Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental To the Parallel Thimble Shoal Tunnel Project in Virginia, 68462-68466 [2022-24812]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Notices]
[Pages 68462-68466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24812]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC50]


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

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

ACTION: Notice; issuance of renewal incidental harassment 
authorization.

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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 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 16 November 2022 through 15 
November 2023.

FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, 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: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are proposed or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization is provided to the public for 
review.

[[Page 68463]]

    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, or nearly identical, activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance notice is planned or (2) the activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance 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 initial 
IHA issuance, 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 cannot extend beyond 1 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; and
    (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 November 16, 2021, NMFS issued an IHA to CJTV to take marine 
mammals incidental to the Parallel Thimble Shoal Tunnel Project in 
Virginia Beach, Virginia (86 FR 67024, November 24, 2021), effective 
from November 16, 2021 through November 15, 2022. On August 24, 2022, 
NMFS received an application for the renewal of that initial IHA. As 
described in the application for Renewal IHA, the activities for which 
incidental take is requested are nearly identical to, and a subset of, 
those covered in the initial authorization. The project has experienced 
delays and a portion of the work covered in the initial IHA will not be 
completed by the time it expires. As required, the applicant also 
provided a preliminary monitoring report which confirms that the 
applicant has implemented the required mitigation and monitoring, and 
which also shows that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted. The notice of the proposed Renewal IHA was published on 
October 18, 2022 (87 FR 63037).

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 precise details of 
the work planned under the Renewal IHA are nearly identical to that 
described in the initial IHA; the planned work includes a subset of the 
initial activities, as well as some additional work that involves 
additional piles of identical type and driving methods as initially 
proposed. Details of the additional work are described below. The 
project consists of the construction of a two-lane parallel tunnel to 
the west of the existing Thimble Shoal Tunnel, connecting Portal 
Islands Nos. 1 and 2 of the Chesapeake Bay Bridge Tunnel (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 764 piles over 252 days as shown below:
     722 36-inch steel pipe piles; and
     42 42-inch steel pipe piles.
    Of these planned activities, under the initial IHA CTJV installed a 
total of 423 36-inch pipe piles and 26 42-inch pipe piles, a total of 
449 piles. The remaining 16 42-inch piles have been eliminated from the 
construction plan due to a change in design. This change includes the 
use of 163 additional 36-inch piles instead of the originally requested 
42-inch piles. 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 design change resulting in an 
increase in total piles, CTJV plans to drive 462 piles over an 
estimated 206 days under this Renewal IHA.
    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 activities. For additional detail, please see the Federal 
Register notice of proposed Renewal IHA (87 FR 63037, October 18, 
2022).

[[Page 68464]]

Detailed Description of the Activity

    A detailed description of the activities to be conducted under the 
Renewal IHA may be found in the Federal Register notice for the 
proposed IHA for the Renewal authorization (87 FR 63037, October 18, 
2022) and the proposed initial IHA (86 FR 56902, October 13, 2021). The 
location, timing (e.g., seasonality), and nature of the pile driving 
operations, including the type and size of piles and the methods of 
pile driving, are identical to those analyzed in the previous notices. 
The Renewal IHA would be effective for a period of one year from the 
date of expiration of the initial IHA.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized here, including information on abundance, 
status, distribution, and hearing, may be found in the Federal Register 
notice for the proposed IHA for the initial authorization (86 FR 56902, 
October 13, 2021). Updated information regarding stock abundance was 
provided in the Federal Register notice announcing issuance of the 
initial IHA (86 FR 67024, November 24, 2021). NMFS has reviewed recent 
Stock Assessment Reports, information on relevant Unusual Mortality 
Events, and other scientific literature. NMFS has preliminarily 
determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
authorized may be found in the Federal Register notice for the proposed 
initial IHA (86 FR 56902, October 13, 2021). NMFS has reviewed the 
monitoring data from the initial IHA, recent 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 (86 FR 56902, October 
13, 2021; 86 FR 67024, November 24, 2021). The source levels and marine 
mammal occurrence data applicable to this authorization remain 
unchanged from the initial IHA. CTJV conducted approximately 50 percent 
of the planned work and has replaced all remaining 42-inch piles with 
additional 36-inch piles. The approximate total number of operational 
days for this Renewal IHA is lower than the initial IHA. However, 
because the take numbers developed for most species for which take is 
authorized involve qualitative elements and because the reduction in 
total days would not result in a substantive decrease in the take 
number for bottlenose dolphin (i.e., the only species for which a 
density-based approach to estimating take is used), 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 previously 
issued IHA, as do the number of takes, which are indicated below in 
Table 1.

                                       Table 1--Estimated Take Authorized
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                    Species                                   Stock                Level A takes   Level B takes
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Humpback whale................................  Gulf of Maine...................  ..............              12
Harbor porpoise...............................  Gulf of Maine/Bay of Fundy......               5               7
Bottlenose dolphin............................  WNA \1\ Coastal, Northern         ..............          43,203
                                                 Migratory.
                                                WNA Coastal, Southern Migratory.  ..............          43,203
                                                NNCES \2\.......................  ..............             250
Harbor seal...................................  Western North Atlantic..........           1,154           1,730
Gray seal.....................................  Western North Atlantic..........              16              24
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\1\ Western North Atlantic.
\2\ Northern North Carolina Estuarine System.

