Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction of the Pier 3 Replacement Project at Naval Station Norfolk, 14560-14590 [2023-04613]
Download as PDF
14560
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
https://www.regulations.gov under
Docket No. FWS–R8–ES–2022–0165 in
the species assessment form, or upon
request from the person listed above
under FOR FURTHER INFORMATION
CONTACT.
Authors
The primary authors of this document
are the staff members of the Species
Assessment Team, Ecological Services
Program.
Authority
The authority for this action is section
4 of the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et
seq.).
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023–04680 Filed 3–8–23; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 230302–0061]
RIN 0648–BL81
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to U.S. Navy
Construction of the Pier 3
Replacement Project at Naval Station
Norfolk
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS has received a request
from the U.S. Navy (Navy) for
authorization to take marine mammals
incidental to the replacement of Pier 3
at Naval Station (NAVSTA) Norfolk in
Norfolk, Virginia over the course of five
years (2023–2028). Pursuant to the
Marine Mammal Protection Act
(MMPA), NMFS is proposing
regulations to govern that take, and
requests comments on the proposed
regulations. Agency responses will be
included in the notice of the final
decision.
ddrumheller on DSK120RN23PROD with PROPOSALS1
SUMMARY:
Comments and information must
be received no later than April 10, 2023.
ADDRESSES: A copy of the Navy’s
application and any supporting
documents, as well as a list of the
references cited in this document, may
DATES:
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
be obtained online at: https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navyreplacement-pier-3-naval-stationnorfolk-norfolk. In case of problems
accessing these documents, please call
the contact listed below (see FOR
FURTHER INFORMATION CONTACT).
Submit all electronic public
comments via the Federal e-Rulemaking
Portal. Go to www.regulations.gov and
enter NOAA–NMFS–2022–0110 in the
Search box. Click on the ‘‘Comment’’
icon, complete the required fields, and
enter or attach your comments.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public records
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous). Attachments to
electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF
file formats only.
FOR FURTHER INFORMATION CONTACT: Kim
Corcoran, Office of Protected Resources,
NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory
Action
This proposed rule would establish a
framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow
for the authorization of take of marine
mammals incidental to the Navy’s
construction activities including pile
driving and drilling activities at Naval
Station (NAVSTA) Norfolk.
We received an application from the
Navy requesting five-year regulations
and authorization to take multiple
species of marine mammals. Take
would occur by Level B and Level A
harassment, incidental to impact and
vibratory pile driving and drilling.
Please see Background below for
definitions of harassment.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16
U.S.C. 1371(a)(5)(A)) directs the
Secretary of Commerce 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
PO 00000
Frm 00047
Fmt 4702
Sfmt 4702
commercial fishing) within a specified
geographical region for up to five years
if, after notice and public comment, the
agency makes certain findings and
issues regulations that set forth
permissible methods of taking pursuant
to that activity and other means of
effecting the ‘‘least practicable adverse
impact’’ on the affected species or
stocks and their habitat (see the
discussion below in the Proposed
Mitigation section), as well as
monitoring and reporting requirements.
Section 101(a)(5)(A) of the MMPA and
the implementing regulations at 50 CFR
part 216, subpart I provide the legal
basis for issuing this proposed rule
containing 5-year regulations, and for
any subsequent letters of authorization
(LOAs). As directed by this legal
authority, this proposed rule contains
mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within
the Proposed Rule
Following is a summary of the major
provisions of this proposed rule
regarding Navy construction activities.
These measures include:
• Required monitoring of the
construction areas to detect the presence
of marine mammals before beginning
construction activities;
• Shutdown of construction activities
under certain circumstances to avoid
injury of marine mammals;
• Soft start for impact pile driving to
allow marine mammals the opportunity
to leave the area prior to beginning
impact pile driving at full power.
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 IHA
is provided to the public for review.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). Further, NMFS must prescribe
the permissible methods of taking and
other ‘‘means of effecting the least
E:\FR\FM\09MRP1.SGM
09MRP1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
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 the species or stocks for
taking for certain subsistence uses
(referred to in shorthand as
‘‘mitigation’’); and requirements
pertaining to the mitigation, monitoring
and reporting of the takings are set forth.
The definitions of all applicable MMPA
statutory terms cited above are included
in the relevant sections below.
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
IHA) with respect to potential impacts
on the human environment.
This action is consistent with
categories of activities identified in
Categorical Exclusion B4 (IHAs with no
anticipated serious injury or mortality)
of the Companion Manual for NOAA
Administrative Order 216–6A, which do
not individually or cumulatively have
the potential for significant impacts on
the quality of the human environment
and for which we have not identified
any extraordinary circumstances that
would preclude this categorical
exclusion. Accordingly, NMFS has
preliminarily determined that the
issuance of the proposed IHA qualifies
to be categorically excluded from
further review under NEPA.
We will review all comments
submitted in response to this document
prior to concluding our NEPA process
or making a final decision on the IHA
request.
ddrumheller on DSK120RN23PROD with PROPOSALS1
Summary of Request
On April 8, 2022, NMFS received a
request from the Navy for authorization
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
to take marine mammals incidental to
construction activities related to the
replacement of Pier 3 at Naval Station
Norfolk in Norfolk, Virginia. Following
NMFS’ review of the application, the
Navy provided responses to questions
on June 3, 2022 and August 29, 2022. A
revised version of the application was
submitted on September 22, 2022. The
application was deemed adequate and
complete on September 26, 2022 and
published for public review and
comment on October 7, 2022 (87 FR
60998). We did not receive substantive
comments on the NOR.
The Navy requests authorization to
take a small number of five species of
marine mammals by Level B harassment
and, for harbor porpoise and harbor
seal, Level A harassment. Neither the
Navy nor NMFS expect serious injury or
mortality to result from this activity.
The proposed regulations would be
valid for five years (2023–2028).
Description of Proposed Activity
Overview
The Navy is currently conducting,
and proposes to continue, the
replacement of Pier 3 at NAVSTA
Norfolk, in Norfolk, VA. This proposed
rule follows an Incidental Harassment
Authorization (IHA) issued to the Navy
on March 15, 2022, effective from April
1, 2022 through March 31, 2023 (87 FR
15945; March 21, 2022), which covered
the first year of project activities, and
covers the remaining activities for the
pier replacement. During this period
demolition and construction activities
will occur at existing Pier 3, new Pier
3, CEP–176 wharf, CEP–102 relieving
platform, and on a fender system of
CEP–175 bulkhead (See Figure 1). The
proposed project includes both
vibratory pile driving and removal,
impact pile driving, and pre-drilling
(hereafter, referred to as ‘‘drilling’’).
Sounds resulting from pile driving,
PO 00000
Frm 00048
Fmt 4702
Sfmt 4702
14561
drilling and removal may result in the
incidental take of marine mammals by
Level A and Level B harassment in the
form of auditory injury or behavioral
harassment.
Dates and Duration
The proposed regulations would be
valid for a period of five years (2023–
2028) The specified activities may occur
at any time during the five-year period
of validity of the proposed regulations.
The Navy expects pile driving and
drilling for the entire project to occur on
approximately 513 non-consecutive
days over a four year duration, with the
greatest amount of work occurring
during Year 4 (approximately 204 days).
However, in the event of unforeseen
delays, the project may occur over the
full 5-year duration of this proposed
rule. The Navy plans to conduct all
work during daylight hours.
Specific Geographic Region
Pier 3 at NAVSTA Norfolk is located
at the confluence of the Elizabeth River,
James River, Nansemond River,
LaFeyette River, Willoughby Bay, and
Chesapeake Bay (Figure 2).
Anthropogenic sound is a significant
contributor to the ambient acoustic
environment surrounding NAVSTA
Norfolk, as it is located in close
proximity to shipping channels as well
as several Port of Virginia facilities with
frequent vessel traffic that altogether
have an annual average of 1,788 vessel
calls (Port of Virginia, 2021). Other
sources of human-generated underwater
sound not specific to naval installations
include sounds from echosounders on
commercial and recreational vessels,
industrial ship noise, and noise from
recreational boat engines. Additionally,
on average, maintenance dredging of the
navigation channel occurs every 2 years
(USACE and Port of Virginia, 2018).
BILLING CODE 3510–22–P
E:\FR\FM\09MRP1.SGM
09MRP1
14562
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
PO 00000
Frm 00049
Fmt 4702
Sfmt 4702
E:\FR\FM\09MRP1.SGM
09MRP1
EP09MR23.010
ddrumheller on DSK120RN23PROD with PROPOSALS1
Figure 1: Site Location Map for
NAVSTA Norfolk in Norfolk, Virginia
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
BILLING CODE 3510–22–C
Detailed Description of Specific Activity
The proposed project involves the
replacement of Pier 3 at NAVSTA
waterfront. The existing Pier 3 would be
completely demolished and a new Pier
3 would be constructed immediately
north of the existing location (Figure 2).
The project scope for the replacement of
Pier 3 under this proposed rule would
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
also include construction of new CEP–
176 wharf, construction of new CEP–
102 relieving platform, and construction
of a portion of fender system at CEP–
175. The project includes 6 phases, the
first of which has begun under the
previously issued IHA (87 FR 15945;
March 21, 2022). A preliminary work
schedule and activity details for the
work under this proposed rule are
provided in Table 1. In-water
construction activities, including pile
PO 00000
Frm 00050
Fmt 4702
Sfmt 4702
driving, pile removal, and drilling are
described in detail below:
Pile Removal—Piles are anticipated to
be removed with a vibratory hammer,
however, direct pull or clamshell
removal may be used depending on site
conditions. All three pile removal
methods are described below. Take is
not expected to occur for clamshell and
direct pull removal, therefore they will
not be described past what is provided
below nor included in our analysis:
E:\FR\FM\09MRP1.SGM
09MRP1
EP09MR23.011
Figure 2: Project Site Map at NAVSTA
Norfolk in Norfolk, Virginia
14563
14564
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
• Vibratory Extraction—This method
uses a barge-mounted crane with a
vibratory driver to remove all pile types.
The vibratory driver is a large
mechanical device (5 to 16 tons)
suspended from a crane by a cable and
positioned on top of a pile. The pile is
then loosened from the sediments by
activating the driver and slowly lifting
up on the driver with the aid of the
crane. Once the pile is released from the
sediments, the crane continues to raise
the driver and pull the pile from the
sediment. The driver is typically shut
off once the pile is loosened from the
sediments. The pile is then pulled from
the water and placed on a barge.
Vibratory extraction usually takes
between less than 1 minute (for timber
piles) to 30 minutes per pile depending
on the pile size, type, and substrate
conditions;
• Clamshell—In cases where use of a
vibratory driver is not possible (e.g.,
when the pile may break apart from
clamp force and vibration), a clamshell
apparatus may be lowered from the
crane in order to remove pile stubs. The
use and size of the clamshell bucket
would be minimized to reduce the
potential for generating turbidity during
removal; and
• Direct Pull—Piles may be removed
by wrapping the piles with a cable or
chain and pulling them directly from
the sediment with a crane. In some
cases, depending on access and
location, piles may be cut at or below
the mudline.
Pile Installation—Pile installation/
removal would occur using land-based
or barge-mounted cranes, as
appropriate. Concrete piles would be
installed using an impact hammer. Steel
piles and polymeric piles can be
installed using an impact hammer or
vibratory hammer. Hammers can be
steam, air, or diesel drop, single-acting,
double-acting, differential-acting, or
hydraulic type. Additionally, predrilling may occur for installation of
concrete piles and at locations where
there may be a higher likelihood of
obstructions or where soil layers are
harder to penetrate. Drilling is not
permitted for installation of steel piles
on this project or for concrete piles at
Pier 3 because hard soil layers are not
expected at these locations.
Table 1 provides the estimated
construction schedule and production
rates for the proposed construction
activities considered for this proposed
rulemaking beginning with Year 2. As
indicated above, Year 1 of the Pier 3
replacement project was authorized
under the 2022 IHA, effective from
April 1, 2022–March 31, 2023.
Therefore, Year 2 of the project aligns
with year 1 of the proposed rule. Some
project elements will use only one
method of pile installation (e.g., impact
hammer or vibratory hammer or impact
hammer and drilling), but all methods
have been analyzed. The method of
installation will be determined by the
construction crew once demolition and
installation has begun.
TABLE 1—PRELIMINARY CONSTRUCTION SCHEDULE FOR IN-WATER ACTIVITIES
Activity
Year 2 ....
CEP–176 Bulkhead .................
103
Year 2 ....
Year 2 ....
Year 2 ....
CEP–176 Bulkhead .................
CEP–176 Bulkhead .................
CEP–102 Platform phase 2 .....
221
9
11
Year 2 ....
Pier 3 .......................................
280
Year 2 ....
CEP–102 Platform phase 2 .....
6
Year 2 ....
Pier 3 .......................................
250
Year 3 ....
Pier 3 .......................................
409
Year 3 ....
Year 3 ....
Pier 3 .......................................
CEP–102 Platform South Portion.
CEP–102 Platform South Portion.
CEP–102 Platform South Portion.
CEP–102 Platform South Portion.
Existing Pier 3 ..........................
CEP–102 Platform South Portion.
CEP–102 Platform Center Portion.
Existing Pier 3 ..........................
Year 3 ....
Year 3 ....
Year 4 ....
Year 4 ....
Year 4 ....
Year 4 ....
Year 4 ....
Year 4 ....
Year 4 ....
ddrumheller on DSK120RN23PROD with PROPOSALS1
Total
number of
piles
Year ***
Year 4 ....
Year 4 ....
Year 5 ....
Year 5 ....
Year 5 ....
CEP–102 Platform Center Portion.
CEP–102 Platform Center Portion.
Existing Pier 3 ..........................
CEP–102 Platform Center Portion.
Existing Pier 3 ..........................
CEP–102 Platform Center Portion.
CEP–102 Platform Center Portion.
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
Daily rate
(piles/day)
Total days
Total days
per year
Install: Impact or Vibratory .......
4
26
185
Install: Impact or Vibratory .......
Install: Impact or Vibratory * .....
Install: Impact * .........................
14
5
2
16
2
6
Install: Impact ...........................
4
70
Install: Impact ...........................
4
2
Install: Impact ...........................
4
63
Install: Impact * .........................
6
69
Install: Impact ...........................
Install: Impact or Vibratory .......
6
2
3
13
28 inch steel sheet piles ..........
Install: Impact or Vibratory .......
14
4
18 inch square precast concrete fender piles **.
24 inch square precast concrete bearing piles.
14 inch timber fender piles ** ...
18 inch square precast concrete fender piles.
42 inch steel pipe bearing piles
Extract: Vibratory .....................
9
3
Install: Impact * .........................
2
20
Extract: Vibratory .....................
Install: Impact * .........................
25
4
25
7
Install: Impact or Vibratory .......
2
25
24 inch square precast concrete fender piles **.
28 inch steel sheet piles ..........
Extract: Vibratory .....................
12
6
Install: Impact or Vibratory .......
14
8
18 inch square precast concrete fender piles **.
16 inch and 18 inch square
precast concrete bearing
piles **.
24 inch square precast concrete bearing piles.
16 and 18 inch square precast
bearing piles **.
24 inch square precast bearing
piles.
18 inch square precast concrete fender piles.
Extract: Vibratory .....................
9
4
Extract: Vibratory .....................
10
88
Install: Impact * .........................
2
21
Extract: Vibratory .....................
10
3
Install: Impact * .........................
2
16
Install: Impact * .........................
4
13
Activity component
Method
18
26
42 inch Steel Pipe Bearing
Piles.
28 inch sheet piles ...................
13 inch polymeric fender piles
24 inch square precast concrete bearing piles.
24 inch square precast concrete.
18 inch square precast concrete fender piles.
24 inch square precast concrete bearing piles.
24 inch square precast concrete fender files.
18 inch steel pipe fender piles
42 inch steel pipe bearing piles
53
26
40
624
25
50
72
102
36
873
41
30
32
50
PO 00000
Frm 00051
Fmt 4702
Sfmt 4702
E:\FR\FM\09MRP1.SGM
09MRP1
92
204
32
14565
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
TABLE 1—PRELIMINARY CONSTRUCTION SCHEDULE FOR IN-WATER ACTIVITIES—Continued
Year ***
Total
number of
piles
Activity
Total Piles Installed ...............................
1,726
Total Piles Removed .............................
1,661
Activity component
Daily rate
(piles/day)
Method
Total days
Total days
per year
Total: 513
Note: Estimated construction schedule. Delays may occur due to equipment failure or weather.
* Pre-drilling is permitted to assist with pile installation.
** Denotes Piles Removed.
*** Year 2 refers to the second year of the Pier 3 replacement project, however it is considered as Year 1 under the 2023 Rule proposed for authorization.
Concurrent Activities—In order to
maintain project schedules, it is likely
that multiple pieces of equipment
would operate at the same time within
the project area. Table 2 provides a
summary of the possible equipment
combinations by structure and
construction year where a maximum of
four in-water activities may be occurring
simultaneously. As mentioned above,
the method of installation, and whether
concurrent pile driving scenarios will be
implemented, will be determined by the
construction crew once the project has
begun. Therefore, the total take estimate
reflects the worst case scenario for the
proposed project.
TABLE 2—SUMMARY OF POSSIBLE CONCURRENT PILE DRIVING SCENARIOS
Structure
Pile types
Year 3 .................
Pier 3 ................................
Driving of precast bearing piles ............
CEP–102 ..........................
Driving 42-inch steel pipe and 28-inch
steel sheet.
Year 4 .................
Existing Pier 3 and CEP–
102.
Year 4–Year 5 .....
Existing Pier 3 and CEP–
102.
Extraction of 14-inch timber piles from
Pier 3 and Driving of 42-inch steel
pipe, sheet piles, and precast concrete piles.
Extraction of 16- to 18-inch concrete
piles from Pier 3 and Driving of 24inch precast concrete bearing piles.
Proposed mitigation, monitoring, and
reporting measures are described in
detail later in this document (please see
Proposed Mitigation and Proposed
Monitoring and Reporting).
ddrumheller on DSK120RN23PROD with PROPOSALS1
Total
equipment
quantity
Year
Description of Marine Mammals in the
Area of Specified Activities
Sections 3 and 4 of the application
summarize available information
regarding status and trends, distribution
and habitat preferences, and behavior
and life history of the potentially
affected species. NMFS fully considered
all of this information, and we refer the
reader to these descriptions,
incorporated here by reference, instead
of reprinting the information.
Additional information regarding
population trends and threats may be
found in NMFS’ Stock Assessment
Reports (SARs; www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessments)
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
and more general information about
these species (e.g., physical and
behavioral descriptions) may be found
on NMFS’ website (https://
www.fisheries.noaa.gov/find-species).
Table 3 lists all species or stocks for
which take is expected and proposed to
be authorized for this activity, and
summarizes information related to the
population or stock, including
regulatory status under the MMPA and
Endangered Species Act (ESA) and
potential biological removal (PBR),
where known. PBR is defined by the
MMPA as the maximum number of
animals, not including natural
mortalities, that may be removed from a
marine mammal stock while allowing
that stock to reach or maintain its
optimum sustainable population (as
described in NMFS’ SARs). While no
serious injury or mortality is expected to
occur, PBR and annual serious injury
and mortality from anthropogenic
PO 00000
Frm 00052
Fmt 4702
Sfmt 4702
2
2
2
2
2
2
4
4
4
2
2
Equipment
(quantity)
Rotary Drill (2).
Impact Hammer (1), Rotary Drill (1).
Impact Hammer (2).
Vibratory Hammer (2).
Impact Hammer (2).
Vibratory Hammer (1), Impact Hammer
(1).
Vibratory Hammer (3), Rotary Drill (1).
Vibratory Hammer (2), Impact Hammer
(2), Rotary Drill (1).
Vibratory (1), Impact Hammer (3).
Vibratory Hammer (1), Rotary Drill (1).
Vibratory Hammer (1), Impact Hammer
(1).
sources are included here as gross
indicators of the status of the species or
stocks and other threats.
Marine mammal abundance estimates
presented in this document represent
the total number of individuals that
make up a given stock or the total
number estimated within a particular
study or survey area. NMFS’ stock
abundance estimates for most species
represent the total estimate of
individuals within the geographic area,
if known, that comprises that stock. For
some species, this geographic area may
extend beyond U.S. waters. All stocks
managed under the MMPA in this
region are assessed in NMFS’ U.S. draft
2022 SARs. All values presented in
Table 2 are the most recent available at
the time of publication and are available
online at: www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessments.
E:\FR\FM\09MRP1.SGM
09MRP1
14566
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
TABLE 3—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES
Common name
Scientific name
ESA/
MMPA
status;
strategic
(Y/N) 1
Stock
Stock
abundance
(CV, Nmin, most recent
abundance survey) 2
Annual
M/SI 3
PBR
Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)
Family Balaenopteridae
(rorquals):
Humpback whale ..............
Megaptera novaeangliae ........
Gulf of Maine ..........................
-,-, Y
1,396 (0, 1,380, 2016) ...........
22
12.15
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae:
Bottlenose Dolphin ...........
Family Phocoenidae (porpoises):
Harbor Porpoise ...............
Tursiops truncatus ..................
Phocoena phocoena ..............
Western North Atlantic (WNA)
Coastal, Northern Migratory.
WNA Coastal, Southern Migratory.
Northern North Carolina Estuarine.
Gulf of Maine/Bay of Fundy ...
-,-, Y
6,639 (0.41, 4,759, 2016) ......
48
12.2–21.5
-, -, Y
3,751 (0.6, 2,353, 2016) ........
24
0–18.3
-, -, Y
823 (0.06, 782, 2017) ............
7.8
7.2–30
-, -, N
95,543 (0.31, 74,034, 2016) ..
