed during the course of construction. A final report must be
submitted within 30 days following resolution of comments on the draft
report. Hilcorp would also submit a comprehensive annual summary report
covering all activities conducted under the incidental take regulations
no more than 90 days after the regulations expire.
Ice Road Reporting
On an annual basis, Hilcorp will also submit a draft report to NMFS
AKR and OPR compiling all ringed seal observations within 90 days of
decommissioning the ice road and ice trails. The report will include
information about activities occurring at time of sighting, ringed seal
age class and behavior, and actions taken to mitigate disturbance. In
addition the report will include an analysis of the effectiveness of
the BMPs recently developed in coordination with NMFS and any proposed
updates to the BMPs or Wildlife Management Plan as a result of the
encounter. A final report shall be prepared and submitted within thirty
days following resolution of comments on the draft report from NMFS.
NMFS is also proposing to require Hilcorp to submit more immediate
reports should a marine mammal be unexpectantly killed or seriously
injured by the specified activity or a dead or injured marine mammal is
observed by a PSO or Hilcorp personnel. These are standard measures
required by NMFS; details on reporting timelines and information can be
found in the proposed regulations.
LDPI Construction and Operation Reporting
Each day of marine mammal monitoring, PSOs will complete field
sheets containing information NMFS typically requires for pile driving
and construction activities. The full list of data is provided in
Hilcorp's Marine Mammal Monitoring and Mitigation Plan and in the
proposed regulations below. Data include, but are not limited to,
information on daily activities occurring, marine mammal sighting
information (e.g., species, group size, and behavior), manner and
amount of take, and any mitigation actions taken. Data in these field
sheets will be summarized and Hilcorp will provide a draft annual
report to NMFS no later than 90 days post marine mammal monitoring
efforts. Hilcorp would also submit an annual acoustic monitoring report
no later than 90 days after acoustic recorders are recovered each
season. The acoustic monitoring reports shall contain measured dB rms,
SEL and peak values as well as ambient noise levels, per the Acoustic
Monitoring Plan and as described below in the proposed regulations.
Hilcorp will also submit to NMFS a draft final report on all marine
mammal monitoring conducted under the proposed regulations no later
than ninety calendar days of the completion of marine mammal and
acoustic monitoring or sixty days prior to the issuance of any
subsequent regulations, if necessary, for this project, whichever comes
first. A final report shall be prepared and submitted within thirty
days following resolution of comments on the draft report from NMFS.
Negligible Impact Analysis and Determination
Introduction
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' by mortality, serious injury, and Level A harassment or Level
B harassment, we consider other factors, such as the likely nature of
any behavioral responses (e.g., intensity, duration), the context of
any such responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, and
specific consideration of take by M/SI previously authorized for other
NMFS research activities).
Serious Injury and Mortality
NMFS is proposing to authorize a very small number of serious
injuries or mortalities that could occur incidental to ice road
construction, use, and maintenance. We note here that the takes from
ice road construction, use, and maintenance enumerated below could
result in non-serious injury, but their worst potential outcome
(mortality) is analyzed for the purposes of the negligible impact
determination.
In addition, we discuss here the connection, and differences,
between the legal mechanisms for authorizing incidental take under
section 101(a)(5) for activities such as LDPI construction
[[Page 24960]]
and operation, and for authorizing incidental take from commercial
fisheries. In 1988, Congress amended the MMPA's provisions for
addressing incidental take of marine mammals in commercial fishing
operations. Congress directed NMFS to develop and recommend a new long-
term regime to govern such incidental taking (see MMC, 1994). The need
to develop a system suited to the unique circumstances of commercial
fishing operations led NMFS to suggest a new conceptual means and
associated regulatory framework. That concept, PBR, and a system for
developing plans containing regulatory and voluntary measures to reduce
incidental take for fisheries that exceed PBR were incorporated as
sections 117 and 118 in the 1994 amendments to the MMPA. In
Conservation Council for Hawaii v. National Marine Fisheries Service,
97 F. Supp.3d 1210 (D. Haw. 2015), which concerned a challenge to NMFS'
regulations and LOAs to the Navy for activities assessed in the 2013--
2018 HSTT MMPA rulemaking, the Court ruled that NMFS' failure to
consider PBR when evaluating lethal takes in the negligible impact
analysis under section 101(a)(5)(A) violated the requirement to use the
best available science.
PBR is defined in section 3 of the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (OSP) and, although not controlling, can
be one measure considered among other factors when evaluating the
effects of M/SI on a marine mammal species or stock during the section
101(a)(5)(A) process. OSP is defined in section 3 of the MMPA as the
number of animals which will result in the maximum productivity of the
population or the species, keeping in mind the carrying capacity of the
habitat and the health of the ecosystem of which they form a
constituent element. Through section 2, an overarching goal of the
statute is to ensure that each species or stock of marine mammal is
maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (Nmin), the
productivity rate of the stock at a small population size, and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the goals of the MMPA. For example,
calculation of the minimum population estimate (Nmin)
incorporates the level of precision and degree of variability
associated with abundance information, while also providing reasonable
assurance that the stock size is equal to or greater than the estimate
(Barlow et al., 1995), typically by using the 20th percentile of a log-
normal distribution of the population estimate. In general, the three
factors are developed on a stock-specific basis in consideration of one
another in order to produce conservative PBR values that appropriately
account for both imprecision that may be estimated, as well as
potential bias stemming from lack of knowledge (Wade, 1998).
