Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Gustavus Ferry Terminal Improvements Project, 10416-10421 [2020-03630]
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Federal Register / Vol. 85, No. 36 / Monday, February 24, 2020 / Notices
person interviews at fishing sites or
using email or mail invitations to an
online web survey (with a paper version
of the survey for anglers without
internet access). The durable goods
expenditure portion will use email or
mail invitations to an online web survey
(with a paper version of the survey for
anglers without internet access).
III. Data
OMB Control Number: 0648–0693.
Form Number(s): None.
Type of Review: Regular submission
(extension of a current information
collection).
Affected Public: Individuals.
Estimated Number of Respondents:
88,350: 13,350 for durable good
expenditure survey; 75,000 for trip
expenditure survey.
Estimated Time per Response:
Durable goods expenditure survey, 15
minutes; trip expenditure survey 5
minutes.
Estimated Total Annual Burden
Hours: 3,346.
Estimated Total Annual Cost to
Public: $0 in record keeping and
reporting costs.
IV. Request for Comments
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Comments are invited on: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden
(including hours and cost) of the
proposed collection of information; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques
or other forms of information
technology.
Comments submitted in response to
this notice will be summarized and/or
included in the request for OMB
approval of this information collection;
they also will become a matter of public
record.
Sheleen Dumas,
Department PRA Clearance Officer, Office of
the Chief Information Officer, Commerce
Department.
[FR Doc. 2020–03629 Filed 2–21–20; 8:45 am]
BILLING CODE 3510–22–P
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XR077]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to the Gustavus
Ferry Terminal Improvements Project
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of an incidental
harassment authorization.
AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA) as
amended, notification is hereby given
that NMFS has issued an incidental
harassment authorization (IHA) to the
Alaska Department of Transportation
and Public Facilities (ADOT&PF) to
incidentally harass, by Level A and
Level B harassment only, marine
mammals during pile driving and
removal activities associated with the
Gustavus Ferry Terminal Improvements
Project in Gustavus, Alaska.
DATES: This authorizations is effective
for one year from February 15, 2020
through February 14, 2021.
FOR FURTHER INFORMATION CONTACT:
Robert Pauline, Office of Protected
Resources, NMFS, (301) 427–8401.
Electronic copies of the application and
supporting documents, as well as a list
of the references cited in this document,
may be obtained online at: https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing
these documents, please call the contact
listed above.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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
harassment, a notice of a proposed
incidental take authorization may be
provided to the public for review.
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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.
Summary of Request
On November 20, 2019, NMFS
received a request from the ADOT&PF
for an IHA to take marine mammals
incidental to in-water construction
activities in Gustavus, Alaska. NMFS
previously issued an IHA to ADOT&PF
to incidentally take seven species of
marine mammal, by Level A and Level
B harassment, during construction
activities associated with this same
project. The IHA, issued on April 4,
2017 (82 FR 17209; April 10, 2017), had
effective dates of December 15, 2017
through December 14, 2018. However,
ADOT&PF was unable to conduct any of
the work and, therefore, requested a
new IHA. NMFS issued a second IHA
with effective dates of December 15,
2018 through December 14, 2019 (83 FR
55348; November 5, 2018) to cover the
incidental take analyzed and authorized
in the first IHA. There were minor
modifications to the number of piles
driven but these had no effect on
authorized take numbers, monitoring
requirement, or reporting measures,
which remained the same as stated in
the original 2017–2018 IHA.
ADOT&PF was unable to meet the fall
pile driving window (September 1
through November 30, 2019) as
originally anticipated. Due to this
setback, construction is planned to
begin in spring 2020. ADOT&PF
submitted an addendum to the original
application requesting that a
supplementary two-week timeframe be
included in the spring window from
February 15 through May 31, 2020.
During this two-week timeframe, the
contractor will begin vibratory removal
of structures in order to get ahead of
schedule while also accommodating for
one last sailing of the ferry to the
community before the ferry terminal’s
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closure for the remainder of
construction. The only difference
between this IHA and previously issued
IHAs is a construction start date of
February 15 instead of March 1. Take
numbers remain the same as authorized
for the 2018–2019 IHA referenced
above.
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Description of Activity
The 2020–2021 IHA is nearly
identical to the 2018–2019 IHA with the
most significant change being an earlier
in-water pile driving start date of
February 15, 2020 instead of March 1,
2020. Specifically, over approximately
50 days of in-water activity a total of 59
permanent piles ranging in size from
12.75 inches to 30 inches would be
installed by vibratory and impact
driving. A total of 30 temporary or preexisting piles would undergo vibratory
removal. A detailed description of
planned activities may be found in the
Federal Register proposing
authorization of this IHA (85 FR 2403;
January 15, 2020). Therefore, a detailed
description is not provided here.
Comments and Responses
A notice of NMFS’s proposal to issue
an IHA to ADOT&PF was published in
the Federal Register on January 15,
2020 (85 FR 2403). During the 30-day
public comment period, NMFS received
comment letters from the Marine
Mammal Commission (Commission)
and Defenders of Wildlife (Defenders).
Comment 1: The Commission
recommended that NMFS use at least
165 dB re 1 mPa while Defenders
recommended use of 166 dB re 1 mPa
rather than 157.7 dB re 1 mPa at 10 m
as the source level (SL) for vibratory
driving of 30-in steel piles at Gustavus.
The Commission and Defenders
recommended that NMFS re-estimate
the extent of the Level A and B
harassment zones as well as increase the
number of Level A and B harassment
takes appropriately during both impact
and vibratory pile driving.
NMFS Response: As noted in
responses to the comments submitted by
the Commission for the previous IHAs,
NMFS used a proxy source level of
157.7 dB re 1 mPa for vibratory driving
of 30-in steel piles during the estimated
take analysis. NMFS also previously
noted that ADOT&PF will be using the
same type of vibratory hammers at
Gustavus as were used at Kake and that
the pile types and sizes are comparable
between the two sites. NMFS does not
dispute that the SL used in the Gustavus
analysis is generally lower than others
that have been recorded across various
sites. However, SLs for similar piles
measured at different locations tend to
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cover a range of values. For example, SL
measurements from Kodiak for vibratory
driving of the same size and type of pile
were even lower than those recorded at
Kake, although the researchers
speculated that the low values be due to
the drilling/socketing of piles or
sediment composition at Kodiak (Denes
et al., 2017). For the Gustavus analysis,
NMFS elected to use a value from the
lower end of recorded ranges. In order
to confirm that the SLs adopted by
NMFS are appropriate for use at
Gustavus, NMFS will still require
ADOT&PF to conduct sound source
verification (SSV) testing. If the
recorded SLs at Gustavus are
appreciably greater than those measured
at Kake, ADOT&PF will increase the
shutdown and harassment zones as
appropriate.
Comment 2: The Commission and
Defenders recommended that NMFS
require ADOT&PF to use at least three
Protected Species Observers (PSOs) to
monitor the full extent of the Level B
harassment zones.
NMFS Response: As has been noted in
the previous Gustavus IHAs, NMFS
believes that the existing Level B
harassment zone can be adequately
measured utilizing two PSOs. The
option of adding more PSOs stationed
on boats or nearby islands was
originally discussed with ADOT&PF
before the first IHA was issued.
However, due to the frequency, severity
and unpredictability of weather in Icy
Passage, ADOT&PF was reluctant to
employ vessels for monitoring purposes
since the safety of PSOs could be at risk.
Additionally, island-based PSOs could
be stranded on these uninhabited
islands overnight, or longer, if retrieval
vessels are unable to pick up observers
due to adverse weather conditions.