851
164
61,336 (0.08, 57,637, 2018) ..
27,300 (0.22, 22,785, 2016) ..
1,729
1,458
339
4453
Order Carnivora—Superfamily Pinnipedia
Family Phocidae (earless
seals):
Harbor seal .......................
Gray seal 4 ........................
Phoca vitulina .........................
Halichoerus grypus ................
Western North Atlantic ...........
Western North Atlantic ...........
-, -, N
-, -, N
ddrumheller on DSK120RN23PROD with PROPOSALS1
1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the
ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically
designated under the MMPA as depleted and as a strategic stock.
2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated
mortality due to commercial fisheries is presented in some cases.
4 This stock abundance estimate is only for the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the population, is estimated to be approximately 424,300 animals. The PBR value listed here is only for the U.S. portion of the stock, while M/SI reflects both the Canadian and U.S.
portions.
As indicated above, all five species
(with seven managed stocks) in Table 3
temporally and spatially co-occur with
the activity to the degree that take is
reasonably likely to occur. While North
Atlantic right whales (Eubalaena
glacialis), minke whales (Balaenoptera
acutorostrata acutorostata), and fin
whales (Balaenoptera physalus) have
been documented in the area, the
temporal and/or spatial occurrence of
these whales is far outside the proposed
area for this project and take is not
expected to occur. Therefore, they are
not discussed further beyond the
explanation provided below.
Based on sighting data and passive
acoustic studies, the North Atlantic
right whale could occur off the coast of
Virginia year-round (Department of
Navy (DoN) 2009; Salisbury et al.,
2016). They have also been reported
seasonally off Virginia during
migrations in the spring, fall, and winter
(Cotter 2019). Right whales are known
to frequent the coastal waters of the
mouth of the Chesapeake Bay
(Knowlton et al., 2002) and the area is
a seasonal management area (November
1–April 30) mandating reduced ship
speeds out to approximately 20 nautical
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
miles (37 kilometers [km]); however, the
project area is further inside the Bay and
away from this area.
North Atlantic right whales have
stranded in Virginia, one each in 2001,
2002, 2004, 2005; three during winter
(February and March) and one in the
summer (September) (Costidis et al.,
2017, 2019). In January 2018, a dead,
entangled North Atlantic right whale
was observed floating over 60 miles
(96.6 km) offshore of Virginia Beach
(Costidis et al., 2019). All North Atlantic
right whale strandings in Virginia
waters have occurred on ocean-facing
beaches along Virginia Beach and the
barrier islands seaward of the lower
Delmarva Peninsula (Costidis et al.,
2017). Right whales are not expected to
occur in the project area, and NMFS is
not proposing to authorize take of this
species.
Fin whales have been sighted off
Virginia (Cotter 2019), and in the
Chesapeake Bay (Aschettino et al.,
2018); however, they are not likely to
occur in the project area. Sightings have
been documented around the
Chesapeake Bay Bridge Tunnel (CBBT)
during winter months (Aschettino et al.,
2018).
PO 00000
Frm 00053
Fmt 4702
Sfmt 4702
Eleven fin whale strandings have
occurred off Virginia from 1988 to 2016,
mostly during the winter months of
February and March, followed by a few
in the spring and summer months
(Costidis et al., 2017). Six of the
strandings occurred in the Chesapeake
Bay (three on the eastern shore; three on
the western shore) with the remaining
five occurring on the Atlantic coast
(Costidis et al.,2017). Documented
strandings near the project area have
occurred: February 2012, a dead fin
whale washed ashore on Oceanview
Beach in Norfolk (Swingle et al., 2013);
December 2017, a live fin whale
stranded on a shoal in Newport News
and died at the site (Swingle et al.,
2018); February 2014, a dead fin whale
stranded on a sand bar in Pocomoke
Sound near Great Fox Island, Accomack
(Swingle et al., 2015); and, March 2007,
a dead fin whale near Craney Island, in
the Elizabeth River, in Norfolk (Barco
2013). Only stranded fin whales have
been documented in the project area; no
free swimming fin whales have been
observed. Fin whales are not expected
to occur in the project area, and NMFS
is not proposing to authorize take of this
species.
E:\FR\FM\09MRP1.SGM
09MRP1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
Minke whales have been sighted off
Virginia (CeTAP 1981, 1982; Hyrenbach
et al., 2012; Barco 2013; Mallette et al.,
2016a, b; McLellan 2017; Engelhaupt et
al., 2017, 2018; Cotter 2019), near the
CBBT (Aschettino et al., 2018), but
sightings in the project area are from
strandings (Jensen and Silber 2004;
Barco 2013; DoN 2009). In August 1994,
a ship strike incident involved a minke
whale in Hampton Roads (Jensen and
Silber 2004; Barco 2013). It was reported
that the animal was struck offshore and
was carried inshore on the bow of a ship
(DoN 2009). Twelve strandings of minke
whales have occurred in Virginia waters
from 1988 to 2016 (Costidis et al., 2017).
There have been six minke whale
stranding from 2017 through 2020 in
Virginia waters. Minke whales are not
expected to occur in the project area,
and NMFS is not proposing to authorize
take of this species.
Humpback Whale
Humpback whales are found
worldwide in all oceans. In winter,
humpback whales from waters off New
England, Canada, Greenland, Iceland,
and Norway, migrate to mate and calve
primarily in the West Indies, where
spatial and genetic mixing among these
groups occurs. NMFS defines a
humpback whale stock on the basis of
feeding location, i.e., Gulf of Maine.
However, our reference to humpback
whales in this document refers to any
individual of the species that are found
in the species geographic region. These
individuals may be from the same
breeding population (e.g., West Indies
breeding population of humpback
whales) but visit different feeding areas.
Based on photo-identification studies,
only 39 percent of individual humpback
whales observed along the mid- and
south Atlantic U.S. coast are from the
Gulf of Maine stock (Barco et al., 2002).
Therefore, the SAR abundance estimate
is an underrepresentation of the relevant
population, i.e., the West Indies
breeding population.
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 Distinct
Population Segments (DPSs) with
different listing statuses (81 FR 62259;
September 8, 2016) pursuant to the ESA.
Humpback whales in the project area
are expected to be from 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. This DPS is not ESA
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
listed. Bettridge et al., (2003) estimated
the size of the West Indies DPS at
12,312 (95% CI 8,688–15,954) whales in
2004–05, which is consistent with
previous population estimates of
approximately 10,000–11,000 whales
(Stevick et al., 2003; Smith et al., 1999)
and the increasing trend for the West
Indies DPS (Bettridge et al., 2015).
Although humpback whales are
migratory between feeding areas and
calving areas, individual variability in
the timing of migrations may result in
the presence of individuals in highlatitude areas throughout the year
(Straley, 1990). Records of humpback
whales off the U.S. mid-Atlantic coast
(New Jersey to North Carolina) from
January through March suggest these
waters may represent a supplemental
winter feeding ground used by juvenile
and mature humpback whales of U.S.
and Canadian North Atlantic stocks
(LaBrecque et al., 2015).
Humpback whales are most likely to
occur near the mouth of the Chesapeake
Bay and coastal waters of Virginia Beach
between January and March; however,
they could be found in the area yearround, based on shipboard sighting and
stranding data (Barco and Swingle,
2014; Aschettino et al., 2015; 2016;
2017; 2018). Photo-identification data
support the repeated use of the midAtlantic region by individual humpback
whales. Results of the vessel surveys
show site fidelity in the survey area for
some individuals and a high level of
occurrence within shipping channels—
an important high-use area by both the
Navy and commercial traffic (Aschettino
et al., 2015; 2016; 2017; 2018).
Nearshore surveys conducted in early
2015 reported 61 individual humpback
whale sightings, and 135 individual
humpback whale sightings in late 2015
through May 2016 (Aschettino et al.,
2016). Subsequent surveys confirmed
the occurrence of humpback whales in
the nearshore survey area: 248
individuals were detected in 2016–2017
surveys (Aschettino et al., 2017), 32
individuals were detected in 2017–2018
surveys (Aschettino et al., 2018), and 80
individuals were detected in 2019
surveys (Aschettino et al., 2019).
Sightings in the Hampton Roads area in
the vicinity of NAVSTA Norfolk were
reported in nearshore surveys and
through tracking of satellite-tagged
whales in 2016, 2017 and 2019. The
numbers of whales detected, most of
which were juveniles, reflect the
varying level of survey effort and
changes in survey objectives from year
to year, and do not indicate abundance
trends over time. Most recently, the
Hampton Roads Bridge-Tunnel
Expansion Project (HRBT), which
PO 00000
Frm 00054
Fmt 4702
Sfmt 4702
14567
spanned from September 2020 through
July 10, 2021 did not observe any
humpback whales near the project site
between Norfolk and Hampton, VA over
197 days of observations (Hampton
Roads Connector Partners (HRCP),
Unpublished).
Bottlenose Dolphin
Along the U.S. East Coast and
northern Gulf of Mexico, the bottlenose
dolphin stock structure is well studied.
There are currently 53 management
stocks identified by NMFS in the
western North Atlantic and Gulf of
Mexico, including oceanic, coastal, and
estuarine stocks (Hayes et al., 2017;
Waring et al., 2015, 2016).
A recent study proposes that
bottlenose dolphins inhabiting
nearshore coastal and estuarine waters
between New York and Florida are
likely a separate species from their
offshore counterparts (Costa et al.,
2022). The offshore form is larger in
total length and skull length, and has
wider nasal bones than the coastal form.
Both inhabit waters in the western
North Atlantic Ocean and Gulf of
Mexico (Curry and Smith, 1997; Hersh
and Duffield, 1990; Mead and Potter,
1995) along the U.S. Atlantic coast. The
coastal species of bottlenose dolphin is
continuously distributed along the
Atlantic coast south of Long Island, New
York, around the Florida peninsula, and
along the Gulf of Mexico coast. This
type typically occurs in waters less than
25 meters deep (Waring et al., 2015).
The range of the offshore bottlenose
dolphin includes waters beyond the
continental slope (Kenney, 1990), and
offshore bottlenose dolphins may move
between the Gulf of Mexico and the
Atlantic (Wells et al., 1999).
Two coastal stocks are likely to be
present in the project area: the Western
North Atlantic Northern Migratory
Coastal stock and the Western North
Atlantic Southern Migratory Coastal
stock. Additionally, the Northern North
Carolina Estuarine System stock may
occur in the project area.
Bottlenose dolphins are the most
abundant marine mammal along the
Virginia coast and within the
Chesapeake Bay, typically traveling in
groups of 2 to 15 individuals, but
occasionally in groups of over 100
individuals (Engelhaupt et al., 2014;
2015; 2016). Bottlenose dolphins of the
Western North Atlantic Northern
Migratory Coastal stock winter along the
coast of North Carolina and migrate as
far north as Long Island, New York, in
the summer. They are rarely found
north of North Carolina in the winter
(NMFS, 2018). The Western North
Atlantic Southern Migratory Coastal
E:\FR\FM\09MRP1.SGM
09MRP1
14568
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
stock occurs in waters of southern North
Carolina from October to December,
moving south during winter months and
north to North Carolina during spring
months. During July and August, the
Western North Atlantic Southern
Migratory Coastal stock is presumed to
occupy coastal waters north of Cape
Lookout, North Carolina, to the eastern
shore of Virginia (NMFS, 2018). It is
possible that these animals also occur
inside the Chesapeake Bay and in
nearshore coastal waters. The North
Carolina Estuarine System stock
dolphins may also occur in the
Chesapeake Bay during July and August
(NMFS, 2018a).
Vessel surveys conducted along
coastal and offshore transects from
NAVSTA Norfolk to Virginia Beach in
most months from August 2012 to
August 2015 reported bottlenose
dolphins throughout the survey area,
including the vicinity of NAVSTA
Norfolk (Engelhaupt et al., 2014; 2015;
2016). The final results from this project
confirmed earlier findings that
bottlenose dolphins are common in the
study area, with highest densities in the
coastal waters in summer and fall
months. However, bottlenose dolphins
do not completely leave this area during
colder months, with approximately
200–300 individuals still present in
winter and spring months, which is
commonly referred to as the Chesapeake
Bay resident dolphin population
(Engelhaupt et al., 2016).
Harbor Porpoise
Harbor porpoises inhabit cool
temperate-to-subpolar waters, often
where prey aggregations are
concentrated (Watts and Gaskin, 1985).
Thus, they are frequently found in
shallow waters, most often near shore,
but they sometimes move into deeper
offshore waters. Harbor porpoises are
rarely found in waters warmer than 63
degrees Fahrenheit (17 degrees Celsius)
(Read 1999) and closely follow the
movements of their primary prey,
Atlantic herring (Gaskin 1992).
In the western North Atlantic, harbor
porpoise range from Cumberland Sound
on the east coast of Baffin Island,
southeast along the eastern coast of
Labrador to Newfoundland and the Gulf
of St. Lawrence, then southwest to about
34 degrees North on the coast of North
Carolina (Waring et al., 2016). During
winter (January to March), intermediate
densities of harbor porpoises can be
found in waters off New Jersey to North
Carolina, and lower densities are found
in waters off New York to New
Brunswick, Canada (Waring et al.,
2016). Harbor porpoises sighted off the
mid-Atlantic during winter include
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
porpoises from other western North
Atlantic populations (Rosel et al., 1999).
There does not appear to be a
temporally coordinated migration or a
specific migratory route to and from the
Bay of Fundy region (Waring et al.,
2016). During fall (October to December)
and spring (April to June), harbor
porpoises are widely dispersed from
New Jersey to Maine, with lower
densities farther north and south
(LaBrecque et al., 2015).
Based on stranding reports, passive
acoustic recorders, and shipboard
surveys, harbor porpoise occur in
coastal waters primarily in winter and
spring months, but there is little
information on their presence in the
Chesapeake Bay. They do not appear to
be abundant in the NAVSTA Norfolk
area in most years, but this is
confounded by wide variations in
stranding occurrences over the past
decade. In the recent HRBT project, zero
harbor porpoises were observed near the
project area (HRCP, Unpublished).
Gray Seal
The Western North Atlantic stock of
gray seal occurs in the project area. The
western North Atlantic stock is centered
in Canadian waters, including the Gulf
of St. Lawrence and the Atlantic coasts
of Nova Scotia, Newfoundland, and
Labrador, Canada, and the northeast
U.S. continental shelf (Hayes et al.,
2021). Gray seals range south into the
northeastern United States, with
strandings and sightings as far south as
North Carolina (Hammill et al., 1998;
Waring et al., 2004). Gray seal
distribution along the U.S. Atlantic
coast has shifted in recent years, with an
increased number of seals reported in
southern New England (DiGiovanni et
al., 2011; Kenney R.D., 2019; Waring et
al., 2016). Recent sightings included a
gray seal in the lower Chesapeake Bay
during the winter of 2014 to 2015 (Rees
et al., 2016). Along the coast of the
United States, gray seals are known to
pup at three or more colonies in
Massachusetts and Maine.
Harbor Seal
Unusual Mortality Events
An unusual mortality even (UME) is
defined under section 410(6) of the
MMPA as a stranding that is
unexpected; involves a significant dieoff of any marine mammal population;
and demands immediate response.
Currently, there are active UMEs for
northeast pinnipeds (harbor and gray
seals) and humpback whales along the
east coast.
The Western North Atlantic stock of
harbor seals occurs in the project area.
Harbor seal distribution along the U.S.
Atlantic coast has shifted in recent
years, with an increased number of seals
reported from southern New England to
the mid-Atlantic region (DiGiovanni et
al., 2011; Hayes et al., 2021). Regular
sightings of seals in Virginia have
become a common occurrence in winter
and early spring (Costidis et al., 2019).
Winter haulout sites for harbor seals
have been documented in the
Chesapeake Bay at the CBBT, on the
Virginia Eastern Shore, and near Oregon
Inlet, North Carolina (Waring et al.,
2016; Rees et al., 2016; Jones et al.,
2018).
Harbor seals regularly haul out on
rocks around the portal islands of the
CBBT and on mud flats on the nearby
southern tip of the Eastern Shore from
December through April (Rees et al.,
2016; Jones et al., 2018). Seals captured
in 2018 on the Eastern Shore and tagged
with satellite-tracked tags that lasted
from 2 to 5 months spent at least 60
days in Virginia waters before departing
the area. All tagged seals returned
regularly to the capture site while in
Virginia waters, but individuals utilized
offshore and Chesapeake Bay waters to
different extents (Ampela et al., 2019).
The area that was utilized most heavily
was near the Eastern Shore capture site,
but some seals ranged into the
Chesapeake Bay. To supplement this
information, the HRBT project reported
seeing zero seals in or around the
project area (HRCP, Unpublished).
PO 00000
Frm 00055
Fmt 4702
Sfmt 4702
Northeast Pinniped UME
Since June 2022, elevated numbers of
sick and dead harbor seal and gray seal
have been documented along the
southern and central coast of Maine
from Biddeford to Boothbay (including
Cumberland, Lincoln, Knox, Sagadahoc
and York Counties). This event has been
declared a UME. Additional information
is available at: https://
www.fisheries.noaa.gov/2022-pinnipedunusual-mortality-event-along-mainecoast.
Atlantic Humpback Whale UME
Since January 2016, elevated
humpback whale mortalities have
occurred along the Atlantic coast from
Maine through Florida. This event was
declared an UME in 2017 however. A
portion of the whales have shown
evidence of pre-mortem vessel strike;
however, this finding is not consistent
across all whales examined, and
additional research is needed.
Additional information is available at
https://www.fisheries.noaa.gov/
national/marine-life-distress/2016-2021humpback-whale-unusual-mortalityevent-along-atlantic-coast.
E:\FR\FM\09MRP1.SGM
09MRP1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
Marine Mammal Hearing
Hearing is the most important sensory
modality for marine mammals
underwater, and exposure to
anthropogenic sound can have
deleterious effects. To appropriately
assess the potential effects of exposure
to sound, it is necessary to understand
the frequency ranges marine mammals
are able to hear. Not all marine mammal
species have equal hearing capabilities
(e.g., Richardson et al., 1995; Wartzok
and Ketten, 1999; Au and Hastings,
2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine
mammals be divided into hearing
groups based on directly measured
(behavioral or auditory evoked potential
techniques) or estimated hearing ranges
(behavioral response data, anatomical
modeling, etc.). Note that no direct
measurements of hearing ability have
been successfully completed for
mysticetes (i.e., low-frequency
cetaceans). Subsequently, NMFS (2018)
described generalized hearing ranges for
14569
these marine mammal hearing groups.
Generalized hearing ranges were chosen
based on the approximately 65 decibel
(dB) threshold from the normalized
composite audiograms, with the
exception for lower limits for lowfrequency cetaceans where the lower
bound was deemed to be biologically
implausible and the lower bound from
Southall et al. (2007) retained. Marine
mammal hearing groups and their
associated hearing ranges are provided
in Table 4.
TABLE 4—MARINE MAMMAL HEARING GROUPS (NMFS, 2018)
Hearing group
Generalized hearing range *
Low-frequency (LF) cetaceans (baleen whales) ...........................................................................................................
Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) .................................
High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger
& L. australis).
Phocid pinnipeds (PW) (underwater) (true seals) .........................................................................................................
Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ....................................................................................
7 Hz to 35 kHz.
150 Hz to 160 kHz.
275 Hz to 160 kHz.
50 Hz to 86 kHz.
60 Hz to 39 kHz.
* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’
hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram,
with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing
group was modified from Southall et al.
(2007) on the basis of data indicating
that phocid species have consistently
demonstrated an extended frequency
range of hearing compared to otariids,
especially in the higher frequency range
(Hemila¨ et al., 2006; Kastelein et al.,
2009; Reichmuth and Holt, 2013).
For more detail concerning these
groups and associated frequency ranges,
please see NMFS (2018) for a review of
available information.
ddrumheller on DSK120RN23PROD with PROPOSALS1
Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
This section provides a discussion of
the ways in which components of the
specified activity may impact marine
mammals and their habitat. The
Estimated Take section later in this
document includes a quantitative
analysis of the number of individuals
that are expected to be taken by this
activity. The Negligible Impact Analysis
and Determination section considers the
content of this section, the Estimated
Take section, and the Proposed
Mitigation section, to draw conclusions
regarding the likely impacts of these
activities on the reproductive success or
survivorship of individuals and whether
those impacts are reasonably expected
to, or reasonably likely to, adversely
affect the species or stock through
effects on annual rates of recruitment or
survival.
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
Description of Sound Sources
The marine soundscape is comprised
of both ambient and anthropogenic
sounds. Ambient sound is defined as
the all-encompassing sound in a given
place and is usually a composite of
sound from many sources both near and
far. The sound level of an area is
defined by the total acoustical energy
being generated by known and
unknown sources. These sources may
include physical (e.g., waves, wind,
precipitation, earthquakes, ice,
atmospheric sound), biological (e.g.,
sounds produced by marine mammals,
fish, and invertebrates), and
anthropogenic sound (e.g., vessels,
dredging, aircraft, construction).
The sum of the various natural and
anthropogenic sound sources at any
given location and time—which
comprise ‘‘ambient’’ or ‘‘background’’
sound—depends not only on the source
levels (as determined by current
weather conditions and levels of
biological and shipping activity) but
also on the ability of sound to propagate
through the environment. In turn, sound
propagation is dependent on the
spatially and temporally varying
properties of the water column and sea
floor, and is frequency-dependent. As a
result of the dependence on a large
number of varying factors, ambient
sound levels can be expected to vary
widely over both coarse and fine spatial
and temporal scales. Sound levels at a
given frequency and location can vary
by 10–20 dB from day to day
(Richardson et al., 1995). The result is
PO 00000
Frm 00056
Fmt 4702
Sfmt 4702
that, depending on the source type and
its intensity, sound from the specified
activity may be a negligible addition to
the local environment or could form a
distinctive signal that may affect marine
mammals.
