Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Parallel Thimble Shoal Tunnel Project in Virginia Beach, Virginia, 14606-14612 [2021-05464]
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February 12, 2021, to conduct fishing
activities that the regulations would
otherwise restrict. The EFP would
authorize one vessel to conduct larval
sampling in Lobster Conservation
Management Area 3. A map of this area
is available at: https://
www.fisheries.noaa.gov/resource/map/
lobster-management-areas.
The study would provide information
on the spatial and temporal distribution
and abundance of early and late stage
American lobster larvae and their likely
zooplankton prey to investigate factors
affecting recruitment in the Gulf of
Maine and Georges Bank stock area.
Funding for this research has been
awarded under a National Sea Grant
Lobster Initiative grant
(NA20OAR4170505). For this project,
AOLA is requesting exemptions from
the following Federal lobster
regulations:
1. Lobster gear prohibitions in 50 CFR
697.7(c)(1)(xxii) to allow for the use of
multiple gear types capable of catching
lobsters;
2. Lobster possession restrictions in
§ 697.17(a) to allow the harvest of
lobster above the non-trap limit; and
3. Lobster possession restrictions in
§ 697.20(a) to allow for the collection of
larval lobsters below the minimum size.
If the EFP is approved, this study
would hire one federally-permitted
lobster vessel to conduct a single day of
lobster larval sampling on 14 multi-day
(5–10 day) commercial fishing trips,
spanning from the first week in June
through the last week in September.
When sampling, the vessel crew would
conduct three replicate neuston tows for
lobster larvae and record physical
parameters. Samples from the nets will
be preserved in ethanol, bottled, landed,
and mailed to the principal investigator.
Legal lobsters from the commercial
portion of the trip will be landed and
sold.
If approved, AOLA may request minor
modifications and extensions to the EFP
throughout the study period. EFP
modifications and extensions may be
granted without further notice if they
are deemed essential to facilitate
completion of the proposed research
and have minimal impacts that do not
change the scope or impact of the
initially approved EFP request. Any
fishing activity conducted outside the
scope of the exempted fishing activity
would be prohibited.
Authority: 16 U.S.C. 1801 et seq.
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Dated: March 12, 2021.
Jennifer M. Wallace,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2021–05510 Filed 3–16–21; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XA903]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to the Parallel
Thimble Shoal Tunnel Project in
Virginia Beach, Virginia
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of Renewal
incidental harassment authorization
(IHA).
AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA), as
amended, notification is hereby given
that NMFS has issued a Renewal
incidental harassment authorization
(IHA) to the Chesapeake Tunnel Joint
Venture (CTJV) to incidentally harass
marine mammals incidental to the
Parallel Thimble Shoal Tunnel Project
(PTST) in Virginia Beach, Virginia.
DATES: This Renewal IHA is valid from
March 10, 2021, through March 9, 2022.
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/incidentaltake-authorizations-constructionactivities. In case of problems accessing
these documents, please call the contact
listed above.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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
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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, an incidental
harassment authorization is issued.
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 caseby-case basis, NMFS may issue a onetime, 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 initial IHA expires and a
Renewal would allow for completion of
the activities beyond that described in
the DATES section of the notice of
issuance of the initial IHA, provided all
of the following conditions are met:
1. 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
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cannot extend beyond one year from
expiration of the initial IHA).
2. The request for renewal must
include the following:
• 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).
• 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.
3. 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
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/incidentalharassment-authorization-renewals.
History of Request
On March 10, 2020, NMFS issued an
IHA to CTJV to take marine mammals
incidental to the PTST in Virginia
Beach, Virginia (85 FR 16061), effective
from March 10, 2020, through March 9,
2021. On December 15, 2020, NMFS
received an application for the Renewal
of that initial IHA. As described in the
application for Renewal, the activities
for which incidental take is requested
are identical to, and consist of a subset
of, those covered in the initial
authorization. As required, the
applicant also provided a preliminary
monitoring report (available online at
www.fisheries.noaa.gov/action/
incidental-take-authorizationchesapeake-tunnel-joint-ventureparallel-thimble-shoal-0) 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
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occurred as a result of the activities
conducted.
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 initial IHA. The project
consists of the construction of a twolane 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
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 planned activities.
For additional detail, please see the
Federal Register notice of proposed
Renewal IHA (86 FR 8594; February 8,
2021).
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Description of Marine Mammals
A description of the marine mammals
in the area of the activities for which
take is authorized, 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
(UME), 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
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 sections 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 authorized
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 UMEs, 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 notices for the
proposed and final initial IHAs (84 FR
64847; November 25, 2019 and 85 FR
16061; March 20, 2020). The source
levels and marine mammal occurrence
data applicable to this authorization
remain unchanged from the initial IHA.
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
Renewal IHA. However, a commenter
highlighted a change in the analytical
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method NMFS now uses specifically to
assess the impacts of DTH pile
installation that would result in a larger
Level B harassment zone when those
activities are conducted. Therefore,
because the take numbers developed for
most species for which take is
authorized involve qualitative elements,
because the reduction in total days of
work may not result in a substantive
decrease in the take number for
bottlenose dolphin due to the
potentially larger Level B harassment
zone under the alternative DTH
approach, and because the monitoring
results do not suggest take higher than
that initially authorized even in
consideration of the potentially larger
Level B harassment zones (all of which
is discussed below in the Comments
and Responses section), we carry
forward the take numbers unchanged for
this Renewal IHA. The stocks taken,
methods of take, and types of take
remain unchanged from the initial IHA,
as do the number of takes, which are
indicated below in Table 1.
TABLE 1—AUTHORIZED TAKE AND PROPORTION OF POPULATION POTENTIALLY AFFECTED
Species
Stock
Humpback whale ..............................
Harbor porpoise ...............................
Bottlenose dolphin ............................
Gulf of Maine ................................................................
Gulf of Maine/Bay of Fundy ..........................................
WNA Coastal, Northern Migratory ................................
WNA Coastal, Southern Migratory ...............................
NNCES ..........................................................................
Western North Atlantic ..................................................
Western North Atlantic ..................................................
Harbor seal .......................................
Gray seal ..........................................