Congress called for PBR to be applied within the management
framework for commercial fishing incidental take under section 118 of
the MMPA. As a result, PBR cannot be applied appropriately outside of
the section 118 regulatory framework without consideration of how it
applies within the section 118 framework, as well as how the other
statutory management frameworks in the MMPA differ from the framework
in section 118. PBR was not designed and is not used as an absolute
threshold limiting commercial fisheries. Rather, it serves as a means
to evaluate the relative impacts of those activities on marine mammal
stocks. Even where commercial fishing is causing M/SI at levels that
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the
commercial fishing context under section 118, NMFS may develop a take
reduction plan, usually with the assistance of a take reduction team.
The take reduction plan will include measures to reduce and/or minimize
the taking of marine mammals by commercial fisheries to a level below
the stock's PBR. That is, where the total annual human-caused M/SI
exceeds PBR, NMFS is not required to halt fishing activities
contributing to total M/SI but rather utilizes the take reduction
process to further mitigate the effects of fishery activities via
additional bycatch reduction measures. In other words, under section
118 of the MMPA, PBR does not serve as a strict cap on the operation of
commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the
impacts of incidental take from activities other than commercial
fisheries, using it as the sole reason to deny (or issue) incidental
take authorization for those activities would be inconsistent with
Congress's intent under section 101(a)(5), NMFS' long-standing
regulatory definition of ``negligible impact,'' and the use of PBR
under section 118. The standard for authorizing incidental take for
activities other than commercial fisheries under section 101(a)(5)
continues to be, among other things that are not related to PBR,
whether the total taking will have a negligible impact on the species
or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to
make the negligible impact finding or authorize incidental take through
multi-year regulations, nor does its companion provision at
101(a)(5)(D) for authorizing non-lethal incidental take under the same
negligible-impact standard. NMFS' MMPA implementing regulations state
that take has a negligible impact when it does not ``adversely affect
the species or stock through effects on annual rates of recruitment or
survival''--likewise without reference to PBR. When Congress amended
the MMPA in 1994 to add section 118 for commercial fishing, it did not
alter the standards for authorizing non-commercial fishing incidental
take under section 101(a)(5), implicitly acknowledging that the
negligible impact standard under section 101(a)(5) is separate from the
PBR metric under section 118. In fact, in 1994 Congress also amended
section 101(a)(5)(E) (a separate provision governing commercial fishing
incidental take for species listed under the ESA) to add compliance
with the new section 118 but retained the standard of the negligible
impact finding under section 101(a)(5)(A) (and section 101(a)(5)(D)),
showing that Congress understood that the determination of negligible
impact and application of PBR may share certain features but are, in
fact, different.
Since the introduction of PBR in 1994, NMFS had used the concept
almost entirely within the context of implementing sections 117 and 118
and other commercial fisheries management-related provisions of the
MMPA. Prior to the Court's ruling in Conservation Council for Hawaii v.
National Marine Fisheries Service and consideration of PBR in a series
of section 101(a)(5) rulemakings, there were a few examples where PBR
had informed agency deliberations under other MMPA sections and
programs, such as playing a role in the issuance of a few scientific
research permits and subsistence takings. But as the Court found when
reviewing examples of past PBR consideration in Georgia Aquarium v.
Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga.
[[Page 24961]]
2015), where NMFS had considered PBR outside the commercial fisheries
context, ``it has treated PBR as only one `quantitative tool' and [has
not used it] as the sole basis for its impact analyses.'' Further, the
agency's thoughts regarding the appropriate role of PBR in relation to
MMPA programs outside the commercial fishing context have evolved since
the agency's early application of PBR to section 101(a)(5) decisions.
Specifically, NMFS' denial of a request for incidental take
authorization for the U.S. Coast Guard in 1996 seemingly was based on
the potential for lethal take in relation to PBR and did not appear to
consider other factors that might also have informed the potential for
ship strike in relation to negligible impact (61 FR 54157; October 17,
1996).
The MMPA requires that PBR be estimated in SARs and that it be used
in applications related to the management of take incidental to
commercial fisheries (i.e., the take reduction planning process
described in section 118 of the MMPA and the determination of whether a
stock is ``strategic'' as defined in section 3), but nothing in the
statute requires the application of PBR outside the management of
commercial fisheries interactions with marine mammals. Nonetheless,
NMFS recognizes that as a quantitative metric, PBR may be useful as a
consideration when evaluating the impacts of other human-caused
activities on marine mammal stocks. Outside the commercial fishing
context, and in consideration of all known human-caused mortality, PBR
can help inform the potential effects of M/SI requested to be
authorized under 101(a)(5)(A). As noted by NMFS and the U.S. Fish and
Wildlife Service in our implementation regulations for the 1986
amendments to the MMPA (54 FR 40341, September 29, 1989), the Services
consider many factors, when available, in making a negligible impact
determination, including, but not limited to, the status of the species
or stock relative to OSP (if known); whether the recruitment rate for
the species or stock is increasing, decreasing, stable, or unknown; the
size and distribution of the population; and existing impacts and
environmental conditions. In this multi-factor analysis, PBR can be a
useful indicator for when, and to what extent, the agency should take
an especially close look at the circumstances associated with the
potential mortality, along with any other factors that could influence
annual rates of recruitment or survival.
When considering PBR during evaluation of effects of M/SI under
section 101(a)(5)(A), we first calculate a metric for each species or
stock that incorporates information regarding ongoing anthropogenic M/
SI from all sources into the PBR value (i.e., PBR minus the total
annual anthropogenic mortality/serious injury estimate in the SAR),
which is called ``residual PBR.'' (Wood et al., 2012). We first focus
our analysis on residual PBR because it incorporates anthropogenic
mortality occurring from other sources. If the ongoing human-caused
mortality from other sources does not exceed PBR, then residual PBR is
a positive number, and we consider how the anticipated or potential
incidental M/SI from the activities being evaluated compares to
residual PBR using the framework in the following paragraph. If the
ongoing anthropogenic mortality from other sources already exceeds PBR,
then residual PBR is a negative number and we consider the M/SI from
the activities being evaluated as described further below.