In-water construction activities
associated with the project would
include vibratory pile removal, impact
and vibratory pile driving, and drilling.
The sounds produced by these activities
fall into one of two general sound types:
Impulsive and non-impulsive.
Impulsive sounds (e.g., explosions,
gunshots, sonic booms, impact pile
driving) are typically transient, brief
(less than 1 second), broadband, and
consist of high peak sound pressure
with rapid rise time and rapid decay
(ANSI 1986; NIOSH 1998; ANSI 2005;
NMFS 2018). Non-impulsive sounds
(e.g., aircraft, machinery operations
such as drilling or dredging, vibratory
pile driving, and active sonar systems)
can be broadband, narrowband or tonal,
brief or prolonged (continuous or
intermittent), and typically do not have
the high peak sound pressure with raid
rise/decay time that impulsive sounds
do (ANSI 1995; NIOSH 1998; NMFS
2018). The distinction between these
two sound types is important because
they have differing potential to cause
physical effects, particularly with regard
to hearing (e.g., Ward 1997 in Southall
et al., 2007).
Impact hammers operate by
repeatedly dropping a heavy piston onto
a pile to drive the pile into the substrate.
Sound generated by impact hammers is
E:\FR\FM\09MRP1.SGM
09MRP1
14570
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
characterized by rapid rise times and
high peak levels, a potentially injurious
combination (Hastings and Popper
2005). Vibratory hammers install piles
by vibrating them and allowing the
weight of the hammer to push them into
the sediment. The vibrations produced
also cause liquefaction of the substrate
surrounding the pile, enabling the pile
to be extracted or driven into the ground
more easily. Vibratory hammers
produce significantly less sound than
impact hammers. Peak sound pressure
levels (SPLs) may be 180 dB or greater,
but are generally 10 to 20 dB lower than
SPLs generated during impact pile
driving of the same-sized pile (Oestman
et al., 2009). Rise time is slower,
reducing the probability and severity of
injury, and sound energy is distributed
over a greater amount of time (Nedwell
and Edwards 2002; Carlson et al., 2005).
As mentioned previously, drilling is
considered a continuous source, similar
to vibratory pile driving. The drilling
may be used before driving piles in
order to facilitate pile driving and hence
is referred to as ‘‘pre-drilling’’. For the
proposed project, the drilling apparatus
utilized would vary depending on the
different applications during in-water
construction activities. Drilling would
be used as necessary to remove sand
with shell fragments or any obstructions
in order to accelerate pile driving.
The likely or possible impacts of the
Navy’s proposed activity on marine
mammals could involve both nonacoustic and acoustic stressors.
Potential non-acoustic stressors could
result from the physical presence of the
equipment and personnel; however, any
impacts to marine mammals are
expected to be primarily acoustic in
nature. Acoustic stressors include
effects of heavy equipment operation
during pile driving, removal and
drilling.
Acoustic Impacts
The introduction of anthropogenic
noise into the aquatic environment from
pile driving or drilling is the primary
means by which marine mammals may
be harassed from the Navy’s specified
activity. In general, animals exposed to
natural or anthropogenic sound may
experience physical and psychological
effects, ranging in magnitude from none
to severe (Southall et al., 2007). In
general, exposure to pile driving or
drilling noise has the potential to result
in auditory threshold shifts and
behavioral reactions (e.g., avoidance,
temporary cessation of foraging and
vocalizing, changes in dive behavior).
Exposure to anthropogenic noise can
also lead to non-observable
physiological responses such an
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
increase in stress hormones. Additional
noise in a marine mammal’s habitat can
mask acoustic cues used by marine
mammals to carry out daily functions
such as communication and predator
and prey detection. The effects of pile
driving or drilling noise on marine
mammals are dependent on several
factors, including, but not limited to,
sound type (e.g., impulsive vs. nonimpulsive), the species, age and sex
class (e.g., adult male vs. mom with
calf), duration of exposure, the distance
between the pile and there animal,
received levels, behavior at time of
exposure, and previous history with
exposure (Wartzok et al., 2004; Southall
et al., 2007). Here we discuss physical
auditory effects (threshold shifts)
followed by behavioral effects and
potential impacts on habitat.
NMFS defines a noise-induced
threshold shift (TS) as a change, usually
an increase, in the threshold of
audibility at a specified frequency or
portion of an individual’s hearing range
above a previously established reference
level (NMFS 2018). The amount of
threshold shift is customarily expressed
in decibels (dB). A TS can be permanent
or temporary. As described in NMFS
(2018), there are numerous factors to
consider when examining the
consequence of TS, including, but not
limited to, the signal temporal pattern
(e.g., impulsive or non-impulsive),
likelihood an individual would be
exposed for a long enough duration or
to a high enough level to induce a TS,
the magnitude of the TS, time to
recovery (seconds to minutes or hours to
days), the frequency range of the
exposure (i.e., spectral content), the
hearing and vocalization frequency
range of the exposed species relative to
the signal’s frequency spectrum (i.e.,
how an animal uses sound within the
frequency band of the signal; e.g.,
Kastelein et al., 2014), and the overlap
between the animal and the source (e.g.,
spatial, temporal, and spectral).
Permanent Threshold Shift (PTS)—
NMFS defines PTS as a permanent,
irreversible increase in the threshold of
audibility at a specified frequency or
portion of an individual’s hearing range
above a previously established reference
level (NMFS 2018). Available data from
humans and other terrestrial mammals
indicate that a 40 dB threshold shift
approximates PTS onset (see Ward et
al., 1958, 1959; Ward 1960; Kryter et al.,
1966; Miller 1974; Ahroon et al., 1996;
Henderson et al., 2008). PTS levels for
marine mammals are estimates, as with
the exception of a single study
unintentionally inducing PTS in a
harbor seal (Kastak et al., 2008), there
are no empirical data measuring PTS in
PO 00000
Frm 00057
Fmt 4702
Sfmt 4702
marine mammals largely due to the fact
that, for various ethical reasons,
experiments involving anthropogenic
noise exposure at levels inducing PTS
are not typically pursued or authorized
(NMFS 2018).
Temporary Threshold Shift (TTS)—
TTS is a temporary, reversible increase
in the threshold of audibility at a
specified frequency or portion of an
individual’s hearing range above a
previously established reference level
(NMFS 2018). Based on data from
cetacean TTS measurements (see
Southall et al., 2007), a TTS of 6 dB is
considered the minimum threshold shift
clearly larger than any day-to-day or
session-to-session variation in a
subject’s normal hearing ability
(Schlundt et al., 2000; Finneran et al.,
2000, 2002). As described in Finneran
(2015), marine mammal studies have
shown the amount of TTS increases
with cumulative sound exposure level
(SELcum) in an accelerating fashion: At
low exposures with lower SELcum, the
amount of TTS is typically small and
the growth curves have shallow slopes.
At exposures with higher SELcum, the
growth curves become steeper and
approach linear relationships with the
noise SEL.
Depending on the degree (elevation of
threshold in dB), duration (i.e., recovery
time), and frequency range of TTS, and
the context in which it is experienced,
TTS can have effects on marine
mammals ranging from discountable to
serious (similar to those discussed in
auditory masking, below). For example,
a marine mammal may be able to readily
compensate for a brief, relatively small
amount of TTS in a non-critical
frequency range that takes place during
a time when the animal is traveling
through the open ocean, where ambient
noise is lower and there are not as many
competing sounds present.
Alternatively, a larger amount and
longer duration of TTS sustained during
a time when communication is critical
for successful mother/calf interactions
could have more serious impacts. We
note that reduced hearing sensitivity as
a simple function of aging has been
observed in marine mammals, as well as
humans and other taxa (Southall et al.,
2007), so we can infer that strategies
exist for coping with this condition to
some degree, though likely not without
cost.
Currently, TTS data only exist for four
species of cetaceans (bottlenose
dolphin, beluga whale (Delphinapterus
leucas), harbor porpoise, and Yangtze
finless porpoise (Neophocoena
asiaeorientalis) and five species of
pinnipeds exposed to a limited number
of sound sources (i.e., mostly tones and
E:\FR\FM\09MRP1.SGM
09MRP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
octave-band noise) in laboratory settings
(Finneran 2015). TTS was not observed
in trained spotted (Phoca largha) and
ringed (Pusa hispida) seals exposed to
impulsive noise at levels matching
previous predictions of TTS onset
(Reichmuth et al., 2016). In general,
harbor seals and harbor porpoises have
a lower TTS onset than other measured
pinniped or cetacean species (Finneran
2015). Additionally, the existing marine
mammal TTS data come from a limited
number of individuals within these
species. No data are available on noiseinduced hearing loss for mysticetes. For
summaries of data on TTS in marine
mammals or for further discussion of
TTS onset thresholds, please see
Southall et al., (2007), Finneran and
Jenkins (2012), Finneran (2015), and
Table 5 in NMFS (2018). Installing piles
for this project requires a combination
of drilling, impact pile driving and
vibratory pile driving. For this project,
these activities would not occur at the
same time and there would be pauses in
activities producing the sound during
each day. Given these pauses and that
many marine mammals are likely
moving through the ensonified area and
not remaining for extended periods of
time, the potential for TS declines.
Behavioral Harassment—Exposure to
noise from pile driving and removal also
has the potential to behaviorally disturb
marine mammals. Available studies
show wide variation in response to
underwater sound; therefore, it is
difficult to predict specifically how any
given sound in a particular instance
might affect marine mammals
perceiving the signal. If a marine
mammal does react briefly to an
underwater sound by changing its
behavior or moving a small distance, the
impacts of the change are unlikely to be
significant to the individual, let alone
the stock or population. However, if a
sound source displaces marine
mammals from an important feeding or
breeding area for a prolonged period,
impacts on individuals and populations
could be significant (e.g., Lusseau and
Bejder 2007; Weilgart 2007; NRC 2005).
Disturbance may result in changing
durations of surfacing and dives,
number of blows per surfacing, or
moving direction and/or speed;
reduced/increased vocal activities;
changing/cessation of certain behavioral
activities (such as socializing or
feeding); visible startle response or
aggressive behavior (such as tail/fluke
slapping or jaw clapping); avoidance of
areas where sound sources are located.
Pinnipeds may increase their haul out
time, possibly to avoid in-water
disturbance (Thorson and Reyff 2006).
Behavioral responses to sound are
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
highly variable and context-specific and
any reactions depend on numerous
intrinsic and extrinsic factors (e.g.,
species, state of maturity, experience,
current activity, reproductive state,
auditory sensitivity, time of day), as
well as the interplay between factors
(e.g., Richardson et al., 1995; Wartzok et
al., 2003; Southall et al., 2007; Weilgart
2007; Archer et al., 2010). Behavioral
reactions can vary not only among
individuals but also within an
individual, depending on previous
experience with a sound source,
context, and numerous other factors
(Ellison et al., 2012), and can vary
depending on characteristics associated
with the sound source (e.g., whether it
is moving or stationary, number of
sources, distance from the source). In
general, pinnipeds seem more tolerant
of, or at least habituate more quickly to,
potentially disturbing underwater sound
than do cetaceans, and generally seem
to be less responsive to exposure to
industrial sound than most cetaceans.
Please see Appendices B and C of
Southall et al. (2007) and Gomez et al.
(2016) for reviews of studies involving
marine mammals behavioral responses
to sound.
Habituation can occur when an
animal’s response to a stimulus wanes
with repeated exposure, usually in the
absence of unpleasant associated events
(Wartzok et al., 2003). Animals are most
likely to habituate to sounds that are
predictable and unvarying. It is
important to note that habituation is
appropriately considered as a
‘‘progressive reduction in response to
stimuli that are perceived as neither
aversive nor beneficial,’’ rather than as,
more generally, moderation in response
to human disturbance (Bejder et al.,
2009). The opposite process is
sensitization, when an unpleasant
experience leads to subsequent
responses, often in the form of
avoidance, at a lower level of exposure.
As noted above, behavioral state may
affect the type of response. For example,
animals that are resting may show
greater behavioral change in response to
disturbing sound levels than animals
that are highly motivated to remain in
an area for feeding (Richardson et al.,
1995; National Research Council (NRC),
2003; Wartzok et al., 2003). Controlled
experiments with captive marine
mammals have showed pronounced
behavioral reactions, including
avoidance of loud sound sources
(Ridgway et al., 1997; Finneran et al.,
2003). Observed responses of wild
marine mammals to loud pulsed sound
sources (typically seismic airguns or
acoustic harassment devices) have been
varied but often consist of avoidance
PO 00000
Frm 00058
Fmt 4702
Sfmt 4702
14571
behavior or other behavioral changes
suggesting discomfort (Morton and
Symonds, 2002; see also Richardson et
al., 1995; Nowacek et al., 2007).
Available studies show wide variation
in response to underwater sound;
therefore, it is difficult to predict
specifically how any given sound in a
particular instance might affect marine
mammals perceiving the signal. If a
marine mammal does react briefly to an
underwater sound by changing its
behavior or moving a small distance, the
impacts of the change are unlikely to be
significant to the individual, let alone
the stock or population. However, if a
sound source displaces marine
mammals from an important feeding or
breeding area for a prolonged period,
impacts on individuals and populations
could be significant (e.g., Lusseau and
Bejder, 2007; Weilgart, 2007; NRC,
2005). However, there are broad
categories of potential response, which
we describe in greater detail here, that
include alteration of dive behavior,
alteration of foraging behavior, effects to
breathing, interference with or alteration
of vocalization, avoidance, and flight.
Changes in dive behavior can vary
widely and may consist of increased or
decreased dive times and surface
intervals as well as changes in the rates
of ascent and descent during a dive (e.g.,
Frankel and Clark, 2000; Costa et al.,
2003; Ng and Leung, 2003; Nowacek et
al., 2004; Goldbogen et al., 2013a,b).
Variations in dive behavior may reflect
interruptions in biologically significant
activities (e.g., foraging) or they may be
of little biological significance. The
impact of an alteration to dive behavior
resulting from an acoustic exposure
depends on what the animal is doing at
the time of the exposure and the type
and magnitude of the response.
Disruption of feeding behavior can be
difficult to correlate with anthropogenic
sound exposure, so it is usually inferred
by observed displacement from known
foraging areas, the appearance of
secondary indicators (e.g., bubble nets
or sediment plumes), or changes in dive
behavior. As for other types of
behavioral response, the frequency,
duration, and temporal pattern of signal
presentation, as well as differences in
species sensitivity, are likely
contributing factors to differences in
response in any given circumstance
(e.g., Croll et al., 2001; Nowacek et al.,
2004; Madsen et al., 2006; Yazvenko et
al., 2007). A determination of whether
foraging disruptions incur fitness
consequences would require
information on or estimates of the
energetic requirements of the affected
individuals and the relationship
between prey availability, foraging effort
E:\FR\FM\09MRP1.SGM
09MRP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
14572
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
and success, and the life history stage of
the animal.
Variations in respiration naturally
vary with different behaviors and
alterations to breathing rate as a
function of acoustic exposure can be
expected to co-occur with other
behavioral reactions, such as a flight
response or an alteration in diving.
However, respiration rates in and of
themselves may be representative of
annoyance or an acute stress response.
Various studies have shown that
respiration rates may either be
unaffected or could increase, depending
on the species and signal characteristics,
again highlighting the importance in
understanding species differences in the
tolerance of underwater noise when
determining the potential for impacts
resulting from anthropogenic sound
exposure (e.g., Kastelein et al., 2001,
2005, 2006; Gailey et al., 2007).
Marine mammals vocalize for
different purposes and across multiple
modes, such as whistling, echolocation
click production, calling, and singing.
Changes in vocalization behavior in
response to anthropogenic noise can
occur for any of these modes and may
result from a need to compete with an
increase in background noise or may
reflect increased vigilance or a startle
response. For example, in the presence
of potentially masking signals,
humpback whales and killer whales
have been observed to increase the
length of their songs (Miller et al., 2000;
Fristrup et al., 2003; Foote et al., 2004),
while right whales have been observed
to shift the frequency content of their
calls upward while reducing the rate of
calling in areas of increased
anthropogenic noise (Parks et al., 2007).
In some cases, animals may cease sound
production during production of
aversive signals (Bowles et al., 1994).
Avoidance is the displacement of an
individual from an area or migration
path as a result of the presence of a
sound or other stressors, and is one of
the most obvious manifestations of
disturbance in marine mammals
(Richardson et al., 1995). For example,
gray whales are known to change
direction—deflecting from customary
migratory paths—in order to avoid noise
from seismic surveys (Malme et al.,
1984). Avoidance may be short-term,
with animals returning to the area once
the noise has ceased (e.g., Bowles et al.,
1994; Goold, 1996; Stone et al., 2000;
Morton and Symonds, 2002; Gailey et
al., 2007). Longer-term displacement is
possible, however, which may lead to
changes in abundance or distribution
patterns of the affected species in the
affected region if habituation to the
presence of the sound does not occur
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
(e.g., Blackwell et al., 2004; Bejder et al.,
2006; Teilmann et al., 2006).
A flight response is a dramatic change
in normal movement to a directed and
rapid movement away from the
perceived location of a sound source.
The flight response differs from other
avoidance responses in the intensity of
the response (e.g., directed movement,
rate of travel). Relatively little
information on flight responses of
marine mammals to anthropogenic
signals exist, although observations of
flight responses to the presence of
predators have occurred (Connor and
Heithaus, 1996, Bowers et al., 2018).
The result of a flight response could
range from brief, temporary exertion and
displacement from the area where the
signal provokes flight to, in extreme
cases, marine mammal strandings
(Evans and England, 2001). However, it
should be noted that response to a
perceived predator does not necessarily
invoke flight (Ford and Reeves, 2008),
and whether individuals are solitary or
in groups may influence the response.
Behavioral disturbance can also
impact marine mammals in more subtle
ways. Increased vigilance may result in
costs related to diversion of focus and
attention (i.e., when a response consists
of increased vigilance, it may come at
the cost of decreased attention to other
critical behaviors such as foraging or
resting). These effects have generally not
been demonstrated for marine
mammals, but studies involving fish
and terrestrial animals have shown that
increased vigilance may substantially
reduce feeding rates (e.g., Beauchamp
and Livoreil, 1997). In addition, chronic
disturbance can cause population
declines through reduction of fitness
(e.g., decline in body condition) and
subsequent reduction in reproductive
success, survival, or both (e.g.,
Harrington and Veitch, 1992). However,
Ridgway et al. (2006) reported that
increased vigilance in bottlenose
dolphins exposed to sound over a 5 day
period did not cause any sleep
deprivation or stress effects.
Many animals perform vital functions,
such as feeding, resting, traveling, and
socializing, on a diel cycle (24-hour
cycle). Disruption of such functions
resulting from reactions to stressors
such as sound exposure are more likely
to be significant if they last more than
one diel cycle or recur on subsequent
days (Southall et al., 2007).
Consequently, a behavioral response
lasting less than one day and not
recurring on subsequent days is not
considered particularly severe unless it
could directly affect reproduction or
survival (Southall et al., 2007). Note that
there is a difference between multi-day
PO 00000
Frm 00059
Fmt 4702
Sfmt 4702
substantive behavioral reactions and
multi-day anthropogenic activities. For
example, just because an activity lasts
for multiple days does not necessarily
mean that individual animals are either
exposed to activity-related stressors for
multiple days or, further, exposed in a
manner resulting in sustained multi-day
substantive behavioral responses.
Stress responses—An animal’s
perception of a threat may be sufficient
to trigger stress responses consisting of
some combination of behavioral
responses, autonomic nervous system
responses, neuroendocrine responses, or
immune responses (e.g., Seyle, 1950;
Moberg, 2000). In many cases, an
animal’s first and sometimes most
economical (in terms of energetic costs)
response is behavioral avoidance of the
potential stressor. Autonomic nervous
system responses to stress typically
involve changes in heart rate, blood
pressure, and gastrointestinal activity.
These responses have a relatively short
duration and may or may not have a
significant long-term effect on an
animal’s fitness.
Neuroendocrine stress responses often
involve the hypothalamus-pituitaryadrenal system. Virtually all
neuroendocrine functions that are
affected by stress—including immune
competence, reproduction, metabolism,
and behavior—are regulated by pituitary
hormones. Stress-induced changes in
the secretion of pituitary hormones have
been implicated in failed reproduction,
altered metabolism, reduced immune
competence, and behavioral disturbance
(e.g., Moberg, 1987; Blecha, 2000).
Increases in the circulation of
glucocorticoids are also equated with
stress (Romano et al., 2004).
The primary distinction between
stress (which is adaptive and does not
normally place an animal at risk) and
‘‘distress’’ is the cost of the response.
During a stress response, an animal uses
glycogen stores that can be quickly
replenished once the stress is alleviated.
In such circumstances, the cost of the
stress response would not pose serious
fitness consequences. However, when
an animal does not have sufficient
energy reserves to satisfy the energetic
costs of a stress response, energy
resources must be diverted from other
functions. This state of distress will last
until the animal replenishes its
energetic reserves sufficient to restore
normal function.
Relationships between these
physiological mechanisms, animal
behavior, and the costs of stress
responses are well-studied through
controlled experiments and for both
laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al.,
E:\FR\FM\09MRP1.SGM
09MRP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
1998; Jessop et al., 2003; Krausman et
al., 2004; Lankford et al., 2005). Stress
responses due to exposure to
anthropogenic sounds or other stressors
and their effects on marine mammals
have also been reviewed (Fair and
Becker, 2000; Romano et al., 2002b)
and, more rarely, studied in wild
populations (e.g., Romano et al., 2002a).