Description of Mitigation, Monitoring
and Reporting Measures
The 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. Further detail regarding the
mitigation, monitoring, and reporting
requirements prescribed through the
IHA can be found in the notice of
issuance for the initial IHA (85 FR
16061; March 20, 2020). The following
measures are included in this renewal:
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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 during pile
driving are as follows: 100 meters (m)
for harbor porpoise and bottlenose
dolphin; 15 m for harbor seal and gray
seal. For humpback whale, shutdown
distances during pile driving
correspond with the estimated Level A
harassment zones. 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).
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Level A takes
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 30 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 feet (3.3 m) in depth.
Monitoring Requirements
The CTJV will be required to station
between two and four Protected Species
Observers (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 the best possible view if the
Level B harassment zone and shutdown
zones cannot reasonably be observed by
one PSO.
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
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—
5
142
142
2
1,296
1
Level B takes
12
7
14,095
14,095
198
2,124
3
Percentage of
stock
0.9
<0.01
<33
<33
24
4.5
<0.01
of those actions and an extrapolated
total take estimate based on the number
of marine mammals observed during the
course of construction.
Comments and Responses
A notice of NMFS’ proposal to issue
a Renewal IHA to CTJV was published
in the Federal Register on February 8,
2021 (86 FR 8594). That notice either
described, or referenced descriptions of,
the applicant’s activity, the marine
mammal species that may be affected by
the activity, the anticipated effects on
marine mammals and their habitat,
estimated amount and manner of take,
and proposed mitigation, monitoring,
and reporting measures. NMFS received
comment letters from the Marine
Mammal Commission (Commission),
Center for Biological Diversity (CBD),
and a private citizen. The private citizen
expressed general concern regarding
ecological effects of the activity and, in
particular, potential effects of the
activity to fish. We acknowledge the
comments and refer the commenter to
the notice of proposed IHA for the
initial IHA (84 FR 64847), which
addresses in detail the potential effects
of the activity on marine mammals,
including to marine mammal habitat
(including prey species such as fish). A
summary of the comments and our
responses are provided below, and the
comment letters are available online at
www.fisheries.noaa.gov/action/
incidental-take-authorizationchesapeake-tunnel-joint-ventureparallel-thimble-shoal-0.
Comment: The Commission
recommended that NMFS deny CTJV’s
request to renew its incidental
harassment authorization. The
Commission bases its recommendation
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on its assessment that certain Level B
harassment zones were underestimated
in the initial IHA.
Response: NMFS does not agree with
the Commission’s recommendation, and
does not adopt it. The Commission
correctly points out that NMFS’ practice
with regard to analysis of sound output
from DTH pile installation has changed
during the interval between issuance of
the initial IHA to CTJV and NMFS’
receipt of CTJV’s request for renewal of
that IHA. DTH is an installation
technique that is poorly understood
from the perspective of sound output
characteristics. In this context of data
scarcity, NMFS historically considered
DTH installation to be a non-impulsive
sound source, as it was believed to be
essentially a drilling technique. With
the availability of some of the first
acoustic monitoring data for the DTH
technique, NMFS determined that it
would be more appropriate to treat DTH
as an impulsive sound source, due to
the percussive hammering element of
the technique, and analyzed the
potential effects of marine mammal
exposure to noise produced through use
of the DTH technique accordingly. This
was the approach taken in evaluating
the effects of DTH in support of
issuance of the initial IHA (85 FR
16061). As additional acoustic
monitoring data became available,
NMFS evaluated that the DTH
technique produces sound with both
impulsive and continuous
characteristics. Therefore, as referenced
by the Commission, NMFS began in
2020 its current practice of treating DTH
pile installation as both impulsive (more
conservative for the purposes of
evaluating Level A harassment) and
continuous (more conservative for the
purposes of evaluating Level B
harassment). NMFS has adopted this
approach in the context of significant
uncertainty regarding DTH installation
source characteristics because it is the
most precautionary approach,
recognizing that it likely overestimates
potential take of marine mammals. This
approach ensures that the largest
potential ranges to effect for both Level
A and Level B harassment are accounted
for in producing a conservative effects
analysis.
To reiterate, NMFS has adopted the
aforementioned approach on an interim
basis in a context of significant
uncertainty. Work is ongoing to better
understand DTH pile installation and to
develop tools to facilitate impact
assessments for this activity. However,
the apparent certitude with which the
Commission treats this topic in making
their recommendation is misplaced.
NMFS does not agree that the actual
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Level B harassment zones are likely to
be as large as asserted by the
Commission. Although NMFS would
indeed treat a new application involving
DTH pile installation according to the
newer, more precautionary analytical
approach, it is not inappropriate to carry
forward the existing analysis from the
initial IHA in support of this renewal.
The purpose of estimating harassment
zones is to inform both the development
of appropriate numbers of take for
authorization and of mitigation and
monitoring requirements. Concerns
regarding the adequacy of authorized
take numbers and of mitigation and
monitoring requirements apply in this
circumstance only to Level B
harassment, as treatment of the source
as impulsive results in the same
approach to evaluating potential Level
A harassment as would be used under
the newer method. The initial IHA
authorized take for five marine mammal
species. Of these five, a density-based
approach, in which a density value is
applied over some area (i.e., the
estimated harassment zone), was taken
for only one species. While the size of
the harassment zone is one
consideration in estimating a potential
take number when use of a density
value is not possible or is inappropriate,
it is not determinative of the take
number. Therefore, for the humpback
whale, harbor porpoise, harbor seal, and
gray seal, NMFS has reviewed all of the
applicable information, including that
used in lieu of density in determining
the take number, and found that it
remains appropriate. We note that no
individuals of these four species, with
the exception of a lone humpback whale
observed outside of the estimated
harassment zone, were observed during
required monitoring under the initial
IHA.
For bottlenose dolphins, a densitybased approach was used in estimating
the take number for authorization.
Therefore, the size of the harassment
zone may be influential on the take
number. However, the initial IHA
authorized 28,388 incidents of take for
bottlenose dolphin, while CTJV reported
having observed only 100 dolphins
despite completing roughly one-third of
the previously planned activity days.
Preliminary monitoring data shows
marine mammal detections reported
from as much as 2.1 km distant from the
PSO location, indicating that PSOs were
not limiting their observational effort to
the estimated Level B harassment zones.
