Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to City and Borough of Juneau Downtown Waterfront Improvement Project, 18562-18565 [2020-06904]
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Federal Register / Vol. 85, No. 64 / Thursday, April 2, 2020 / Notices
entering either the title of the collection
or the OMB Control Number 0648–0573.
Sheleen Dumas,
Department PRA Clearance Officer, Office of
the Chief Information Officer, Commerce
Department.
[FR Doc. 2020–06873 Filed 4–1–20; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XR083]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to City and
Borough of Juneau Downtown
Waterfront Improvement Project
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; modification of an
incidental harassment authorization.
AGENCY:
On December 19, 2019, NMFS
received a request from the City and
Borough of Juneau (CBJ) to modify an
incidental harassment authorization
(IHA) that was issued to CBJ on May 16,
2019 to take small numbers of harbor
seals, by harassment, incidental to the
Juneau dock and harbor waterfront
improvement project. Pursuant to the
Marine Mammal Protection Act
(MMPA), NMFS is requesting comments
on its proposal to modify the IHA. This
modification includes changes to the
prescribed mitigation and to the amount
of authorized take by Level A
harassment. The total amount of
authorized taking remains the same.
There are no changes to the activity,
NMFS’ findings, the effective dates of
the issued IHA, or any other aspect of
the IHA. NMFS will consider public
comments prior to making any final
decision on the requested modification
of the authorization and agency
responses will be summarized in the
final notice of our decision.
DATES: This modified IHA is effective
from the date of issuance through July
14, 2020.
FOR FURTHER INFORMATION CONTACT:
Shane Guan, Office of Protected
Resources, NMFS, (301) 427–8401.
Electronic copies of the application and
supporting documents, as well as the
issued IHA, may be obtained online at:
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act. In case
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SUMMARY:
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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.
The definitions of all applicable
MMPA statutory terms cited above are
included in the relevant sections below.
History of Request
On October 25, 2018, CBJ submitted a
request to NMFS requesting an IHA for
the possible harassment of small
numbers of harbor seals incidental to
the City of Juneau Dock and Harbor
waterfront improvement project in
Juneau, Alaska. On March 5, 2019,
NMFS published a Federal Register
notice (84 FR 7880) for the proposed
IHA. On May 16, 2019, NMFS issued an
IHA to CBJ. On May 28, 2019, NMFS
published a Federal Register notice (84
FR 24490) announcing the issuance of
the IHA, which is valid from July 15,
2019, through July 14, 2020.
On December 19, 2019, NMFS
received a request from CBJ to modify
the 2019 IHA. CBJ subsequently
submitted a revised IHA modification
request on January 22, 2019, which
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NMFS determined to be adequate and
complete. In the original IHA issued to
CBJ, NMFS authorized 72 takes by Level
A harassment and 3,454 takes by Level
B harassment for harbor seals, and
prescribed a shutdown distance of 130
m for impact driving of steel pipe piles.
Prior to the start of in-water impact pile
driving, CBJ conducted marine mammal
abundance survey effort in the vicinity
of the project area and found that there
were significantly greater numbers of
harbor seals present within the
immediate vicinity of the construction
site than previously estimated. The
close proximity of the seals to the pile
driving locations would preclude
impact pile driving, due to the
requirement to clear the 130-m
shutdown zone prior to starting up. In
addition, CBJ has determined that the
high occurrence of harbor seals within
the immediate vicinity of the
construction site is likely lead to
excessive shutdowns during pile
driving, which would compromise the
timely completion of CBJ’s dock and
harbor waterfront improvement project
on time. CBJ asserts that this renders the
prescribed 130-m shutdown zone
impracticable, and on the basis of the
new information provided by CBJ,
NMFS concurs with this determination.
Therefore, CBJ requested to reduce the
shutdown distance for impact pile
driving from 130 m (as prescribed in the
original IHA) to 25 m. As a direct result
of this requested change, CBJ
determined it necessary to request an
increase in the amount of authorized
incidents of take by Level A harassment
from 72 to 324, while the total amount
of authorized taking by harassment
remains the same. The original 130-m
shutdown zone was designed to avoid
most Level A harassment, and was
therefore based on the size of Level A
harassment radius for impact pile
driving. During construction conducted
to date, CBJ has not exceeded the
authorized amounts of take.
The scope of the project and potential
effects to marine mammals in the area
remain the same as analyzed previously
for the issuance of the IHA in 2019 (84
FR 24490; May 28, 2019).