When ongoing total anthropogenic mortality from the applicant's
specified activities does not exceed PBR and residual PBR is a positive
number, as a simplifying analytical tool we first consider whether the
specified activities could cause incidental M/SI that is less than 10
percent of residual PBR (the ``insignificance threshold,'' see below).
If so, we consider M/SI from the specified activities to represent an
insignificant incremental increase in ongoing anthropogenic M/SI for
the marine mammal stock in question that alone (i.e., in the absence of
any other take) will not adversely affect annual rates of recruitment
and survival. As such, this amount of M/SI would not be expected to
affect rates of recruitment or survival in a manner resulting in more
than a negligible impact on the affected stock unless there are other
factors that could affect reproduction or survival, such as Level A
and/or Level B harassment, or other considerations such as information
that illustrates the uncertainty involved in the calculation of PBR for
some stocks. In a few prior incidental take rulemakings, this threshold
was identified as the ``significance threshold,'' but it is more
accurately labeled an insignificance threshold, and so we use that
terminology here, as we did in the AFTT Proposed (83 FR 10954; March
13, 2017) and Final Rules (83 FR 57076; November 14, 2018). Assuming
that any additional incidental take by Level A or Level B harassment
from the activities in question would not combine with the effects of
the authorized M/SI to exceed the negligible impact level, the
anticipated M/SI caused by the activities being evaluated would have a
negligible impact on the species or stock. However, M/SI above the 10
percent insignificance threshold does not indicate that the M/SI
associated with the specified activities is approaching a level that
would necessarily exceed negligible impact. Rather, the 10 percent
insignificance threshold is meant only to identify instances where
additional analysis of the anticipated M/SI is not required because the
negligible impact standard clearly will not be exceeded on that basis
alone.
Where the anticipated M/SI is near, at, or above residual PBR,
consideration of other factors (positive or negative), including those
outlined above, as well as mitigation is especially important to
assessing whether the M/SI will have a negligible impact on the species
or stock. PBR is a conservative metric and not sufficiently precise to
serve as an absolute predictor of population effects upon which
mortality caps would appropriately be based. For example, in some cases
stock abundance (which is one of three key inputs into the PBR
calculation) is underestimated because marine mammal survey data within
the U.S. EEZ are used to calculate the abundance even when the stock
range extends well beyond the U.S. EEZ. An underestimate of abundance
could result in an underestimate of PBR. Alternatively, we sometimes
may not have complete M/SI data beyond the U.S. EEZ to compare to PBR,
which could result in an overestimate of residual PBR. The accuracy and
certainty around the data that feed any PBR calculation, such as the
abundance estimates, must be carefully considered to evaluate whether
the calculated PBR accurately reflects the circumstances of the
particular stock. M/SI that exceeds PBR may still potentially be found
to be negligible in light of other factors that offset concern,
especially when robust mitigation and adaptive management provisions
are included.
In Conservation Council for Hawaii v. National Marine Fisheries
Service, which involved the challenge to NMFS' issuance of LOAs to the
Navy in 2013 for activities in the HSTT Study Area, the Court reached a
different conclusion, stating, ``Because any mortality level that
exceeds PBR will not allow the stock to reach or maintain its OSP, such
a mortality level could not be said to have only a `negligible impact'
on the stock.'' As described above, the Court's statement fundamentally
misunderstands the two terms and incorrectly indicates that these
concepts (PBR and ``negligible
[[Page 24962]]
impact'') are directly connected, when in fact nowhere in the MMPA is
it indicated that these two terms are equivalent.
Specifically, PBR was designed as a tool for evaluating mortality
and is defined as the number of animals that can be removed while
``allowing that stock to reach or maintain its OSP.'' OSP is defined as
a population that falls within a range from the population level that
is the largest supportable within the ecosystem to the population level
that results in maximum net productivity, and thus is an aspirational
management goal of the overall statute with no specific timeframe by
which it should be met. PBR is designed to ensure minimal deviation
from this overarching goal, with the formula for PBR typically ensuring
that growth towards OSP is not reduced by more than 10 percent (or
equilibrates to OSP 95 percent of the time). As PBR is applied by NMFS,
it provides that growth toward OSP is not reduced by more than 10
percent, which certainly allows a stock to ``reach or maintain its
OSP'' in a conservative and precautionary manner--and we can therefore
clearly conclude that if PBR were not exceeded, there would not be
adverse effects on the affected species or stocks. Nonetheless, it is
equally clear that in some cases the time to reach this aspirational
OSP level could be slowed by more than 10 percent (i.e., total human-
caused mortality in excess of PBR could be allowed) without adversely
affecting a species or stock through effects on its rates of
recruitment or survival. Thus even in situations where the inputs to
calculate PBR are thought to accurately represent factors such as the
species' or stock's abundance or productivity rate, it is still
possible for incidental take to have a negligible impact on the species
or stock even where M/SI exceeds residual PBR or PBR.