In NMFS’ judgment, the difference
between authorized take and actual
dolphin detections indicates that the
analysis performed in support of the
initial IHA likely overestimated the
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potential effects of the specified activity
on bottlenose dolphin, potential
underestimation of certain Level B
harassment zones notwithstanding. The
authorized take number for bottlenose
dolphin provided in the initial IHA is
sufficient to provide an adequate basis
for analysis of both negligible impact
and small numbers and, therefore, the
findings made in support of the initial
IHA remain valid.
Prescription of appropriate mitigation
and monitoring requirements are at
NMFS’ discretion, within the bounds of
the MMPA’s requirement to prescribe
the means of effecting the ‘‘least
practicable adverse impact’’ on the
species or stock and its habitat. The
Commission’s assertion that potential
underestimation of certain Level B
harassment zones results in application
of ‘‘inappropriate’’ monitoring
measures, or monitoring measures that
are inconsistent with other similar
IHAs, is unfounded. The IHA includes
requirements to establish monitoring
locations and to report, among other
things, ‘‘[t]he number of marine
mammals observed, by species, relative
to the pile location . . .’’ CTJV is
required to report observations of
marine mammals at any distance from
the pile driving activity in conjunction
with behavioral observations and,
therefore, the prescribed monitoring is
appropriate regardless of the estimated
harassment zone size. The existing
monitoring requirements do not
constrain or provide inappropriate
direction to the applicant or PSO team,
and NMFS expects that the information
required to be reported will be sufficient
to enable an evaluation of whether the
authorized taking is having more than a
negligible impact on the affected species
or stocks.
In making its recommendations, the
Commission sets up a false dichotomy
between increased efficiency—i.e.,
issuance of the requested renewal IHA
in support of the continuation of a
critical infrastructure project—and the
protection of marine mammals afforded
by the MMPA. As demonstrated herein,
both the mandatory satisfaction of
statutory requirements and the objective
of increased efficiency are appropriately
accomplished through issuance of the
requested renewal IHA. The criteria for
renewal are clearly met, as (1) the
request was received in a timely
fashion; (2) the activities to be
conducted under the authorization
renewal are identical to the activities
analyzed under the initial IHA; and (3)
the preliminary monitoring report does
not indicate impacts of a scale or nature
not previously analyzed or authorized.
Moreover, satisfaction of these criteria
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and review of other pertinent
information, including available
information regarding DTH pile
installation, indicates that there are no
more than minor changes in the
activities, that the mitigation and
monitoring measures remain the same
and appropriate, and that the findings in
the initial authorization remain valid.
As such, it is appropriate to issue the
renewal IHA.
Comment: The CBD commented that
NMFS should not approve the requested
renewal IHA unless NMFS ensures that
this and other projects and activities in
the area will in aggregate have a
negligible impact on marine mammal
populations. CBD suggests in particular
that the issuance of concurrent
incidental take authorizations for two
separate construction projects would
increase the likelihood of injurious
vessel interactions for humpback
whales. CBD also states its opposition to
the use of a categorical exclusion under
NEPA.
Response: NMFS does not agree with
CBD’s comments. We first address the
notion that, under the MMPA, the
‘‘aggregate’’ effects of multiple activities
must be evaluated in making a finding
of negligible impact in support of
issuance of a particular incidental take
authorization. Neither the MMPA nor
NMFS’ codified implementing
regulations call for consideration of
other unrelated activities and their
impacts on populations. The preamble
for NMFS’ implementing regulations (54
FR 40338; September 29, 1989) states in
response to comments that the impacts
from other past and ongoing
anthropogenic activities are to be
incorporated into the negligible impact
analysis via their impacts on the
baseline. Consistent with that direction,
NMFS has factored into its negligible
impact analysis the impacts of other
past and ongoing anthropogenic
activities via their impacts on the
baseline, e.g., as reflected in the density/
distribution and status of the species,
population size and growth rate, and
other relevant stressors. The 1989 final
rule for the MMPA implementing
regulations also addressed public
comments regarding cumulative effects
from future, unrelated activities. There
NMFS stated that such effects are not
considered in making findings under
section 101(a)(5) concerning negligible
impact. In this case, both this renewal
IHA as well as the IHA currently in
effect and issued in association with the
Hampton Roads Bridge Tunnel (HRBT)
Expansion Project in Norfolk, Virginia,
are appropriately considered an
unrelated activity relative to the other.
The IHAs are unrelated in the sense that
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they are discrete actions under section
101(a)(5)(D), issued to discrete
applicants.
Section 101(a)(5)(D) of the MMPA
requires NMFS to make a determination
that the take incidental to a ‘‘specified
activity’’ will have a negligible impact
on the affected species or stocks of
marine mammals. NMFS’ implementing
regulations require applicants to include
in their request a detailed description of
the specified activity or class of
activities that can be expected to result
in incidental taking of marine mammals.
50 CFR 216.104(a)(1). Thus, the
‘‘specified activity’’ for which incidental
take coverage is being sought under
section 101(a)(5)(D) is generally defined
and described by the applicant. Here,
CTJV was the applicant for the initial
IHA (as well as this renewal), and we
are responding to the specified activity
as described in that application (and
making the necessary findings on that
basis).
Regarding the specific issue of
concern in CBD’s comments, we
acknowledge CBD’s concern regarding
the ongoing UME involving humpback
whales, and that a portion of the whales
involved in the UME have shown
evidence of pre-mortem vessel strike.
However, CBD does not offer any
evidence that the specified activity here
(the PTST project) is likely to result in
a vessel strike of a humpback whale, or
that the two projects in aggregate (the
separate PTST and HRBT projects)
would in aggregate result in increased
likelihood of vessel strike. Typical
marine construction projects involve
use of slow-moving vessels, such as tugs
towing or pushing barges, or smaller
work boats maneuvering in the vicinity
of the construction project. These vessel
types are not typically associated with
vessel strikes resulting in injury or
mortality. We acknowledge the data
presented by CBD (24 humpback whale
strandings in Virginia over 5 years;
these represent approximately 16
percent of total humpback whale
strandings over the 5-year period), but
posit that vessel strike incidents in the
area are most likely caused by
commercial traffic through the Hampton
Roads. For example, during 2018–2019,
a significant majority of total vessels
exceeding 65 m in length transiting
through the Chesapeake Seasonal
Management Area (a management area
within which speeds for vessels > 65 m
in length are to be reduced at certain
times of year to reduce strikes of North
Atlantic right whales) was by
commercial cargo vessels (e.g., container
vessels, tankers, bulk cargo; NMFS,
2020). In summary, it is extremely
unlikely that construction project-
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related vessel traffic would result in a
marine mammal strike and CBD
provides no evidence to the contrary.