Comments and Responses
A notice of NMFS’ proposal to modify
the IHA was published in the Federal
Register on February 7, 2020 (85 FR
7289). During the 30-day public
comment period, NMFS received a
comment letter from the Marine
Mammal Commission (Commission).
Specific comments and responses are
provided below.
Comment 1: The Commission states
that it is concerned that CBJ did not
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Federal Register / Vol. 85, No. 64 / Thursday, April 2, 2020 / Notices
conduct observations or provide the
number of harbor seals that haul out at
haulout site CF07A, which is one of the
NMFS Marine Mammal Laboratory’s
(MML) recognized haulout sites and is
closer to the project area. The
Commission states that it is apparent
that more than 43 harbor seals would be
in that area. The Commission thus
recommends that NMFS (1) consult
with its MML to determine how many
harbor seals haul out at haulout sites
CF07A and CF10A, (2) if the number of
seals observed by MML at CF10A is
greater than 43, authorize that number
of Level B harassment takes plus the
number of seals observed at CF07A but,
if the number of seals observed by MML
at CF10A is less than 43 authorize 43
takes plus the number of seals observed
at CF07A, and (3) refrain from reducing
the Level B harassment takes by the
Level A harassment takes.
Response: NMFS consulted with
MML regarding harbor seal abundance
in the vicinity of the project area. MML
states that CF07A and CF10A are not
considered as key haulout sites because
no seals have been observed there for
nearly 15 years (J. London, per. comm.,
3 March 2020). MML further states that
the Commission may be using outdated
resources for MML’s published
waypoint database. Therefore, we
believe the local abundance number of
an average of 43 animals in the vicinity
of the project location, which is based
on more recent sightings, is the best
available information regarding local
occurrence of harbor seals.
Additionally, NMFS does not agree with
the Commission of including the Level
A harassment takes within Level B
harassment takes. Under the MMPA,
marine mammal harassments are
categorized either as Level A or Level B.
If an animal is taken by Level A
harassment, then it is not taken by Level
B harassment.
Comment 2: The Commission notes
that CBJ has yet to begin its pile driving
activities, and recommends NMFS to
extend the end date of the IHA to ensure
that CBJ can finish the project by July
14, 2020, when the IHA expires.
Response: NMFS confirmed that CBJ
should be able to complete the in-water
pile driving activities before the
expiration of the IHA. We therefore do
not adopt the Commission’s
recommendation.
Comment 3: The Commission
recommends that NMFS ensure that CBJ
keeps a running tally of the total Level
A and B harassment takes, given the
prevalence of harbor seals in the project
area and to fulfill condition 4(f) in the
authorization.
Response: Condition 4(f) in the IHA
issued to CBJ states, ‘‘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, pile driving and removal activities
must shut down immediately using
delay and shut-down procedures.’’ It is
unclear how the Commission’s
recommendation is related to condition
4(f). Regarding the recommended
requirement to ‘‘keep a running tally,’’
NMFS agrees that CBJ must ensure they
do not exceed authorized takes.
However, as we have now noted in
multiple responses to this same
comment, we disagree that inclusion of
this specific requirement in IHA
language is appropriate and we do not
adopt the Commission’s
recommendation.
Description of the Proposed Activity
and Anticipated Impacts
Detailed Description of the Action
within Gastineau Channel in Juneau,
Alaska, to accommodate the needs of
the growing cruise ship visitor industry
and its passengers while creating a
waterfront that meets the expectations
of a world-class facility. The project
would meet the needs of an expanding
cruise ship industry and its passengers
by creating ample open space thereby
decreasing congestion and improving
pedestrian circulation.
The CBJ waterfront improvements
project includes constructing a pile
supported deck along the waterfront to
meet the needs of an expanding cruise
ship industry and its passengers by
creating ample open space thereby
decreasing congestion and improving
pedestrian circulation. More details of
the CBJ waterfront improvement project
are provided in the Federal Register
notice for the proposed IHA (84 FR
7880; March 5, 2019) and are not
repeated here. There is no change from
the description of the project activities
that is provided in the Federal Register
notice for the modification of the IHA.
A list of pile driving and removal
activities is provided in Table 1. The
total number of days that involve inwater pile driving is estimated to be 82
days.
Construction of the CBJ waterfront
improvements project is planned
between May 15, 2019 and August 31,
2020. The in-water portion of the
construction work occurs from July 15,
2019, through July 14, 2020, and is
covered under an IHA issued by NMFS
on May 16, 2019 (84 FR 24490; May 28,
2019). CBJ has not started in-water pile
driving, but is expected to do so as soon
as the modified IHA is issued.