As noted above, PBR is helpful in informing the analysis of the
effects of mortality on a species or stock because it is important from
a biological perspective to be able to consider how the total mortality
in a given year may affect the population. However, section
101(a)(5)(A) of the MMPA indicates that NMFS shall authorize the
requested incidental take from a specified activity if we find that the
total of such taking i.e., from the specified activity will have a
negligible impact on such species or stock. In other words, the task
under the statute is to evaluate the applicant's anticipated take in
relation to their take's impact on the species or stock, not other
entities' impacts on the species or stock. Neither the MMPA nor NMFS'
implementing regulations call for consideration of other unrelated
activities and their impacts on the species or stock. In fact, in
response to public comments on the implementing regulations NMFS
explained that such effects are not considered in making negligible
impact findings under section 101(a)(5), although the extent to which a
species or stock is being impacted by other anthropogenic activities is
not ignored. Such effects are reflected in the baseline of existing
impacts as reflected in the species' or stock's abundance,
distribution, reproductive rate, and other biological indicators.
NMFS guidance for commercial fisheries provides insight when
evaluating the effects of an applicant's incidental take as compared to
the incidental take caused by other entities. Parallel to section
101(a)(5)(A), section 101(a)(5)(E) of the MMPA provides that NMFS shall
allow the incidental take of ESA-listed endangered or threatened marine
mammals by commercial fisheries if, among other things, the incidental
M/SI from the commercial fisheries will have a negligible impact on the
species or stock. As discussed earlier, the authorization of incidental
take resulting from commercial fisheries and authorization for
activities other than commercial fisheries are under two separate
regulatory frameworks. However when it amended the statute in 1994 to
provide a separate incidental take authorization process for commercial
fisheries, Congress kept the requirement of a negligible impact
determination for this one category of species, thereby applying the
standard to both programs. Therefore, while the structure and other
standards of the two programs differ such that evaluation of negligible
impact under one program may not be fully applicable to the other
program (e.g., the regulatory definition of ``negligible impact'' at 50
CFR 216.103 applies only to activities other than commercial fishing),
guidance on determining negligible impact for commercial fishing take
authorizations can be informative when considering incidental take
outside the commercial fishing context. In 1999, NMFS published
criteria for making a negligible impact determination pursuant to
section 101(a)(5)(E) of the MMPA in a notice of proposed permits for
certain fisheries (64 FR 28800; May 27, 1999). Criterion 2 stated If
total human-related serious injuries and mortalities are greater than
PBR, and fisheries-related mortality is less than 0.1 PBR, individual
fisheries may be permitted if management measures are being taken to
address non-fisheries-related serious injuries and mortalities. When
fisheries-related serious injury and mortality is less than 10 percent
of the total, the appropriate management action is to address
components that account for the major portion of the total. This
criterion addresses when total human-caused mortality is exceeding PBR,
but the activity being assessed is responsible for only a small portion
of the mortality. In incidental take authorizations in which NMFS has
recently articulated a fuller description of how we consider PBR under
section 101(a)(5)(A), this situation had not arisen, and NMFS'
description of how we consider PBR in the section 101(a)(5)
authorization process did not, therefore, include consideration of this
scenario. However, the analytical framework we use here appropriately
incorporates elements of the one developed for use under section
101(a)(5)(E) and because the negligible impact determination under
section 101(a)(5)(A) focuses on the activity being evaluated, it is
appropriate to utilize the parallel concept from the framework for
section 101(a)(5)(E).
Accordingly, we are using a similar criterion in our negligible
impact analysis under section 101(a)(5)(A) to evaluate the relative
role of an applicant's incidental take when other sources of take are
causing PBR to be exceeded, but the take of the specified activity is
comparatively small. Where this occurs, we may find that the impacts of
the taking from the specified activity may (alone) be negligible even
when total human-caused mortality from all activities exceeds PBR if
(in the context of a particular species or stock): The authorized
mortality or serious injury would be less than or equal to 10 percent
of PBR and management measures are being taken to address serious
injuries and mortalities from the other activities (i.e., other than
the specified activities covered by the incidental take authorization
under consideration). We must also determine, though, that impacts on
the species or stock from other types of take (i.e., harassment) caused
by the applicant do not combine with the impacts from mortality or
serious injury to result in adverse effects on the species or stock
through effects on annual rates of recruitment or survival.
As discussed above, however, while PBR is useful in informing the
evaluation of the effects of M/SI in section 101(a)(5)(A)
determinations, it is just one consideration to be assessed in
combination with other factors and is not determinative, including
because, as explained above, the accuracy and certainty of the data
used to calculate PBR for the species or stock must be
[[Page 24963]]
considered. And we reiterate the considerations discussed above for why
it is not appropriate to consider PBR an absolute cap in the
application of this guidance. Accordingly, we use PBR as a trigger for
concern while also considering other relevant factors to provide a
reasonable and appropriate means of evaluating the effects of potential
mortality on rates of recruitment and survival, while acknowledging
that it is possible to exceed PBR (or exceed 10 percent of PBR in the
case where other human-caused mortality is exceeding PBR but the
specified activity being evaluated is an incremental contributor, as
described in the last paragraph) by some small amount and still make a
negligible impact determination under section 101(a)(5)(A).
A stock-wide PBR is unknown since data is only available for the
Bering Sea. However, PBR for ringed seals in the Bearing Sea alone,
considering an Nmin of 5,100. Total annual mortality and
serious injury is 1,054 for an r-PBR of 4,046 (Muto et al., 2018),
which means that the insignificance threshold is 405. No mortality or
serious injury of ringed seals is currently authorized under any other
incidental take authorization issued pursuant to section 101(a)(5)(A)
of the MMPA. In the case of Liberty, the proposed authorized taking, by
mortality, of two ringed seals over the course of 5 years, which
equates to 0.4 mortality takes annually, is less than 10 percent r-PBR
when considering mortality and serious injuring caused by other
anthropogenic sources.
Harassment
Hilcorp requested, and NMFS proposes, to authorize take, by Level A
harassment and Level B harassment, of six species of marine mammals.
