Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Parallel Thimble Shoal Tunnel Project in Virginia Beach, Virginia, 8594-8598 [2021-02467]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 24 (Monday, February 8, 2021)]
[Notices]
[Pages 8594-8598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02467]



[[Page 8594]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA832]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Parallel Thimble Shoal Tunnel 
Project in Virginia Beach, Virginia

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

ACTION: Notice; request for comments on proposed Renewal incidental 
harassment authorization.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a request from the Chesapeake Tunnel Joint 
Venture (CTJV) for the Renewal of their currently active incidental 
harassment authorization (IHA) to take marine mammals incidental to 
Parallel Thimble Shoal Tunnel Project (PTST) in Virginia Beach, 
Virginia. These activities are identical to those covered in the 
current authorization. The project has experienced delays and most of 
the work covered in the initial IHA will not be completed by the time 
it expires. Pursuant to the Marine Mammal Protection Act, prior to 
issuing the currently active IHA, NMFS requested comments on both the 
proposed IHA and the potential for renewing the initial authorization 
if certain requirements were satisfied. The Renewal requirements have 
been satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed Renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than February 
23, 2021.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service and should be submitted via email to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: 
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 Marine Mammal Protection Act (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 is 
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 here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity, and 
requested public comment on a potential Renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time, one-year Renewal IHA following notice to the public providing 
an additional 15 days for public comments when (1) up to another year 
of identical, or nearly identical, activities as described in the 
Description of the Specified Activities and Anticipated Impacts section 
of this notice is planned or (2) the activities as described in the 
Description of the Specified Activities and Anticipated Impacts section 
of this notice would not be completed by the time the IHA expires and a 
Renewal would allow for completion of the activities beyond that 
described in the Dates and Duration section of the notice of proposed 
IHA for the initial IHA, provided all of the following conditions are 
met:
     A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for Renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the

[[Page 8595]]

mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential Renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA Renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested Renewal, and agency responses will be 
summarized in the final notice of our decision.

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 (IHAs 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 
preliminarily determined that the issuance of the proposed IHA Renewal 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA Renewal request.

History of Request

    On May 24, 2019, NMFS received a request from the CTJV for an IHA 
to take marine mammals incidental to pile driving and removal at the 
Chesapeake Bay Bridge and Tunnel (CBBT) near Virginia Beach, Virginia. 
The application was deemed adequate and complete on October 11, 2019. 
The CTJV's request is for take of harbor seal (Phoca vitulina), gray 
seal (Halichoerus grypus), bottlenose dolphin (Tursiops truncatus), 
harbor porpoise (Phocoena phocoena) and humpback whale (Megaptera 
novaeangliae) by Level A and Level B harassment. We published a notice 
of a proposed IHA and request for comments on November 25, 2019 (84 FR 
64847) and subsequently published the final notice of our issuance of 
the IHA on March 20, 2020 (85 FR 16061), effective from March 10, 2020, 
through March 9, 2021. This IHA was expected to cover one year of an 
anticipated 5-year project.
    On December 15, 2020, NMFS received an application for the Renewal 
of the initial IHA. As described in the request for the Renewal IHA, 
the activities for which incidental take is requested are identical to, 
and consist of a subset of, those covered in the initial authorization. 
In order to consider an IHA Renewal, NMFS requires the applicant 
provide a preliminary monitoring report which confirms that the 
applicant has implemented the required mitigation and monitoring, and 
which also shows that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted. NMFS has reviewed CTJV's preliminary monitoring report and 
has preliminarily determined that CTJV's proposed activities (including 
mitigation, monitoring, and reporting), estimated incidental take, and 
anticipated impacts on the affected stocks are the same as those 
analyzed and authorized through the initial IHA. However, NMFS is 
requesting comments or additional information that may further inform 
our proposal to issue an IHA Renewal to CTJV. This IHA Renewal would be 
valid for a period of one year.

Description of the Specified Activities and Anticipated Impacts

    CTJV's planned activities include construction associated with the 
PTST project. Specifically, the location, timing, and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the original IHA. The project consists 
of the construction of a two-lane parallel tunnel to the west of the 
existing Thimble Shoal Tunnel, connecting Portal Island Nos. 1 and 2 of 
the CBBT facility which extends across the mouth of the Chesapeake Bay 
near Virginia Beach, Virginia. The PTST project will address existing 
constraints to regional mobility based on current traffic volume along 
the facility. Planned construction associated with the initial IHA 
included the driving of 812 piles over 198 days as shown below:
     180 12-inch timber piles
     74 36-inch steel pipe piles
     500 36-inch interlocked pipes
     58 42-inch steel casings
    Of these planned activities, under the initial IHA CTJV installed a 
total of 76 36-inch pipe piles and installed and removed 58 42-inch 
steel casings over approximately 64 construction days. Additionally, 52 
36-inch interlocking pipe piles have been eliminated from the 
construction plan. This is due to a design change which increased the 
elevation of stone placement on the West berm on Portal Island 1, 
decreasing the number of piles being installed below Mean High Water 
(MHW). Remaining piles will be installed using impact driving, 
vibratory driving and drilling with down-the-hole (DTH) hammers. Some 
piles will be removed via vibratory hammer. Accounting for work 
conducted under the initial IHA and the planned design change resulting 
in a reduction in total piles, CTJV plans to drive 684 piles over an 
estimated 140 days under this proposed Renewal IHA.
    Similarly, the anticipated impacts are identical to those described 
in the initial IHA. NMFS anticipates the take of the same five species 
of marine mammal (harbor seal, gray seal, bottlenose dolphin, harbor 
porpoise, and humpback whale) by Level A and Level B harassment 
incidental to underwater noise resulting from construction associated 
with the proposed activities.
    The following documents are referenced in this notice and include 
important supporting information:
     Initial final IHA (85 FR 16061; March 20, 2020);
     Initial proposed IHA (84 FR 64847; November 25, 2019); and
     2019 IHA application, references cited, and previous 
public comments received (available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities).