The purpose of the CBJ’s project is to
improve the downtown waterfront area
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TABLE 1—SUMMARY OF IN-WATER PILE DRIVING ACTIVITIES
Number
piles/day
Pile driving/
removal
duration (sec.)
per pile
(vibratory) or
strikes per pile
(impact)
100
10
900
10
* 42
* 42
* 45
* 45
87
87
5
5
5
5
5
5
5,400
150
5,400
150
5,400
900
9
9
9
9
18
18
274
................
........................
82
Total
Number
piles
Method
Pile type and size
Vibratory pile removal ...................................
Vibratory piling for supported dock ...............
Impact proofing for supported dock ..............
Vibratory piling for supported dock ...............
Impact proofing for supported dock ..............
Vibratory piling for temporary piles ...............
Vibratory pile removal for temporary piles ....
Timber piles, unknown diameter but assumed to be no more than 14-in.
Steel piles, 16-in ...........................................
Steel piles, 16-in ...........................................
Steel piles, 18-in ...........................................
Steel piles, 18-in ...........................................
Steel piles, 18-in ...........................................
Steel piles, 18-in ...........................................
Total .......................................................
.......................................................................
* Vibratory driving and impact proofing will occur on separate days.
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Description of Marine Mammals
A description of the marine mammals
in the area of the activities is found in
the previous notice (84 FR 7880; March
5, 2019), which remains applicable to
the issued IHA modification as well.
NMFS is not aware of relevant new
scientific information since issuance of
the original IHA in May 2019.
A recent marine mammal monitoring
effort conducted by CBJ in the project
area showed more harbor seal
occurrence at the pile driving location
than previously expected. However, this
information does not necessarily
indicate an increase in the regional seal
population.
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 the previous notice (84 FR
7880; March 5, 2019), which remains
valid and applicable to the issued IHA
modification. NMFS is not aware of new
information regarding potential effects.
Anticipated Impact on Subsistence Use
CBJ has contacted the Alaska
Department of Fish and Game (ADF&G)
regarding potential impact on
subsistence use of marine mammal
resources. CBJ was notified by ADF&G
that the project area in Gastineau
Channel is not a subsistence use area for
harbor seals. Therefore, the project is
not likely to adversely impact the
availability of any marine mammal
species or stocks that are used for
subsistence purposes in the Juneau area.
Estimated Take
A detailed description of the methods
and inputs used to estimate authorized
take is found in the previous notice (84
FR 7880; March 5, 2019). The methods
of estimating take by harassment from
pile driving and pile removal activities
for the original IHA are retained here.
The source levels, days of operation,
and marine mammal abundance remain
unchanged from the previously issued
IHA.
While the total number of harbor seal
takes by harassment remain the same,
the IHA modification allows an increase
of Level A harassment due to the
reduction of shutdown zone from
impact pile driving and, therefore, a
reduction in authorized incidents of
take by Level B harassment. As stated in
the Federal Register notice for the final
IHA (84 FR 24490; May 28, 2019), the
total take number was determined as
follows:
Take = animal number in a typical
day near the project area × operating
days = 43 × 82 = 3,526.
The previously issued IHA required a
shutdown distance of 130-m to avoid
most Level A harassment, but included
authorization of some minimal Level A
harassment based on the possibility that
harbor seals could enter the shutdown
zone unnoticed. We assumed that four
seals could enter the Level A
harassment zone on each of the 18 days
when impact pile driving would occur.
Marine mammal monitoring carried
out by CBJ showed that an average of 18
different individual harbor seals could
occur within the prescribed 130-m Level
A harassment zone, and that they were
unlikely to leave the area. Therefore,
NMFS and CBJ agreed to adjust the
number of Level A harassment
calculation by:
Level A harassment = Daily average
harbor seals within Level A harassment
zone × Impact pile driving days = 18 ×
18 = 324.
Subtracting the number of Level A
harassment takes from the total take, we
derive the number of Level B
harassment at 3,202 seals.
A summary of modified estimated
takes in relation to population
percentage is provided in Table 2.
TABLE 2—ESTIMATED TAKE NUMBERS
Species
Estimated
level A take
Estimated
level B take
Estimated total
take
Abundance
Harbor seal ......................................................................................................
324
3,202
3,526
9,478
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Description of Mitigation, Monitoring
and Reporting Measures
The mitigation, monitoring, and
reporting measures prescribed remain
the same except that for this IHA
modification, the shutdown zone for
impact pile driving is reduced to 25 m
from the previously required 130 m.
The following additional measures are
included in the original IHA:
• Establishment of Shutdown Zone—
For all pile driving activities, CBJ will
establish 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).