Comment 3: The Commission
recommended that NMFS ensure that
ADOT&PF keep a running tally of the
total takes, both observed and
extrapolated, to confirm that the
numbers of authorized takes are not
exceeded.
Response: We agree that ADOT&PF
must ensure they do not exceed
authorized takes. We have included in
the authorization that ADOT&PF must
include extrapolation of the estimated
takes by Level B harassment based on
the number of observed exposures
within the Level B harassment zone and
the percentage of the Level B
harassment zone that was not visible in
the draft and final reports.
Comment 4: The Commission and
Defenders recommended that NMFS
require all action proponents that would
be required to or propose to conduct
hydroacoustic monitoring to provide
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their proposed hydroacoustic
monitoring plans prior to publication of
the proposed authorization in the
Federal Register notice and ensure all
such plans are posted on its website the
day the notice publishes in the Federal
Register.
Response: During the initial
application review period, NMFS
requests that applicants provide basic
information regarding proposed
hydroacoustic monitoring plans. We
also generally ask for more fully
detailed, near-final monitoring plans for
review prior to publication of the final
IHA. If NMFS has received the finalized
monitoring plan before publication of
the final IHA, it is shared with the
Commission and posted to our website.
However, the MMPA does not require
submission of the final monitoring plan
prior to publication of the final IHA, as
long as the basic plan, with sufficient
details for review by NMFS and the
public, is approved prior to issuance of
the IHA and NMFS is kept apprised of
any subsequent revisions and provided
the final plan for final approval prior to
the start of work. Under these
conditions, NMFS indicates in the final
IHA that a hydroacoustic monitoring
plan must be submitted to NMFS and
approved prior to initiation of the
monitoring.
Note that the hydroacoustic
monitoring plan for this issued IHA is
currently posted on our website.
Comment 5: The Commission
recommended that NMFS update
templates for draft authorizations to
include all the relevant minimum
reporting requirements for
hydroacoustic monitoring reports as
described in the Description of
Mitigation, Monitoring and Reporting
Measures section consistent with the
Commission’s recommendations.
Defenders recommended that
hydroacoustic monitoring plans should
incorporate the best available science.
Response: The Commission’s
recommendations have been included
in this IHA. NMFS will consider these
recommendations and ensure that
templates include the appropriate
minimum reporting requirements for
hydroacoustic monitoring reports.
NMFS also reviews every hydroacoustic
monitoring plan to ensure that the most
current monitoring protocols and
methodologies are incorporated.
Comment 6: The Commission
recommended that NMFS finish
reviewing and finalize its recommended
proxy source levels for both impact and
vibratory installation of the various pile
types and sizes. If the proxy source
levels for impact pile driving are
finalized prior to those for vibratory pile
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driving and removal, they should be
made available to action proponents and
the public when completed and should
not be retained until the vibratory
source levels are finalized. Defenders
also recommended that NMFS complete
the guidance.
Response: As the Commission notes,
NMFS is developing proxy source level
recommendations and guidance for
impact and vibratory pile driving based
on all available data, and we intend to
make that information available to the
public as it is developed. Until that
time, NMFS has advised applicants and
the Commission that Caltrans 2015
represents the most complete pile
driving source level compilation, and
applicants should defer to these data
absent any project site specific data.
Once the guidance has been finalized, it
will be posted on NMFS’s incidental
take authorization website, as
appropriate.
Comment 7: The Commission has
asserted in the past and continues to
consider that the renewal process is
inconsistent with the statutory
requirements under section 101(a)(5)(D)
of the MMPA. As such, the Commission
recommends that NMFS refrain from
issuing renewals for any authorization
and instead use its abbreviated Federal
Register notice process. That process, as
was used for ADOT&PFs proposed
authorization, is similarly expeditious
and fulfills NMFS’s intent to maximize
efficiencies.
Response 8: NMFS appreciates the
streamlining achieved by the use of
abbreviated Federal Register notices
and intends to continue using them for
proposed IHAs that include minor
changes from previously issued IHAs,
but which do not satisfy the Renewal
requirements. However, we believe our
method for issuing Renewals meets
statutory requirements and maximizes
efficiency, and we plan to continue
considering requests for Renewals.
Comment 9: The Commission
recommends that it (1) stipulate that a
Renewal is a one-time opportunity (a) in
all Federal Register notices requesting
comments on the possibility of a
Renewal, (b) on its web page detailing
the Renewal process, and (c) in all draft
and final authorizations that include a
term and condition for a Renewal.
Response: NMFS’ website indicates
that Renewals are good for ‘‘up to
another year of the activities covered in
the initial IHA.’’ NMFS has never issued
a Renewal for more than one year, and
in no place have we implied that
Renewals are available for more than
one year. Any given Federal Register
notice considering a Renewal clearly
indicates that it is only being considered
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for one year. Accordingly, changes to
the Renewal language on the website,
Federal Register notices, or
authorizations is not necessary.
Comment 10: Defenders noted that
NMFS used a categorical exclusion to
satisfy NEPA requirements for this
action since no mortality or serious
injury is expected. Defenders asserted
that if no injury or mortality were
expected by NMFS, there would be no
need to authorize takes of several
species by Level A harassment. Since
NMFS has authorized take by Level A
harassment mortality or injury is
anticipated and, therefore, an
environmental assessment should be
prepared to analyze potential impacts
associated with the action.
Response: NMFS does not anticipate
that mortality or serious injury would
occur. Defenders is using the terms
injury and serious injury
interchangeably. Note that NMFS
defines serious injury in regulations (50
CFR 229.2) as ‘‘any injury that will
likely result in mortality,’’ whereas
injury that will not likely result in
mortality is considered ‘‘Level A
Harassment.’’ NMFS acknowledges the
possibility that a marine mammal could
experience limited auditory injury in
the form of permanent threshold shift
(PTS), which is considered Level A
Harassment. Animals that experience
PTS would likely only experience minor
degradation of hearing capabilities, such
as the loss of a few decibels in its
hearing sensitivity. In most cases such
a loss is not likely to meaningfully affect
the ability to forage and communicate
with conspecifics. Additionally, NMFS
has authorized take of marine mammals
by Level A harassment for numerous
pile driving actions and is unaware of
any instances that resulted in mortality
or serious injury of marine mammals.
Therefore, NMFS determined that this
action is consistent with categories of
activities identified in Categorical
Exclusion B4 (incidental harassment
authorizations with no anticipated
serious injury or mortality) of the
Companion Manual for NOAA
Administrative Order 216–6A and that
the issuance of this IHA qualifies to be
categorically excluded from further
NEPA review.
Comment 11: Defenders expressed
concerned that the public comment
period for this IHA closes on February
14th, 2020 and that the IHA would be
effective on February 15th, 2020, there
is not adequate time for NMFS to
consider public input.
Response: While NMFS was targeting
an issuance date of February 15th,
issuance of the final IHA would be
delayed, if necessary, to adequately
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address any comments that arrive at the
end of the public comment period.
Changes From the Proposed IHA to the
Final IHA
NMFS has included in the final IHA
additional detail regarding
hydroacoustic monitoring plan and
reporting requirements for the final IHA.
ADOT&PF is required to conduct
monitoring of three 24-in and three 36in piles during both impact and
vibratory installation. The proposed
IHA only required a single pile of each
size. Updated hydroacoustic monitoring
reporting requirements may be found in
the Description of Mitigation,
Monitoring and Reporting Measures
section. NMFS has removed the 30minute clearance time for cetaceans
from the final IHA while retaining the
standard 15-minute clearance time
applicable to all marine mammals in
shallow waters. NMFS has also revised
the final IHA to include the most
current standard marine mammal
reporting requirements.