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 
(86 FR 67024, November 24, 2021), 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 (86 FR 67024, November 24, 2021). The 
following measures are included in this renewal:
     Avoid direct physical interaction with marine mammals 
during construction activity. If a marine mammal comes within 10 m of 
such activity, operations must cease and vessels must reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions;
     Conduct training between construction supervisors and 
crews and the marine mammal monitoring team and relevant CTJV staff 
prior to the start of all pile driving and DTH activity and when new 
personnel join the work, so that responsibilities, communication 
procedures, monitoring protocols, and operational procedures are 
clearly understood;
     Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone;
     CTJV will establish and implement the shutdown zones 
indicated in Table 2. The purpose of a shutdown zone is generally to 
define an area within which shutdown of the activity would occur upon 
sighting of a marine mammal (or in anticipation of an animal entering 
the defined area). Shutdown zones typically vary based on the activity 
type and marine mammal hearing group;
     Employ Protected Species Observers (PSOs) and establish 
monitoring locations as described in the Marine Mammal Monitoring Plan 
and Section 5 of the initial IHA. The Holder

[[Page 68465]]

must monitor the project area to the maximum extent possible based on 
the required number of PSOs, required monitoring locations, and 
environmental conditions. For all pile driving and removal, at least 
one PSO must be used. The PSO will be stationed as close to the 
activity as possible;
     The placement of the PSOs during all pile driving and 
removal and DTH activities will ensure that the entire shutdown zone is 
visible during pile installation. Should environmental conditions 
deteriorate such that marine mammals within the entire shutdown zone 
will not be visible (e.g., fog, heavy rain), pile driving and removal 
must be delayed until the PSO is confident marine mammals within the 
shutdown zone could be detected;
     Monitoring must take place from 30 minutes prior to 
initiation of pile driving activity through 30 minutes post-completion 
of pile driving activity. Pre-start clearance monitoring must be 
conducted during periods of visibility sufficient for the lead PSO to 
determine the shutdown zones clear of marine mammals. Pile driving may 
commence following 30 minutes of observation when the determination is 
made;
     If pile driving is delayed or halted due to the presence 
of a marine mammal, the activity may not commence or resume until 
either the animal has voluntarily exited and been visually confirmed 
beyond the shutdown zone or 15 minutes have passed without re-detection 
of the animal;
     CTJV must use soft start techniques when impact pile 
driving. Soft start requires contractors to provide an initial set of 
three strikes at reduced energy, followed by a 30-second waiting 
period, then two subsequent reduced-energy strike sets. A soft start 
must be implemented at the start of each day's impact pile driving and 
at any time following cessation of impact pile driving for a period of 
30 minutes or longer; and
     Use a bubble curtain during impact and vibratory pile 
driving and DTH in water depths greater than 3 m and ensure that it is 
operated as necessary to achieve optimal performance, and that no 
reduction in performance may be attributable to faulty deployment. At a 
minimum, CTJV must adhere to the following performance standards: The 
bubble curtain must distribute air bubbles around 100 percent of the 
piling circumference for the full depth of the water column. The lowest 
bubble ring must be in contact with the substrate for the full 
circumference of the ring, and the weights attached to the bottom ring 
shall ensure 100 percent substrate contact. No parts of the ring or 
other objects shall prevent full substrate contact. Airflow to the 
bubblers must be balanced around the circumference of the pile. For 
work with interlocking pipe piles for the berm construction a special 
three-sided bubble curtain will be used (see initial IHA Application 
Appendix A).

                                Table 2--Shutdown Zones (meters) for Each Method
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                                                  Low-frequency   Mid-frequency   High-frequency
              Method and piles/day                  cetaceans       cetaceans       cetaceans         Phocids
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DTH (3/day)....................................           1,230              50              200             150
DTH (6/day)....................................           1,950              70              200             150
Impact (4/day).................................           1,010              40              200             150
Impact (6/day).................................           1,320              50              200             150
Vibratory (4/day)..............................              20              10               20              10
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Impact + DTH...................................  Use zones for each source alone
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DTH + Vibratory................................           1,230              50              200             150
Impact + Vibratory.............................           1,320              50              200             150
Impact + DTH + DTH.............................           1,320              50              200             150
DTH + DTH + Vibratory..........................           1,950              70              200           1,050
DTH + Vibratory + Impact.......................           1,320              50              200             710
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Impact + Impact + DTH..........................  Use zones for each source alone
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Comments and Responses

    NMFS received no public comments on the proposed Renewal IHA.

Determinations

    The construction activities proposed by CTJV are nearly identical 
to 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 reduced given the completion of a substantial portion (approximately 
50 percent) of the originally planned work. Additionally, the work at 
Portal Island No. 1 is nearly complete, with an estimated 11 days of 
work remaining. This significantly reduces the likelihood of three 
drills operating concurrently for the duration of the renewal period, 
thus reducing the number of days where the largest impact zones would 
be present. 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. This includes consideration of the estimated abundance of 
harbor seal decreasing slightly. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) the required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) CTJV's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action, and; 
(5) appropriate monitoring and reporting requirements are included.

[[Page 68466]]

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 Renewal IHA qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act

    Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that 
each Federal agency insure that any action it authorizes, funds, or 
carries out is not likely to jeopardize the continued existence of any 
endangered or threatened species or result in the destruction or 
adverse modification of designated critical habitat. To ensure ESA 
compliance for the issuance of IHAs, NMFS consults internally whenever 
we propose to authorize take for endangered or threatened species.
    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Renewal

    NMFS has issued a Renewal IHA to CTJV for the take of marine 
mammals incidental to conducting pile driving activities at the Thimble 
Shoal Tunnel in Virginia Beach, Virginia between 16 November 2022 and 
15 November 2023.

    Dated: November 9, 2022.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-24812 Filed 11-14-22; 8:45 am]
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