For vibratory pile driving and pile
removal, shutdown zone is established
at 10 m from the pile, which is the same
as described in the Federal Register
notice of the issuance (84 FR 24490;
May 28, 2019). As noted above, for
impact pile driving, the shutdown zone
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is modified from 130 m to 25 m from the
pile.
• Establishment of Monitoring
Zones—CBJ must identify and establish
Level A harassment zones. These zones
are areas beyond the shutdown zones
where animals may be exposed to sound
levels that could result in permanent
threshold shift (PTS). CBJ will also
identify and establish Level B
harassment disturbance zones which are
areas where sound pressure levels
(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. NMFS has
established monitoring protocols
described in the Federal Register notice
of the issuance (84 FR 24490; May 28,
2019) which are based on the distance
and size of the monitoring and
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shutdown zones. These same protocols
are contained in this issued IHA
modification.
• Time Restrictions—Work may occur
only during daylight hours, when visual
monitoring of marine mammals can be
conducted.
• 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
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.
• Visual Marine Mammal
Observation—Monitoring must be
conducted by qualified protected
species observers (PSOs), who are
trained biologists, with minimum
qualifications described in the Federal
Register notice of the issuance of the
original IHA (84 FR 24490; May 28,
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2019). In order to effectively monitor the
pile driving monitoring zones, a
minimum of two PSOs must be
positioned at the best practical vantage
point(s). PSOs shall record specific
information on the sighting forms as
described in the Federal Register notice
of the issuance of the original IHA (84
FR 24490; May 28, 2019). At the
conclusion of the in-water construction
work, CBJ will provide NMFS with a
monitoring report which includes
summaries of recorded takes and
estimates of the total number of marine
mammals that may have been harassed.
Determinations
The activities to be conducted by CBJ
in the modified IHA are the same as
those analyzed in the original IHA.
The reduction of shutdown zones for
impact pile driving, and the resulting
increase of Level A harassment of
harbor seals do not change our original
analysis and determination. Although
some individual harbor seals are
estimated to experience Level A
harassment in the form of PTS if they
stay within the Level A harassment zone
during the entire pile driving for the
day, the degree of injury is expected to
be mild and is not likely to affect the
reproduction or survival of the
individual animals. Impact pile driving
for each pile would last for
approximately 30 minutes. After that,
the contractor would take 5 to 30
minutes to start the next pile. In
addition, it is expected that, if hearing
impairment occurs, most likely the
affected animal would lose a few
decibels (dB) in its hearing sensitivity,
which in most cases is not likely to
affect its survival and recruitment.
Hearing impairment that might occur for
these individual animals would be
limited to the dominant frequency of the
noise sources, i.e., in the low-frequency
region below 2 kHz.
Under the majority of the
circumstances, anticipated takes are
expected to be limited to short-term
Level B harassment. Harbor seals
present in the vicinity of the action area
and taken by Level B harassment would
most likely show overt brief disturbance
(startle reaction) and avoidance of the
area from elevated noise levels during
pile driving and pile removal. Given the
limited estimated number of incidents
of total harassment and the limited,
short-term nature of the responses by
the individuals, the impacts of the
estimated take cannot be reasonably
expected to, and are not reasonably
likely to, rise to the level that they
would adversely affect the species at the
population level, through effects on
annual rates of recruitment or survival.
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There are no known important
habitats, such as rookeries or haulouts,
in the vicinity of the CBJ’s waterfront
improvement construction project. The
project also is not expected to have
significant adverse effects on affected
marine mammals’ habitat, including
prey, as analyzed in detail in the
Federal Register notice of the issuance
of the existing IHA (84 FR 24490; May
28, 2019). In conclusion, there is no new
information suggesting that our analysis
or findings should change.
The estimated take of harbor seal
would be 37 percent of the population,
if each single take were a unique
individual. However, this is highly
unlikely because the harbor seal in the
vicinity of the project area shows site
fidelity to small areas for period of time
that can extend between seasons, as
discussed in detail in the Federal
Register notice for the issuance of the
existing IHA (84 FR 24490; May 28,
2019). The total number of harbor seals
that is authorized to be taken has not
changed. Based on the analysis
contained herein of the activity
(including the prescribed mitigation and
monitoring measures) and the
anticipated take of marine mammals,
NMFS finds that small numbers of
harbor seal will be taken relative to the
population size of the affected species
or stocks.
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
mammals relative to the affected stock
abundances; and (4) CBJ’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,
and (5) appropriate monitoring and
reporting requirements are included.