Analysis
Description of Marine Mammals in the
Area of Specified Activities
A detailed description of the species
likely to be affected by ADOT&PF’s
planned project, including brief
introductions to the species and
relevant stocks as well as available
information regarding population trends
and threats, and information regarding
local occurrence, may be found in the
Federal Register notice for the proposed
IHA (85 FR 2403; January 15, 2020); as
well as previous IHAs issued for this
project (82 FR 17209, April 10, 2017; 83
FR 55348, November 5, 2018). We are
not aware of any changes in the status
of these species and stocks; therefore,
detailed descriptions are not provided
here.
Potential Effects on Marine Mammals
and Their Habitat
A description of the potential effects
of the specified activities on marine
mammals and their habitat may be
found in these previous documents.
There is no new information on
potential effects.
Estimated Take
A detailed description of the methods
and inputs used to estimate authorized
take is found in these previous
documents. The methods of estimating
take for the 2020–2021 IHA are identical
to those used in the 2017–2018 IHA.
The source levels also remain
unchanged from the previously issued
IHAs. Observational data was used to
calculate daily take rates in the absence
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late spring near the Gustavus ferry
terminal. Moving the start date forward
by two weeks will reduce the amount of
in-water construction occurring later in
the spring when animal occurrences are
elevated. Therefore, the total recorded
take amounts may be reduced. Note that
of density data. Since the number of
pile-driving days (50) estimated for the
2017–2018 IHA, 2018–2019 IHA and
2020–2021 IHA remains the same, the
total estimated take projections will be
identical. Note that marine mammal
occurrences are more frequent in the
since abundance estimates of some
stocks have been updated in the Draft
2019 SAR (Muto et al. 2019b) the
percentage of stock taken has also
changed. These changes are shown in
Table 1.
TABLE 1—ESTIMATED NUMBER OF INSTANCES OF EXPOSURES THAT MAY BE SUBJECT TO LEVEL A AND LEVEL B
HARASSMENT AND PERCENTAGE OF STOCKS
Species
Level A
authorized
takes
Level B
authorized
takes
Total
authorized
takes
Stock(s) abundance estimate
Steller Sea Lion ..........
0
709
709
Humpback whale ........
0
600/(36 1)
600/(36 1)
Harbor Seal ................
Harbor Porpoise ..........
Killer whale .................
38
26
0
616
127
126
654
153
126
Minke whale ................
Dall’s Porpoise ............
0
7
42
35
42
42
53,624 (western distinct population segment
in Alaska)/43,201 (eastern stock).
10,103 (Central North Pacific Stock)/3,264
(Mexico DPS).
7,455 (Glacier Bay/Icy Strait) ..........................
11,146 (Southeast Alaska) .............................
302 (Northern resident)/587 (Gulf of Alaska
transient)/243 (West Coast transient).
Unknown .........................................................
83,400 .............................................................
Instances of take
as a percentage
of total stock
1.3 */1.6.*
5.9/1.1.
8.7.*
1.37.
41.7 */21.4/51.8.
Unknown.
<0.01.
1 6.1 percent of humpbacks whales in southeast Alaska (36) are from Mexico DPS (Wade et al. 2016).
* Updated information from Muto et al. 2019. Draft Alaska Marine Mammal Stock Assessments, 2019. Available at: https://
www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.
Description of Mitigation, Monitoring
and Reporting Measures
A description of required mitigation,
monitoring, and reporting measures is
found in the previous documents,
which are nearly identical to those
contained in this 2020–2021 IHA. The
following measures apply to
ADOT&PF’s mitigation requirements:
1. Implementation of Shutdown
Zone—For all pile driving activities,
ADOT&PF will implement a shutdown
zone. The purpose of a shutdown zone
is generally to define an area within
which shutdown of activity would
occur upon sighting of a marine
mammal (or in anticipation of an animal
entering the defined area). In this case,
shutdown zones (Table 2) are intended
to contain areas in which sound
pressure levels (SPLs) equal or exceed
acoustic injury criteria for some
authorized species, based on NMFS’
acoustic technical guidance (NMFS
2018).
2. Implementation of Monitoring
Zones—ADOT&PF must monitor Level
A harassment zones as shown in Table
2. These zones are areas beyond the
shutdown zones where animals may be
exposed to sound levels that could
result in PTS. ADOT&PF must also
monitor the Level B harassment
disturbance zones as shown in Table 4
which are areas where SPLs equal or
exceed 160 dB rms for impact driving
and 120 dB rms during vibratory
driving. Observation of monitoring
zones enables observers to be aware of
and communicate the presence of
marine mammals in the project area and
outside the shutdown zone and thus
prepare for potential shutdowns of
activity, and also allows for the
collection of marine mammal and
effects data. NMFS has established
monitoring protocols described in the
Federal Register notice of the issuance
(82 FR 17209; April 10, 2017) which are
based on the distance and size of the
monitoring and shutdown zones. These
same protocols are contained in the
issued 2020–2021 IHA.
TABLE 2—SHUTDOWN, INJURY AND BEHAVIORAL HARASSMENT ISOPLETHS FROM IMPACT AND VIBRATORY PILE DRIVING
Shutdown
zone—impact/
vibratory
(m)
Species
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Steller Sea Lion ...........................................................................................................................
Humpback whale .........................................................................................................................
Harbor Seal ..................................................................................................................................
Harbor Porpoise ...........................................................................................................................
Killer whale ..................................................................................................................................
Minke whale .................................................................................................................................
Dall’s Porpoise .............................................................................................................................
3. Temporal and Seasonal
Restrictions—Work may only occur
during daylight hours, when visual
monitoring of marine mammals can be
conducted and all in-water construction
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will be limited to the periods February
15 through May 31, 2020, and
September 1 through November 30,
2020.
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25/10
550/20
100/10
100/20
25/10
550/20
100/20
Level A
harassment
zone—impact
(m)
n/a
n/a
285
630
n/a
n/a
630
Level B
harassment
zone-impact/
vibratory
(m)
2,090/3,265
2,090/3,265
2,090/3,265
2,090/3,265
2,090/3,265
2,090/3,265
2,090/3,265
4. Soft Start—The use of a soft-start
procedure is believed to provide
additional protection to marine
mammals by providing warning and/or
giving marine mammals a chance to
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leave the area prior to the hammer
operating at full capacity. For impact
pile driving, contractors will be required
to implement soft start procedures. Soft
Start is not required during vibratory
pile driving and removal activities.
5. Visual Marine Mammal
Observation—Visual monitoring must
be conducted by qualified PSOs. In
order to effectively monitor the pile
driving monitoring zones, two PSOs
must be positioned at the best practical
vantage point(s). If waters exceed a seastate which restricts the observers’
ability to make observations within the
shutdown zone (e.g., excessive wind or
fog), pile installation and removal will
cease. Pile driving will not be initiated
until the entire shutdown zone is
visible. PSOs shall record specific
information on the sighting forms as
described in this issued IHA which
contains current standards. At the
conclusion of the in-water construction
work, ADOT&PF will provide NMFS
with a monitoring report, which
includes summaries of recorded takes
and estimates of the number of marine
mammals that may have been harassed.