Although there is no evidence to
suggest that vessel strike would occur as
a result of the specified activity, the
UME is a relevant consideration in
making a negligible impact
determination. We discussed the UME
and its effects in the notice of proposed
IHA for the initial IHA, and expand that
discussion here in response to CBD’s
comments. The UME does not yet
provide cause for concern regarding
population-level impacts for humpback
whales. Despite the UME, the relevant
population of humpback whales (the
West Indies breeding population, or
distinct population segment (DPS))
remains healthy. Prior to 2016,
humpback whales were listed under the
ESA as an endangered species
worldwide. Following a 2015 global
status review (Bettridge et al., 2015),
NMFS established 14 DPSs with
different listing statuses (81 FR 62259;
September 8, 2016) pursuant to the ESA.
The West Indies DPS, which consists of
the whales whose breeding range
includes the Atlantic margin of the
Antilles from Cuba to northern
Venezuela, and whose feeding range
primarily includes the Gulf of Maine,
eastern Canada, and western Greenland,
was delisted. The status review
identified harmful algal blooms, vessel
collisions, and fishing gear
entanglements as relevant threats for
this DPS, but noted that all other threats
are considered likely to have no or
minor impact on population size or the
growth rate of this DPS (Bettridge et al.,
2015). As described in Bettridge et al.
(2015), the West Indies DPS has a
substantial population size (i.e.,
approximately 10,000; Stevick et al.,
2003; Smith et al., 1999; Bettridge et al.,
2015), and appears to be experiencing
consistent growth. In context of this
status, the approximately 145 recorded
strandings during the UME do not
provide concern that the effects of the
specified activity would be greater than
negligible.
We address finally CBD’s contention
that it is not appropriate to categorically
exclude the action of issuing the
renewal IHA from further analysis
under NEPA. A categorical exclusion
(CE) is a category of actions that an
agency has determined does not
individually or cumulatively have a
significant effect on the quality of the
human environment, and is
appropriately applied for such
categories of actions so long as there are
no extraordinary circumstances present
that would indicate that the effects of
the action may be significant.
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Extraordinary circumstances are
situations for which NOAA has
determined further NEPA analysis is
required because they are circumstances
in which a normally excluded action
may have significant effects. A
determination of whether an action that
is normally excluded requires
additional evaluation because of
extraordinary circumstances focuses on
the action’s potential effects and
considers the significance of those
effects in terms of both context
(consideration of the affected region,
interests, and resources) and intensity
(severity of impacts). Potential
extraordinary circumstances relevant to
this action include (1) adverse effects on
species or habitats protected by the
MMPA that are not negligible; (2) highly
controversial environmental effects; (3)
environmental effects that are uncertain,
unique, or unknown; and (4) the
potential for significant cumulative
impacts when the proposed action is
combined with other past, present, and
reasonably foreseeable future actions.
The relevant NOAA CE associated
with issuance of incidental take
authorizations is CE B4, ‘‘Issuance of
incidental harassment authorizations
under section 101(a)(5)(A) and (D) of the
MMPA for the incidental, but not
intentional, take by harassment of
marine mammals during specified
activities and for which no serious
injury or mortality is anticipated.’’ This
action falls within CE B4. In
determining whether a CE is appropriate
for a given incidental take authorization,
NMFS considers the applicant’s
specified activity and the potential
extent and magnitude of takes of marine
mammals associated with that activity
along with the extraordinary
circumstances listed in the Companion
Manual for NAO 216–6A and
summarized above. The evaluation of
whether extraordinary circumstances (if
present) have the potential for
significant environmental effects is
limited to the decision NMFS is
responsible for, which is issuance of the
incidental take authorization. While
there may be environmental effects
associated with the underlying action,
potential effects of NMFS’ action are
limited to those that would occur due to
the authorization of incidental take of
marine mammals. NMFS prepared
numerous Environmental Assessments
(EAs) analyzing the environmental
impacts of the categories of activities
encompassed by CE B4 which resulted
in Findings of No Significant Impacts
(FONSIs) and, in particular, numerous
EAs prepared in support of issuance of
IHAs related to similar construction
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actions are part of NMFS’ administrative
record supporting CE B4. These EAs
demonstrate the issuance of a given
incidental harassment authorization
does not affect other aspects of the
human environment because the action
only affects the marine mammals that
are the subject of the incidental
harassment authorization. These EAs
also addressed factors in 40 CFR
1508.27 regarding the potential for
significant impacts and demonstrate the
issuance of incidental harassment
authorization for the categories of
activities encompassed by CE B4 do not
individually or cumulatively have a
significant effect on the human
environment.
In particular, the issuance of a
renewal IHA to CTJV is expected to
result in minor, short-term behavioral
effects to five species and minor
auditory injury to four species due to
exposure to underwater sound from pile
driving and removal activities.
Behavioral disturbance and auditory
injury are expected to occur
intermittently in the vicinity of the
PTST project site during the one-year
timeframe. Level A and Level B
harassment will be reduced through use
of mitigation measures described herein.
The issuance of this renewal IHA will
not result in highly controversial
environmental effects or result in
environmental effects that are uncertain,
unique, or unknown—the paucity of
data regarding DTH pile installation
notwithstanding—because numerous
entities have been engaged in pile
driving and removal activities that
result in Level A and Level B
harassment of marine mammals in the
United States. This type of activity is
well documented; prior authorizations
and analysis demonstrates issuance of
an IHA for this type of action only
affects the marine mammals that are the
subject of the authorization. Although
the lack of data concerning DTH pile
installation leads to some uncertainty
regarding the most appropriate
analytical approach to estimating
harassment zones resulting from use of
the technique, the potential effects
associated with DTH pile installation
are the same as those associated with
other typical construction techniques.
The ongoing humpback whale UME
does not constitute an extraordinary
circumstance demanding additional
analysis under NEPA.
Comment: The Commission
recommends that NMFS ensure that
CTJV is aware of the reporting
requirements set forth in section 6(a) of
CTJV’s 2020 IHA for the draft and final
monitoring reports.