Endangered Species Act (ESA)
No incidental take of ESA-listed
species is authorized or expected to
result from this activity. Therefore,
NMFS has determined that formal
consultation under section 7 of the ESA
is not required for 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
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18565
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
determined that the issuance of the
original IHA qualified to be
categorically excluded from further
NEPA review.
Authorization
As a result of these determinations,
NMFS has issued a modification to an
IHA to the City and Borough of Juneau
for the Juneau Dock and Harbor
waterfront improvement project in
Juneau, Alaska, provided the previously
described mitigation, monitoring, and
reporting requirements are incorporated.
Dated: March 30, 2020.
Donna S. Wieting,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2020–06904 Filed 4–1–20; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
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following proposal for collection of
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Agency: National Oceanic and
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[Federal Register Volume 85, Number 64 (Thursday, April 2, 2020)]
[Notices]
[Pages 18562-18565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06904]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XR083]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to City and Borough of Juneau Downtown
Waterfront Improvement Project
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; modification of an incidental harassment authorization.
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SUMMARY: On December 19, 2019, NMFS received a request from the City
and Borough of Juneau (CBJ) to modify an incidental harassment
authorization (IHA) that was issued to CBJ on May 16, 2019 to take
small numbers of harbor seals, by harassment, incidental to the Juneau
dock and harbor waterfront improvement project. Pursuant to the Marine
Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to modify the IHA. This modification includes changes to the
prescribed mitigation and to the amount of authorized take by Level A
harassment. The total amount of authorized taking remains the same.
There are no changes to the activity, NMFS' findings, the effective
dates of the issued IHA, or any other aspect of the IHA. NMFS will
consider public comments prior to making any final decision on the
requested modification of the authorization and agency responses will
be summarized in the final notice of our decision.
DATES: This modified IHA is effective from the date of issuance through
July 14, 2020.
FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as the issued IHA, 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.
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.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
History of Request
On October 25, 2018, CBJ submitted a request to NMFS requesting an
IHA for the possible harassment of small numbers of harbor seals
incidental to the City of Juneau Dock and Harbor waterfront improvement
project in Juneau, Alaska. On March 5, 2019, NMFS published a Federal
Register notice (84 FR 7880) for the proposed IHA. On May 16, 2019,
NMFS issued an IHA to CBJ. On May 28, 2019, NMFS published a Federal
Register notice (84 FR 24490) announcing the issuance of the IHA, which
is valid from July 15, 2019, through July 14, 2020.
On December 19, 2019, NMFS received a request from CBJ to modify
the 2019 IHA. CBJ subsequently submitted a revised IHA modification
request on January 22, 2019, which NMFS determined to be adequate and
complete. In the original IHA issued to CBJ, NMFS authorized 72 takes
by Level A harassment and 3,454 takes by Level B harassment for harbor
seals, and prescribed a shutdown distance of 130 m for impact driving
of steel pipe piles. Prior to the start of in-water impact pile
driving, CBJ conducted marine mammal abundance survey effort in the
vicinity of the project area and found that there were significantly
greater numbers of harbor seals present within the immediate vicinity
of the construction site than previously estimated. The close proximity
of the seals to the pile driving locations would preclude impact pile
driving, due to the requirement to clear the 130-m shutdown zone prior
to starting up. In addition, CBJ has determined that the high
occurrence of harbor seals within the immediate vicinity of the
construction site is likely lead to excessive shutdowns during pile
driving, which would compromise the timely completion of CBJ's dock and
harbor waterfront improvement project on time. CBJ asserts that this
renders the prescribed 130-m shutdown zone impracticable, and on the
basis of the new information provided by CBJ, NMFS concurs with this
determination.
Therefore, CBJ requested to reduce the shutdown distance for impact
pile driving from 130 m (as prescribed in the original IHA) to 25 m. As
a direct result of this requested change, CBJ determined it necessary
to request an increase in the amount of authorized incidents of take by
Level A harassment from 72 to 324, while the total amount of authorized
taking by harassment remains the same. The original 130-m shutdown zone
was designed to avoid most Level A harassment, and was therefore based
on the size of Level A harassment radius for impact pile driving.
During construction conducted to date, CBJ has not exceeded the
authorized amounts of take.
The scope of the project and potential effects to marine mammals in
the area remain the same as analyzed previously for the issuance of the
IHA in 2019 (84 FR 24490; May 28, 2019).
Comments and Responses
A notice of NMFS' proposal to modify the IHA was published in the
Federal Register on February 7, 2020 (85 FR 7289). During the 30-day
public comment period, NMFS received a comment letter from the Marine
Mammal Commission (Commission). Specific comments and responses are
provided below.