6. ADOT&PF must conduct SSV
testing of impact and vibratory pile
driving for this project within 7 days
after underwater pile driving work is
initiated. ADOT&PF is required to
conduct monitoring of three 24-in and
three 36-in piles during both impact and
vibratory installation according to
methodology described in
hydroacoustic monitoring plan. The
SSV testing must be conducted by an
acoustical firm with prior experience
conducting SSV tests in Alaska. Results
must be sent to NMFS no later than 14
days after field testing has been
completed. If necessary, the shutdown,
Level A, and Level B harassment zones
will be adjusted to meet MMPA
requirements within 7 days of NMFS
receiving results. The following data,
which was not included in the draft
IHA, must be collected during acoustic
monitoring and reported:
(a) Hydrophone equipment and
methods: Recording device, sampling
rate, distance from the pile where
recordings were made; depth of
recording device(s);
(b) Type of pile being driven, method
of driving, and use of bubble curtain or
other noise abatement device (e.g.,
driving behind the cofferdam) during
recordings;
(c) Mean, medium, and maximum
sound levels (dB re: 1 mPa): Cumulative
sound exposure level (SELcum), peak
sound pressure level (SPLpeak), root
mean square sound pressure level
(SPLrms), and single-strike sound
exposure level (SELs-s); and
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(d) Number of strikes per pile
measured, one-third octave band
spectrum and/or power spectral density.
Determinations
ADOT&PF plans to conduct activities
similar to those covered in the previous
2017–2018 and 2018–2019 IHAs. As
described above, the number of
estimated takes of the same stocks of
marine mammals are the same as those
authorized in the 2017–2018 and 2018–
2019 IHAs that were found to meet the
negligible impact and small numbers
standards. Our analysis showed that less
than 9 percent of the populations of
affected stocks, with the exception of
minke and killer whales, could be taken
by harassment. For Northern resident
and West Coast transient killer whales,
the percentages, when instances of take
are compared to abundance, are 41.7
percent and 51.8 percent, respectively.
However, the takes estimated for these
stocks (up to 126 instances assuming all
takes are accrued to a single stock) are
not likely to represent unique
individuals. Instead, we anticipate that
there will be multiple takes of a smaller
number of individuals and that the total
number of individuals will fall below
one third of the abundance.
The Northern resident killer whale
stock are most commonly seen in the
waters around the northern end of
Vancouver Island, and in sheltered
inlets along British Columbia’s Central
and North Coasts. They also range
northward into Southeast Alaska in the
winter months. Pile driving operations
are not permitted from December
through February. It is unlikely that
such a large portion of Northern
resident killer whales with ranges of
this magnitude would be concentrated
in and around Icy Passage, which is a
shallow, narrow channel connected to
the deeper waters of Icy Strait and
separates Gustavus and the rest of the
mainland from Pleasant Island.
NMFS believes that small numbers of
the West coast transient killer whale
stock would be taken based on the
limited region and duration of exposure
in comparison with the known
distribution of the transient stock. The
West coast transient stock ranges from
Southeast Alaska to California, while
the planned project activity would be
stationary. A notable percentage of West
coast transient whales have never been
observed in Southeast Alaska. Only 155
West coast transient killer whales have
been identified as occurring in
Southeast Alaska according to Dahlheim
and White (2010). The same study
identified three pods of transients,
equivalent to 19 animals that remained
almost exclusively in the southern part
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
of Southeast Alaska (i.e., Clarence Strait
and Sumner Strait). This information
indicates that only a small subset of the
entire West coast Transient stock would
be at risk for take in the Icy Passage area
because a sizable portion of the stock
has either not been observed in
Southeast Alaska or consistently
remains far south of Icy Passage.
There is no current abundance
estimate for minke whale since
population data on this species is dated.
However, the authorized take of 42
minke whales may be considered small.
A visual survey for cetaceans was
conducted in the central-eastern Bering
Sea in July–August 1999, and in the
southeastern Bering Sea in 2000. Results
of the surveys in 1999 and 2000 provide
provisional abundance estimates of 810
and 1,003 minke whales in the centraleastern and southeastern Bering Sea,
respectively (Moore et al., 2002).
Additionally, line-transect surveys were
conducted in shelf and nearshore waters
in 2001–2003 from the Kenai Fjords in
the Gulf of Alaska to the central
Aleutian Islands. Minke whale
abundance was estimated to be 1,233 for
this area (Zerbini et al., 2006). However,
these estimates cannot be used as an
estimate of the entire Alaska stock of
minke whales because only a portion of
the stock’s range was surveyed. (Allen
and Anglis, 2012). Clearly, 42
authorized takes should be considered a
small number, as it constitutes only 5.2
percent of the smallest abundance
estimate generated during the surveys
just described and each of these surveys
represented only a portion of the minke
whale range.
Note that the numbers of animals
authorized to be taken for all species,
with the exception of Northern resident
and West coast transient killer whales,
would be considered small relative to
the relevant stocks or populations even
if each estimated taking occurred to a
new individual—an extremely unlikely
scenario.
The issued 2020–2021 IHA includes
mitigation, monitoring, and reporting
requirements that are nearly identical to
those depicted in the 2017–2018 and
2018–2019 IHAs, and there is no new
information suggesting that our analysis
or findings should change.
Based on the information contained
here and in the referenced documents,
NMFS has determined the following: (1)
The required mitigation measures will
affect the least practicable impact on
marine mammal species or stocks and
their habitat; (2) the authorized takes
will have a negligible impact on the
affected marine mammal species or
stocks; (3) the authorized takes
represent small numbers of marine
E:\FR\FM\24FEN1.SGM
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Federal Register / Vol. 85, No. 36 / Monday, February 24, 2020 / Notices
mammals relative to the affected stock
abundances; and (4) ADOT&PF’s
activities will not have an unmitigable
adverse impact on taking for subsistence
purposes as no relevant subsistence uses
of marine mammals are implicated by
this action.
lotter on DSKBCFDHB2PROD with NOTICES
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 review our
proposed action (i.e., the issuance of an
incidental harassment authorization)
with respect to potential impacts on the
human environment. This action is
consistent with categories of activities
identified in Categorical Exclusion B4
(incidental harassment authorizations
with no anticipated serious injury or
mortality) of the Companion Manual for
NOAA Administrative Order 216–6A,
which do not individually or
cumulatively have the potential for
significant impacts on the quality of the
human environment and for which we
have not identified any extraordinary
circumstances that would preclude this
categorical exclusion. Accordingly,
NMFS has determined that the issuance
of the IHA qualifies to be categorically
excluded from further NEPA review.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered
Species Act of 1973 (ESA: 16 U.S.C.
1531 et seq.) requires that each Federal
agency insure that any action it
authorizes, funds, or carries out is not
likely to jeopardize the continued
existence of any endangered or
threatened species or result in the
destruction or adverse modification of
designated critical habitat. To ensure
ESA compliance for the issuance of
IHAs, NMFS consults internally
whenever we propose to authorize take
for endangered or threatened species.
In order to comply with the ESA,
NMFS Alaska Regional Office (AKR)
Protected Resources Division issued a
Biological Opinion on March 21, 2017
under section 7 of the ESA, on the
issuance of an IHA to ADOT&PF under
section 101(a)(5)(D) of the MMPA. This
consultation concluded that the project
was likely to adversely affect but
unlikely to jeopardize the continued
existence of the threatened Mexico DPS
of humpback whale (Megaptera
novaeangliae) or the endangered
western DPS of Steller sea lion
(Eumatopias jubatus), or adversely
modify designated critical habitat for
Steller sea lions. In a memo dated
January 7, 2020 NMFS AKR concluded
that re-initiation of section 7
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18:30 Feb 21, 2020
Jkt 250001
consultation was not necessary for the
issuance of the 2020–2021 IHA and
extended the Gustavus incidental take
statement (ITS). All of the terms and
conditions listed in the ITS issued
March 21, 2017 still apply to this action.