For example, Rolland et al. (2012) found
that noise reduction from reduced ship
traffic in the Bay of Fundy was
associated with decreased stress in
North Atlantic right whales. These and
other studies lead to a reasonable
expectation that some marine mammals
will experience physiological stress
responses upon exposure to acoustic
stressors and that it is possible that
some of these would be classified as
‘‘distress.’’ In addition, any animal
experiencing TTS would likely also
experience stress responses (NRC,
2003), however distress is an unlikely
result of this project based on
observations of marine mammals during
previous, similar construction projects.
Acoustic Masking—Sound can disrupt
behavior through masking, or interfering
with, and animal’s ability to detect,
recognize, or discriminate between
acoustic signals of interest (e.g., those
used for intraspecific communication
and social interactions, prey detection,
predator avoidance, navigation)
(Richardson et al., 1995). Masking
occurs when the receipt of a sound is
interfered with by another coincident
sound at similar frequencies and at
similar or higher intensity, and may
occur whether the sound is natural (e.g.,
snapping shrimp, wind, waves,
precipitation) or anthropogenic (e.g.,
pile driving, shipping, sonar, seismic
exploration) in origin. The ability of a
noise source to mask biologically
important sounds depends on the
characteristics of both the noise source
and the signal of interest (e.g., signal-tonoise ratio, temporal variability,
direction), in relation to each other and
to an animal’s hearing abilities (e.g.,
sensitivity, frequency range, critical
rations, frequency discrimination,
directional discrimination, age or TTS
hearing loss), and existing ambient
noise and propagation conditions.
Masking of natural sounds can result
when human activities produce high
levels of background sound at
frequencies important to marine
mammals. Conversely, if the
background level of underwater sound
is high (e.g., on a day with strong wind
and high waves), an anthropogenic
sound source would not be detectable as
far away as would be possible under
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
quieter conditions and would itself be
masked.
Airborne Acoustic Effects—Although
pinnipeds are known to haul-out
regularly on man-made objects, such as
the nearby Chesapeake Bay Bridge
Tunnel, we believe that incidents of
take resulting solely from airborne
sound are unlikely due to the sheltered
proximity between the proposed project
area and these haulout sites (over 16
miles (26 km)). There is a possibility
that an animal could surface in-water,
but with head out, within the area in
which airborne sound exceeds relevant
thresholds and thereby be exposed to
levels of airborne sound that we
associate with harassment, but any such
occurrence would likely be accounted
for in our estimate of incidental take
from underwater sound. Therefore,
authorization of incidental take
resulting from airborne sound for
pinnipeds is not warranted, and
airborne sound is not discussed further
here. Cetaceans are not expected to be
exposed to airborne sounds that would
result in harassment as defined under
the MMPA.
Marine Mammal Habitat Effects
The Navy’s construction activities
could have localized, temporary impacts
on marine mammal habitat by
increasing in-water sound pressure
levels and slightly decreasing water
quality. However, since the focus of the
proposed action is pile driving and
drilling, no net habitat loss is expected
as the new Pier 3 will be immediately
north of the existing Pier 3 and, once
complete, the current Pier 3 will be
demolished. Construction activities are
of short duration and would likely have
temporary impacts on marine mammal
habitat through increases in underwater
sounds. Increased noise levels may
affect the acoustic habitat (see masking
discussion above) and adversely affect
marine mammal prey in the vicinity of
the project area (see discussion below).
During pile driving activities, elevated
levels of underwater noise would
ensonify the project area where both
fishes and marine mammals may occur
and could affect foraging success.
Additionally, marine mammals may
avoid the area during construction,
however displacement due to noise is
expected to be temporary and is not
expected to result in long-term effects to
the individuals or populations.
Temporary and localized reduction in
water quality will occur because of inwater construction activities as well.
Most of this effect will occur during the
installation and removal of piles when
bottom sediments are disturbed. The
installation of piles will disturb bottom
PO 00000
Frm 00060
Fmt 4702
Sfmt 4702
14573
sediments and may cause a temporary
increase in suspended sediment in the
project area. In general, turbidity
associated with pile installation is
localized to about 25-ft (7.6 meter)
radius around the pile (Everitt et al.,
1980). Cetaceans are not expected to be
close enough to the pile driving areas to
experience effects of turbidity, and any
pinnipeds could avoid localized areas of
turbidity. Therefore, we expect the
impact from increased turbidity levels
to be discountable to marine mammals
and do not discuss it further.
In-Water Construction Effects on
Potential Foraging Habitat—The
proposed activities would not result in
permanent impacts to habitats used
directly by marine mammals except for
the actual footprint of the new Pier 3.
The total seafloor area affected by pile
installation and removal is a very small
area compared to the vast foraging area
available to marine mammals in the
project area and lower Chesapeake Bay.
Pile extraction and installation may
have impacts on benthic invertebrate
species primarily associated with
disturbance of sediments that may cover
or displace some invertebrates. The
impacts will be temporary and highly
localized, and no habitat will be
permanently displaced by construction.
Therefore, it is expected that impacts on
foraging opportunities for marine
mammals due to the demolition and
reconstruction of Pier 3 would be
minimal.
It is possible that avoidance by
potential prey (i.e., fish) in the
immediate area may occur due to
temporary loss of this foraging habitat.
The duration of fish avoidance of this
area after pile driving stops is unknown,
but we anticipate a rapid return to
normal recruitment, distribution and
behavior. Any behavioral avoidance by
fish of the disturbed area would still
leave large areas of fish and marine
mammal foraging habitat in the nearby
vicinity in the project area and lower
Chesapeake Bay.
Effects on Potential Prey—Sound may
affect marine mammals through impacts
on the abundance, behavior, or
distribution of prey species (e.g., fish).
Marine mammal prey varies by species,
season, and location. Here, we describe
studies regarding the effects of noise on
known marine mammal prey.
Fish utilize the soundscape and
components of sound in their
environment to perform important
functions such as foraging, predator
avoidance, mating, and spawning (e.g.,
Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy
and peripheral sensory structures,
which vary among species, fishes hear
E:\FR\FM\09MRP1.SGM
09MRP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
14574
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
sounds using pressure and particle
motion sensitivity capabilities and
detect the motion of surrounding water
(Fay et al., 2008). The potential effects
of noise on fishes depends on the
overlapping frequency range, distance
from the sound source, water depth of
exposure, and species-specific hearing
sensitivity, anatomy, and physiology.
Key impacts to fishes may include
behavioral responses, hearing damage,
barotrauma (pressure-related injuries),
and mortality.
Fish react to sounds which are
especially strong and/or intermittent
low-frequency sounds, and behavioral
responses such as flight or avoidance
are the most likely effects. Short
duration, sharp sounds can cause overt
or subtle changes in fish behavior and
local distribution. The reaction of fish to
noise depends on the physiological state
of the fish, past exposures, motivation
(e.g., feeding, spawning, migration), and
other environmental factors. Hastings
and Popper (2005) identified several
studies that suggest fish may relocate to
avoid certain areas of sound energy.
Additional studies have documented
effects of pile driving on fish, although
several are based on studies in support
of large, multiyear bridge construction
projects (e.g., Scholik and Yan, 2001,
2002; Popper and Hastings, 2009).
Several studies have demonstrated that
impulse sounds might affect the
distribution and behavior of some
fishes, potentially impacting foraging
opportunities or increasing energetic
costs (e.g., Fewtrell and McCauley,
2012; Pearson et al., 1992; Skalski et al.,
1992; Santulli et al., 1999; Paxton et al.,
2017). However, some studies have
shown no or slight reaction to impulse
sounds (e.g., Pena et al., 2013; Wardle
et al., 2001; Jorgenson and Gyselman,
2009; Cott et al., 2012).
SPLs of sufficient strength have been
known to cause injury to fish and fish
mortality. However, in most fish
species, hair cells in the ear
continuously regenerate and loss of
auditory function likely is restored
when damaged cells are replaced with
new cells. Halvorsen et al. (2012a)
showed that a TTS of 4–6 dB was
recoverable within 24 hours for one
species. Impacts would be most severe
when the individual fish is close to the
source and when the duration of
exposure is long. Injury caused by
barotrauma can range from slight to
severe and can cause death, and is most
likely for fish with swim bladders.
Barotrauma injuries have been
documented during controlled exposure
to impact pile driving (Halvorsen et al.,
2012b; Casper et al., 2013).
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
The most likely impact to fish from
pile driving activities at the project
areas would be temporary behavioral
avoidance of the area. The duration of
fish avoidance of an area after pile
driving stops is unknown, but a rapid
return to normal recruitment,
distribution and behavior is anticipated.
The area impacted by the project is
relatively small compared to the
available habitat in the remainder of the
project area and the lower Chesapeake
Bay, and there are no areas of particular
importance that would be impacted by
this project. Any behavioral avoidance
by fish of the disturbed area would still
leave significantly large areas of fish and
marine mammal foraging habitat in the
nearby vicinity. As described in the
preceding, the potential for the Navy’s
construction to affect the availability of
prey to marine mammals or to
meaningfully impact the quality of
physical or acoustic habitat is
considered to be insignificant.
Estimated Take
This section provides an estimate of
the number of incidental takes proposed
for authorization through this IHA,
which will inform both NMFS’
consideration of ‘‘small numbers,’’ and
the negligible impact determinations.
Harassment is the only type of take
expected to result from these activities.
Except with respect to certain activities
not pertinent here, section 3(18) of the
MMPA defines ‘‘harassment’’ as any act
of pursuit, torment, or annoyance,
which (i) has the potential to injure a
marine mammal or marine mammal
stock in the wild (Level A harassment);
or (ii) has the potential to disturb a
marine mammal or marine mammal
stock in the wild by causing disruption
of behavioral patterns, including, but
not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering
(Level B harassment).
Authorized takes would primarily be
by Level B harassment, as noise
generated from in-water pile driving
(vibratory and impact) and drilling has
the potential to result in disruption of
behavioral patterns for individual
marine mammals. There is also some
potential for auditory injury (Level A
harassment) to result, primarily for
high- and low-frequency species and
phocids because predicted auditory
injury zones are larger than for midfrequency species. However, auditory
injury is unlikely to occur for low- and
mid- frequency species as proposed
shutdown zones encompass the entirely
of the auditory injury zones for all
proposed activities (see Proposed
Mitigation section). The proposed
mitigation and monitoring measures are
PO 00000
Frm 00061
Fmt 4702
Sfmt 4702
expected to minimize the severity of the
taking to the extent practicable.
As described previously, no serious
injury or mortality is anticipated or
proposed to be authorized for this
activity. Below we describe how the
proposed take numbers are estimated.
For acoustic impacts, generally
speaking, we estimate take by
considering: (1) acoustic thresholds
above which NMFS believes the best
available science indicates marine
mammals will be behaviorally harassed
or incur some degree of permanent
hearing impairment; (2) the area or
volume of water that will be ensonified
above these levels in a day; (3) the
density or occurrence of marine
mammals within these ensonified areas;
and, (4) the number of days of activities.
We note that while these factors can
contribute to a basic calculation to
provide an initial prediction of potential
takes, additional information that can
qualitatively inform take estimates is
also sometimes available (e.g., previous
monitoring results or average group
size). Below, we describe the factors
considered here in more detail and
present the proposed take estimates.
Acoustic Thresholds
NMFS recommends the use of
acoustic thresholds that identify the
received level of underwater sound
above which exposed marine mammals
would be reasonably expected to be
behaviorally harassed (equated to Level
B harassment) or to incur PTS of some
degree (equated to Level A harassment).
Level B Harassment—Though
significantly driven by received level,
the onset of behavioral disturbance from
anthropogenic noise exposure is also
informed to varying degrees by other
factors related to the source or exposure
context (e.g., frequency, predictability,
duty cycle, duration of the exposure,
signal-to-noise ratio, distance to the
source), the environment (e.g.,
bathymetry, other noises in the area,
predators in the area), and the receiving
animals (hearing, motivation,
experience, demography, life stage,
depth) and can be difficult to predict
(e.g., Southall et al., 2007, 2021, Ellison
et al., 2012). Based on what the
available science indicates and the
practical need to use a threshold based
on a metric that is both predictable and
measurable for most activities, NMFS
typically uses a generalized acoustic
threshold based on received level to
estimate the onset of behavioral
harassment. NMFS generally predicts
that marine mammals are likely to be
behaviorally harassed in a manner
considered to be Level B harassment
when exposed to underwater
E:\FR\FM\09MRP1.SGM
09MRP1
14575
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
anthropogenic noise above root-meansquared pressure received levels (RMS
SPL) of 120 dB (referenced to 1
micropascal (re 1 mPa)) for continuous
(e.g., vibratory pile-driving, drilling) and
above RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., impact pile
driving) or intermittent (e.g., scientific
sonar) sources.
The Navy’s construction includes the
use of continuous (vibratory pile
driving/removal, drilling) and impulsive
(impact pile driving) sources, and
therefore the 120 and 160 dB re 1 mPa
(rms) are applicable.
Level A Harassment—NMFS’
Technical Guidance for Assessing the
Effects of Anthropogenic Sound on
Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies
dual criteria to assess auditory injury
(Level A harassment) to five different
marine mammal groups (based on
hearing sensitivity) as a result of
exposure to noise from two different
types of sources (impulsive or nonimpulsive). As previously noted, the
Navy’s proposed activity includes the
use of non-impulsive (vibratory pile
driving/removal, drilling) and impulsive
(impact pile driving) sources.
These thresholds are provided in the
table below. The references, analysis,
and methodology used in the
development of the thresholds are
described in NMFS’ 2018 Technical
Guidance, which may be accessed at:
www.fisheries.noaa.gov/national/
marine-mammal-p-rotection/marinemammal-acoustic-technical-guidance.
TABLE 5—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT
PTS onset acoustic thresholds *
(received level)
Hearing group
Impulsive
Low-Frequency (LF) Cetaceans ......................................
Mid-Frequency (MF) Cetaceans ......................................
High-Frequency (HF) Cetaceans .....................................
Phocid Pinnipeds (PW) (Underwater) .............................
Otariid Pinnipeds (OW) (Underwater) .............................
Cell
Cell
Cell
Cell
Cell
1:
3:
5:
7:
9:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
219
230
202
218
232
dB;
dB;
dB;
dB;
dB;
Non-impulsive
LE,LF,24h: 183 dB .........................
LE,MF,24h: 185 dB ........................
LE,HF,24h: 155 dB ........................
LE,PW,24h: 185 dB .......................
LE,OW,24h: 203 dB .......................
Cell
Cell
Cell
Cell
Cell
2: LE,LF,24h: 199 dB.
4: LE,MF,24h: 198 dB.
6: LE,HF,24h: 173 dB.
8: LE,PW,24h: 201 dB.
10: LE,OW,24h: 219 dB.
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should
also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s.
In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure
is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being
included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated
with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level
thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for
action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.
Ensonified Area
Here, we describe operational and
environmental parameters of the activity
that are used in estimating the area
ensonified above the acoustic
thresholds, including source levels and
transmission loss coefficient.
In order to calculate the distances to
the Level A harassment and the Level B
harassment sound thresholds for the
methods and piles being used in this
project, NMFS used acoustic monitoring
data from other locations to develop
proxy source levels for various pile
types (Table 6). Generally we choose
source levels from similar pile types and
locations (e.g., geology, bathymetry)
similar to the project. At this time,
NMFS is not aware of reliable source
levels available for polymeric piles
using vibratory pile installation,
therefore source levels for timber pile
driving were used as a proxy. Vibratory
pile driving of polymeric piles expected
to occur under the 2022 IHA has yet to
occur and therefore has not been
measured. Similarly, the following
proxies were used as source levels for
piles where no data was available:
Source levels from the 48-inch steel pile
from Naval Base Kitsap at Bangor,
Washington (Caltrans 2020) was used as
a proxy for 42 inch steel pipe piles
(impact); the 30-inch steel pipe pile was
used as a proxy for the 28 inch steel
sheet pile (impact and vibratory); source
levels for timber piles were used as a
proxy for concrete as they are expected
to have similar sound levels as they are
similarly sized, non-metallic, and will
be removed using the same methods.
Very little information is available
regarding source levels for in-water
drilling activities associated with
nearshore pile installation.
Measurements made during a pile
drilling project in 1–5 m (3–16 ft) depth
at Santa Rosa Island, CA, by Dazey et al.
(2012) appear to provide the best
available proxy source levels for
proposed activities. Dazey et al. (2012)
reported average rms source levels
ranging from 151 to 157 db re 1 mPa
during 62 days that spanned all related
drilling activities during a single season.
ddrumheller on DSK120RN23PROD with PROPOSALS1
TABLE 6—PROJECT SOUND SOURCE LEVELS AND PROXY SOURCE LEVELS USED FOR ACOUSTIC MODELING
Pile type
Pile size
(inch)
Method
Steel Pipe Pile ....
42 ...................................
Steel Sheet .........
28 ...................................
Concrete Pile ......
24 ...................................
Concrete Pile ......
18 ...................................
Polymeric Pile .....
13 ...................................
Impact ....................................
Vibratory ................................
Impact 1 ..................................
Vibratory 2 ..............................
Impact ....................................
Vibratory Removal 3 ...............
Impact 3 ..................................
Vibratory Removal 4 ...............
Impact ....................................
Vibratory 5 ..............................
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
PO 00000
Frm 00062
Peak SPL
(re 1 μPa (rms))
RMS SPL
(re 1 μPa (rms))
SEL
(re 1 μPa (rms))
213
N/A
211
N/A
189
185
185
185
177
185
190
168
196
167
176
162
166
162
153
162
177
N/A
181
167
163
157
154
157
..........................
157
Fmt 4702
Sfmt 4702
E:\FR\FM\09MRP1.SGM
09MRP1
Source
Caltrans 2020.
Sitka 2017.
NAVFAC SW 2020.
Navy 2015.
Illingworth and Rodkin 2017.
Caltrans 2020.
Caltrans 2020.
Caltrans 2020.
Denes et al., 2016.
Caltrans 2020.
14576
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
TABLE 6—PROJECT SOUND SOURCE LEVELS AND PROXY SOURCE LEVELS USED FOR ACOUSTIC MODELING—Continued
Pile type
Pile size
(inch)
Method
Timber Pile .........
N/A 6 ....................
14 ...................................
‘‘Multiple pile sizes’’ 6 .....
Vibratory Install/Removal .......
Drilling ....................................
Peak SPL
(re 1 μPa (rms))
RMS SPL
(re 1 μPa (rms))
SEL
(re 1 μPa (rms))
Source
185
N/A
162
154
157
N/A
Caltrans 2020.
Dazey et al., 2012.
1 A source level value for impact pile driving of 28-inch steel sheet piles could not be found so a value for a 30-inch steel pipe pile has been used as a proxy
(NAVFAC SW, 2020 [p.A–4]).
2 A source level value for vibratory pile driving of 28-inch steel sheet piles could not be found so a value for a 30-inch steel pipe pile has been used as a proxy
(Navy, 2015 [p. 14]).
3 Data on vibratory extraction of concrete piles is not available, however source levels are expected to be similar to the levels produced by timber piles as they are
similar in size, material and removal method.
4 Proxy data for 18-inch octagonal piles.
5 Vibratory proxy for polymeric/plastic piles is unavailable; we assume SPL to be consistent with timber.
6 See Table 2 for pile types/size that may use drilling, as needed.
TABLE 7—SOURCE LEVEL MATRIX FOR CONCURRENT ACTIVITIES
42-inch
steel pipe
Pile diameter
42-inch Steel Pipe .....................
28-inch Steel Pipe .....................
14-inch Timber ..........................
14-inch Polymeric ......................
24-inch Concrete .......................
18-inch Concrete .......................
14-inch Timber ..........................
Multiple ......................................
SSL
168
167
162
162
162
162
162
154
28-inch
steel pipe
168
171
171
169
169
169
169
169
168
The ensonified area associated with
Level A harassment is more technically
challenging to predict due to the need
to account for a duration component.
Therefore, NMFS developed an optional
User Spreadsheet tool to accompany the
Technical Guidance that can be used to
relatively simply predict an isopleth
distance for use in conjunction with
marine mammal density or occurrence
to help predict potential takes. We note
that because of some of the assumptions
included in the methods underlying this
14-inch
timber
167
171
170
168
168
168
168
168
167
14-inch
polymeric
162
169
168
165
165
165
165
165
163
24-inch
concrete
162
169
168
165
165
165
165
165
163
optional tool, we anticipate that the
resulting isopleth estimates are typically
going to be overestimates of some
degree, which may result in an
overestimate of potential take by Level
A harassment. However, this optional
tool offers the best way to estimate
isopleth distances when more
sophisticated modeling methods are not
available or practical. For stationary
sources, such as pile driving, removal,
and drilling, the optional User
Spreadsheet tool predicts the distance at
18-inch
concrete
162
169
168
165
165
165
165
165
163
14-inch
timber
162
169
168
165
165
165
165
165
163
Multiple
162
169
168
165
165
165
165
165
163
154
168
167
163
163
163
163
163
157
which, if a marine mammal remained at
that distance for the duration of the
activity, it would be expected to incur
PTS. Inputs used in the optional User
Spreadsheet tool are reported in Table 1
and Table 2, and source levels used in
the User Spreadsheet are reported in
Table 6. The resulting isopleths are
reported in Table 7 (impact pile
driving), Table 8 (vibratory pile driving/
removal, and drilling), and Table 9
(concurrent pile driving scenarios)
below.
TABLE 8—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR IMPACT PILE DRIVING
Level A harassment isopleths (m)
Year
Pile driving site
Source
LF
Year 2
CEP–176 .........................
CEP–175 .........................
CEP–102 .........................
Year 3
Pier 3 (bearing piles) .......
Pier 3 (Fender Piles) .......
ddrumheller on DSK120RN23PROD with PROPOSALS1
CEP–102 .........................