Comment 1: The Commission states that it is concerned that CBJ did
not
[[Page 18563]]
conduct observations or provide the number of harbor seals that haul
out at haulout site CF07A, which is one of the NMFS Marine Mammal
Laboratory's (MML) recognized haulout sites and is closer to the
project area. The Commission states that it is apparent that more than
43 harbor seals would be in that area. The Commission thus recommends
that NMFS (1) consult with its MML to determine how many harbor seals
haul out at haulout sites CF07A and CF10A, (2) if the number of seals
observed by MML at CF10A is greater than 43, authorize that number of
Level B harassment takes plus the number of seals observed at CF07A
but, if the number of seals observed by MML at CF10A is less than 43
authorize 43 takes plus the number of seals observed at CF07A, and (3)
refrain from reducing the Level B harassment takes by the Level A
harassment takes.
Response: NMFS consulted with MML regarding harbor seal abundance
in the vicinity of the project area. MML states that CF07A and CF10A
are not considered as key haulout sites because no seals have been
observed there for nearly 15 years (J. London, per. comm., 3 March
2020). MML further states that the Commission may be using outdated
resources for MML's published waypoint database. Therefore, we believe
the local abundance number of an average of 43 animals in the vicinity
of the project location, which is based on more recent sightings, is
the best available information regarding local occurrence of harbor
seals. Additionally, NMFS does not agree with the Commission of
including the Level A harassment takes within Level B harassment takes.
Under the MMPA, marine mammal harassments are categorized either as
Level A or Level B. If an animal is taken by Level A harassment, then
it is not taken by Level B harassment.
Comment 2: The Commission notes that CBJ has yet to begin its pile
driving activities, and recommends NMFS to extend the end date of the
IHA to ensure that CBJ can finish the project by July 14, 2020, when
the IHA expires.
Response: NMFS confirmed that CBJ should be able to complete the
in-water pile driving activities before the expiration of the IHA. We
therefore do not adopt the Commission's recommendation.
Comment 3: The Commission recommends that NMFS ensure that CBJ
keeps a running tally of the total Level A and B harassment takes,
given the prevalence of harbor seals in the project area and to fulfill
condition 4(f) in the authorization.
Response: Condition 4(f) in the IHA issued to CBJ states, ``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, pile driving and
removal activities must shut down immediately using delay and shut-down
procedures.'' It is unclear how the Commission's recommendation is
related to condition 4(f). Regarding the recommended requirement to
``keep a running tally,'' NMFS agrees that CBJ must ensure they do not
exceed authorized takes. However, as we have now noted in multiple
responses to this same comment, we disagree that inclusion of this
specific requirement in IHA language is appropriate and we do not adopt
the Commission's recommendation.
Description of the Proposed Activity and Anticipated Impacts
Detailed Description of the Action
The purpose of the CBJ's project is to improve the downtown
waterfront area within Gastineau Channel in Juneau, Alaska, to
accommodate the needs of the growing cruise ship visitor industry and
its passengers while creating a waterfront that meets the expectations
of a world-class facility. The project would meet the needs of an
expanding cruise ship industry and its passengers by creating ample
open space thereby decreasing congestion and improving pedestrian
circulation.
The CBJ waterfront improvements project includes constructing a
pile supported deck along the waterfront to meet the needs of an
expanding cruise ship industry and its passengers by creating ample
open space thereby decreasing congestion and improving pedestrian
circulation. More details of the CBJ waterfront improvement project are
provided in the Federal Register notice for the proposed IHA (84 FR
7880; March 5, 2019) and are not repeated here. There is no change from
the description of the project activities that is provided in the
Federal Register notice for the modification of the IHA.
A list of pile driving and removal activities is provided in Table
1. The total number of days that involve in-water pile driving is
estimated to be 82 days.
Construction of the CBJ waterfront improvements project is planned
between May 15, 2019 and August 31, 2020. The in-water portion of the
construction work occurs from July 15, 2019, through July 14, 2020, and
is covered under an IHA issued by NMFS on May 16, 2019 (84 FR 24490;
May 28, 2019). CBJ has not started in-water pile driving, but is
expected to do so as soon as the modified IHA is issued.
Table 1--Summary of In-Water Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
Pile driving/
removal
duration
Total Number (sec.) per
Method Pile type and size Number piles/day pile Work days
piles (vibratory) or
strikes per
pile (impact)
----------------------------------------------------------------------------------------------------------------
Vibratory pile removal............... Timber piles, unknown 100 10 900 10
diameter but assumed to
be no more than 14-in.