Authorization
As a result of these determinations,
we have issued an IHA to ADOT&PF for
conducting the described construction
activities related to city dock and ferry
terminal improvements from February
15, 2020 through February 14, 2021,
provided the previously described
mitigation, monitoring, and reporting
requirements are incorporated.
Dated: February 18, 2020.
Donna Wieting,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2020–03630 Filed 2–21–20; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Federal Consistency Appeal by
Electric Boat Corporation
National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Notice of appeal.
AGENCY:
This announcement provides
notice that the Department of Commerce
(DOC) has received a ‘‘Notice of
Appeal’’ filed by Electric Boat
Corporation (Appellant) requesting that
the Secretary override an objection by
the New York State Department of State
to a consistency certification for a
proposed project to dispose of dredged
material in the Eastern Long Island
Sound Dredged Material Disposal Site.
DATES: You may submit written
comments concerning this appeal or
requests for a public hearing on or
before March 25, 2020.
ADDRESSES: The National Oceanic and
Atmospheric Administration (NOAA)
intends to provide access to publicly
available materials and related
documents comprising the appeal
record on the following website: https://
www.regulations.gov/
#!docketDetail;D=NOAA-HQ-2020-0021.
Comments or requests for a public
hearing must be submitted by:
Electronic submission: Submit all
electronic public comments or requests
for a public hearing via the Federal
eRulemaking portal. Go to (https://
www.regulations.gov/
#!docketDetail;D=NOAA-HQ-2020SUMMARY:
PO 00000
Frm 00024
Fmt 4703
Sfmt 4703
10421
0021), click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments. 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 NOAA.
For
questions about this Notice, contact
Lauren Bregman, NOAA Office of the
General Counsel, Oceans and Coasts
Section, 1305 East-West Highway, Room
6111, Silver Spring, MD 20910, (301)
713–7389, lauren.bregman@noaa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Notice of Appeal
On January 24, 2020, the Secretary of
Commerce (Secretary) received a
‘‘Notice of Appeal’’ filed by Electric
Boat Corporation pursuant to the
Coastal Zone Management Act of 1972
(CZMA), 16 U.S.C. 1451 et seq., and
implementing regulations found at 15
CFR part 930, subpart H. The ‘‘Notice of
Appeal’’ is taken from an objection by
the New York State Department of State
to a consistency certification for a
proposed U.S. Army Corps of Engineers
permit to dispose of dredged material in
the Eastern Long Island Sound Dredged
Material Disposal Site.
Under the CZMA, the Secretary may
override the New York State Department
of State’s objection on grounds that the
project is consistent with the objectives
or purposes of the CZMA, or is
necessary in the interest of national
security. To make the determination
that the proposed activity is ‘‘consistent
with the objectives or purposes of the
CZMA,’’ the Secretary must find that:
(1) The proposed activity furthers the
national interest as articulated in
sections 302 or 303 of the CZMA, in a
significant or substantial manner; (2) the
national interest furthered by the
proposed activity outweighs the
activity’s adverse coastal effects, when
those effects are considered separately
or cumulatively; and (3) no reasonable
alternative is available that would
permit the proposed activity to be
conducted in a manner consistent with
the enforceable policies of the
applicable coastal management
program. 15 CFR 930.121. To make the
determination that the proposed activity
is ‘‘necessary in the interest of national
security,’’ the Secretary must find that a
national defense or other national
security interest would be significantly
impaired if the proposed activity is not
permitted to go forward as proposed. 15
CFR 930.122.
E:\FR\FM\24FEN1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 36 (Monday, February 24, 2020)]
[Notices]
[Pages 10416-10421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03630]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XR077]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Gustavus Ferry Terminal
Improvements Project
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
the Alaska Department of Transportation and Public Facilities (ADOT&PF)
to incidentally harass, by Level A and Level B harassment only, marine
mammals during pile driving and removal activities associated with the
Gustavus Ferry Terminal Improvements Project in Gustavus, Alaska.
DATES: This authorizations is effective for one year from February 15,
2020 through February 14, 2021.
FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems
accessing these documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
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 harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
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.
Summary of Request
On November 20, 2019, NMFS received a request from the ADOT&PF for
an IHA to take marine mammals incidental to in-water construction
activities in Gustavus, Alaska. NMFS previously issued an IHA to
ADOT&PF to incidentally take seven species of marine mammal, by Level A
and Level B harassment, during construction activities associated with
this same project. The IHA, issued on April 4, 2017 (82 FR 17209; April
10, 2017), had effective dates of December 15, 2017 through December
14, 2018. However, ADOT&PF was unable to conduct any of the work and,
therefore, requested a new IHA. NMFS issued a second IHA with effective
dates of December 15, 2018 through December 14, 2019 (83 FR 55348;
November 5, 2018) to cover the incidental take analyzed and authorized
in the first IHA. There were minor modifications to the number of piles
driven but these had no effect on authorized take numbers, monitoring
requirement, or reporting measures, which remained the same as stated
in the original 2017-2018 IHA.
ADOT&PF was unable to meet the fall pile driving window (September
1 through November 30, 2019) as originally anticipated. Due to this
setback, construction is planned to begin in spring 2020. ADOT&PF
submitted an addendum to the original application requesting that a
supplementary two-week timeframe be included in the spring window from
February 15 through May 31, 2020. During this two-week timeframe, the
contractor will begin vibratory removal of structures in order to get
ahead of schedule while also accommodating for one last sailing of the
ferry to the community before the ferry terminal's
[[Page 10417]]
closure for the remainder of construction. The only difference between
this IHA and previously issued IHAs is a construction start date of
February 15 instead of March 1. Take numbers remain the same as
authorized for the 2018-2019 IHA referenced above.
Description of Activity
The 2020-2021 IHA is nearly identical to the 2018-2019 IHA with the
most significant change being an earlier in-water pile driving start
date of February 15, 2020 instead of March 1, 2020. Specifically, over
approximately 50 days of in-water activity a total of 59 permanent
piles ranging in size from 12.75 inches to 30 inches would be installed
by vibratory and impact driving. A total of 30 temporary or pre-
existing piles would undergo vibratory removal. A detailed description
of planned activities may be found in the Federal Register proposing
authorization of this IHA (85 FR 2403; January 15, 2020). Therefore, a
detailed description is not provided here.
Comments and Responses
A notice of NMFS's proposal to issue an IHA to ADOT&PF was
published in the Federal Register on January 15, 2020 (85 FR 2403).
During the 30-day public comment period, NMFS received comment letters
from the Marine Mammal Commission (Commission) and Defenders of
Wildlife (Defenders).
Comment 1: The Commission recommended that NMFS use at least 165 dB
re 1 [mu]Pa while Defenders recommended use of 166 dB re 1 [mu]Pa
rather than 157.7 dB re 1 [mu]Pa at 10 m as the source level (SL) for
vibratory driving of 30-in steel piles at Gustavus. The Commission and
Defenders recommended that NMFS re-estimate the extent of the Level A
and B harassment zones as well as increase the number of Level A and B
harassment takes appropriately during both impact and vibratory pile
driving.