Year 4
CEP–102 .........................
Year 5
CEP–102 .........................
42-inch
28-inch
13-inch
24-inch
18-inch
24-inch
24-inch
18-inch
42-inch
28-inch
24-inch
18-inch
42-inch
28-inch
24-inch
18-inch
Steel Pipe .....................................................
Steel Sheets .................................................
Polymeric Piles .............................................
Square Precast Concrete .............................
Square Precast Concrete .............................
Square Precast Concrete .............................
Square Precast Concrete .............................
Steel Pipe .....................................................
Steel Pipe .....................................................
Steel Sheet ...................................................
Square Precast Concrete .............................
Square Precast Concrete .............................
Steel Pipe .....................................................
Steel Sheet ...................................................
Square Precast Concrete .............................
Square Precast Concrete .............................
MF
1,482
1,783
17
117
7
254
37
661
1,002
1,783
117
7
1,002
1,783
117
7
HF
53
63
1
4
0
9
1
24
36
63
4
0
36
63
4
0
Phocids
1,766
2,123
20
139
9
302
44
788
1,193
2,123
139
9
1,193
2,123
139
9
793
954
9
63
4
136
20
354
536
954
63
4
536
954
63
4
Level B
(behavioral)
(m)
1,000
2,512
3
117
25
117
117
25
1,000
2,512
117
25
1,000
2,512
117
25
TABLE 9—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR VIBRATORY PILE DRIVING, REMOVAL AND DRILLING
Level A harassment isopleths (m) 1
Year
Pile driving site
Source
LF
Year 2
CEP–176 .........................
CEP–175 .........................
CEP–102 .........................
VerDate Sep<11>2014
17:16 Mar 08, 2023
42-inch
28-inch
13-inch
24-inch
Steel Pipe (Vibratory) ...................................
Steel Sheet (Vibratory) .................................
Polymeric Piles (Vibratory) ...........................
Square Precast Concrete (Drilling) ..............
Jkt 259001
PO 00000
Frm 00063
Fmt 4702
Sfmt 4702
MF
127
100
15
1
HF
11
9
1
0
E:\FR\FM\09MRP1.SGM
09MRP1
Phocids
188
147
22
1
77
61
9
0
Level B
behavioral
(m)
15,849
13,594
6,310
1,848
14577
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
TABLE 9—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR VIBRATORY PILE DRIVING, REMOVAL AND DRILLING—
Continued
Level A harassment isopleths (m) 1
Year
Pile driving site
LF
Year 3
Pier 3 (Fender Piles) .......
CEP–102 .........................
Year 4
CEP–102 .........................
Existing Pier 3 .................
Year 5
CEP–102 .........................
Existing Pier 3 .................
Level B
behavioral
(m)
Source
18-inch Square Precast Concrete (Drilling) ..............
24-inch Square Precast Concrete (Drilling) ..............
42-inch Steel Pipe (Vibratory Install) .........................
28-inch Steel Sheet Piles (Vibratory) ........................
18-inch Square Precast Concrete (Vibratory Extraction).
24-inch Square Precast Concrete (Drilling) ..............
14-inch Timber (Vibratory Extraction) .......................
18-inch Square Precast Concrete (Drilling) ..............
42-inch Steel Pipe (Vibratory) ...................................
28-inch Steel Sheet (Vibratory) .................................
18-inch Square Precast Concrete (Vibratory Extraction).
24-inch Square Precast Concrete (Vibratory Extraction).
16-inch and 18-inch Square Precast Concrete (Vibratory Extraction).
24-inch Square Precast Concrete (Drilling) ..............
18-inch Square Precast Concrete (Drilling) ..............
16-inch and 18-inch Square Precast Concrete (Vibratory Extraction).
MF
HF
Phocids
1
1
80
100
35
0
0
7
9
3
1
1
118
147
51
0
1
49
61
21
1,848
1,848
15,849
13,594
6,310
1
68
1
80
100
35
0
6
0
7
9
3
1
101
1
118
147
51
0
41
0
49
61
21
1,848
6,310
1,848
15,849
13,594
6,310
42
4
62
25
6,310
37
3
55
23
6,310
1
1
37
0
0
3
1
1
55
0
0
23
1,848
1,848
6,310
TABLE 10—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR CONCURRENT PILE DRIVING AND DRILLING SCENARIOS
Level A harassment isopleths (m)
Year
Pile driving site
Source
2 ..........
2 ..........
2 ..........
CEP–176 Bulkhead .........
CEP–176 Bulkhead .........
CEP–176 and CEP–102 ..
2 ..........
CEP–176 and CEP–175 ..
3 ..........
Pier 3 ...............................
3 ..........
4 ..........
CEP–102 Bulkhead .........
Existing Pier 3 CEP–102
Platform.
5 ..........
Existing Pier 3 CEP–102
Platform.
Install of 42-inch steel pipe and 28-inch steel sheets
Install of two 42-inch steel pipe piles ........................
Install of 42-inch steel pipe and 24-inch Square precast concrete.
Install of 42-inch steel pipe piles and 13-inch polymeric piles.
Install of 24-inch Square precast concrete fender
piles using two drills.
Install of 42-inch steel pipe and 28-inch steel sheets
Extraction of 14-inch timber piles, install of 42-inch
steel pipe and 28-inch steel sheets, and rotary
drilling of 24-inch Square precast concrete.
Concurrent extraction of 16- and 18-inch Square
precast concrete and rotary drilling of 24-inch
Square precast concrete.
ddrumheller on DSK120RN23PROD with PROPOSALS1
LF
The maximum distance to the Level A
harassment threshold during
construction would be during the
impact driving of 28 inch steel sheets at
CEP–176 and CEP–102 (1783 m for
humpback whale; 63 m for bottlenose
dolphin; 2123 m for harbor porpoises;
and 954 m for pinnipeds). The largest
calculated Level B harassment isopleth
extends out to 25,119 m, which would
result from concurrent pile driving of
the scenarios presented in Table 10.
While 25,119 m may not be an
attainable observable distance in all
directions, the Level B harassment zone
will be monitored to the maximum
extent possible.
Marine Mammal Occurrence and Take
Estimation
In this section we provide information
about the presence, density, or group
dynamics of marine mammals that will
inform the take calculations. We
describe how the information provided
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
MF
49
28
15
811
472
246
334
194
101
25,119
25,119
15,849
254
23
376
155
18,478
2
0.1
2
1
2,929
507
981
45
87
750
1,450
308
596
25,119
25,119
77
7
114
47
7,356
Humpback Whales
Humpback whales occur in the mouth
of the Chesapeake Bay and nearshore
waters of Virginia during winter and
spring months. Several satellite tagged
humpback whales were detected west of
the Chesapeake Bay Bridge Tunnel,
including two individuals with
locations near NAVSTA Norfolk and
Joint Expeditionary Base Little Creek
(Aschettino et al., 2017). Group size was
not reported in these surveys, however
most whales detected were juveniles.
Although two individuals were detected
in the vicinity of the proposed project
activities, there is no evidence that they
linger for multiple days. Because no
density estimates are available for the
species in this area, the Navy estimated
one potential sighting of a group of
average size (2 individuals) every 60
Frm 00064
Fmt 4702
Sfmt 4702
Phocids
549
320
166
above is brought together to produce a
quantitative take estimate for each
species.
PO 00000
HF
Level B
behavioral
(m)
days of pile driving. Therefore, given
the number of project days expected in
each year (Table 1), NMFS is proposing
to authorize a total of 19 takes by Level
B harassment of humpback whale over
the five-year authorization, with no
more than seven takes by Level B
harassment in a given year.
The largest Level A harassment zone
for low-frequency cetaceans extends
approximately 1783 m from the source
during impact pile driving of the 28inch steel sheet piles (Table 8). The
Navy plans to shut down if a humpback
whale is sighted within any of the Level
A harassment zones for all activities, as
indicated in Table 11. Therefore, the
Navy did not request, and NMFS is not
proposing to authorize, take by Level A
harassment of humpback whales.
Bottlenose Dolphin
The expected number of bottlenose
dolphins in the project area was
estimated using inshore seasonal
E:\FR\FM\09MRP1.SGM
09MRP1
14578
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
densities provided in Engelhaupt et al.
(2016) from vessel line-transect surveys
near NAVSTA Norfolk and adjacent
areas near Virginia Beach, Virginia, from
August 2012 through August 2015
(Engelhaupt et al., 2016). This density
includes sightings inshore of the
Chesapeake Bay from NAVSTA Norfolk
west to the Thimble Shoals Bridge, and
is the most representative density for
the project area. To calculate potential
Level B harassment takes of bottlenose
dolphin, NMFS conservatively
multiplied the density of 1.38 dolphin/
km2 (from Englehaupt et al., 2016) by
the largest Level B harassment isopleth
for each project location (Table 8, 9 and
10), and then by the number of days
associated with that activity (Table 1).
For example, to calculate Level B
harassment takes associated with work
at the existing Pier 3 in year 2, NMFS
multiplied the density (1.38 dolphins/
km2) by the largest Level B harassment
zone for impact pile driving on the 24inch concrete bearing piles at the new
Pier 3 (0.043 km2) by the proportional
number of pile driving days for that
activity (70 days) for a total of 4 Level
B harassment takes at Pier 3, for that
activity in year 1. Takes by Level B
harassment were calculated for both
individual pile driving activities and
concurrent pile driving activities, as
authorized takes are conservatively
based on the scenario that produces
more takes by Level B harassment
(Table 11). Therefore, NMFS proposes to
authorize 28,480 1 takes by Level B
harassment of bottlenose dolphin across
all five years, with no more than 13,190
takes in a given year.
Harbor Porpoise
Harbor porpoises are known to occur
in the coastal waters near Virginia
Beach (Hayes et al., 2019). Density data
for this species within the project
vicinity do not exist or were not
calculated because sample sizes were
too small to produce reliable estimates
of density. Harbor porpoise sighting
data collected by the U.S. Navy near
NAVSTA Norfolk and Virginia Beach
from 2012 to 2015 (Engelhaupt et al.
2014; 2015; 2016) did not produce
enough sightings to calculate densities.
One group of two harbor porpoises was
seen during spring 2015 (Engelhaupt et
al. 2016). Elsewhere in their range,
harbor porpoises typically occur in
groups of two to three individuals
1 Note: This total number of takes by Level B
harassment proposed for authorization differs from
that in the Navy’s request for Rulemaking. The
number presented here conservatively uses
exposure estimates for concurrent pile driving
scenarios in Year 5, which were higher than those
produced for individual pile driving activities.
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
(Carretta et al. 2001; Smultea et al.
2017).
Because there are no density estimates
for the species in the proposed project
area, the Navy conservatively estimated
one harbor porpoise sighting (of two
individuals) once every 60 days of pile
driving or drilling. Therefore, the
assumption of two individuals per 60
days was used for calculation of take
numbers. Total pile driving days for
Year 2 would be 185 days, Year 3 would
be 92 days, Year 4 would be 204 days,
and Year 5 would have 32 days. Takes
by Level B harassment were calculated
for both individual pile driving
activities and concurrent pile driving
activities, as authorized takes are
conservatively based on the scenario
that produced the larger exposure
estimate (Table 11). Using the above
methodology, NMFS calculated an
exposure estimate of 19 incidents of
take for harbor porpoises.
The largest Level A harassment zone
for high-frequency cetaceans is 2,123 m
during impact pile driving of the 28inch steel sheet piles. The Navy has
proposed to shut down at 500 m for
harbor porpoises during the
aforementioned activity, in addition to
shorter distances where appropriate for
other proposed activities as noted in
Table13 as a reasonable area to observe
for harbor porpoises and implement
shutdown procedures while avoiding an
impracticable number of shutdowns.
Consequently, the Navy has requested
authorization of take by Level A
harassment for harbor porpoise during
the course of the project. Take by Level
A harassment may not actually occur
due to the duration of time harbor
porpoise would be required to remain
within the Level A harassment zone to
accumulate enough energy to
experience PTS. However, as a
precaution NMFS proposes to authorize
a total of 4 takes by Level A harassment
as requested by the Navy (Table 11)
with no more than 2 takes by Level A
harassment occurring in a given year,
and 15 total takes by Level B harassment
with no more than 5 takes by Level B
harassment occurring in a given year,
equaling the aforementioned total of 19
takes over 5 years.
Harbor Seal
The expected number of harbor seals
in the project area was estimated using
systematic land- and vessel-based
survey data for in-water and hauled out
seals collected by the U.S. Navy at the
CBBT rock armor and portal islands
from 2014 through 2019 (Jones et al.,
2020). The average daily seal count from
the field season ranged from 8 to 23
PO 00000
Frm 00065
Fmt 4702
Sfmt 4702
seals, with an average of 13.6 harbor
seals across all the field seasons.
The Navy expects, and NMFS
concurs, that harbor seals are likely to
be present from November to April.
Consistent with previous nearby
projects (87 FR 15945; March 31, 2022,
86 FR 24340; May 6, 2021, 86 FR 17458;
April 2, 2021), NMFS calculated take by
Level B harassment by multiplying 13.6
seals by the number of pile driving days
expected to occur from November
through April (seal season): 74 days in
Year 2, 23 days in Year 3, 133 days in
Year 4. And 32 days in Year 5. Potential
takes by Level A harassment were
calculated based on the number of
production days within seal season on
which the Level A harassment isopleth
exceeds the shutdown zone of 200 m (42
days in Year 2; 3 days in Year 3; and
0 days in Year 4 and 5), assuming that
approximately 10 percent of harbor seal
exposures would be at or above the
Level A harassment threshold. Potential
takes by Level B harassment were
calculated by subtracting the Level A
harassment takes estimated per year
from the total calculated takes.
Consistent with previous species, take
estimates are based on the scenario
(individual or concurrent) that
produced the higher take estimate
(Table 11). Therefore, the Navy is
requesting and NMFS is proposing to
authorize a total of 4,182 takes by Level
B harassment and 61 takes by Level A
harassment (Table 12).
Gray Seal
Very little information is available
about the occurrence of gray seals in the
Chesapeake Bay and coastal waters.
Although the population of the United
States may be increasing, there are only
a few records available at the known
haulout sites in Virginia used by gray
seals, strandings are rare, and they have
not been reported in shipboard surveys.
Assuming that they may utilize the
Chesapeake Bay waters, the Navy
conservatively estimates one gray seal
may be exposed to elevated noise levels
for every 60 days of vibratory pile
driving during the six month period
when they are most likely to be present.
Similar to harbor seals, the maximum
number of pile driving days where gray
seals may be exposed during seal season
per year were used for calculations. The
scenario (concurrent or individual
activities) that produced the larger
exposure estimate is proposed for
authorization (Table 11). Therefore, the
Navy has requested and NMFS is
proposing to authorize 5 takes by Level
B harassment. Given the low likelihood
of encountering gray seals during the
project and low number of days in
E:\FR\FM\09MRP1.SGM
09MRP1
14579
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
which Level A harassment isopleths
may exceed proposed shutdown zones,
no take by Level A harassment is
proposed for authorization.
TABLE 11—CALCULATED TAKES BY LEVEL A AND LEVEL B HARASSMENT FOR CONCURRENT AND INDIVIDUAL PILE
DRIVING, REMOVAL AND DRILLING SCENARIOS 1
Individual activities
Year
Concurrent activities
Species
Level A
2 ......................
3 ......................
4 ......................
5 ......................
Humpback whale ................................................................
BND—Northern Migratory ...................................................
BND—Southern Migratory.
BND—NC Estuarine.
Harbor porpoise ..................................................................
Harbor seal .........................................................................
Gray seal ............................................................................
Humpback whale ................................................................
BND—Northern Migratory ...................................................
BND—Southern Migratory.
BND—NC Estuarine.
Harbor porpoise ..................................................................
Harbor seal .........................................................................
Gray seal ............................................................................
Humpback whale ................................................................
BND—Northern Migratory ...................................................
BND—Southern Migratory.
BND—NC Estuarine.
Harbor porpoise ..................................................................
Harbor seal .........................................................................
Gray seal ............................................................................
Humpback whale ................................................................
BND—Northern Migratory ...................................................
BND—Southern Migratory.
BND—NC Estuarine.
Harbor porpoise ..................................................................
Harbor seal .........................................................................
Gray seal ............................................................................
Level B
Level A
Level B
0
0
6
2691
0
0
2
5609
2
57
0
0
0
4
949
1
3
3061
0
25
0
0
0
1
832
1
1
1440
0
4
0
0
0
3
309
0
7
13190
0
7
0
0
0
1
537
1
1
3023
2
0
0
0
0
5
1809
2
2
383
0
26
0
0
0
1
232
0
3
6620
0
0
0
1
435
2
0
0
0
3
1115
1
1 Potential takes by Level A and Level B harassment are conservatively based on the scenario (individual vs. concurrent pile driving, removal,
or drilling) that produced the highest exposure estimate. Therefore, the number of takes by Level A and Level B harassment proposed for authorization is italicized and used to determine percent of stock.
TABLE 12—PROPOSED AUTHORIZED TAKES BY LEVEL A AND LEVEL B HARASSMENT BY SPECIES AND STOCK IN
COMPARISON TO STOCK ABUNDANCE
Proposed take
Year
Species
Abundance
2 ................
3 ................
ddrumheller on DSK120RN23PROD with PROPOSALS1
4 ................
5 ................
VerDate Sep<11>2014
Humpback whale a ........................................
BND—Northern Migratory b c ........................
BND—Southern Migratory b c .......................
BND—NC Estuarine b c .................................
Harbor porpoise ............................................
Harbor seal ...................................................
Gray seal ......................................................
Humpback whale a ........................................
BND—Northern Migratory b c ........................
BND—Southern Migratory b c .......................
BND—NC Estuarine b c .................................
Harbor porpoise ............................................
Harbor seal ...................................................
Gray seal ......................................................
Humpback whale a ........................................
BND—Northern Migratory b c ........................
BND—Southern Migratory b c .......................
BND—NC Estuarine b c .................................
Harbor porpoise ............................................
Harbor seal ...................................................
Gray seal ......................................................
Humpback whale a ........................................
BND—Northern Migratory b c ........................
BND—Southern Migratory b c .......................
BND—NC Estuarine b c .................................
Harbor porpoise ............................................
17:16 Mar 08, 2023
Jkt 259001
PO 00000
Frm 00066
1396
6639
3751
823
95543
61336
27300
1396
6639
3751
823
95543
61336
27300
1396
6639
3751
823
95543
61336
27300
1396
6639
3751
823
95543
Fmt 4702
Percent of
stock
Total
Level A
Sfmt 4702
Level B
0
0
6
5609
2
57
0
0
0
4
949
1
3
3061
0
7
0
0
0
3
537
1
7
13190
2
26
0
0
0
5
1783
2
3
6620
0
3
E:\FR\FM\09MRP1.SGM
09MRP1
6
2705
2705
200
6
1006
1
3
1431
1431
200
3
544
1
7
6495
6495
200
7
1809
2
3
3210
3210
200
3
0.43
40.74
72.10
24.30
0.01
1.64
0.00
0.21
21.55
38.15
24.30
0.00
0.89
0.00
0.50
97.83
173.15
24.30
0.01
2.95
0.01
0.21
48.35
85.58
24.30
0.00
14580
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
TABLE 12—PROPOSED AUTHORIZED TAKES BY LEVEL A AND LEVEL B HARASSMENT BY SPECIES AND STOCK IN
COMPARISON TO STOCK ABUNDANCE—Continued
Proposed take
Year
Species
Abundance
Harbor seal ...................................................
Gray seal ......................................................
Percent of
stock
Total
Level A
61336
27300
Level B
0
0
1115
2
1115
2
1.82
0.01
a West
Indies DPS. Please see the Description of Marine Mammals in the Area of Specified Activities section for further discussion.
estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow
the same probability of presence in the project area. Please see Small Numbers section for additional information.
c Assumes multiple repeated takes of the same individuals from a small portion of each stock as well as repeated takes of Chesapeake Bay
resident population (size unknown). Please see Small Numbers section for additional information.
b Take
ddrumheller on DSK120RN23PROD with PROPOSALS1
Proposed Mitigation
In order to issue an IHA under section
101(a)(5)(D) of the MMPA, NMFS must
set forth the permissible methods of
taking pursuant to the activity, and
other means of effecting the least
practicable impact on the species or
stock and its habitat, paying particular
attention to rookeries, mating grounds,
and areas of similar significance, and on
the availability of the species or stock
for taking for certain subsistence uses
(latter not applicable for this action).
NMFS regulations require applicants for
incidental take authorizations to include
information about the availability and
feasibility (economic and technological)
of equipment, methods, and manner of
conducting the activity or other means
of effecting the least practicable adverse
impact upon the affected species or
stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or
may not be appropriate to ensure the
least practicable adverse impact on
species or stocks and their habitat, as
well as subsistence uses where
applicable, NMFS considers two
primary factors:
(1) The manner in which, and the
degree to which, the successful
implementation of the measure(s) is
expected to reduce impacts to marine
mammals, marine mammal species or
stocks, and their habitat. This considers
the nature of the potential adverse
impact being mitigated (likelihood,
scope, range). It further considers the
likelihood that the measure will be
effective if implemented (probability of
accomplishing the mitigating result if
implemented as planned), the
likelihood of effective implementation
(probability implemented as planned),
and;
(2) The practicability of the measures
for applicant implementation, which
may consider such things as cost, and
impact on operations.