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14611
Response: NMFS concurs with the
Commission’s recommendation and will
ensure that CTJV is aware of all
requirements of the 2020 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.
Determinations
The planned construction activities
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 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
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mammals are implicated by this action,
and; (5) appropriate monitoring and
reporting requirements are included.
Endangered Species Act
National Environmental Policy Act
Renewal
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NMFS has issued a Renewal IHA to
CTJV for the take of marine mammals
incidental to construction associated
with the PTST at Virginia Beach,
Virginia, for a period of one year.
Dated: March 11, 2021.
Donna S. Wieting,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2021–05464 Filed 3–16–21; 8:45 am]
BILLING CODE 3510–22–P
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Marine Mammals; File No. 18786
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application for
permit amendment.
AGENCY:
Notice is hereby given that
the NMFS Office of Protected Resources,
Marine Mammal Health and Stranding
Response Program (Responsible Party:
Teri Rowles, D.V.M., Ph.D.), 1315 East
West Highway, Silver Spring, MD 20910
has applied for an amendment to
Scientific Research Permit No. 18786–
05.
SUMMARY:
Written, telefaxed, or email
comments must be received on or before
April 16, 2021.
ADDRESSES: The application and related
documents are available for review by
selecting ‘‘Records Open for Public
Comment’’ from the ‘‘Features’’ box on
the Applications and Permits for
Protected Species (APPS) home page,
https://apps.nmfs.noaa.gov, and then
selecting File No. 18786 from the list of
available applications. These documents
are also available upon written request
via email to NMFS.Pr1Comments@
noaa.gov.
Written comments on this application
should be submitted via email to
NMFS.Pr1Comments@noaa.gov. Please
include File No. 18786 in the subject
line of the email comment.
Those individuals requesting a public
hearing should submit a written request
via email to NMFS.Pr1Comments@
noaa.gov. The request should set forth
the specific reasons why a hearing on
this application would be appropriate.
FOR FURTHER INFORMATION CONTACT:
Shasta McClenahan, Ph.D. or Amy
Sloan, (301)427–8401.
SUPPLEMENTARY INFORMATION: The
subject amendment to Permit No.
18786–05 is requested under the
authority of the Marine Mammal
Protection Act of 1972, as amended (16
U.S.C. 1361 et seq.), the regulations
governing the taking and importing of
marine mammals (50 CFR part 216), the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.), and
the regulations governing the taking,
importing, and exporting of endangered
and threatened species (50 CFR parts
222–226), and the Fur Seal Act of 1966,
as amended (16 U.S.C. 1151 et seq.).
DATES:
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
determined that the issuance of the IHA
Renewal qualifies to be categorically
excluded from further NEPA review.
17:47 Mar 16, 2021
National Oceanic and Atmospheric
Administration
[RTID 0648–XA941]
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.
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DEPARTMENT OF COMMERCE
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Permit No. 18786, issued on June 30,
2015 (80 FR 44939), authorizes the
permit holder to: (1) Carry out response,
rescue, rehabilitation and release of
threatened and endangered marine
mammals under NMFS jurisdiction
(Cetacea and Pinnipedia (excluding
walrus)), and disentanglement of all
marine mammals under NMFS
jurisdiction, pursuant to sections 109(h),
112(c), and Title IV of the MMPA; and,
carry out such activities as enhancement
pursuant to section 10(a)(1)(A) of the
ESA; (2) Conduct health-related, bona
fide scientific research studies on
marine mammals and marine mammal
parts under NMFS jurisdiction pursuant
to sections 104(c) and Title IV of the
MMPA and section 10(a)(1)(A) of the
ESA, including research related to
emergency response that may involve
compromised animals, and research on
healthy animals that have not been
subject to emergency response (e.g.,
baseline health studies); (3) Conduct
Level B harassment on all marine
mammal species under NMFS
jurisdiction incidental to MMHSRP
activities in the U.S.; and (4) Collect,
salvage, receive, possess, transfer,
import, export, analyze, and curate
marine mammal specimens under
NMFS jurisdiction for purposes
delineated in numbers (1) and (2) above.
The permit holder is requesting the
permit be amended to include
authorization to extend the duration of
the permit for 12 months through
December 31, 2022.
An environmental assessment (EA)
was prepared for the original permit
(No. 18786) in compliance with the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), to
examine whether significant
environmental impacts could result
from issuance of the proposed scientific
research permit. Based on the analyses
in the EA, NMFS determined that
issuance of the permit would not
significantly impact the quality of the
human environment and that
preparation of an environmental impact
statement was not required. That
determination is documented in a
Finding of No Significant Impact
(FONSI), signed on June 29, 2015. The
activities in this proposed amendment
are consistent with the analyses in the
original EA and no additional NEPA
analysis is required for the issuance of
this amendment. The original EA and
FONSI are available upon request.
Concurrent with the publication of
this notice in the Federal Register,
NMFS is forwarding copies of this
application to the Marine Mammal
Commission and its Committee of
Scientific Advisors.
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[Federal Register Volume 86, Number 50 (Wednesday, March 17, 2021)]
[Notices]
[Pages 14606-14612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05464]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XA903]
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; issuance of Renewal incidental harassment authorization
(IHA).
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS has issued a Renewal incidental harassment authorization
(IHA) to the Chesapeake Tunnel Joint Venture (CTJV) to incidentally
harass marine mammals incidental to the Parallel Thimble Shoal Tunnel
Project (PTST) in Virginia Beach, Virginia.
DATES: This Renewal IHA is valid from March 10, 2021, through March 9,
2022.
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, an incidental harassment authorization is issued.
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 initial IHA
expires and a Renewal would allow for completion of the activities
beyond that described in the DATES section of the notice of issuance of
the initial IHA, provided all of the following conditions are met:
1. 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
[[Page 14607]]
cannot extend beyond one year from expiration of the initial IHA).
2. The request for renewal must include the following:
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).
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.
3. 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 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.
History of Request
On March 10, 2020, NMFS issued an IHA to CTJV to take marine
mammals incidental to the PTST in Virginia Beach, Virginia (85 FR
16061), effective from March 10, 2020, through March 9, 2021. On
December 15, 2020, NMFS received an application for the Renewal of that
initial IHA. As described in the application for Renewal, the
activities for which incidental take is requested are identical to, and
consist of a subset of, those covered in the initial authorization. As
required, the applicant also provided a preliminary monitoring report
(available online at www.fisheries.noaa.gov/action/incidental-take-authorization-chesapeake-tunnel-joint-venture-parallel-thimble-shoal-0)
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.