The amount of taking proposed to be authorized is low compared to
marine mammal abundance. Potential impacts of LDPI activities include
PTS, TTS, and behavioral changes due to exposure to construction and
operation noise. The potential for Level A harassment occurs during
impact pile driving. As discussed in the Potential Effects of the
Specified Activity on Marine Mammals and Their Habitat section, PTS is
a permanent shift in hearing threshold and the severity of the shift is
determined by a myriad of factors. Here, we expect cetaceans to incur
only a slightly elevated shift in hearing threshold because we do not
except them to be close to the source (especially large whales who
primarily stay outside the McClure Island group) and that impact pile
driving (the source with greatest potential to cause PTS) would only
occur for a maximum of 40 minutes per day. Therefore, the potential for
large threshold shifts in unlikely. Further, the frequency range of
hearing that may be impaired is limited to the frequency bands of the
source. Pile driving exhibits energy in lower frequencies. While low
frequency baleen whales are most susceptible to this, these are the
species that are unlikely to come very close to the source. Mid-
frequency cetaceans and phocids do not have best hearing within these
lower frequency bands of pile driving; therefore, the resulting impact
of any threshold shift is less likely to impair vital hearing. All
other noise generated from the project is expected to be low level from
activities such as slope-shaping and drilling and not result in PTS.
Cetaceans are infrequent visitors to Foggy Island Bay with primary
habitat use outside of the McClure Islands. Any taking within Foggy
Island Bay is not expected to impact reproductive or survival
activities as the bay is not known to contain critical areas such as
rookeries, mating grounds, or other areas of similar significance. Some
ringed seals do lair in Foggy Island Bay; however, the area impacted by
the project is small compared to available habitat. Further, to offset
impacts to reproductive behaviors by ringed seals (e.g., lairing,
pupping), Hilcorp would follow a number of ice road BMPs developed in
coordination with NMFS ringed seal experts. Hilcorp would also not
impact pile drive during the bowhead whale hunt, thereby minimizing
impacts to whales during peak migration periods (we note the peak
migratory pathway for bowhead whales is well outside the McClure
Islands). Finally, for reasons described above, the taking of two
ringed seals, by mortality, over the course of 5 years is not expected
to have impacts on the species' rates of recruitment and survival.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
Only two ringed seals are authorized to be taken by
mortality over 5 years;
Any PTS would be of a small degree;
The amount of takes, by harassment, is low compared to
population sizes;
The area ensonified by Hilcorp's activities does not
provide important areas and is a de minimis subset of habitat used by
and available to marine mammals;
Critical behaviors such as lairing and pupping by ringed
seals would be avoided and minimized through implementation of ice road
BMPs; and
Hilcorp would avoid noise-generating activities during the
bowhead whale hunt; thereby minimizing impact to critical behavior
(i.e., migration).
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(A) of the MMPA for specified
activities. The MMPA does not define small numbers and so, in practice,
where estimated numbers are available, NMFS compares the number of
individuals taken to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals.
Additionally, other qualitative factors may be considered in the
analysis, such as the temporal or spatial scale of the activities.
The amount of total taking (i.e., Level A harassment, Level B
harassment, and, for ringed seals, mortality) of any marine mammal
stock over the course of 5 years, is less than one percent of any
population (Table 12).
Table 12--Amount of Proposed Authorized Take Relative to Population Estimates (Nbest)
----------------------------------------------------------------------------------------------------------------
Population Percent of
Species Stock estimate Total take population
----------------------------------------------------------------------------------------------------------------
Bowhead whale......................... Arctic.................. 16,820 12 <1
[[Page 24964]]
Gray whale............................ ENP..................... 20,990 7 <1
Beluga whale.......................... Beaufort Sea............ 39,258 130 <1
Ringed seal........................... Alaska.................. 170,000 406 <1
Bearded seal.......................... Alaska.................. 299,174 64 <1
Spotted seal.......................... Alaska.................. 423,625 64 <1
----------------------------------------------------------------------------------------------------------------
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals will be taken relative to the population
sizes of the affected species or stocks.
Impact on Availability of Affected Species for Taking for Subsistence
Uses
As described in the Marine Mammal section of the document, all
species potentially taken by Hilcorp's specified activities are key
subsistence species, in particular the bowhead whales and ice seals.
Hilcorp has proposed and NMFS has included several mitigation measures
to address potential impacts on the availability of marine mammals for
subsistence use. The AEWC provided comments during the public comment
period on the Notice of Receipt of Hilcorp's application and as a
member of the peer review panel. NMFS incorporated appropriate
mitigation to address AEWC's concerns, including requirements for
Hilcorp to remain a signatory to a follow protocols contained with the
POC. Hilcorp has also indicated they would abide by a CAA. In addition,
mitigation measures designed to minimize impacts on marine mammals also
minimize impacts to subsistence users (e.g., avoid impact pile driving
during the fall bowhead whale hunt). Hilcorp and NMFS have also
developed a comprehensive set of BMPs to minimize impacts to ice seals
during ice-covered months. In consideration of coordination with the
AEWC, Hilcorp's proposed work schedule (i.e., conducting the majority
of work in winter when bowhead whales are not present) and the
incorporation of several mitigation measures, we have preliminarily
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Hilcorp's LPDI construction and operational activities would contain an
adaptive management component.
The reporting requirements associated with this proposed rule are
designed to provide NMFS with monitoring data from the previous year to
allow consideration of whether any changes are appropriate. The use of
adaptive management allows NMFS to consider new information from
different sources to determine (with input from Hilcorp regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.