In addition to the measures described
later in this section, the Navy will
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
employ the following mitigation
measures:
• The Navy will conduct briefings
between construction supervisors and
crews, the marine mammal monitoring
team, and Navy staff prior to the start of
all pile driving activity and when new
personnel join the work, to explain
responsibilities, communication
procedures, marine mammal monitoring
protocol, and operational procedures;
• If a marine mammal comes within
10 meters of construction activities,
including in-water heavy machinery
work not being analyzed in this
proposed rule, operations shall cease
and vessels shall reduce speed to the
minimum level required to maintain
steerage and safe working conditions;
• 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 is within the harassment zone.
The following mitigation measures
apply to the Navy’s in-water
construction activities.
Establishment of Shutdown Zones—
The Navy will establish shutdown zones
for all pile driving and removal and
drilling activities. 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 will vary based on the
activity type and marine mammal
hearing group (Table 13).
Protected Species Observers (PSOs)—
The placement of PSOs during all pile
driving and removal and drilling
activities (described in the Proposed
Monitoring and Reporting section) will
ensure that the entire shutdown zone is
visible. Should environmental
conditions deteriorate such that the
entire shutdown zone would not be
visible (e.g., fog, heavy rain), pile
driving and removal and drilling must
be delayed until the PSO is confident
PO 00000
Frm 00067
Fmt 4702
Sfmt 4702
marine mammals within the shutdown
zone could be detected.
Monitoring for Level A and B
Harassment—The Navy will monitor
the Level B harassment zones (areas
where SPLs are equal to or exceed the
160 dB rms threshold for impact pile
driving, and the 120 dB rms threshold
during drilling and vibratory pile
driving and removal) and Level A
harassment zones to the extent
practicable, and all of the shutdown
zones, during all pile driving, removal
or drilling days. Monitoring zones
provide utility for observing by
establishing monitoring protocols for
areas adjacent to the shutdown zones.
Monitoring zones enable observers to be
aware of and communicate the presence
of marine mammals in the project area
outside the shutdown zone and thus
prepare for a potential cessation of
activity should the animal enter the
shutdown zone.
Pre-Activity Monitoring—Prior to the
start of daily in-water construction
activity, or whenever a break in pile
driving/removal of 30 minutes or longer
occurs, PSOs will observe the shutdown
and monitoring zones for a period of 30
minutes. The shutdown zone will be
considered cleared when a marine
mammal has not been observed within
the zone for that 30-minute period. If a
marine mammal is observed within the
shutdown zones listed in Table 13, pile
driving and drilling activity must be
delayed or halted. If pile driving and/or
drilling 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 zones or 15
minutes have passed without redetection of the animal. When a marine
mammal for which Level B harassment
take is authorized is present in the Level
B harassment zone, activities may begin.
If work ceases for more than 30 minutes,
the pre-activity monitoring of the
shutdown zones will commence. A
determination that the shutdown zone is
clear must be made during a period of
E:\FR\FM\09MRP1.SGM
09MRP1
14581
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
good visibility (i.e., the entire shutdown
zone and surrounding waters must be
visible to the naked eye).
Soft Start—Soft-start procedures are
used to provide additional protection to
marine mammals by providing warning
and/or giving marine mammals a chance
to leave the area prior to the hammer
operating at full capacity. For impact
pile driving, contractors will be required
to provide an initial set of three strikes
from the hammer at reduced energy,
followed by a 30-second waiting period,
then two subsequent reduced-energy
strike sets. Soft start will 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.
TABLE 13—PROPOSED SHUTDOWN ZONES 1
Shutdown
distance (m)
for humpback
whales
LOA year
Pile type, size, and driving method
Year 2 ...........
Impact Install 42-inch steel pipe piles ..................................
Vibratory Install 42-inch steel pipe piles ..............................
Impact Install 28-inch steel sheet piles ................................
Vibratory Install 28-inch steel sheet piles ............................
Impact Install 13-inch polymeric piles ..................................
Vibratory Install 13-inch polymeric piles ...............................
Impact Install 24-inch precast concrete bearing piles ..........
Impact Install 18-inch precast concrete fender piles ...........
Pre-drilling .............................................................................
Impact Install 24-inch precast concrete fender piles ...........
Impact Install 18-inch steel piles ..........................................
Impact Install 42-inch steel pipe piles ..................................
Vibratory Install 42-inch steel pipe piles ..............................
Impact Install 28-inch steel sheet piles ................................
Vibratory Install 28-inch steel sheet piles ............................
Vibratory Extract 18-inch precast concrete fender piles ......
Pre-drilling .............................................................................
Impact Install 24-inch precast concrete bearing piles ..........
Vibratory Extract 14-inch timber piles ..................................
Impact Install 18-inch precast concrete fender piles ...........
Impact Install 42-inch steel pipe piles ..................................
Vibratory Install 42-inch steel pipe piles ..............................
Vibratory Extract 24-inch concrete fender piles ...................
Impact Install 28-inch steel sheet piles ................................
Vibratory Install 28-inch steel sheet piles ............................
Vibratory Extract 18-inch precast concrete fender piles ......
Vibratory Extract 16- to 18-inch precast concrete bearing
piles.
Pre-drilling .............................................................................
Vibratory Extract 16- to 18-inch precast concrete bearing
piles.
Impact Install 24-inch precast concrete bearing piles ..........
Impact Install 18-inch precast concrete fender piles ...........
Pre-drilling .............................................................................
Year 3 ...........
Year 4 ...........
Year 5 ...........
Shutdown
distance (m)
for harbor
porpoise
Shutdown
distance (m)
for all
other species
Level B
(behavioral)
harassment
distance (m)
all marine
mammals
1,490
140
1,790
110
20
20
260
10
10
40
700
1,010
90
1,790
110
40
10
120
70
10
1,010
90
50
1,790
120
40
40
500
200
500
150
30
30
500
10
10
50
500
500
120
500
150
60
10
150
110
10
500
120
70
500
150
60
60
200
70
200
80
30
30
200
10
10
30
200
200
50
200
70
30
10
70
50
10
200
50
30
200
70
30
30
1,000
2,500
2,500
2,500
30
2,500
117
30
2,500
120
30
1,000
2,500
2,500
2,500
2,500
2,500
120
2,500
30
1,000
2,500
2,500
2,500
2,500
2,500
2,500
10
40
10
60
10
30
2,500
2,500
120
10
10
150
10
10
70
10
10
120
30
2,500
ddrumheller on DSK120RN23PROD with PROPOSALS1
1 Calculated Level A harassment isopleths for concurrent pile driving were smaller than those calculated for individual impact pile driving, vibratory pile driving and removal, and drilling. Therefore, proposed shutdown zones conservatively reflect individual activity.
Based on our evaluation of the
applicant’s proposed measures, as well
as other measures considered by NMFS,
NMFS has preliminarily determined
that the proposed mitigation measures
provide the means of effecting the least
practicable impact on the affected
species or stocks and their habitat,
paying particular attention to rookeries,
mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to issue an IHA for an
activity, section 101(a)(5)(D) of the
MMPA states that NMFS must set forth
requirements pertaining to the
monitoring and reporting of such taking.
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
The MMPA implementing regulations at
50 CFR 216.104(a)(13) indicate that
requests for authorizations must include
the suggested means of accomplishing
the necessary monitoring and reporting
that will result in increased knowledge
of the species and of the level of taking
or impacts on populations of marine
mammals that are expected to be
present while conducting the activities.
Effective reporting is critical both to
compliance as well as ensuring that the
most value is obtained from the required
monitoring.
Monitoring and reporting
requirements prescribed by NMFS
should contribute to improved
PO 00000
Frm 00068
Fmt 4702
Sfmt 4702
understanding of one or more of the
following:
• Occurrence of marine mammal
species or stocks in the area in which
take is anticipated (e.g., presence,
abundance, distribution, density);
• Nature, scope, or context of likely
marine mammal exposure to potential
stressors/impacts (individual or
cumulative, acute or chronic), through
better understanding of: (1) action or
environment (e.g., source
characterization, propagation, ambient
noise); (2) affected species (e.g., life
history, dive patterns); (3) co-occurrence
of marine mammal species with the
activity; or (4) biological or behavioral
E:\FR\FM\09MRP1.SGM
09MRP1
14582
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
context of exposure (e.g., age, calving or
feeding areas);
• Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors;
• How anticipated responses to
stressors impact either: (1) long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks;
• Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or other important
physical components of marine
mammal habitat); and,
• Mitigation and monitoring
effectiveness.
The Navy will submit a Marine
Mammal Monitoring Plan to NMFS for
approval in advance of the start of
construction.
ddrumheller on DSK120RN23PROD with PROPOSALS1
Visual Monitoring
• Marine mammal monitoring during
pile driving and removal must be
conducted by qualified, NMFS
approved PSOs, in accordance with the
following: PSOs must be independent of
the activity contractor (for example,
employed by a subcontractor) and have
no other assigned tasks during
monitoring periods;
• At least one PSO must have prior
experience performing the duties of a
PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization;
• Other PSOs may substitute other
relevant experience, education (degree
in biological science or related field), or
training for prior experience performing
the duties of a PSO during construction
activity pursuant to a NMFS-issued
incidental take authorization;
• PSOs must be approved by NMFS
prior to beginning any activity subject to
this proposed rulemaking; and
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
• Where a team of three or more PSOs
is required, a lead observer or
monitoring coordinator must be
designated. The lead observer must have
prior experience performing the duties
of a PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization.
PSOs must have the following
additional qualifications:
• Ability to conduct field
observations and collect data according
to assigned protocols;
• Experience or training in the field
identification of marine mammals,
including the identification of
behaviors;
• Sufficient training, orientation, or
experience with the construction
operation to provide for personal safety
during observations;
• Writing skills sufficient to prepare a
report of observations including but not
limited to the number and species of
marine mammals observed; dates and
times when in-water construction
activities were conducted; dates, times,
and reason for implementation of
mitigation (or why mitigation was not
implemented when required); and
marine mammal behavior; and
• Ability to communicate orally, by
radio or in person, with project
personnel to provide real-time
information on marine mammals
observed in the area as necessary.
The Navy must establish the
following monitoring locations and
visual monitoring of the entire
shutdown zones must occur for all pile
driving and drilling activities. For all
pile driving activities, a minimum of
one PSO must be assigned to the active
pile driving or drilling location to
monitor the shutdown zones and as
much of the Level A and Level B
harassment zones as possible. If the
active project location includes
demolition activities, then the next
adjacent pier may be used as an
PO 00000
Frm 00069
Fmt 4702
Sfmt 4702
appropriate monitoring location
ensuring that the aforementioned
criteria is met. Monitoring must be
conducted by a minimum of three PSOs
for any activity with an associated
harassment isopleth over 1000 m. All
other activities would require a
minimum of two PSOs. For activities in
Table 8, 9 and 10, with Level B
harassment zones larger than 3000 m, at
least one PSO must be stationed on
either Pier 14 or the North Jetty to
monitor the part of the zone exceeding
the edge of the Norfolk Naval Station
(see Figure 3). The third PSO for
activities whose harassment isopleths
exceed 1000 m would be located on Pier
1. PSOs will be placed at the best
vantage point(s) practicable to monitor
for marine mammals and implement
shutdown/delay procedures (See Figure
3 for representative monitoring
locations). If changes are necessary to
ensure full coverage of the proposed
shutdown zones, the Navy shall contact
NMFS to alter observer locations (e.g.,
vessel blocking view from pier
locations). Additionally, the shutdown/
monitoring zones may be modified with
NMFS’ approval following NMFS’
acceptance of an acoustic monitoring
report.
Monitoring will be conducted 30
minutes before, during, and 30 minutes
after all in water construction activities.
In addition, observers shall record all
incidents of marine mammal
occurrence, regardless of distance from
activity, and shall document any
behavioral reactions in concert with
distance from drilling or piles being
driven or removed. Pile driving
activities include the time to install or
remove a single pile or series of piles,
as long as the time elapsed between uses
of the pile driving equipment is no more
than 30 minutes.
BILLING CODE 3510–22–P
E:\FR\FM\09MRP1.SGM
09MRP1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
1 Data has previously been collected on the
impact driving of 24-inch concrete piles and
timber piles at NAVSTA Norfolk; therefore,
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
20 times the depth of water at the pile
location. For the pile driving events
acoustically measured, 100 percent of
the data will be analyzed. Please see the
Navy’s Marine Mammal Monitoring
Plan and application for additional
detail.
no additional data collection is proposed for
these pile types.
2 Some piles may be either vibratory or pile
driving, or a combination of both. Pre-drilling
may not be utilized if site conditions do not
require it. The hydroacoustic report at the
end of construction will clarify which
PO 00000
Frm 00070
Fmt 4702
Sfmt 4702
Table 14—Hydroacoustic Monitoring
Summary
E:\FR\FM\09MRP1.SGM
09MRP1
EP09MR23.013
ddrumheller on DSK120RN23PROD with PROPOSALS1
Acoustic Monitoring
The Navy plans to implement in situ
acoustic monitoring efforts to measure
SPLs from in-water construction
activities for pile types and methods
that have not been previously collected
at NAVSTA Norfolk (Table 14). The
Navy will collect and evaluate acoustic
sound recording levels during pile
driving activities. Hydrophones would
be placed at locations 33 ft from the
noise source and, where the potential
for Level A (PTS onset) harassment
exists, at a second representative
monitoring location that is a distance of
EP09MR23.012
Figure 3. Proposed Protected Species
Observer Locations at Naval Station
Norfolk at Norfolk, Virginia
14583
14584
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
installation method was utilized and
monitored for each pile type.
BILLING CODE 3510–22–C
ddrumheller on DSK120RN23PROD with PROPOSALS1
Environmental data shall be collected,
including but not limited to, the
following: Wind speed and direction, air
temperature, humidity, surface water
temperature, water depth, wave height,
weather conditions, other factors that
could contribute to influencing
underwater sound levels (e.g., aircrafts,
boats, etc.).
Reporting
The Navy is required to submit an
annual report on all activities and
marine mammal monitoring results to
NMFS within 90 days following the end
of each construction year. Additionally,
a draft comprehensive 5-year summary
report must be submitted to NMFS
within 90 days of the end of the project.
The annual reports will include an
overall description of work completed,
a narrative regarding marine mammal
sightings, and associated PSO data
sheets. Specifically, the report must
include:
• Dates and times (begin and end) of
all marine mammal monitoring
• Construction activities occurring
during each daily observation period,
including: (a) how many and what type
of piles were driven or removed and the
method (i.e., impact or vibratory); and
(b) the total duration of time for each
pile (vibratory driving) or hole (drilling)
and number of strikes for each pile
(impact driving);
• PSO locations during marine
mammal monitoring; and
• Environmental conditions during
monitoring periods (at beginning and
end of PSO shift and whenever
conditions change significantly),
including Beaufort sea state and any
other relevant weather conditions
including cloud cover, fog, sun glare,
and overall visibility to the horizon, and
estimated observable distance.
Upon observation of a marine
mammal the following information must
be reported:
• Name of PSO who sighted the
animal(s) and PSO location and activity
at the time of sighting;
• Time of sighting;
• Identification of the animal(s) (e.g.,
genus/species, lowest possible
taxonomic level, or unidentified), PSO
confidence in identification, and the
composition of the group if there is a
mix of species;
• Distance and location of each
observed marine mammal relative to the
pile being driven or hole being drilled
for each sighting;
• Estimated number of animals (min/
max/best estimate);
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
• Estimated number of animals by
cohort (adults, juveniles, neonates,
group composition, etc.);
• Description of any marine mammal
behavioral observations (e.g., no
response or changes in behavioral state
such as ceasing feeding, changing
direction, flushing, or breaching);
• Number of marine mammals
detected within the harassment zones,
by species; and
• Detailed information about
implementation of any mitigation (e.g.,
shutdowns and delays), a description of
specified actions that ensured, and
resulting changes in behavior of the
animal(s), if any.
The acoustic monitoring report must
contain the informational elements
described in the Marine Mammal
Monitoring Plan and, at minimum, must
include:
• Hydrophone equipment and
methods: Recording device, sampling
rate, distance (m) from the pile where
recordings were made; depth of water
and recording device(s);
• Type and size of pile being driven,
substrate type, method of driving during
recordings (e.g., hammer model and
energy), and total pile driving duration;
• Whether a sound attenuation device
is used and, if so, a detailed description
of the device used and the duration of
its use per pile;
• For impact pile driving and/or
drilling (per pile): Number of strikes and
strike rate; depth of substrate to
penetrate; pulse duration and mean,
median, and maximum sound levels (dB
re: 1 mPa): Root mean square sound
pressure level (SPLrms); cumulative
sound exposure level (SELcum), peak
sound pressure level (SPLpeak), and
single-strike sound exposure level
(SELs-s); and
• For vibratory driving/removal and/
or drilling (per pile): Duration of driving
per pile; mean, median, and maximum
sound levels (dB re: 1 mPa): Root mean
square sound pressure level (SPLrms),
cumulative sound exposure level
(SELcum) (and timeframe over which the
sound is averaged).
If no comments are received from
NMFS within 30 days, the draft reports
will constitute the final reports. If
comments are received, a final report
addressing NMFS’ comments must be
submitted within 30 days after receipt of
comments. All PSO datasheets and/or
raw sighting data must be submitted
with the draft marine mammal report.
Reporting of Injured or Dead Marine
Mammals
In the event that personnel involved
in the construction activities discover
an injured or dead marine mammal, the
PO 00000
Frm 00071
Fmt 4702
Sfmt 4702
Navy shall report the incident to NMFS
Office of Protected Resources (OPR)
(PR.ITP.MonitoringReports@noaa.gov),
NMFS (301–427–8401) and to the
Greater Atlantic Region New England/
Mid-Atlantic Stranding Coordinator
(866–755–6622) as soon as feasible. The
report must include the following
information:
D Time, date, and location (latitude/
longitude) of the first discovery (and
updated location information if known
and applicable);
D Species identification (if known) or
description of the animal(s) involved;
D Condition of the animal(s)
(including carcass condition if the
animal is dead);
D Observed behaviors of the
animal(s), if alive;
D If available, photographs or video
footage of the animal(s); and
D General circumstances under which
the animal was discovered.
If the death or injury was clearly
caused by the specified activity, the
Navy must immediately cease the
specified activities until NMFS OPR is
able to review the circumstances of the
incident and determine what, if any,
additional measures are appropriate to
ensure compliance with the terms of
this proposed rule. The Navy shall not
resume their activities until notified by
NMFS that they can continue.
Negligible Impact Analysis and
Determination
NMFS has defined negligible impact
as an impact resulting from the
specified activity that cannot be
reasonably expected to, and is not
reasonably likely to, adversely affect the
species or stock through effects on
annual rates of recruitment or survival
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of takes alone is not enough information
on which to base an impact
determination. In addition to
considering estimates of the number of
marine mammals that might be ‘‘taken’’
through harassment, NMFS considers
other factors, such as the likely nature
of any impacts or responses (e.g.,
intensity, duration), the context of any
impacts or responses (e.g., critical
reproductive time or location, foraging
impacts affecting energetics), as well as
effects on habitat, and the likely
effectiveness of the mitigation. We also
assess the number, intensity, and
context of estimated takes by evaluating
this information relative to population
status. Consistent with the 1989
preamble for NMFS’ implementing
E:\FR\FM\09MRP1.SGM
09MRP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
regulations (54 FR 40338; September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
incorporated into this analysis via their
impacts on the baseline (e.g., as
reflected in the regulatory status of the
species, population size and growth rate
where known, ongoing sources of
human-caused mortality, or ambient
noise levels).
To avoid repetition, this introductory
discussion of our analysis applies to all
the species listed in Table 3, given that
many of the anticipated effects of this
project on different marine mammal
stocks are expected to be relatively
similar in nature. Where there are
meaningful differences between species
or stocks, or groups of species, in
anticipated individual responses to
activities, impact of expected take on
the population due to differences in
population status, or impacts on habitat,
they are described independently in the
analysis below.
Construction activities associated
with the project, as outlined previously,
have the potential to disturb or displace
marine mammals. Specifically, the
specified activities may result in take, in
the form of Level A and Level B
harassment from underwater sounds
generated by pile driving activities, pile
removal, and drilling. Potential takes
could occur if marine mammals are
present in zones ensonified above the
thresholds for Level A and Level B
harassment, identified above, while
activities are underway.
The Level A harassment zones
identified in Tables 6 and 7 are based
upon an animal exposed to pile driving
or drilling multiple piles per day.
Considering the short duration to
impact drive each pile and breaks
between pile installations (to reset
equipment and move pile into place), an
animal would have to remain within the
area estimated to be ensonified above
the Level A harassment threshold for
multiple hours. This is highly unlikely
given marine mammal movement
throughout the area, especially for
small, fast moving species such as small
cetaceans and pinnipeds. Additionally,
no Level A harassment is anticipated for
humpback whales due to the required
mitigation measures, which we expect
the Navy will be able to effectively
implement given the majority of the
Level A harassment zones are small
(under 300 m except for a few activities
where additional PSOs will be utilized
to cover the entirety of the Level A
harassment zone), and high visibility of
humpback whales. If an animal was
exposed to sufficient accumulated
sound energy to incur PTS, the resulting
PTS would likely be small (e.g., PTS
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
onset) at lower frequencies where pile
driving energy is concentrated, and
unlikely to result in impacts to
individual fitness, reproduction, or
survival.
The nature of activities included in
the Navy’s pile driving project
precludes the likelihood of serious
injury or mortality. For all species and
stocks, take will occur within a limited,
confined area (immediately surrounding
NAVSTA Norfolk in the Chesapeake
Bay area) of the stock’s range. Level A
and Level B harassment will be reduced
to the level of least practicable adverse
impact through use of mitigation
measures described herein.
Furthermore, the amount of take
authorized is extremely small when
compared to stock abundance for all
species aside from bottlenose dolphins,
however take authorized for bottlenose
dolphins is still expected to be small
relative to the stock abundance as
described in the Small Numbers section.