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 initial 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 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 planned activities. For additional detail, please see the
Federal Register notice of proposed Renewal IHA (86 FR 8594; February
8, 2021).
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which take is authorized, 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 (UME), 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 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 sections 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
authorized 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 UMEs, 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
notices for the proposed and final initial IHAs (84 FR 64847; November
25, 2019 and 85 FR 16061; March 20, 2020). The source levels and marine
mammal occurrence data applicable to this authorization remain
unchanged from the initial IHA. 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 Renewal IHA. However, a commenter highlighted a change in
the analytical
[[Page 14608]]
method NMFS now uses specifically to assess the impacts of DTH pile
installation that would result in a larger Level B harassment zone when
those activities are conducted. Therefore, because the take numbers
developed for most species for which take is authorized involve
qualitative elements, because the reduction in total days of work may
not result in a substantive decrease in the take number for bottlenose
dolphin due to the potentially larger Level B harassment zone under the
alternative DTH approach, and because the monitoring results do not
suggest take higher than that initially authorized even in
consideration of the potentially larger Level B harassment zones (all
of which is discussed below in the Comments and Responses section), we
carry forward the take numbers unchanged for this Renewal IHA. The
stocks taken, methods of take, and types of take remain unchanged from
the initial IHA, as do the number of takes, which are indicated below
in Table 1.
Table 1--Authorized Take 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 Mitigation, Monitoring and Reporting Measures
The 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.
Further detail regarding the mitigation, monitoring, and reporting
requirements prescribed through the IHA can be found in the notice of
issuance for the initial IHA (85 FR 16061; March 20, 2020). The
following measures are included in this renewal:
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 during
pile driving are as follows: 100 meters (m) for harbor porpoise and
bottlenose dolphin; 15 m for harbor seal and gray seal. For humpback
whale, shutdown distances during pile driving correspond with the
estimated Level A harassment zones. 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 30 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 feet (3.3 m) in depth.
Monitoring Requirements
The CTJV will be required to station between two and four Protected
Species Observers (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 the best possible view if the Level B
harassment zone and shutdown zones cannot reasonably be observed by one
PSO.
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.
Comments and Responses
A notice of NMFS' proposal to issue a Renewal IHA to CTJV was
published in the Federal Register on February 8, 2021 (86 FR 8594).
That notice either described, or referenced descriptions of, the
applicant's activity, the marine mammal species that may be affected by
the activity, the anticipated effects on marine mammals and their
habitat, estimated amount and manner of take, and proposed mitigation,
monitoring, and reporting measures. NMFS received comment letters from
the Marine Mammal Commission (Commission), Center for Biological
Diversity (CBD), and a private citizen. The private citizen expressed
general concern regarding ecological effects of the activity and, in
particular, potential effects of the activity to fish. We acknowledge
the comments and refer the commenter to the notice of proposed IHA for
the initial IHA (84 FR 64847), which addresses in detail the potential
effects of the activity on marine mammals, including to marine mammal
habitat (including prey species such as fish). A summary of the
comments and our responses are provided below, and the comment letters
are available online at www.fisheries.noaa.gov/action/incidental-take-authorization-chesapeake-tunnel-joint-venture-parallel-thimble-shoal-0.
Comment: The Commission recommended that NMFS deny CTJV's request
to renew its incidental harassment authorization. The Commission bases
its recommendation
[[Page 14609]]
on its assessment that certain Level B harassment zones were
underestimated in the initial IHA.
Response: NMFS does not agree with the Commission's recommendation,
and does not adopt it. The Commission correctly points out that NMFS'
practice with regard to analysis of sound output from DTH pile
installation has changed during the interval between issuance of the
initial IHA to CTJV and NMFS' receipt of CTJV's request for renewal of
that IHA. DTH is an installation technique that is poorly understood
from the perspective of sound output characteristics. In this context
of data scarcity, NMFS historically considered DTH installation to be a
non-impulsive sound source, as it was believed to be essentially a
drilling technique. With the availability of some of the first acoustic
monitoring data for the DTH technique, NMFS determined that it would be
more appropriate to treat DTH as an impulsive sound source, due to the
percussive hammering element of the technique, and analyzed the
potential effects of marine mammal exposure to noise produced through
use of the DTH technique accordingly. This was the approach taken in
evaluating the effects of DTH in support of issuance of the initial IHA
(85 FR 16061). As additional acoustic monitoring data became available,
NMFS evaluated that the DTH technique produces sound with both
impulsive and continuous characteristics. Therefore, as referenced by
the Commission, NMFS began in 2020 its current practice of treating DTH
pile installation as both impulsive (more conservative for the purposes
of evaluating Level A harassment) and continuous (more conservative for
the purposes of evaluating Level B harassment). NMFS has adopted this
approach in the context of significant uncertainty regarding DTH
installation source characteristics because it is the most
precautionary approach, recognizing that it likely overestimates
potential take of marine mammals. This approach ensures that the
largest potential ranges to effect for both Level A and Level B
harassment are accounted for in producing a conservative effects
analysis.
To reiterate, NMFS has adopted the aforementioned approach on an
interim basis in a context of significant uncertainty. Work is ongoing
to better understand DTH pile installation and to develop tools to
facilitate impact assessments for this activity. However, the apparent
certitude with which the Commission treats this topic in making their
recommendation is misplaced. NMFS does not agree that the actual Level
B harassment zones are likely to be as large as asserted by the
Commission. Although NMFS would indeed treat a new application
involving DTH pile installation according to the newer, more
precautionary analytical approach, it is not inappropriate to carry
forward the existing analysis from the initial IHA in support of this
renewal.
The purpose of estimating harassment zones is to inform both the
development of appropriate numbers of take for authorization and of
mitigation and monitoring requirements. Concerns regarding the adequacy
of authorized take numbers and of mitigation and monitoring
requirements apply in this circumstance only to Level B harassment, as
treatment of the source as impulsive results in the same approach to
evaluating potential Level A harassment as would be used under the
newer method. The initial IHA authorized take for five marine mammal
species. Of these five, a density-based approach, in which a density
value is applied over some area (i.e., the estimated harassment zone),
was taken for only one species. While the size of the harassment zone
is one consideration in estimating a potential take number when use of
a density value is not possible or is inappropriate, it is not
determinative of the take number. Therefore, for the humpback whale,
harbor porpoise, harbor seal, and gray seal, NMFS has reviewed all of
the applicable information, including that used in lieu of density in
determining the take number, and found that it remains appropriate. We
note that no individuals of these four species, with the exception of a
lone humpback whale observed outside of the estimated harassment zone,
were observed during required monitoring under the initial IHA.