Endangered Species Act (ESA)
The bowhead whale, ringed seal, and bearded seal (Beringia DPS) are
listed under the ESA (Table 2). On July 31, 2018, NMFS Alaska Region
(AKR) issued a Biological Opinion to BOEM, Environmental Protection
Agency (EPA), and U.S. Army Corps of Engineers (USACE) for the
permitting of the LDPI Project in its entirety (mobilization to
decommissioning). The Biological Opinion concluded construction,
operation, and decommissioning of the LDPI would not jeopardize the
continued existence of the aforementioned species or adversely modify
critical habitat. OPR has requested consultation with NMFS Alaska
Regional Office under section 7 of the ESA on the promulgation of five-
year regulations and the subsequent issuance of LOAs to Hilcorp under
section 101(a)(5)(A) of the MMPA. This consultation will be concluded
prior to issuing any final rule.
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning Hilcorp's request and the proposed
regulations (see ADDRESSES). All comments will be reviewed and
evaluated as we prepare a final rule and make final determinations on
whether to issue the requested authorization. This notice and
referenced documents provide all environmental information relating to
our proposed action for public review.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Hilcorp is the sole entity that would be subject to the requirements in
these proposed regulations, and the Hilcorp is not a small governmental
jurisdiction, small organization, or small business, as defined by the
RFA. Because of this certification, a regulatory flexibility analysis
is not required and none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. This proposed rule
contains collection-of-information requirements subject to the
provisions of the PRA. These requirements have been approved by OMB
under control number 0648-0151
[[Page 24965]]
and include applications for regulations, subsequent LOAs, and reports.
List of Subjects in 50 CFR Part 218
Marine mammals, Wildlife, Endangered and threatened species,
Alaska, Oil and gas exploration, Indians, Reporting and recordkeeping
requirements, Administrative practice and procedure.
Dated: May 21, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is proposed
to be amended as follows:
PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
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1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
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2. Add subpart D to part 217 to read as follows:
Subpart D--Taking Marine Mammals Incidental to Construction and
Operation of the Liberty Drilling and Production Island
Sec.
217.30 Specified activity and specified geographical region.
217.31 Effective dates.
217.32 Permissible methods of taking.
217.33 Prohibitions.
217.34 Mitigation requirements.
217.35 Requirements for monitoring and reporting.
217.36 Letters of Authorization.
217.37 Renewals and modifications of Letters of Authorization.
217.38-217.39 [Reserved]
Subpart D--Taking Marine Mammals Incidental to Construction and
Operation of the Liberty Drilling and Production Island
Sec. 217.30 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Hilcorp LLC (Hilcorp)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
construction, maintenance, and operation of the Liberty Drilling and
Production Island (LDPI) and associated infrastructure.
(b) The taking of marine mammals by Hilcorp may be authorized in a
Letter of Authorization (LOA) only if it occurs within the Beaufort
Sea, Alaska.
Sec. 217.31 Effective dates.
Regulations in this subpart are effective from December 1, 2020,
through November 30, 2025.
Sec. 217.32 Permissible methods of taking.
Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.36, the Holder of the LOA (hereinafter ``Hilcorp'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.30(b) by mortality, serious injury, Level A
harassment, or Level B harassment associated with the LDPI construction
and operation activities, including associated infrastructure, provided
the activities are in compliance with all terms, conditions, and
requirements of the regulations in this subpart and the appropriate
LOA.
Sec. 217.33 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.32 and authorized
by a LOA issued under Sec. Sec. 216.106 of this chapter and 217.36, no
person in connection with the activities described in Sec. 217.30 may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 217.36;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in an unmitigable adverse impact on the species or
stock of such marine mammal for taking for subsistence uses.
Sec. 217.34 Mitigation requirements.
When conducting the activities identified in Sec. 217.30(a), the
mitigation measures contained in any LOA issued under Sec. 216.106 of
this chapter must be implemented. These mitigation measures shall
include but are not limited to:
(a) General conditions. (1) Hilcorp must renew, on an annual basis,
the Plan of Cooperation (POC), throughout the life of the regulations;
(2) A copy of any issued LOA must be in the possession of Hilcorp,
its designees, and work crew personnel operating under the authority of
the issued LOA;
(3) Hilcorp must conduct briefings for construction and ice road
supervisors and crews, and the marine mammal and acoustic monitoring
teams prior to the start of annual ice road or LDPI construction, and
when new personnel join the work, in order to explain responsibilities,
communication procedures, the marine mammal monitoring protocol, and
operational procedures;
(4) Hilcorp must allow subsistence hunters to use the LDPI for safe
harbor during severe storms, if requested by hunters;
(5) In the unanticipated event of an oil spill during LDPI
operational years, Hilcorp must notify NMFS of the spill within 48
hours, regardless of size, and implement measures contained within the
Liberty Oil Spill Response Plan; and
(6) Hilcorp must strive to complete pile driving and pipeline
installation during the ice-covered season.
(b) Ice road construction, maintenance, and operation. (1) Hilcorp
must implement the NMFS-approved Ice Road and Ice Trail Best Management
Practices (BMPs) and the Wildlife Action Plan. These documents may be
updated as needed throughout the life of the regulations, in
consultation with NMFS.