Effects on individuals that are taken
by Level B harassment, on the basis of
reports in the literature as well as
monitoring from other similar activities,
will likely be limited to reactions such
as increased swimming speeds,
increased surfacing time, or decreased
foraging (if such activity were occurring)
(e.g., Thorson and Reyff 2006).
Individual animals, even if taken
multiple times, will most likely move
away from the sound source and be
temporarily displaced from the areas of
pile driving or drilling, although even
this reaction has been observed
primarily only in association with
impact pile driving. The pile driving
and drilling activities analyzed here are
similar to, or less impactful than,
numerous other construction activities
conducted along both Atlantic and
Pacific coasts, which have taken place
with no known long-term adverse
consequences from behavioral
harassment. Furthermore, many projects
similar to this one are also believed to
result in multiple takes of individual
animals without any documented longterm adverse effects. Level B harassment
will be minimized through use of
mitigation measures described herein
and, if sound produced by project
activities is sufficiently disturbing,
animals are likely to simply avoid the
area while the activity is occurring,
particularly as the project is located on
a busy waterfront with high amounts of
vessel traffic.
UMEs have been declared for
Northeast pinnipeds (including harbor
seal and gray seal) and Atlantic
humpback whale. However, we do not
expect authorized takes to exacerbate or
compound upon these ongoing UMEs.
PO 00000
Frm 00072
Fmt 4702
Sfmt 4702
14585
As noted previously, no injury, serious
injury, or mortality is expected or
authorized, and Level B harassment
takes of humpback whale, harbor seal
and gray seal will be reduced to the
level of least practicable adverse impact
through the incorporation of the
mitigation measures. For the WNA stock
of gray seal, the estimated stock
abundance is 27,300 (424,300 including
estimates in Canadian waters). Given
that only 1–2 takes by Level B
harassment are authorized for this stock
annually, we do not expect this
authorization to exacerbate or
compound upon the ongoing UME.
For the WNA stock of harbor seals,
the estimated abundance is 61,336
individuals. The estimated M/SI (339) is
well below the PBR (1,729). As such, the
Level B harassment takes of harbor seal
are not expected to exacerbate or
compound upon the ongoing UMEs.
With regard to humpback whales, the
UME does not yet provide cause for
concern regarding population-level
impacts. 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., 12,312
(95 percent CI 8,688–15,954) whales in
2004–2005 (Bettridge et al., 2003)), and
appears to be experiencing consistent
growth. NMFS is proposing to authorize
no more than eight takes by Level B
harassment annually of humpback
whale.
The project is also not expected to
have significant adverse effects on
affected marine mammals’ habitats. The
project activities will not modify
existing marine mammal habitat for a
significant amount of time. The
E:\FR\FM\09MRP1.SGM
09MRP1
14586
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS1
activities may cause some fish to leave
the area of disturbance, thus temporarily
impacting marine mammals’ foraging
opportunities in a limited portion of the
foraging range; but, because of the short
duration of the activities and the
relatively small area of the habitat that
may be affected (with no known
particular importance to marine
mammals), the impacts to marine
mammal habitat are not expected to
cause significant or long-term negative
consequences.
In summary and as described above,
the following factors primarily support
our preliminary determination that the
impacts resulting from this activity are
not expected to adversely affect any of
the species or stocks through effects on
annual rates of recruitment or survival:
• No mortality is anticipated or
authorized;
• Authorized Level A harassment
would be very small amounts and of
low degree;
• The intensity of anticipated takes
by Level B harassment is relatively low
for all stocks;
• The number of anticipated takes is
very low for humpback whale, harbor
porpoise, and gray seal;
• The specified activity and
associated ensonified areas are very
small relative to the overall habitat
ranges of all species and do not include
habitat areas of special significance;
• The lack of anticipated significant
or long-term negative effects to marine
habitat;
• The presumed efficacy of the
mitigation measures in reducing the
effects of the specified activity;
• Monitoring reports from similar
work in the Chesapeake Bay have
documented little to no effect on
individuals of the same species
impacted by similar activities.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
proposed monitoring and mitigation
measures, NMFS preliminarily finds
that the total marine mammal take from
the proposed activity will have a
negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted previously, only small
numbers of incidental take may be
authorized under sections 101(a)(5)(A)
and (D) of the MMPA for specified
activities other than military readiness
activities. The MMPA does not define
small numbers and so, in practice,
where estimated numbers are available,
NMFS compares the number of
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
individuals taken to the most
appropriate estimation of abundance of
the relevant species or stock in our
determination of whether an
authorization is limited to small
numbers of marine mammals. When the
predicted number of individuals to be
taken is fewer than one-third of the
species or stock abundance, the take is
considered to be of small numbers.
Additionally, other qualitative factors
may be considered in the analysis, such
as the temporal or spatial scale of the
activities.
The maximum annual take of take
NMFS proposes to authorize for the five
marine mammal stocks is below onethird of the estimated stock abundance
for all species except for the WNA
southern coastal migratory stock and the
WNA northern coastal migratory stock
of bottlenose dolphins (see Table 12).
There are three bottlenose dolphin
stocks that could occur in the project
area. Therefore, largest estimated annual
take by Level B harassment of 13,190
bottlenose dolphin would likely be split
among the western WNA northern
coastal migratory stock, the WNA
southern coastal migratory stock, and
the northern North Carolina Estuarine
stock (NNCES). Based on the stocks’
respective occurrence in the area, NMFS
estimates that there would be no more
than 200 takes from the NNCES stock,
representing 24 percent of that
population, with the remaining takes
split evenly between the northern and
southern coastal migratory stocks. Based
on the consideration of various factors
as described below, we have
preliminarily determined that the
number of individuals taken will
comprise of less than one-third of the
best available population abundance
estimate of either coastal migratory
stock. Detailed descriptions of the
stocks’ ranges have been provided in the
Description of Marine Mammals in the
Area of Specified Activities section.
Both the northern migratory coastal
and southern migratory coastal stocks
have expensive ranges and they are the
only dolphin stocks thought to make
broad scale, seasonal migrations in
coastal waters of the western North
Atlantic. Given the large ranges
associated with these two stocks, it is
unlikely that large segments of either
stock would approach the project area
and enter into the Chesapeake Bay. The
majority of both stocks are likely to be
found widely dispersed across their
respective habitat ranges and unlikely to
be concentrated in or near the
Chesapeake Bay.
Furthermore, the Chesapeake Bay and
nearby offshore waters represent the
boundaries of the ranges of each of the
PO 00000
Frm 00073
Fmt 4702
Sfmt 4702
two coastal stocks during migration. The
northern migratory coastal stock is
found during warm water months from
coastal Virginia, including the
Chesapeake Bay and Long Island, New
York. The stock migrates south in late
summer and fall. During cold water
months, dolphins may be found in
coastal waters from Cape Lookout,
North Carolina, to the North Carolina/
Virginia border. During January–March,
the southern Migratory coastal stock
appears to move as far south as northern
Florida. From April–June, the stock
moves back north to North Carolina.
During the warm water months of July–
August, the stock is presumed to occupy
the coastal waters north of Cape
Lookout, North Carolina, to Assateague,
Virginia, including the Chesapeake Bay.
There is likely some overlap between
the northern southern migratory stocks
during spring and fall migrations, but
the extent of overlap is unknown.
The Chesapeake Bay and waters
offshore of the mouth are located on the
periphery of the migratory ranges of
both coastal stocks (although during
different seasons). Additionally, each of
the migratory coastal stocks are likely to
be located in the vicinity of the Bay for
relatively short timeframes. Given the
limited number of animals from each
migratory coastal stock likely to be
found at the seasonal migratory
boundaries of their respective ranges, in
combination with the short time periods
(∼2 months) animals might remain at
these boundaries, it is reasonable to
assume that takes are likely to occur
only within some small portion of either
of the migratory coastal stocks.
Many of the dolphin observations in
the Bay are likely repeated sightings of
the same individuals. The PotomacChesapeake Dolphin Project has
observed over 1,200 unique animals
since observations began in 2015. Resightings of the same individual can be
highly variable. Some dolphins are
observed once per year, while others are
highly regular with greater than 10
sightings per year (Mann, Personal
Communication). Similarly, using
available photo-identification data,
Engelhaupt et al. (2016) determined that
specified individuals were often
observed in close proximity to their
original sighting locations and were
observed multiple times in the same
season or same year. Ninety-one percent
of re-sighted individuals (100 of 110) in
the study area were recorded less than
30 kilometers from the initial sighting
location. Multiple sightings of the same
individual would considerably reduce
the number of individual animals that
are taken by harassment. Furthermore,
the existence of a resident dolphin
E:\FR\FM\09MRP1.SGM
09MRP1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
population in the Bay would increase
the percentage of dolphin takes that are
actually re-sightings of the same
individuals.
In summary and as described above,
the following factors primarily support
our determination regarding the
incidental take of small numbers of the
affected stocks of a species or stock:
• The take of marine mammal stocks
proposed for authorization comprises
less than 3 percent of any stock
abundance (with the exception of the
three bottlenose dolphin stocks);
• Potential bottlenose dolphin takes
in the project area are likely to be
allocated among three distinct stocks;
• Bottlenose dolphin stocks in the
project area have extensive ranges and
it would be unlikely to find a high
percentage of the individuals of any one
stock concentrated in a relatively small
area such as the project area or the
Chesapeake Bay;
• The Chesapeake Bay represents the
migratory boundary for each of the
specified dolphin stocks and it would
be unlikely to find a high percentage of
any stock concentrated at such
boundaries; and
• Many of the takes would likely be
repeats of the same animals and likely
from a resident population of the
Chesapeake Bay.
Based on the analysis contained
herein of the activity (including the
mitigation and monitoring measures)
and the anticipated take of marine
mammals, NMFS preliminarily finds
that small numbers of marine mammals
will be taken relative to the population
size of the affected species or stock.
ddrumheller on DSK120RN23PROD with PROPOSALS1
Unmitigable Adverse Impact Analysis
and Determination
There are no relevant subsistence uses
of the affected marine mammal stocks or
species implicated by this action.
Therefore, NMFS has determined that
the total taking of affected species or
stocks would not have an unmitigable
adverse impact on the availability of
such species or stocks for taking for
subsistence purposes.
Adaptive Management
The regulations governing the take of
marine mammals incidental to Navy
construction activities would contain an
adaptive management component. The
reporting requirements associated with
this proposed rule are designed to
provide NMFS with monitoring data
from completed projects to allow
consideration of whether any changes
are appropriate. The use of adaptive
management allows NMFS to consider
new information from different sources
to determine (with input from the Navy
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
14587
regarding practicability) on an annual or
biennial basis if mitigation or
monitoring measures should be
modified (including additions or
deletions). Mitigation measures could be
modified if new data suggests that such
modifications would have a reasonable
likelihood of reducing adverse effects to
marine mammals and if the measures
are practicable.
The following are some of the
possible sources of applicable data to be
considered through the adaptive
management process: (1) Results from
monitoring reports, as required by
MMPA authorizations; (2) results from
general marine mammal and sound
research; and (3) any information which
reveals that marine mammals may have
been taken in a manner, extent, or
number not authorized by these
regulations or subsequent LOAs.
to the Chief Counsel for Advocacy of the
Small Business Administration that this
proposed rule, if adopted, would not
have significant economic impact on a
substantial number of small entities.
The U.S. Navy is the sole entity that
would be subject to the requirements in
these proposed regulations, and the
Navy is not a small governmental
jurisdiction, small organization, or small
business, as defined by the RFA.
Because of this certification, a
regulatory flexibility analysis in not
required and none has been prepared.
This proposed rule does not contain
a collection-of-information requirement
subject to the provisions of the
Paperwork Reduction Act (PRA)
because the applicant is a Federal
agency.
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. 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.
Acoustics, Administrative practice
and procedure, Construction,
Endangered and threatened species,
Marine mammals, Mitigation and
Monitoring requirements, Reporting
requirements, Wildlife.
Request for Information
NMFS requests that interested
persons submit comments, information,
and suggestions concerning the Navy’s
request and the proposed regulations
(see ADDRESSES). All comments will be
reviewed and evaluated as we prepare a
final rule and make final determinations
on whether to issue the requested
authorization. This proposed rule and
supporting documents provide all
environmental information relating to
our proposed action for public review.
Classification
Pursuant to the procedures
established to implement Executive
Order 12866, the Office of Management
and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the
Regulatory Flexibility Act (RFA), the
Chief Counsel for Regulation of the
Department of Commerce has certified
PO 00000
Frm 00074
Fmt 4702
Sfmt 4702
List of Subjects in 50 CFR Part 217
Dated: March 2, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble,
NOAA proposes to amend 50 CFR part
217 as follows:
PART 217—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 217
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq., unless
otherwise noted.
■
2. Revise subpart L to read as follows:
Subpart L—Taking and Importing
Marine Mammals Incidental to Navy
Construction of the Pier 3
Replacement Project at Naval Station
Norfolk at Norfolk, Virginia
Sec.
217.110 Specified activity and geographical
region.
217.111 Effective dates.
217.112 Permissible methods of taking.
217.113 Prohibitions.
217.114 Mitigation requirements.
217.115 Requirements for monitoring and
reporting.
217.116 Letters of Authorization.
217.117 Renewals and modifications of
Letters of Authorization.
217.118 [Reserved]
217.119 [Reserved]
E:\FR\FM\09MRP1.SGM
09MRP1
14588
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
§ 217.110 Specified activity and
geographical region.
§ 217.114
(a) Regulations in this subpart apply
only to the U.S. Navy (Navy) and those
persons it authorizes or funds to
conduct activities on its behalf for the
taking of marine mammals that occurs
in the areas outlined in paragraph (b) of
this section and that occurs incidental
to construction activities related to the
replacement of Pier 3 at Naval Station
Norfolk at Norfolk, Virginia.
(b) The taking of marine mammals by
the Navy may be authorized in a Letter
of Authorization (LOA) only if it occurs
at Naval Station Norfolk, Norfolk,
Virginia.
§ 217.111
Effective dates.
Regulations in this subpart are
effective for a period of five years from
the date of issuance.
§ 217.112
Permissible methods of taking.
Under an LOA issued pursuant to
§§ 216.106 of this chapter and 217.116,
the Holder of the LOA (hereinafter
‘‘Navy’’) may incidentally, but not
intentionally, take marine mammals
within the area described in
§ 217.110(b) by harassment associated
with construction activities related to
replacement of Pier 3, provided the
activity is in compliance with all terms,
conditions, and requirements of the
regulations in this subpart and the
applicable LOA.
ddrumheller on DSK120RN23PROD with PROPOSALS1
§ 217.113
Prohibitions.
(a) Except for the takings
contemplated in § 217.112 and
authorized by a LOA issued under
§§ 216.106 of this chapter and 217.116,
it is unlawful for any person to do any
of the following in connection with the
activities described in § 217.110:
(1) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or a LOA issued under
§§ 216.106 of this chapter and 217.116;
(2) Take any marine mammal not
specified in such LOA;
(3) Take any marine mammal
specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified
in such LOA after NMFS determines
such taking results in more than a
negligible impact on the species or
stocks of such marine mammal; or
(5) Take a marine mammal specified
in such LOA after NMFS determined
such taking results in an unmitigable
adverse impact on the species or stock
of such marine mammal for taking for
subsistence uses.
(b) [Reserved].
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
Mitigation requirements.
(a) When conducting the activities
identified in § 217.110(a), the mitigation
measures contained in this subpart and
any LOA issued under §§ 216.106 of this
chapter and 217.116 must be
implemented by the Navy. These
mitigation measures include:
(1) A copy of any issued LOA must be
in the possession of the Navy,
supervisory construction personnel,
lead protected species observers (PSOs),
and any other relevant designees of the
Navy operating under the authority of
the LOA at all times that activities
subject to the LOA are being conducted;
(2) The Navy must ensure that
construction supervisors and crews, the
monitoring team, and relevant Navy
staff are trained prior to the start of
activities subject to any issued LOA, so
that responsibilities, communication
procedures, monitoring protocols, and
operational procedures are clearly
understood. New personnel joining
during the project must be trained prior
to commencing work;
(3) The Navy, construction
supervisors and crews, and relevant
Navy staff must 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, as
necessary to avoid direct physical
interaction;
(4) The Navy must employ PSOs and
establish monitoring locations as
described in the NMFS-approved
Marine Mammal Monitoring Plan. The
Navy must monitor the project area to
the maximum extent possible based on
the required number of PSOs, required
monitoring locations, and
environmental conditions;
(5) For all pile driving and drilling
activity, the Navy shall implement
shutdown zones with radial distances as
identified in a LOA issued under
§ 217.116. If a marine mammal is
observed entering or within the
shutdown zone, such operations must
be delayed or halted.
(6) Monitoring must take place from
30 minutes prior to initiation of pile
driving or drilling activity (i.e., pre-start
clearance monitoring) through 30
minutes post-completion of pile driving
or drilling activity.
(7) Pre-start clearance monitoring
must be conducted during periods of
visibility sufficient for the lead PSO to
determine that the shutdown zones are
clear of marine mammals. Pile driving
and drilling may commence following
30 minutes of observation when the
PO 00000
Frm 00075
Fmt 4702
Sfmt 4702
determination is made that the
shutdown zones are clear of marine
mammals
(8) If pile driving and/or drilling 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.
(9) 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.
(10) The Navy must use soft start
techniques when impact pile driving.
Soft start requires contractors to provide
an initial set of strikes at reduced
energy, followed by a 30-second waiting
period, then two subsequent reducedenergy 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.
(b) [Reserved]
§ 217.115 Requirements for monitoring
and reporting.
(a) The Navy shall submit a Marine
Mammal Monitoring Plan to NMFS for
approval in advance of construction.
Marine mammal monitoring must be
conducted in accordance with the
conditions in this section and the
NMFS-approved Marine Mammal
Monitoring Plan.
(b) Monitoring must be conducted by
qualified, NMFS-approved PSOs, in
accordance with the following
conditions:
(1) PSOs must be independent of the
activity contractor (for example,
employed by a subcontractor) and have
no other assigned tasks during
monitoring periods;
(2) At least one PSO must have prior
experience performing the duties of an
observer during construction activity
pursuant to a NMFS-issued incidental
take authorization;
(3) Other observers may substitute
other relevant experience, education
(degree in biological science or related
field), or training for prior experience
performing the duties of an observer
during construction activity pursuant to
a NMFS-issued incidental take
authorization;
(4) One observer must be designated
as lead observer or monitoring
coordinator. The lead observer must
have prior experience performing the
E:\FR\FM\09MRP1.SGM
09MRP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
duties of a PSO during construction
activity pursuant to a NMFS-issued
incidental take authorization;
(5) Observers must be approved by
NMFS prior to beginning any activity
subject to any issued LOA;
(6) For all pile driving activities, a
minimum of two observers shall be
stationed at the best vantage points
practicable to monitor for marine
mammals and implement shutdown/
delay procedures;
(7) For all pile driving activities, a
minimum of two observers shall be
stationed at the active pile driving site,
docks, or piers to monitor the
harassment and shutdown zones, and as
described in the Marine Mammal
Monitoring Plan. For shutdown zones
exceeding 1000 meters, a minimum of
three observers shall be stationed
appropriately, as described in the
Marine Mammal Monitoring Plan, to
monitor the entire shutdown zone.
(8) The Navy shall monitor the
harassment zones to the extent
practicable and the entire shutdown
zones. The Navy shall monitor at least
a portion of the Level B harassment
zone on all pile driving days.
(9) The Navy shall conduct
hydroacoustic data collection in
accordance with a Marine Mammal
Monitoring Plan that must be approved
by NMFS in advance of construction.
(10) The shutdown/monitoring zones
may be modified with NMFS’ approval
following NMFS’ acceptance of an
acoustic monitoring report.
(11) The Navy must submit a draft
monitoring report to NMFS within 90
calendar days of the completion of each
construction year. A draft
comprehensive 5-year summary report
must also be submitted to NMFS within
90 days of the end of the project. The
reports must detail the monitoring
protocol and summarize the data
recorded during monitoring. Final
annual reports and the final
comprehensive report must be prepared
and submitted within 30 days following
resolution of any NMFS comments on
the draft report. If no comments are
received from NMFS within 30 days of
receipt of the draft report, the report
must be considered final. If comments
are received, a final report addressing
NMFS comments must be submitted
within 30 days after receipt of
comments. The reports must at
minimum contain the informational
elements described below (as well as
any additional information described in
the Marine Mammal Monitoring Plan),
including:
(i) Dates and times (begin and end) of
all marine mammal monitoring;
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
(ii) Construction activities occurring
during each daily observation period,
including the number and type of piles
that were driven or removed and by
what method (i.e., impact, vibratory or
drilling), total duration of driving time
for each pile (vibratory and drilling) and
number of strikes for each pile (impact);
(iii) PSO locations during marine
mammal monitoring;
(iv) Environmental conditions during
monitoring periods (at beginning and
end of PSO shift and whenever
conditions change significantly),
including Beaufort sea state and any
other relevant weather conditions
including cloud cover, fog, sun glare,
and overall visibility to the horizon, and
estimated observable distance;
(v) Upon observation of a marine
mammal, the follow information:
(A) Name of PSO who sighted the
animal(s) and PSO location and activity
at time of sighting;
(B) Time of sighting;
(C) Identification of the animal(s)
(e.g., genus/species, lowest possible
taxonomic level, or unidentified), PSO
confidence in identification, and the
composition of the group if there is a
mix of species;
(D) Distance and location of each
observed marine mammal relative to the
pile being driven for each sighting;
(E) Estimated number of animals
(min/max/best estimate);
(F) Estimated number of animals by
cohort (adults, juveniles, neonates,
group composition, etc.);
(G) Animal’s closest point of approach
and estimated time spent within the
harassment zone;
(vi) Description of any marine
mammal behavioral observations (e.g.,
observed behaviors such as feeding or
traveling), including an assessment of
behavioral responses thought to have
resulted form the activity (e.g., no
response or changes in behavioral state
such as ceasing feeding, changing
direction, flushing, or breaching);
(vii) Number of marine mammals
detected within the harassment zones,
by species; and
(viii) Detailed information about
implementation of any mitigation (e.g.,
shutdown and delays), a description of
specific actions that ensued, and
resulting changes in behavior of the
animal(s), if any.