Vibratory piling for supported dock.. Steel piles, 16-in...... * 42 5 5,400 9
Impact proofing for supported dock... Steel piles, 16-in...... * 42 5 150 9
Vibratory piling for supported dock.. Steel piles, 18-in...... * 45 5 5,400 9
Impact proofing for supported dock... Steel piles, 18-in...... * 45 5 150 9
Vibratory piling for temporary piles. Steel piles, 18-in...... 87 5 5,400 18
Vibratory pile removal for temporary Steel piles, 18-in...... 87 5 900 18
piles.
------------------------------------------------
Total............................ ........................ 274 ......... .............. 82
----------------------------------------------------------------------------------------------------------------
* Vibratory driving and impact proofing will occur on separate days.
[[Page 18564]]
Description of Marine Mammals
A description of the marine mammals in the area of the activities
is found in the previous notice (84 FR 7880; March 5, 2019), which
remains applicable to the issued IHA modification as well. NMFS is not
aware of relevant new scientific information since issuance of the
original IHA in May 2019.
A recent marine mammal monitoring effort conducted by CBJ in the
project area showed more harbor seal occurrence at the pile driving
location than previously expected. However, this information does not
necessarily indicate an increase in the regional seal population.
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 the previous notice
(84 FR 7880; March 5, 2019), which remains valid and applicable to the
issued IHA modification. NMFS is not aware of new information regarding
potential effects.
Anticipated Impact on Subsistence Use
CBJ has contacted the Alaska Department of Fish and Game (ADF&G)
regarding potential impact on subsistence use of marine mammal
resources. CBJ was notified by ADF&G that the project area in Gastineau
Channel is not a subsistence use area for harbor seals. Therefore, the
project is not likely to adversely impact the availability of any
marine mammal species or stocks that are used for subsistence purposes
in the Juneau area.
Estimated Take
A detailed description of the methods and inputs used to estimate
authorized take is found in the previous notice (84 FR 7880; March 5,
2019). The methods of estimating take by harassment from pile driving
and pile removal activities for the original IHA are retained here. The
source levels, days of operation, and marine mammal abundance remain
unchanged from the previously issued IHA.
While the total number of harbor seal takes by harassment remain
the same, the IHA modification allows an increase of Level A harassment
due to the reduction of shutdown zone from impact pile driving and,
therefore, a reduction in authorized incidents of take by Level B
harassment. As stated in the Federal Register notice for the final IHA
(84 FR 24490; May 28, 2019), the total take number was determined as
follows:
Take = animal number in a typical day near the project area x
operating days = 43 x 82 = 3,526.
The previously issued IHA required a shutdown distance of 130-m to
avoid most Level A harassment, but included authorization of some
minimal Level A harassment based on the possibility that harbor seals
could enter the shutdown zone unnoticed. We assumed that four seals
could enter the Level A harassment zone on each of the 18 days when
impact pile driving would occur.
Marine mammal monitoring carried out by CBJ showed that an average
of 18 different individual harbor seals could occur within the
prescribed 130-m Level A harassment zone, and that they were unlikely
to leave the area. Therefore, NMFS and CBJ agreed to adjust the number
of Level A harassment calculation by:
Level A harassment = Daily average harbor seals within Level A
harassment zone x Impact pile driving days = 18 x 18 = 324.
Subtracting the number of Level A harassment takes from the total
take, we derive the number of Level B harassment at 3,202 seals.
A summary of modified estimated takes in relation to population
percentage is provided in Table 2.
Table 2--Estimated Take Numbers
----------------------------------------------------------------------------------------------------------------
Estimated level Estimated level Estimated total
Species A take B take take Abundance
----------------------------------------------------------------------------------------------------------------
Harbor seal................................. 324 3,202 3,526 9,478
----------------------------------------------------------------------------------------------------------------
Description of Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures prescribed
remain the same except that for this IHA modification, the shutdown
zone for impact pile driving is reduced to 25 m from the previously
required 130 m.
The following additional measures are included in the original IHA:
Establishment of Shutdown Zone--For all pile driving
activities, CBJ will establish 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). For vibratory
pile driving and pile removal, shutdown zone is established at 10 m
from the pile, which is the same as described in the Federal Register
notice of the issuance (84 FR 24490; May 28, 2019). As noted above, for
impact pile driving, the shutdown zone is modified from 130 m to 25 m
from the pile.