Detailed Description of the Activity

    The PTST project entails construction of a two-lane parallel tunnel 
to the west of the existing Thimble Shoal Tunnel. The new parallel two-
lane tunnel is 6,350 feet (ft) (1935.5 meter (m)) in overall total 
length with 5,356 linear ft (1632.5 m) located below MHW. Remaining 
proposed in-water activities to be covered under this Renewal include 
the following:
     Mooring dolphins: An estimated 180 12-inch timber piles 
will be used for

[[Page 8596]]

construction of the temporary mooring dolphins (120 piles at Portal 
Island No. 1 and 60 piles at Portal Island No. 2) and will be installed 
and removed using a vibratory hammer. However, should refusal be 
encountered prior to design tip elevation when driving with the 
vibratory hammer an impact hammer will be used to drive the remainder 
of the pile length. No bubble curtains will be utilized for the 
installation of the timber piles;
     Construction of temporary Omega trestle: 28 in-water 36-
inch diameter steel pipe piles will be installed at Portal Island 2;
     Construction of two engineered berms requiring 202 36-inch 
steel interlocked pipe piles (81 on west side; 121 on east side) for 
Portal Island 1 and 246 piles of the same size and type (124 piles on 
west side; 122 on east side) for Portal Island 2. Construction methods 
will include impact pile driving as well as casing advancement by DTH 
hammer. Interlocked pipe piles will be installed through the use of DTH 
drilling equipment. Once the pipes are advanced through the rock layer 
using the DTH technology, they are driven to final grade via 
traditional impact driving methods; and
     Vibratory installation and removal of 12 36-inch steel 
pipe piles at Portal Island 1 and 16 piles at Portal Island 2 on both 
sides of the new tunnel alignment for settlement mitigation, support of 
excavation, and to facilitate flowable fill placement.
    Some in-water construction activities would occur simultaneously. A 
detailed description of the construction activities for which 
authorization of take is proposed here may be found in the Federal 
Register notice of proposed IHA for the 2020 authorization (84 FR 
64847; November 25, 2019). Location, timing (e.g., seasonality), and 
nature of the pile driving operations, including the type and size of 
piles and the methods of pile driving, are identical to those analyzed 
in the initial IHA. The proposed IHA Renewal would be effective for a 
period of one year.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice for the proposed IHA for the initial 
authorization (84 FR 64847; November 25, 2019). Updated information 
regarding stock abundance was provided in the Federal Register notice 
announcing issuance of the initial IHA (85 FR 16061; March 20, 2020). 
NMFS has reviewed recent draft Stock Assessment Reports, information on 
relevant Unusual Mortality Events, and other scientific literature. The 
draft 2020 Stock Assessment Report states that estimated abundance has 
increased for the Gulf of Maine stock of humpback whales, from 1,380 
(CV = 0) to 1,393 (CV = 0.15). NMFS has preliminarily determined that 
neither this nor any other new information affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the initial IHA.

Potential Effects on Marine Mammals and their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register notice for the 
proposed initial IHA (84 FR 64847; November 25, 2019). NMFS has 
reviewed recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects our 
initial analysis of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
notice for the proposed and final initial IHAs (84 FR 64847; November 
25, 2019 and 85 FR 16061; March 20, 2020). Specifically, the source 
levels and marine mammal occurrence data applicable to this 
authorization remain unchanged from the previously issued IHA, with the 
exception of the small amount of work completed. CTJV conducted 
approximately 64 days of the planned work and has eliminated a small 
number of originally planned piles, reducing the approximate total 
number of operational days for this proposed Renewal IHA. However, 
because the take numbers developed for most species for which take is 
proposed for authorization involve qualitative elements and because the 
reduction in total days would not result in a substantive decrease in 
the take number for bottlenose dolphin, we carry forward the take 
numbers unchanged for this proposed Renewal IHA. The stocks taken, 
methods of take, and types of take remain unchanged from the previously 
issued IHA, as do the number of takes, which are indicated below in 
Table 1.