NMFS Response: As noted in responses to the comments submitted by
the Commission for the previous IHAs, NMFS used a proxy source level of
157.7 dB re 1 [mu]Pa for vibratory driving of 30-in steel piles during
the estimated take analysis. NMFS also previously noted that ADOT&PF
will be using the same type of vibratory hammers at Gustavus as were
used at Kake and that the pile types and sizes are comparable between
the two sites. NMFS does not dispute that the SL used in the Gustavus
analysis is generally lower than others that have been recorded across
various sites. However, SLs for similar piles measured at different
locations tend to cover a range of values. For example, SL measurements
from Kodiak for vibratory driving of the same size and type of pile
were even lower than those recorded at Kake, although the researchers
speculated that the low values be due to the drilling/socketing of
piles or sediment composition at Kodiak (Denes et al., 2017). For the
Gustavus analysis, NMFS elected to use a value from the lower end of
recorded ranges. In order to confirm that the SLs adopted by NMFS are
appropriate for use at Gustavus, NMFS will still require ADOT&PF to
conduct sound source verification (SSV) testing. If the recorded SLs at
Gustavus are appreciably greater than those measured at Kake, ADOT&PF
will increase the shutdown and harassment zones as appropriate.
Comment 2: The Commission and Defenders recommended that NMFS
require ADOT&PF to use at least three Protected Species Observers
(PSOs) to monitor the full extent of the Level B harassment zones.
NMFS Response: As has been noted in the previous Gustavus IHAs,
NMFS believes that the existing Level B harassment zone can be
adequately measured utilizing two PSOs. The option of adding more PSOs
stationed on boats or nearby islands was originally discussed with
ADOT&PF before the first IHA was issued. However, due to the frequency,
severity and unpredictability of weather in Icy Passage, ADOT&PF was
reluctant to employ vessels for monitoring purposes since the safety of
PSOs could be at risk. Additionally, island-based PSOs could be
stranded on these uninhabited islands overnight, or longer, if
retrieval vessels are unable to pick up observers due to adverse
weather conditions.
Comment 3: The Commission recommended that NMFS ensure that ADOT&PF
keep a running tally of the total takes, both observed and
extrapolated, to confirm that the numbers of authorized takes are not
exceeded.
Response: We agree that ADOT&PF must ensure they do not exceed
authorized takes. We have included in the authorization that ADOT&PF
must include extrapolation of the estimated takes by Level B harassment
based on the number of observed exposures within the Level B harassment
zone and the percentage of the Level B harassment zone that was not
visible in the draft and final reports.
Comment 4: The Commission and Defenders recommended that NMFS
require all action proponents that would be required to or propose to
conduct hydroacoustic monitoring to provide their proposed
hydroacoustic monitoring plans prior to publication of the proposed
authorization in the Federal Register notice and ensure all such plans
are posted on its website the day the notice publishes in the Federal
Register.
Response: During the initial application review period, NMFS
requests that applicants provide basic information regarding proposed
hydroacoustic monitoring plans. We also generally ask for more fully
detailed, near-final monitoring plans for review prior to publication
of the final IHA. If NMFS has received the finalized monitoring plan
before publication of the final IHA, it is shared with the Commission
and posted to our website. However, the MMPA does not require
submission of the final monitoring plan prior to publication of the
final IHA, as long as the basic plan, with sufficient details for
review by NMFS and the public, is approved prior to issuance of the IHA
and NMFS is kept apprised of any subsequent revisions and provided the
final plan for final approval prior to the start of work. Under these
conditions, NMFS indicates in the final IHA that a hydroacoustic
monitoring plan must be submitted to NMFS and approved prior to
initiation of the monitoring.
Note that the hydroacoustic monitoring plan for this issued IHA is
currently posted on our website.
Comment 5: The Commission recommended that NMFS update templates
for draft authorizations to include all the relevant minimum reporting
requirements for hydroacoustic monitoring reports as described in the
Description of Mitigation, Monitoring and Reporting Measures section
consistent with the Commission's recommendations. Defenders recommended
that hydroacoustic monitoring plans should incorporate the best
available science.
Response: The Commission's recommendations have been included in
this IHA. NMFS will consider these recommendations and ensure that
templates include the appropriate minimum reporting requirements for
hydroacoustic monitoring reports. NMFS also reviews every hydroacoustic
monitoring plan to ensure that the most current monitoring protocols
and methodologies are incorporated.
Comment 6: The Commission recommended that NMFS finish reviewing
and finalize its recommended proxy source levels for both impact and
vibratory installation of the various pile types and sizes. If the
proxy source levels for impact pile driving are finalized prior to
those for vibratory pile
[[Page 10418]]
driving and removal, they should be made available to action proponents
and the public when completed and should not be retained until the
vibratory source levels are finalized. Defenders also recommended that
NMFS complete the guidance.
Response: As the Commission notes, NMFS is developing proxy source
level recommendations and guidance for impact and vibratory pile
driving based on all available data, and we intend to make that
information available to the public as it is developed. Until that
time, NMFS has advised applicants and the Commission that Caltrans 2015
represents the most complete pile driving source level compilation, and
applicants should defer to these data absent any project site specific
data. Once the guidance has been finalized, it will be posted on NMFS's
incidental take authorization website, as appropriate.
Comment 7: The Commission has asserted in the past and continues to
consider that the renewal process is inconsistent with the statutory
requirements under section 101(a)(5)(D) of the MMPA. As such, the
Commission recommends that NMFS refrain from issuing renewals for any
authorization and instead use its abbreviated Federal Register notice
process. That process, as was used for ADOT&PFs proposed authorization,
is similarly expeditious and fulfills NMFS's intent to maximize
efficiencies.
Response 8: NMFS appreciates the streamlining achieved by the use
of abbreviated Federal Register notices and intends to continue using
them for proposed IHAs that include minor changes from previously
issued IHAs, but which do not satisfy the Renewal requirements.
However, we believe our method for issuing Renewals meets statutory
requirements and maximizes efficiency, and we plan to continue
considering requests for Renewals.
Comment 9: The Commission recommends that it (1) stipulate that a
Renewal is a one-time opportunity (a) in all Federal Register notices
requesting comments on the possibility of a Renewal, (b) on its web
page detailing the Renewal process, and (c) in all draft and final
authorizations that include a term and condition for a Renewal.
Response: NMFS' website indicates that Renewals are good for ``up
to another year of the activities covered in the initial IHA.'' NMFS
has never issued a Renewal for more than one year, and in no place have
we implied that Renewals are available for more than one year. Any
given Federal Register notice considering a Renewal clearly indicates
that it is only being considered for one year. Accordingly, changes to
the Renewal language on the website, Federal Register notices, or
authorizations is not necessary.
Comment 10: Defenders noted that NMFS used a categorical exclusion
to satisfy NEPA requirements for this action since no mortality or
serious injury is expected. Defenders asserted that if no injury or
mortality were expected by NMFS, there would be no need to authorize
takes of several species by Level A harassment. Since NMFS has
authorized take by Level A harassment mortality or injury is
anticipated and, therefore, an environmental assessment should be
prepared to analyze potential impacts associated with the action.
Response: NMFS does not anticipate that mortality or serious injury
would occur. Defenders is using the terms injury and serious injury
interchangeably. Note that NMFS defines serious injury in regulations
(50 CFR 229.2) as ``any injury that will likely result in mortality,''
whereas injury that will not likely result in mortality is considered
``Level A Harassment.'' NMFS acknowledges the possibility that a marine
mammal could experience limited auditory injury in the form of
permanent threshold shift (PTS), which is considered Level A
Harassment. Animals that experience PTS would likely only experience
minor degradation of hearing capabilities, such as the loss of a few
decibels in its hearing sensitivity. In most cases such a loss is not
likely to meaningfully affect the ability to forage and communicate
with conspecifics. Additionally, NMFS has authorized take of marine
mammals by Level A harassment for numerous pile driving actions and is
unaware of any instances that resulted in mortality or serious injury
of marine mammals. Therefore, NMFS determined that this action is
consistent with categories of activities identified in Categorical
Exclusion B4 (incidental harassment authorizations with no anticipated
serious injury or mortality) of the Companion Manual for NOAA
Administrative Order 216-6A and that the issuance of this IHA qualifies
to be categorically excluded from further NEPA review.