Establishment of Monitoring Zones--CBJ must identify and
establish Level A harassment zones. These zones are areas beyond the
shutdown zones where animals may be exposed to sound levels that could
result in permanent threshold shift (PTS). CBJ will also identify and
establish Level B harassment disturbance zones which are areas where
sound pressure levels (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. NMFS has
established monitoring protocols described in the Federal Register
notice of the issuance (84 FR 24490; May 28, 2019) which are based on
the distance and size of the monitoring and shutdown zones. These same
protocols are contained in this issued IHA modification.
Time Restrictions--Work may occur only during daylight
hours, when visual monitoring of marine mammals can be conducted.
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 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.
Visual Marine Mammal Observation--Monitoring must be
conducted by qualified protected species observers (PSOs), who are
trained biologists, with minimum qualifications described in the
Federal Register notice of the issuance of the original IHA (84 FR
24490; May 28,
[[Page 18565]]
2019). In order to effectively monitor the pile driving monitoring
zones, a minimum of two PSOs must be positioned at the best practical
vantage point(s). PSOs shall record specific information on the
sighting forms as described in the Federal Register notice of the
issuance of the original IHA (84 FR 24490; May 28, 2019). At the
conclusion of the in-water construction work, CBJ will provide NMFS
with a monitoring report which includes summaries of recorded takes and
estimates of the total number of marine mammals that may have been
harassed.
Determinations
The activities to be conducted by CBJ in the modified IHA are the
same as those analyzed in the original IHA.
The reduction of shutdown zones for impact pile driving, and the
resulting increase of Level A harassment of harbor seals do not change
our original analysis and determination. Although some individual
harbor seals are estimated to experience Level A harassment in the form
of PTS if they stay within the Level A harassment zone during the
entire pile driving for the day, the degree of injury is expected to be
mild and is not likely to affect the reproduction or survival of the
individual animals. Impact pile driving for each pile would last for
approximately 30 minutes. After that, the contractor would take 5 to 30
minutes to start the next pile. In addition, it is expected that, if
hearing impairment occurs, most likely the affected animal would lose a
few decibels (dB) in its hearing sensitivity, which in most cases is
not likely to affect its survival and recruitment. Hearing impairment
that might occur for these individual animals would be limited to the
dominant frequency of the noise sources, i.e., in the low-frequency
region below 2 kHz.
Under the majority of the circumstances, anticipated takes are
expected to be limited to short-term Level B harassment. Harbor seals
present in the vicinity of the action area and taken by Level B
harassment would most likely show overt brief disturbance (startle
reaction) and avoidance of the area from elevated noise levels during
pile driving and pile removal. Given the limited estimated number of
incidents of total harassment and the limited, short-term nature of the
responses by the individuals, the impacts of the estimated take cannot
be reasonably expected to, and are not reasonably likely to, rise to
the level that they would adversely affect the species at the
population level, through effects on annual rates of recruitment or
survival.
There are no known important habitats, such as rookeries or
haulouts, in the vicinity of the CBJ's waterfront improvement
construction project. The project also is not expected to have
significant adverse effects on affected marine mammals' habitat,
including prey, as analyzed in detail in the Federal Register notice of
the issuance of the existing IHA (84 FR 24490; May 28, 2019). In
conclusion, there is no new information suggesting that our analysis or
findings should change.
The estimated take of harbor seal would be 37 percent of the
population, if each single take were a unique individual. However, this
is highly unlikely because the harbor seal in the vicinity of the
project area shows site fidelity to small areas for period of time that
can extend between seasons, as discussed in detail in the Federal
Register notice for the issuance of the existing IHA (84 FR 24490; May
28, 2019). The total number of harbor seals that is authorized to be
taken has not changed. Based on the analysis contained herein of the
activity (including the prescribed mitigation and monitoring measures)
and the anticipated take of marine mammals, NMFS finds that small
numbers of harbor seal will be taken relative to the population size of
the affected species or stocks.
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
mammals relative to the affected stock abundances; and (4) CBJ'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, and (5) appropriate monitoring and
reporting requirements are included.
Endangered Species Act (ESA)
No incidental take of ESA-listed species is authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for 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 determined that the issuance of the
original IHA qualified to be categorically excluded from further NEPA
review.
Authorization
As a result of these determinations, NMFS has issued a modification
to an IHA to the City and Borough of Juneau for the Juneau Dock and
Harbor waterfront improvement project in Juneau, Alaska, provided the
previously described mitigation, monitoring, and reporting requirements
are incorporated.
Dated: March 30, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2020-06904 Filed 4-1-20; 8:45 am]
BILLING CODE 3510-22-P