(2) [Reserved]
(c) Liberty Drilling Production Island Construction. (1) For all
pile driving, Hilcorp shall implement a minimum shutdown zone of a 10
meter (m) radius from piles being driven. If a marine mammal comes
within or is about to enter the shutdown zone, such operations shall
cease immediately;
(2) For all pile driving activity, Hilcorp shall implement shutdown
zones with radial distances as identified in any LOA issued under
Sec. Sec. 216.106 of this chapter and 217.36. If a marine mammal comes
within or is about to enter the shutdown zone, such operations must
cease immediately;
(3) Hilcorp must employ NMFS-approved protected species observers
(PSOs) and designate monitoring zones with radial distances as
identified in any LOA issued under Sec. Sec. 216.106 of this chapter
and 217.36. NMFS may adjust the shutdown zones pending review and
approval of an acoustic monitoring report (see Sec. 217.35
Requirements for Monitoring and Reporting);
(4) If a bowhead whale or other low frequency cetacean enters the
Level A harassment zone, pile or pipe driving must be shut down
immediately. If a beluga whale or pinniped enters the Level A
harassment zone while pile driving is ongoing, work may continue until
the pile is completed (estimated to require approximately 15-20
minutes), but additional pile driving must not be initiated until the
animal has left the
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Level A harassment zone. During this time, PSOs must monitor the animal
and record behavior;
(5) If a marine mammal is approaching a Level A harassment zone and
pile driving has not commenced, pile driving shall be delayed. Pile
driving may not commence or resume until either the animal has
voluntarily left and been visually confirmed beyond the shutdown zone;
15 minutes have passed without subsequent detections of small cetaceans
and pinnipeds; or 30 minutes have passed without subsequent detections
of large cetaceans;
(6) If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
takes are met, is observed approaching or within the monitoring zone
(which equates to the Level B harassment zone), pile driving and
removal activities must shut down immediately using delay and shut-down
procedures. Activities must not resume until the animal has been
confirmed to have left the area or the observation time period, as
indicated in 217.34(c)(5), has elapsed;
(7) Hilcorp will use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
strikes at reduced energy, followed by a thirty-second waiting period,
then two subsequent reduced energy strike sets. A soft start must be
implemented at the start of each day's impact pile driving and at any
time following cessation of impact pile driving for a period of thirty
minutes or longer;
(8) No impact driving must occur during the Nuiqsut Cross Island
bowhead whale hunt. Hilcorp must coordinate annually with subsistence
users on the dates of these hunts; and
(9) Should an ice seal be observed on or near the LDPI by any
Hilcorp personnel, during construction or operation, the sighting must
be reported to Hilcorp's Environmental Specialist. No construction
activity should occur within 10 m of an ice seal and any vehicles used
should use precaution and not approach any ice seal within 10 m.
(d) Vessel restrictions. When operating vessels, Hilcorp must:
(1) Reduce vessel speed to 5 knots (kn) if a whale is observed with
500 m (1641 feet (ft)) of the vessel and is on a potential collision
course with vessel, or if a whale is within 275 m (902 ft) of whales,
regardless of course relative to the vessel;
(2) Avoid multiple changes in vessel direction;
(3) Not approach within 800 m (2,624 ft) of a North Pacific right
whale or within 5.6 km (3 nautical miles) of Steller sea lion rookeries
or major haulouts; and
(4) Avoid North Pacific right whale critical habitat or, if
critical habitat cannot be avoided, reduce vessel speed during transit.
Sec. 217.35 Requirements for monitoring and reporting.
(a) All marine mammal and acoustic monitoring must be conducted in
accordance to Hilcorp's Marine Mammal Mitigation and Monitoring Plan
(4MP). This plan may be modified throughout the life of the regulations
upon NMFS review and approval.
(b) Monitoring must be conducted by NMFS-approved PSOs, who must
have no other assigned tasks during monitoring periods. At minimum, two
PSOs must be placed on elevated platforms on the island during the
open-water season when island construction activities are occurring.
These observers will monitor for marine mammals and implement shutdown
or delay procedures when applicable through communication with the
equipment operator.
(c) One PSO will be placed on the side where construction
activities are taking place and the other placed on the opposite side
of the LDPI; both observers will be on elevated platforms.
(d) PSOs will rotate duties such that they will observe for no more
than 4 hours at a time and no more than 12 hours in a 24-hour period.
(e) An additional island-based PSO will work with an aviation
specialist to use an unmanned aircraft system (UAS) to detect marine
mammals in the monitoring zones during pile and pipe driving and slope
shaping. Should UAS monitoring not be feasible or deemed ineffective, a
boat-based PSO must monitor for marine mammals during pile and pipe
driving.
(f) During the open-water season, marine mammal monitoring must
take place from 30 minutes prior to initiation of pile and pipe driving
activity through 30 minutes post-completion of pile driving activity.
Pile driving may commence when observers have declared the shutdown
zone clear of marine mammals. In the event of a delay or shutdown of
activity resulting from marine mammals in the shutdown zone, animals
must be allowed to remain in the shutdown zone (i.e., must leave of
their own volition) and their behavior must be monitored and
documented.
(g) After island construction is complete but drilling activities
are occurring, a PSO will be stationed on the LDPI for approximately 4
weeks during the month of August to monitor for the presence of marine
mammals around the island in the monitoring zone.
(1) Marine mammal monitoring during pile driving and removal must
be conducted by NMFS-approved PSOs in a manner consistent with the
following:
(i) At least one observer must have prior experience working as an
observer;
(ii) Other observers may substitute education (degree in biological
science or related field) or training for experience;
(iii) Where a team of three or more observers are required, one
observer must be designated as lead observer or monitoring coordinator.