Comment 11: Defenders expressed concerned that the public comment
period for this IHA closes on February 14th, 2020 and that the IHA
would be effective on February 15th, 2020, there is not adequate time
for NMFS to consider public input.
Response: While NMFS was targeting an issuance date of February
15th, issuance of the final IHA would be delayed, if necessary, to
adequately address any comments that arrive at the end of the public
comment period.
Changes From the Proposed IHA to the Final IHA
NMFS has included in the final IHA additional detail regarding
hydroacoustic monitoring plan and reporting requirements for the final
IHA. ADOT&PF is required to conduct monitoring of three 24-in and three
36-in piles during both impact and vibratory installation. The proposed
IHA only required a single pile of each size. Updated hydroacoustic
monitoring reporting requirements may be found in the Description of
Mitigation, Monitoring and Reporting Measures section. NMFS has removed
the 30-minute clearance time for cetaceans from the final IHA while
retaining the standard 15-minute clearance time applicable to all
marine mammals in shallow waters. NMFS has also revised the final IHA
to include the most current standard marine mammal reporting
requirements.
Analysis
Description of Marine Mammals in the Area of Specified Activities
A detailed description of the species likely to be affected by
ADOT&PF's planned project, including brief introductions to the species
and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, may be found in the Federal Register notice for the
proposed IHA (85 FR 2403; January 15, 2020); as well as previous IHAs
issued for this project (82 FR 17209, April 10, 2017; 83 FR 55348,
November 5, 2018). We are not aware of any changes in the status of
these species and stocks; therefore, detailed descriptions are not
provided here.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in these previous
documents. There is no new information on potential effects.
Estimated Take
A detailed description of the methods and inputs used to estimate
authorized take is found in these previous documents. The methods of
estimating take for the 2020-2021 IHA are identical to those used in
the 2017-2018 IHA. The source levels also remain unchanged from the
previously issued IHAs. Observational data was used to calculate daily
take rates in the absence
[[Page 10419]]
of density data. Since the number of pile-driving days (50) estimated
for the 2017-2018 IHA, 2018-2019 IHA and 2020-2021 IHA remains the
same, the total estimated take projections will be identical. Note that
marine mammal occurrences are more frequent in the late spring near the
Gustavus ferry terminal. Moving the start date forward by two weeks
will reduce the amount of in-water construction occurring later in the
spring when animal occurrences are elevated. Therefore, the total
recorded take amounts may be reduced. Note that since abundance
estimates of some stocks have been updated in the Draft 2019 SAR (Muto
et al. 2019b) the percentage of stock taken has also changed. These
changes are shown in Table 1.
Table 1--Estimated Number of Instances of Exposures That May Be Subject to Level A and Level B Harassment and Percentage of Stocks
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A Level B Total
Species authorized authorized authorized Stock(s) abundance estimate Instances of take as a
takes takes takes percentage of total stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steller Sea Lion...................... 0 709 709 53,624 (western distinct 1.3 */1.6.*
population segment in Alaska)/
43,201 (eastern stock).
Humpback whale........................ 0 600/(36 \1\) 600/(36 \1\) 10,103 (Central North Pacific 5.9/1.1.
Stock)/3,264 (Mexico DPS).
Harbor Seal........................... 38 616 654 7,455 (Glacier Bay/Icy Strait) 8.7.*
Harbor Porpoise....................... 26 127 153 11,146 (Southeast Alaska)..... 1.37.
Killer whale.......................... 0 126 126 302 (Northern resident)/587 41.7 */21.4/51.8.
(Gulf of Alaska transient)/
243 (West Coast transient).
Minke whale........................... 0 42 42 Unknown....................... Unknown.
Dall's Porpoise....................... 7 35 42 83,400........................ <0.01.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 6.1 percent of humpbacks whales in southeast Alaska (36) are from Mexico DPS (Wade et al. 2016).
* Updated information from Muto et al. 2019. Draft Alaska Marine Mammal Stock Assessments, 2019. Available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports.
Description of Mitigation, Monitoring and Reporting Measures
A description of required mitigation, monitoring, and reporting
measures is found in the previous documents, which are nearly identical
to those contained in this 2020-2021 IHA. The following measures apply
to ADOT&PF's mitigation requirements:
1. Implementation of Shutdown Zone--For all pile driving
activities, ADOT&PF will implement a shutdown zone. The purpose of a
shutdown zone is generally to define an area within which shutdown of
activity would occur upon sighting of a marine mammal (or in
anticipation of an animal entering the defined area). In this case,
shutdown zones (Table 2) are intended to contain areas in which sound
pressure levels (SPLs) equal or exceed acoustic injury criteria for
some authorized species, based on NMFS' acoustic technical guidance
(NMFS 2018).
2. Implementation of Monitoring Zones--ADOT&PF must monitor Level A
harassment zones as shown in Table 2. These zones are areas beyond the
shutdown zones where animals may be exposed to sound levels that could
result in PTS. ADOT&PF must also monitor the Level B harassment
disturbance zones as shown in Table 4 which are areas where SPLs equal
or exceed 160 dB rms for impact driving and 120 dB rms during vibratory
driving. Observation of monitoring zones enables observers to be aware
of and communicate the presence of marine mammals in the project area
and outside the shutdown zone and thus prepare for potential shutdowns
of activity, and also allows for the collection of marine mammal and
effects data. NMFS has established monitoring protocols described in
the Federal Register notice of the issuance (82 FR 17209; April 10,
2017) which are based on the distance and size of the monitoring and
shutdown zones. These same protocols are contained in the issued 2020-
2021 IHA.
Table 2--Shutdown, Injury and Behavioral Harassment Isopleths From Impact and Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
Level A Level B
Shutdown zone-- harassment harassment
Species impact/ zone--impact zone-impact/
vibratory (m) (m) vibratory (m)
----------------------------------------------------------------------------------------------------------------
Steller Sea Lion................................................ 25/10 n/a 2,090/3,265
Humpback whale.................................................. 550/20 n/a 2,090/3,265
Harbor Seal..................................................... 100/10 285 2,090/3,265
Harbor Porpoise................................................. 100/20 630 2,090/3,265
Killer whale.................................................... 25/10 n/a 2,090/3,265
Minke whale..................................................... 550/20 n/a 2,090/3,265
Dall's Porpoise................................................. 100/20 630 2,090/3,265
----------------------------------------------------------------------------------------------------------------
3. Temporal and Seasonal Restrictions--Work may only occur during
daylight hours, when visual monitoring of marine mammals can be
conducted and all in-water construction will be limited to the periods
February 15 through May 31, 2020, and September 1 through November 30,
2020.
4. Soft Start--The use of a soft-start procedure is believed to
provide additional protection to marine mammals by providing warning
and/or giving marine mammals a chance to
[[Page 10420]]
leave the area prior to the hammer operating at full capacity. For
impact pile driving, contractors will be required to implement soft
start procedures. Soft Start is not required during vibratory pile
driving and removal activities.