For bottlenose dolphins, a density-based approach was used in
estimating the take number for authorization. Therefore, the size of
the harassment zone may be influential on the take number. However, the
initial IHA authorized 28,388 incidents of take for bottlenose dolphin,
while CTJV reported having observed only 100 dolphins despite
completing roughly one-third of the previously planned activity days.
Preliminary monitoring data shows marine mammal detections reported
from as much as 2.1 km distant from the PSO location, indicating that
PSOs were not limiting their observational effort to the estimated
Level B harassment zones. In NMFS' judgment, the difference between
authorized take and actual dolphin detections indicates that the
analysis performed in support of the initial IHA likely overestimated
the potential effects of the specified activity on bottlenose dolphin,
potential underestimation of certain Level B harassment zones
notwithstanding. The authorized take number for bottlenose dolphin
provided in the initial IHA is sufficient to provide an adequate basis
for analysis of both negligible impact and small numbers and,
therefore, the findings made in support of the initial IHA remain
valid.
Prescription of appropriate mitigation and monitoring requirements
are at NMFS' discretion, within the bounds of the MMPA's requirement to
prescribe the means of effecting the ``least practicable adverse
impact'' on the species or stock and its habitat. The Commission's
assertion that potential underestimation of certain Level B harassment
zones results in application of ``inappropriate'' monitoring measures,
or monitoring measures that are inconsistent with other similar IHAs,
is unfounded. The IHA includes requirements to establish monitoring
locations and to report, among other things, ``[t]he number of marine
mammals observed, by species, relative to the pile location . . .''
CTJV is required to report observations of marine mammals at any
distance from the pile driving activity in conjunction with behavioral
observations and, therefore, the prescribed monitoring is appropriate
regardless of the estimated harassment zone size. The existing
monitoring requirements do not constrain or provide inappropriate
direction to the applicant or PSO team, and NMFS expects that the
information required to be reported will be sufficient to enable an
evaluation of whether the authorized taking is having more than a
negligible impact on the affected species or stocks.
In making its recommendations, the Commission sets up a false
dichotomy between increased efficiency--i.e., issuance of the requested
renewal IHA in support of the continuation of a critical infrastructure
project--and the protection of marine mammals afforded by the MMPA. As
demonstrated herein, both the mandatory satisfaction of statutory
requirements and the objective of increased efficiency are
appropriately accomplished through issuance of the requested renewal
IHA. The criteria for renewal are clearly met, as (1) the request was
received in a timely fashion; (2) the activities to be conducted under
the authorization renewal are identical to the activities analyzed
under the initial IHA; and (3) the preliminary monitoring report does
not indicate impacts of a scale or nature not previously analyzed or
authorized. Moreover, satisfaction of these criteria
[[Page 14610]]
and review of other pertinent information, including available
information regarding DTH pile installation, indicates that there are
no more than minor changes in the activities, that the mitigation and
monitoring measures remain the same and appropriate, and that the
findings in the initial authorization remain valid. As such, it is
appropriate to issue the renewal IHA.
Comment: The CBD commented that NMFS should not approve the
requested renewal IHA unless NMFS ensures that this and other projects
and activities in the area will in aggregate have a negligible impact
on marine mammal populations. CBD suggests in particular that the
issuance of concurrent incidental take authorizations for two separate
construction projects would increase the likelihood of injurious vessel
interactions for humpback whales. CBD also states its opposition to the
use of a categorical exclusion under NEPA.
Response: NMFS does not agree with CBD's comments. We first address
the notion that, under the MMPA, the ``aggregate'' effects of multiple
activities must be evaluated in making a finding of negligible impact
in support of issuance of a particular incidental take authorization.
Neither the MMPA nor NMFS' codified implementing regulations call for
consideration of other unrelated activities and their impacts on
populations. The preamble for NMFS' implementing regulations (54 FR
40338; September 29, 1989) states in response to comments that the
impacts from other past and ongoing anthropogenic activities are to be
incorporated into the negligible impact analysis via their impacts on
the baseline. Consistent with that direction, NMFS has factored into
its negligible impact analysis the impacts of other past and ongoing
anthropogenic activities via their impacts on the baseline, e.g., as
reflected in the density/distribution and status of the species,
population size and growth rate, and other relevant stressors. The 1989
final rule for the MMPA implementing regulations also addressed public
comments regarding cumulative effects from future, unrelated
activities. There NMFS stated that such effects are not considered in
making findings under section 101(a)(5) concerning negligible impact.
In this case, both this renewal IHA as well as the IHA currently in
effect and issued in association with the Hampton Roads Bridge Tunnel
(HRBT) Expansion Project in Norfolk, Virginia, are appropriately
considered an unrelated activity relative to the other. The IHAs are
unrelated in the sense that they are discrete actions under section
101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, CTJV was the applicant for the initial IHA (as well as
this renewal), and we are responding to the specified activity as
described in that application (and making the necessary findings on
that basis).
Regarding the specific issue of concern in CBD's comments, we
acknowledge CBD's concern regarding the ongoing UME involving humpback
whales, and that a portion of the whales involved in the UME have shown
evidence of pre-mortem vessel strike. However, CBD does not offer any
evidence that the specified activity here (the PTST project) is likely
to result in a vessel strike of a humpback whale, or that the two
projects in aggregate (the separate PTST and HRBT projects) would in
aggregate result in increased likelihood of vessel strike. Typical
marine construction projects involve use of slow-moving vessels, such
as tugs towing or pushing barges, or smaller work boats maneuvering in
the vicinity of the construction project. These vessel types are not
typically associated with vessel strikes resulting in injury or
mortality. We acknowledge the data presented by CBD (24 humpback whale
strandings in Virginia over 5 years; these represent approximately 16
percent of total humpback whale strandings over the 5-year period), but
posit that vessel strike incidents in the area are most likely caused
by commercial traffic through the Hampton Roads. For example, during
2018-2019, a significant majority of total vessels exceeding 65 m in
length transiting through the Chesapeake Seasonal Management Area (a
management area within which speeds for vessels > 65 m in length are to
be reduced at certain times of year to reduce strikes of North Atlantic
right whales) was by commercial cargo vessels (e.g., container vessels,
tankers, bulk cargo; NMFS, 2020). In summary, it is extremely unlikely
that construction project-related vessel traffic would result in a
marine mammal strike and CBD provides no evidence to the contrary.