The lead observer must have prior experience working as an observer;
and
(iv) Hilcorp must submit PSO CVs for approval by NMFS prior to the
onset of pile driving;
(2) PSOs must have the following additional qualifications:
(i) Ability to conduct field observations and collect data
according to assigned protocols;
(ii) Experience or training in the field identification of marine
mammals, including the identification of behaviors;
(iii) Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
(iv) Writing skills sufficient to prepare a report of observations
including but not limited to the number and species of marine mammals
observed; dates and times when in-water construction activities were
conducted; dates, times, and reason for implementation of mitigation
(or why mitigation was not implemented when required); and marine
mammal behavior; and
(v) Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
(h) Hilcorp must deploy autonomous sound recorders on the seabed to
conduct underwater passive acoustic monitoring in the open water season
the first four years of the project such that island construction
activities, including pile driving, and drilling operations are
recorded. Acoustic monitoring will be conducted for the purposes of
sound source verification, to verify distances from noise sources at
which underwater sound levels reach thresholds for potential marine
mammal harassment.
(i) Hilcorp must submit incident and monitoring reports.
(1) Hilcorp must submit a draft annual marine mammal and acoustic
summary
[[Page 24967]]
report to NMFS not later than 90 days following the end of each
calendar year. Hilcorp must provide a final report within 30 days after
receipt of NMFS' comments on the draft report. The reports must
contain, at minimum, the following:
(i) Date and time that monitored activity begins or ends;
(ii) Description of construction activities occurring during each
observation period;
(iii) Weather parameters (e.g., wind speed, percent cloud cover,
visibility);
(iv) Water conditions (e.g., sea state, tide state);
(v) Species, numbers, and, if possible, sex and age class of marine
mammals;
(vi) Description of any observable marine mammal behavior patterns,
including bearing and direction of travel and distance from
construction activity;
(vii) Distance from construction activities to marine mammals and
distance from the marine mammals to the observation point;
(viii) Histograms of the perpendicular distance at which marine
mammals were sighted by the PSOs;
(ix) Description of implementation of mitigation measures (e.g.,
shutdown or delay);
(x) Locations of all marine mammal observations;
(xi) An estimate of the effective strip width of the island-based
PSOs and the UAS imagery; and
(xii) Sightings and locations of marine mammals associated with
acoustic detections.
(2) Annually, Hilcorp must submit a report within 90 days of ice
road decommissioning. The report must include the following:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics (i.e., adult or pup, behavior
(avoidance, resting, etc.));
(iii) Activities occurring during observation including equipment
being used and its purpose, and approximate distance to ringed seal(s);
(iv) Actions taken to mitigate effects of interaction emphasizing:
(A) Which BMPs were successful; (B) which BMPs may need to be improved
to reduce interactions with ringed seals; (C) the effectiveness and
practicality of implementing BMPs; (D) any issues or concerns regarding
implementation of BMPs; and (E) potential effects of interactions based
on observation data;
(v) Proposed updates (if any) to the NMFS-approved Wildlife
Management Plan(s) or the ice-road BMPs;
(vi) Reports should be able to be queried for information;
(3) Hilcorp must submit a final 5-year comprehensive summary report
to NMFS not later than 90 days following expiration of these
regulations and LOA.
(4) Hilcorp must submit acoustic monitoring reports per the
Acoustic Monitoring Plan.
(5) Hilcorp must report on observed injured or dead marine mammals.
(i) In the unanticipated event that the activity defined in Sec.
217.30 clearly causes the take of a marine mammal in a prohibited
manner, Hilcorp must immediately cease such activity and report the
incident to the Office of Protected Resources (OPR), NMFS, and to the
Alaska Regional Stranding Coordinator, NMFS. Activities must not resume
until NMFS is able to review the circumstances of the prohibited take.
NMFS will work with Hilcorp to determine what measures are necessary to
minimize the likelihood of further prohibited take and ensure MMPA
compliance. Hilcorp may not resume their activities until notified by
NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Description of the incident;
(C) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
(D) Description of all marine mammal observations in the 24 hours
preceding the incident;
(E) Species identification or description of the animal(s)
involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of the animal(s). Photographs may
be taken once the animal has been moved from the waterfront area.
(H) In the event that Hilcorp discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of decomposition), Hilcorp must immediately report the incident to OPR
and the Alaska Regional Stranding Coordinator, NMFS. The report must
include the information identified in paragraph (k)(5) of this section.
Activities may continue while NMFS reviews the circumstances of the
incident. NMFS will work with Hilcorp to determine whether additional
mitigation measures or modifications to the activities are appropriate.
(ii) In the event Hilcorp discovers an injured or dead marine
mammal and determines that the injury or death is not associated with
or related to the activities defined in Sec. 217.30 (e.g., previously
wounded animal, carcass with moderate to advanced decomposition,
scavenger damage), Hilcorp must report the incident to OPR and the
Alaska Regional Stranding Coordinator, NMFS, within 24 hours of the
discovery. Hilcorp must provide photographs or video footage or other
documentation of the stranded animal sighting to NMFS. Photographs may
be taken once the animal has been moved from the waterfront area.
Sec. 217.36 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, Hilcorp must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, Hilcorp may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, Hilcorp must
apply for and obtain a modification of the LOA as described in Sec.
217.37.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.
Sec. 217.37 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.36 for the activity identified in Sec. 217.30(a) shall be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include
[[Page 24968]]
changes to the activity or the mitigation, monitoring, or reporting
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section) that do not change the findings
made for the regulations or result in no more than a minor change in
the total estimated number of takes (or distribution by species or
years), NMFS may publish a notice of proposed LOA in the Federal
Register, including the associated analysis of the change, and solicit
public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.36 for the activity identified in Sec. 217.30(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with Hilcorp regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring
set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Hilcorp's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. Sec. 216.106
of this chapter and 217.36, an LOA may be modified without prior notice
or opportunity for public comment. Notice would be published in the
Federal Register within thirty days of the action.
Sec. Sec. 217.38-217.39 [Reserved]
[FR Doc. 2019-10965 Filed 5-28-19; 8:45 am]
BILLING CODE 3510-22-P