5. Visual Marine Mammal Observation--Visual monitoring must be
conducted by qualified PSOs. In order to effectively monitor the pile
driving monitoring zones, two PSOs must be positioned at the best
practical vantage point(s). If waters exceed a sea-state which
restricts the observers' ability to make observations within the
shutdown zone (e.g., excessive wind or fog), pile installation and
removal will cease. Pile driving will not be initiated until the entire
shutdown zone is visible. PSOs shall record specific information on the
sighting forms as described in this issued IHA which contains current
standards. At the conclusion of the in-water construction work, ADOT&PF
will provide NMFS with a monitoring report, which includes summaries of
recorded takes and estimates of the number of marine mammals that may
have been harassed.
6. ADOT&PF must conduct SSV testing of impact and vibratory pile
driving for this project within 7 days after underwater pile driving
work is initiated. ADOT&PF is required to conduct monitoring of three
24-in and three 36-in piles during both impact and vibratory
installation according to methodology described in hydroacoustic
monitoring plan. The SSV testing must be conducted by an acoustical
firm with prior experience conducting SSV tests in Alaska. Results must
be sent to NMFS no later than 14 days after field testing has been
completed. If necessary, the shutdown, Level A, and Level B harassment
zones will be adjusted to meet MMPA requirements within 7 days of NMFS
receiving results. The following data, which was not included in the
draft IHA, must be collected during acoustic monitoring and reported:
(a) Hydrophone equipment and methods: Recording device, sampling
rate, distance from the pile where recordings were made; depth of
recording device(s);
(b) Type of pile being driven, method of driving, and use of bubble
curtain or other noise abatement device (e.g., driving behind the
cofferdam) during recordings;
(c) Mean, medium, and maximum sound levels (dB re: 1 [mu]Pa):
Cumulative sound exposure level (SELcum), peak sound pressure level
(SPLpeak), root mean square sound pressure level (SPLrms), and single-
strike sound exposure level (SELs-s); and
(d) Number of strikes per pile measured, one-third octave band
spectrum and/or power spectral density.
Determinations
ADOT&PF plans to conduct activities similar to those covered in the
previous 2017-2018 and 2018-2019 IHAs. As described above, the number
of estimated takes of the same stocks of marine mammals are the same as
those authorized in the 2017-2018 and 2018-2019 IHAs that were found to
meet the negligible impact and small numbers standards. Our analysis
showed that less than 9 percent of the populations of affected stocks,
with the exception of minke and killer whales, could be taken by
harassment. For Northern resident and West Coast transient killer
whales, the percentages, when instances of take are compared to
abundance, are 41.7 percent and 51.8 percent, respectively. However,
the takes estimated for these stocks (up to 126 instances assuming all
takes are accrued to a single stock) are not likely to represent unique
individuals. Instead, we anticipate that there will be multiple takes
of a smaller number of individuals and that the total number of
individuals will fall below one third of the abundance.
The Northern resident killer whale stock are most commonly seen in
the waters around the northern end of Vancouver Island, and in
sheltered inlets along British Columbia's Central and North Coasts.
They also range northward into Southeast Alaska in the winter months.
Pile driving operations are not permitted from December through
February. It is unlikely that such a large portion of Northern resident
killer whales with ranges of this magnitude would be concentrated in
and around Icy Passage, which is a shallow, narrow channel connected to
the deeper waters of Icy Strait and separates Gustavus and the rest of
the mainland from Pleasant Island.
NMFS believes that small numbers of the West coast transient killer
whale stock would be taken based on the limited region and duration of
exposure in comparison with the known distribution of the transient
stock. The West coast transient stock ranges from Southeast Alaska to
California, while the planned project activity would be stationary. A
notable percentage of West coast transient whales have never been
observed in Southeast Alaska. Only 155 West coast transient killer
whales have been identified as occurring in Southeast Alaska according
to Dahlheim and White (2010). The same study identified three pods of
transients, equivalent to 19 animals that remained almost exclusively
in the southern part of Southeast Alaska (i.e., Clarence Strait and
Sumner Strait). This information indicates that only a small subset of
the entire West coast Transient stock would be at risk for take in the
Icy Passage area because a sizable portion of the stock has either not
been observed in Southeast Alaska or consistently remains far south of
Icy Passage.
There is no current abundance estimate for minke whale since
population data on this species is dated. However, the authorized take
of 42 minke whales may be considered small. A visual survey for
cetaceans was conducted in the central-eastern Bering Sea in July-
August 1999, and in the southeastern Bering Sea in 2000. Results of the
surveys in 1999 and 2000 provide provisional abundance estimates of 810
and 1,003 minke whales in the central-eastern and southeastern Bering
Sea, respectively (Moore et al., 2002). Additionally, line-transect
surveys were conducted in shelf and nearshore waters in 2001-2003 from
the Kenai Fjords in the Gulf of Alaska to the central Aleutian Islands.
Minke whale abundance was estimated to be 1,233 for this area (Zerbini
et al., 2006). However, these estimates cannot be used as an estimate
of the entire Alaska stock of minke whales because only a portion of
the stock's range was surveyed. (Allen and Anglis, 2012). Clearly, 42
authorized takes should be considered a small number, as it constitutes
only 5.2 percent of the smallest abundance estimate generated during
the surveys just described and each of these surveys represented only a
portion of the minke whale range.
Note that the numbers of animals authorized to be taken for all
species, with the exception of Northern resident and West coast
transient killer whales, would be considered small relative to the
relevant stocks or populations even if each estimated taking occurred
to a new individual--an extremely unlikely scenario.
The issued 2020-2021 IHA includes mitigation, monitoring, and
reporting requirements that are nearly identical to those depicted in
the 2017-2018 and 2018-2019 IHAs, and there is no new information
suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has determined the following: (1) The required
mitigation measures will affect the least practicable impact on marine
mammal species or stocks and their habitat; (2) the authorized takes
will have a negligible impact on the affected marine mammal species or
stocks; (3) the authorized takes represent small numbers of marine
[[Page 10421]]
mammals relative to the affected stock abundances; and (4) ADOT&PF's
activities will not have an unmitigable adverse impact on taking for
subsistence purposes as no relevant subsistence uses of marine mammals
are implicated by this action.
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 review our proposed action (i.e., the issuance of an
incidental harassment authorization) with respect to potential impacts
on the human environment. This action is consistent with categories of
activities identified in Categorical Exclusion B4 (incidental
harassment authorizations with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the IHA qualifies to be categorically excluded
from further NEPA review.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species.
In order to comply with the ESA, NMFS Alaska Regional Office (AKR)
Protected Resources Division issued a Biological Opinion on March 21,
2017 under section 7 of the ESA, on the issuance of an IHA to ADOT&PF
under section 101(a)(5)(D) of the MMPA. This consultation concluded
that the project was likely to adversely affect but unlikely to
jeopardize the continued existence of the threatened Mexico DPS of
humpback whale (Megaptera novaeangliae) or the endangered western DPS
of Steller sea lion (Eumatopias jubatus), or adversely modify
designated critical habitat for Steller sea lions. In a memo dated
January 7, 2020 NMFS AKR concluded that re-initiation of section 7
consultation was not necessary for the issuance of the 2020-2021 IHA
and extended the Gustavus incidental take statement (ITS). All of the
terms and conditions listed in the ITS issued March 21, 2017 still
apply to this action.
Authorization
As a result of these determinations, we have issued an IHA to
ADOT&PF for conducting the described construction activities related to
city dock and ferry terminal improvements from February 15, 2020
through February 14, 2021, provided the previously described
mitigation, monitoring, and reporting requirements are incorporated.
Dated: February 18, 2020.
Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2020-03630 Filed 2-21-20; 8:45 am]
BILLING CODE 3510-22-P