      Table 1--Estimated Take Proposed for Authorization and Proportion of Population Potentially Affected
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
                Species                           Stock            Level A takes   Level B takes       stock
----------------------------------------------------------------------------------------------------------------
Humpback whale........................  Gulf of Maine...........  ..............              12             0.9
Harbor porpoise.......................  Gulf of Maine/Bay of                   5               7           <0.01
                                         Fundy.
Bottlenose dolphin....................  WNA Coastal, Northern                142          14,095         \*\ <33
                                         Migratory.
                                        WNA Coastal, Southern                142          14,095         \*\ <33
                                         Migratory.
                                        NNCES...................               2             198              24
Harbor seal...........................  Western North Atlantic..           1,296           2,124             4.5
Gray seal.............................  Western North Atlantic..               1               3           <0.01
----------------------------------------------------------------------------------------------------------------

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
initial IHA (85 FR 16061; March 20, 2020), and the discussion of the 
least practicable adverse impact included in that document remains 
accurate. The following measures are proposed for this renewal:
Proposed Mitigation Requirements
    In summary, mitigation includes implementation of shutdown 
procedures if any marine mammal approaches or enters the established 
shutdown zones. Shutdown zones for species authorized for take are as 
follows: 100 meters for harbor porpoise

[[Page 8597]]

and bottlenose dolphin; 15 meters for harbor seal and gray seal. For 
humpback whale, shutdown distances correspond with the estimated Level 
A harassment zones and are dependent on activity type. For in-water 
heavy machinery work other than pile driving, if a marine mammal comes 
within 10 m, operations must cease and vessels must reduce speed to the 
minimum level required to maintain steerage and safe working 
conditions. One trained observer must monitor to implement shutdowns 
and collect information at each active pile driving location (whether 
vibratory or impact driving of steel or concrete piles).
    Soft start procedures must be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
driving for a period of thirty minutes or longer. Use of an air bubble 
curtain system will be implemented by the CTJV during impact driving of 
36-inch steel piles except in water less than 10 ft in depth.
Proposed Monitoring Requirements
    The CTJV will be required to station between two and four PSOs at 
locations offering the best available views of the monitoring zones. At 
least two PSOs will be required to monitor before, during, and after 
the pile-driving and -removal activities. At least one PSO must be 
located in close proximity to each pile driving rig during active 
operation of single or multiple, concurrent driving devices. At least 
one additional PSO is required at each active driving rig or other 
location providing best possible view if the Level B harassment zone 
and shutdown zones cannot reasonably be observed by one PSO.
Proposed Reporting Requirements
    A draft report will be submitted to NMFS within 90 days of the 
completion of marine mammal monitoring, or 60 days prior to the 
requested date of issuance of any future IHA for projects at the same 
location, whichever comes first. The report will include marine mammal 
observations pre-activity, during-activity, and post-activity during 
pile driving days (and associated PSO data sheets), and will also 
provide descriptions of any behavioral responses to construction 
activities by marine mammals and a complete description of all 
mitigation shutdowns and the results of those actions and an 
extrapolated total take estimate based on the number of marine mammals 
observed during the course of construction. A final report must be 
submitted within 30 days following resolution of comments on the draft 
report.

Public Comments

    As noted previously, NMFS published a notice of a proposed IHA (84 
FR 64847; November 25, 2019) and solicited public comments on both our 
proposal to issue the initial IHA for CTJV's construction activities 
and on the potential for a Renewal IHA, should certain requirements be 
met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (85 FR 16061; March 20, 2020). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
Renewal of the initial IHA.
    Comment: The Marine Mammal Commission expressed continuing concern 
with NMFS' use of the Renewal process.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342; August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
Renewal process.

Preliminary Determinations

    The construction activities proposed by CTJV are identical to (and 
a subset of) those analyzed in the initial IHA, as are the method of 
taking and the effects of the action. The planned number of days of 
activity will be slightly reduced given the completion of a small 
portion of the originally planned work. The potential effects of CTJV's 
activities are limited to Level A and Level B harassment in the form of 
auditory injury and behavioral disturbance. In analyzing the effects of 
the activities in the initial IHA, NMFS determined that CTJV's 
activities would have a negligible impact on the affected species or 
stocks and that the authorized take numbers of each species or stock 
were small relative to the relevant stocks (e.g., less than one-third 
of the abundance of all stocks). The mitigation measures and monitoring 
and reporting requirements as described above are identical to the 
initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) The required mitigation measures will effect 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; (4) CTJV'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

    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. No incidental take of ESA-listed marine mammal 
species is expected to result from this activity, and none would be 
authorized. Therefore, NMFS has determined that consultation under 
section 7 of the ESA is not required for this action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a Renewal IHA to CTJV for conducting in-water construction 
activities associated with the PTST in Virginia Beach, Virginia, from 
the date of issuance for a period of one year, provided the previously 
described mitigation, monitoring, and reporting requirements are 
incorporated. A draft of the proposed and final initial IHA can be 
found at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. We request 
comment on our analyses, the proposed Renewal IHA, and any other aspect 
of this notice. Please include with your comments any supporting data 
or literature citations to help inform our final decision on the 
request for MMPA authorization.


[[Page 8598]]


    Dated: February 2, 2021.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-02467 Filed 2-5-21; 8:45 am]
BILLING CODE 3510-22-P