Although there is no evidence to suggest that vessel strike would
occur as a result of the specified activity, the UME is a relevant
consideration in making a negligible impact determination. We discussed
the UME and its effects in the notice of proposed IHA for the initial
IHA, and expand that discussion here in response to CBD's comments. The
UME does not yet provide cause for concern regarding population-level
impacts for humpback whales. Despite the UME, the relevant population
of humpback whales (the West Indies breeding population, or distinct
population segment (DPS)) remains healthy. Prior to 2016, humpback
whales were listed under the ESA as an endangered species worldwide.
Following a 2015 global status review (Bettridge et al., 2015), NMFS
established 14 DPSs with different listing statuses (81 FR 62259;
September 8, 2016) pursuant to the ESA. The West Indies DPS, which
consists of the whales whose breeding range includes the Atlantic
margin of the Antilles from Cuba to northern Venezuela, and whose
feeding range primarily includes the Gulf of Maine, eastern Canada, and
western Greenland, was delisted. The status review identified harmful
algal blooms, vessel collisions, and fishing gear entanglements as
relevant threats for this DPS, but noted that all other threats are
considered likely to have no or minor impact on population size or the
growth rate of this DPS (Bettridge et al., 2015). As described in
Bettridge et al. (2015), the West Indies DPS has a substantial
population size (i.e., approximately 10,000; Stevick et al., 2003;
Smith et al., 1999; Bettridge et al., 2015), and appears to be
experiencing consistent growth. In context of this status, the
approximately 145 recorded strandings during the UME do not provide
concern that the effects of the specified activity would be greater
than negligible.
We address finally CBD's contention that it is not appropriate to
categorically exclude the action of issuing the renewal IHA from
further analysis under NEPA. A categorical exclusion (CE) is a category
of actions that an agency has determined does not individually or
cumulatively have a significant effect on the quality of the human
environment, and is appropriately applied for such categories of
actions so long as there are no extraordinary circumstances present
that would indicate that the effects of the action may be significant.
[[Page 14611]]
Extraordinary circumstances are situations for which NOAA has
determined further NEPA analysis is required because they are
circumstances in which a normally excluded action may have significant
effects. A determination of whether an action that is normally excluded
requires additional evaluation because of extraordinary circumstances
focuses on the action's potential effects and considers the
significance of those effects in terms of both context (consideration
of the affected region, interests, and resources) and intensity
(severity of impacts). Potential extraordinary circumstances relevant
to this action include (1) adverse effects on species or habitats
protected by the MMPA that are not negligible; (2) highly controversial
environmental effects; (3) environmental effects that are uncertain,
unique, or unknown; and (4) the potential for significant cumulative
impacts when the proposed action is combined with other past, present,
and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NAO 216-6A and
summarized above. The evaluation of whether extraordinary circumstances
(if present) have the potential for significant environmental effects
is limited to the decision NMFS is responsible for, which is issuance
of the incidental take authorization. While there may be environmental
effects associated with the underlying action, potential effects of
NMFS' action are limited to those that would occur due to the
authorization of incidental take of marine mammals. NMFS prepared
numerous Environmental Assessments (EAs) analyzing the environmental
impacts of the categories of activities encompassed by CE B4 which
resulted in Findings of No Significant Impacts (FONSIs) and, in
particular, numerous EAs prepared in support of issuance of IHAs
related to similar construction actions are part of NMFS'
administrative record supporting CE B4. These EAs demonstrate the
issuance of a given incidental harassment authorization does not affect
other aspects of the human environment because the action only affects
the marine mammals that are the subject of the incidental harassment
authorization. These EAs also addressed factors in 40 CFR 1508.27
regarding the potential for significant impacts and demonstrate the
issuance of incidental harassment authorization for the categories of
activities encompassed by CE B4 do not individually or cumulatively
have a significant effect on the human environment.
In particular, the issuance of a renewal IHA to CTJV is expected to
result in minor, short-term behavioral effects to five species and
minor auditory injury to four species due to exposure to underwater
sound from pile driving and removal activities. Behavioral disturbance
and auditory injury are expected to occur intermittently in the
vicinity of the PTST project site during the one-year timeframe. Level
A and Level B harassment will be reduced through use of mitigation
measures described herein. The issuance of this renewal IHA will not
result in highly controversial environmental effects or result in
environmental effects that are uncertain, unique, or unknown--the
paucity of data regarding DTH pile installation notwithstanding--
because numerous entities have been engaged in pile driving and removal
activities that result in Level A and Level B harassment of marine
mammals in the United States. This type of activity is well documented;
prior authorizations and analysis demonstrates issuance of an IHA for
this type of action only affects the marine mammals that are the
subject of the authorization. Although the lack of data concerning DTH
pile installation leads to some uncertainty regarding the most
appropriate analytical approach to estimating harassment zones
resulting from use of the technique, the potential effects associated
with DTH pile installation are the same as those associated with other
typical construction techniques. The ongoing humpback whale UME does
not constitute an extraordinary circumstance demanding additional
analysis under NEPA.
Comment: The Commission recommends that NMFS ensure that CTJV is
aware of the reporting requirements set forth in section 6(a) of CTJV's
2020 IHA for the draft and final monitoring reports.
Response: NMFS concurs with the Commission's recommendation and
will ensure that CTJV is aware of all requirements of the 2020 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.
Determinations
The planned construction activities 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 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
[[Page 14612]]
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.
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 determined
that the issuance of the IHA Renewal qualifies to be categorically
excluded from further NEPA review.
Renewal
NMFS has issued a Renewal IHA to CTJV for the take of marine
mammals incidental to construction associated with the PTST at Virginia
Beach, Virginia, for a period of one year.
Dated: March 11, 2021.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2021-05464 Filed 3-16-21; 8:45 am]
BILLING CODE 3510-22-P