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]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[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).

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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
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                                                                                                   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