(12) The Holder must submit all PSO
datasheets and/or raw sighting data
within the draft report.
(13) All draft and final monitoring
reports must be submitted to
PR.ITP.MonitoringReports@noaa.gov
and ITP.corcoran@noaa.gov.
(14) The Navy must report
hydroacoustic data collected as required
PO 00000
Frm 00076
Fmt 4702
Sfmt 4702
14589
by a LOA issued under §§ 216.106 of
this chapter and 217.116 and as
discussed in the Navy’s Marine
Mammal Monitoring Plan approved by
NMFS.
(15) In the event that personnel
involved in the construction activities
discover an injured or dead marine
mammal, the Navy shall report the
incident to the Office of Protected
Resources (OPR), NMFS and to the
Greater Atlantic Region New England/
Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. If the
death or injury was clearly caused by
the specified activity, the Navy must
immediately cease the specified
activities until NMFS is able to review
the circumstances of the incident and
determine what, if any, additional
measures are appropriate to ensure
compliance with the terms of the
authorization. The Navy must not
resume their activities until notified by
NMFS. The report must include the
following information:
(i) Time, date, and location (latitude/
longitude) of the first discovery (and
updated location information if known
and applicable);
(ii) Species identification (if known)
or description of the animal(s) involved;
(iii) Condition of the animal(s)
(including carcass condition if the
animal is dead);
(iv) Observed behaviors of the
animal(s), if alive;
(v) If available, photographs or video
footage of the animal(s); and
(vi) General circumstances under
which the animal was discovered.
§ 217.116
Letters of Authorization.
(a) To incidentally take marine
mammals pursuant to these regulations,
the Navy must apply for and obtain an
LOA.
(b) An LOA, unless suspended or
revoked, may be effective for a period of
time not to exceed the expiration date
of these regulations.
(c) If an LOA expires prior to the
expiration date of these regulations, the
Navy may apply for and obtain a
renewal of the LOA.
(d) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
LOA, the Navy must apply for and
obtain a modification of the LOA as
described in § 217.116.
(e) The LOA must set forth the
following information:
(1) Permissible methods of incidental
taking;
(2) Means of effecting the least
practicable adverse impact (i.e.,
mitigation) on the species, its habitat,
and on the availability of the species for
subsistence uses; and
E:\FR\FM\09MRP1.SGM
09MRP1
14590
Federal Register / Vol. 88, No. 46 / Thursday, March 9, 2023 / Proposed Rules
(3) Requirements for monitoring and
reporting.
(f) Issuance of the LOA must be based
on a determination that the level of
taking must be consistent with the
findings made for the total taking
allowable under these regulations.
(g) Notice of issuance or denial of an
LOA must be published in the Federal
Register within 30 days of a
determination.
ddrumheller on DSK120RN23PROD with PROPOSALS1
§ 217.117 Renewals and modifications of
Letters of Authorization.
(a) An LOA issued under §§ 216.106
of this chapter and 217.116 for the
activity identified in § 217.110(a) may
be renewed or modified upon request by
the applicant, provided that:
(1) The proposed specified activity
and mitigation, monitoring, and
reporting measures, as well as the
anticipated impacts, are the same as
those described and analyzed for these
regulations; and
(2) NMFS determines that the
mitigation, monitoring, and reporting
measures required by the previous LOA
under these regulations were
implemented.
(b) For LOA modification or renewal
requests by the applicant that include
changes to the activity or the mitigation,
monitoring, or reporting that do not
change the findings made for the
regulations or result in no more than a
minor change in the total estimated
number of takes (or distribution by
species or years), NMFS may publish a
notice of proposed LOA in the Federal
Register, including the associated
analysis of the change, and solicit
public comment before issuing the LOA.
(c) A LOA issued under §§ 216.106 of
this chapter and 217.116 for the activity
identified in § 217.110(a) may be
modified by NMFS under the following
circumstances:
(1) NMFS may modify (including
augment) the existing mitigation,
monitoring, or reporting measures (after
consulting with Navy regarding the
practicability of the modifications) if
doing so creates a reasonable likelihood
of more effectively accomplishing the
goals of the mitigation and monitoring
set forth in the preamble for these
regulations;
(i) Possible sources of data that could
contribute to the decision to modify the
mitigation, monitoring, or reporting
measures in a LOA:
(A) Results from Navy’s monitoring
from previous years;
(B) Results from other marine
mammal and/or sound research or
studies; and
(C) Any information that reveals
marine mammals may have been taken
VerDate Sep<11>2014
17:16 Mar 08, 2023
Jkt 259001
in a manner, extent or number not
authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS must publish a
notice of proposed LOA in the Federal
Register and solicit public comment;
(2) If NMFS determines that an
emergency exists that poses a significant
risk to the well-being of the species or
stocks of marine mammals specified in
a LOA issued pursuant to §§ 216.106 of
this chapter and 217.116, a LOA may be
modified without prior notice or
opportunity for public comment.
Notification would be published in the
Federal Register within 30 days of the
action.
1. Go to https://www.regulations.gov,
and enter ‘‘NOAA–NMFS–2023–0014’’
in the Search box;
2. Click the ‘‘Comment’’ icon,
complete the required fields; and
3. Enter or attach your comments.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter‘‘N/
§§ 217.118–217.119 [Reserved]
A’’ in the required fields if you wish to
[FR Doc. 2023–04613 Filed 3–8–23; 8:45 am]
remain anonymous). If you are unable to
BILLING CODE 3510–22–P
submit your comment through
www.regulations.gov, contact Cynthia
Ferrio, Fishery Policy Analyst,
DEPARTMENT OF COMMERCE
Cynthia.Ferrio@noaa.gov.
A draft environmental assessment
National Oceanic and Atmospheric
(EA) has been prepared for this action
Administration
that describes the proposed measures
and other considered alternatives, as
50 CFR Part 648
well as provides an analysis of the
impacts of the proposed measures and
[Docket No. 230303–0063]
alternatives. Copies of the specifications
RTID 0648–XC715
document, including the EA, are
available on request from Dr.
Fisheries of the Northeastern United
States; Atlantic Spiny Dogfish Fishery; Christopher M. Moore, Executive
Director, Mid-Atlantic Fishery
2023 Specifications
Management Council, Suite 201, 800
AGENCY: National Marine Fisheries
North State Street, Dover, DE 19901.
Service (NMFS), National Oceanic and
These documents are also accessible via
Atmospheric Administration (NOAA),
the internet at https://www.mafmc.org/
Commerce.
action-archive.
ACTION: Proposed rule; request for
FOR FURTHER INFORMATION CONTACT:
comments.
Cynthia Ferrio, Fishery Policy Analyst,
(978) 281–9180.
SUMMARY: NMFS proposes specifications
SUPPLEMENTARY INFORMATION:
for the 2023 Atlantic spiny dogfish
fishery, as recommended by the MidBackground
Atlantic and New England Fishery
The Mid-Atlantic and New England
Management Councils. This action is
Fishery Management Councils jointly
necessary to establish allowable harvest manage the Atlantic Spiny Dogfish
levels for the spiny dogfish fishery to
Fishery Management Plan (FMP), with
prevent overfishing while enabling
the Mid-Atlantic Council acting as the
optimum yield, using the best scientific administrative lead. Additionally, the
information available. This rule also
Atlantic States Marine Fisheries
informs the public of the proposed
Commission manages the spiny dogfish
fishery specifications and provides an
fishery in state waters from Maine to
opportunity for comment.
North Carolina through an interstate
DATES: Comments must be received by
fishery management plan. The Federal
March 24, 2023.
FMP requires the specification of an
acceptable biological catch (ABC),
ADDRESSES: You may submit comments
on this document, identified by NOAA– annual catch limit (ACL), annual catch
target (ACT), total allowable landings
NMFS–2023–0014, by the following
(TAL), and a coastwide commercial
method:
quota. These limits and other related
Electronic Submission: Submit all
management measures may be set for up
electronic public comments via the
to five fishing years at a time, with each
Federal e-Rulemaking Portal.
PO 00000
Frm 00077
Fmt 4702
Sfmt 4702
E:\FR\FM\09MRP1.SGM
09MRP1
Agencies
[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Proposed Rules]
[Pages 14560-14590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04613]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 230302-0061]
RIN 0648-BL81
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Construction of the Pier
3 Replacement Project at Naval Station Norfolk
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for
authorization to take marine mammals incidental to the replacement of
Pier 3 at Naval Station (NAVSTA) Norfolk in Norfolk, Virginia over the
course of five years (2023-2028). Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is proposing regulations to govern that
take, and requests comments on the proposed regulations. Agency
responses will be included in the notice of the final decision.
DATES: Comments and information must be received no later than April
10, 2023.
ADDRESSES: A copy of the Navy's application and any supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-replacement-pier-3-naval-station-norfolk-norfolk. In case of problems accessing these documents, please
call the contact listed below (see FOR FURTHER INFORMATION CONTACT).
Submit all electronic public comments via the Federal e-Rulemaking
Portal. Go to www.regulations.gov and enter NOAA-NMFS-2022-0110 in the
Search box. Click on the ``Comment'' icon, complete the required
fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public records and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
This proposed rule would establish a framework under the authority
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of
take of marine mammals incidental to the Navy's construction activities
including pile driving and drilling activities at Naval Station
(NAVSTA) Norfolk.
We received an application from the Navy requesting five-year
regulations and authorization to take multiple species of marine
mammals. Take would occur by Level B and Level A harassment, incidental
to impact and vibratory pile driving and drilling. Please see
Background below for definitions of harassment.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce 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 for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Proposed Mitigation
section), as well as monitoring and reporting requirements. Section
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR
part 216, subpart I provide the legal basis for issuing this proposed
rule containing 5-year regulations, and for any subsequent letters of
authorization (LOAs). As directed by this legal authority, this
proposed rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Proposed Rule
Following is a summary of the major provisions of this proposed
rule regarding Navy construction activities. These measures include:
Required monitoring of the construction areas to detect
the presence of marine mammals before beginning construction
activities;
Shutdown of construction activities under certain
circumstances to avoid injury of marine mammals;
Soft start for impact pile driving to allow marine mammals
the opportunity to leave the area prior to beginning impact pile
driving at full power.
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 IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least
[[Page 14561]]
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
the species or stocks for taking for certain subsistence uses (referred
to in shorthand as ``mitigation''); and requirements pertaining to the
mitigation, monitoring and reporting of the takings are set forth. The
definitions of all applicable MMPA statutory terms cited above are
included in the relevant sections below.
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 IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has
preliminarily determined that the issuance of the proposed IHA
qualifies to be categorically excluded from further review under NEPA.
We will review all comments submitted in response to this document
prior to concluding our NEPA process or making a final decision on the
IHA request.
Summary of Request
On April 8, 2022, NMFS received a request from the Navy for
authorization to take marine mammals incidental to construction
activities related to the replacement of Pier 3 at Naval Station
Norfolk in Norfolk, Virginia. Following NMFS' review of the
application, the Navy provided responses to questions on June 3, 2022
and August 29, 2022. A revised version of the application was submitted
on September 22, 2022. The application was deemed adequate and complete
on September 26, 2022 and published for public review and comment on
October 7, 2022 (87 FR 60998). We did not receive substantive comments
on the NOR.
The Navy requests authorization to take a small number of five
species of marine mammals by Level B harassment and, for harbor
porpoise and harbor seal, Level A harassment. Neither the Navy nor NMFS
expect serious injury or mortality to result from this activity. The
proposed regulations would be valid for five years (2023-2028).
Description of Proposed Activity
Overview
The Navy is currently conducting, and proposes to continue, the
replacement of Pier 3 at NAVSTA Norfolk, in Norfolk, VA. This proposed
rule follows an Incidental Harassment Authorization (IHA) issued to the
Navy on March 15, 2022, effective from April 1, 2022 through March 31,
2023 (87 FR 15945; March 21, 2022), which covered the first year of
project activities, and covers the remaining activities for the pier
replacement. During this period demolition and construction activities
will occur at existing Pier 3, new Pier 3, CEP-176 wharf, CEP-102
relieving platform, and on a fender system of CEP-175 bulkhead (See
Figure 1). The proposed project includes both vibratory pile driving
and removal, impact pile driving, and pre-drilling (hereafter, referred
to as ``drilling''). Sounds resulting from pile driving, drilling and
removal may result in the incidental take of marine mammals by Level A
and Level B harassment in the form of auditory injury or behavioral
harassment.
Dates and Duration
The proposed regulations would be valid for a period of five years
(2023-2028) The specified activities may occur at any time during the
five-year period of validity of the proposed regulations. The Navy
expects pile driving and drilling for the entire project to occur on
approximately 513 non-consecutive days over a four year duration, with
the greatest amount of work occurring during Year 4 (approximately 204
days). However, in the event of unforeseen delays, the project may
occur over the full 5-year duration of this proposed rule. The Navy
plans to conduct all work during daylight hours.
Specific Geographic Region
Pier 3 at NAVSTA Norfolk is located at the confluence of the
Elizabeth River, James River, Nansemond River, LaFeyette River,
Willoughby Bay, and Chesapeake Bay (Figure 2).
Anthropogenic sound is a significant contributor to the ambient
acoustic environment surrounding NAVSTA Norfolk, as it is located in
close proximity to shipping channels as well as several Port of
Virginia facilities with frequent vessel traffic that altogether have
an annual average of 1,788 vessel calls (Port of Virginia, 2021). Other
sources of human-generated underwater sound not specific to naval
installations include sounds from echosounders on commercial and
recreational vessels, industrial ship noise, and noise from
recreational boat engines. Additionally, on average, maintenance
dredging of the navigation channel occurs every 2 years (USACE and Port
of Virginia, 2018).
BILLING CODE 3510-22-P
[[Page 14562]]
[GRAPHIC] [TIFF OMITTED] TP09MR23.010
Figure 1: Site Location Map for NAVSTA Norfolk in Norfolk, Virginia
[[Page 14563]]
[GRAPHIC] [TIFF OMITTED] TP09MR23.011
Figure 2: Project Site Map at NAVSTA Norfolk in Norfolk, Virginia
BILLING CODE 3510-22-C
Detailed Description of Specific Activity
The proposed project involves the replacement of Pier 3 at NAVSTA
waterfront. The existing Pier 3 would be completely demolished and a
new Pier 3 would be constructed immediately north of the existing
location (Figure 2). The project scope for the replacement of Pier 3
under this proposed rule would also include construction of new CEP-176
wharf, construction of new CEP-102 relieving platform, and construction
of a portion of fender system at CEP-175. The project includes 6
phases, the first of which has begun under the previously issued IHA
(87 FR 15945; March 21, 2022). A preliminary work schedule and activity
details for the work under this proposed rule are provided in Table 1.
In-water construction activities, including pile driving, pile removal,
and drilling are described in detail below:
Pile Removal--Piles are anticipated to be removed with a vibratory
hammer, however, direct pull or clamshell removal may be used depending
on site conditions. All three pile removal methods are described below.
Take is not expected to occur for clamshell and direct pull removal,
therefore they will not be described past what is provided below nor
included in our analysis:
[[Page 14564]]
Vibratory Extraction--This method uses a barge-mounted
crane with a vibratory driver to remove all pile types. The vibratory
driver is a large mechanical device (5 to 16 tons) suspended from a
crane by a cable and positioned on top of a pile. The pile is then
loosened from the sediments by activating the driver and slowly lifting
up on the driver with the aid of the crane. Once the pile is released
from the sediments, the crane continues to raise the driver and pull
the pile from the sediment. The driver is typically shut off once the
pile is loosened from the sediments. The pile is then pulled from the
water and placed on a barge. Vibratory extraction usually takes between
less than 1 minute (for timber piles) to 30 minutes per pile depending
on the pile size, type, and substrate conditions;
Clamshell--In cases where use of a vibratory driver is not
possible (e.g., when the pile may break apart from clamp force and
vibration), a clamshell apparatus may be lowered from the crane in
order to remove pile stubs. The use and size of the clamshell bucket
would be minimized to reduce the potential for generating turbidity
during removal; and
Direct Pull--Piles may be removed by wrapping the piles
with a cable or chain and pulling them directly from the sediment with
a crane. In some cases, depending on access and location, piles may be
cut at or below the mudline.
Pile Installation--Pile installation/removal would occur using
land-based or barge-mounted cranes, as appropriate. Concrete piles
would be installed using an impact hammer. Steel piles and polymeric
piles can be installed using an impact hammer or vibratory hammer.
Hammers can be steam, air, or diesel drop, single-acting, double-
acting, differential-acting, or hydraulic type. Additionally, pre-
drilling may occur for installation of concrete piles and at locations
where there may be a higher likelihood of obstructions or where soil
layers are harder to penetrate. Drilling is not permitted for
installation of steel piles on this project or for concrete piles at
Pier 3 because hard soil layers are not expected at these locations.
Table 1 provides the estimated construction schedule and production
rates for the proposed construction activities considered for this
proposed rulemaking beginning with Year 2. As indicated above, Year 1
of the Pier 3 replacement project was authorized under the 2022 IHA,
effective from April 1, 2022-March 31, 2023. Therefore, Year 2 of the
project aligns with year 1 of the proposed rule. Some project elements
will use only one method of pile installation (e.g., impact hammer or
vibratory hammer or impact hammer and drilling), but all methods have
been analyzed. The method of installation will be determined by the
construction crew once demolition and installation has begun.
Table 1--Preliminary Construction Schedule for In-Water Activities
----------------------------------------------------------------------------------------------------------------
Total Daily rate
Year *** Activity number of Activity Method (piles/ Total days Total days
piles component day) per year
----------------------------------------------------------------------------------------------------------------
Year 2..... CEP-176 Bulkhead 103 42 inch Steel Install: Impact 4 26 185
Pipe Bearing or Vibratory.
Piles.
Year 2..... CEP-176 Bulkhead 221 28 inch sheet Install: Impact 14 16
piles. or Vibratory.
Year 2..... CEP-176 Bulkhead 9 13 inch Install: Impact 5 2
polymeric or Vibratory *.
fender piles.
Year 2..... CEP-102 Platform 11 24 inch square Install: Impact 2 6
phase 2. precast *.
concrete
bearing piles.
Year 2..... Pier 3.......... 280 24 inch square Install: Impact 4 70
precast
concrete.
Year 2..... CEP-102 Platform 6 18 inch square Install: Impact 4 2
phase 2. precast
concrete fender
piles.
Year 2..... Pier 3.......... 250 24 inch square Install: Impact 4 63
precast
concrete
bearing piles.
Year 3..... Pier 3.......... 409 24 inch square Install: Impact 6 69 92
precast *.
concrete fender
files.
Year 3..... Pier 3.......... 18 18 inch steel Install: Impact 6 3
pipe fender
piles.
Year 3..... CEP-102 Platform 26 42 inch steel Install: Impact 2 13
South Portion. pipe bearing or Vibratory.
piles.
Year 3..... CEP-102 Platform 53 28 inch steel Install: Impact 14 4
South Portion. sheet piles. or Vibratory.
Year 3..... CEP-102 Platform 26 18 inch square Extract: 9 3
South Portion. precast Vibratory.
concrete fender
piles **.
Year 4..... CEP-102 Platform 40 24 inch square Install: Impact 2 20 204
South Portion. precast *.
concrete
bearing piles.
Year 4..... Existing Pier 3. 624 14 inch timber Extract: 25 25
fender piles **. Vibratory.
Year 4..... CEP-102 Platform 25 18 inch square Install: Impact 4 7
South Portion. precast *.
concrete fender
piles.
Year 4..... CEP-102 Platform 50 42 inch steel Install: Impact 2 25
Center Portion. pipe bearing or Vibratory.
piles.
Year 4..... Existing Pier 3. 72 24 inch square Extract: 12 6
precast Vibratory.
concrete fender
piles **.
Year 4..... CEP-102 Platform 102 28 inch steel Install: Impact 14 8
Center Portion. sheet piles. or Vibratory.
Year 4..... CEP-102 Platform 36 18 inch square Extract: 9 4
Center Portion. precast Vibratory.
concrete fender
piles **.
Year 4..... Existing Pier 3. 873 16 inch and 18 Extract: 10 88
inch square Vibratory.
precast
concrete
bearing piles
**.
Year 4..... CEP-102 Platform 41 24 inch square Install: Impact 2 21
Center Portion. precast *.
concrete
bearing piles.
Year 5..... Existing Pier 3. 30 16 and 18 inch Extract: 10 3 32
square precast Vibratory.
bearing piles
**.
Year 5..... CEP-102 Platform 32 24 inch square Install: Impact 2 16
Center Portion. precast bearing *.
piles.
Year 5..... CEP-102 Platform 50 18 inch square Install: Impact 4 13
Center Portion. precast *.
concrete fender
piles.
----------------------------------------------------------------------------------------------------------------
[[Page 14565]]
Total Piles Installed.... 1,726 Total: 513
------------------ -----------------------
Total Piles Removed...... 1,661
----------------------------------------------------------------------------------------------------------------
Note: Estimated construction schedule. Delays may occur due to equipment failure or weather.
* Pre-drilling is permitted to assist with pile installation.
** Denotes Piles Removed.
*** Year 2 refers to the second year of the Pier 3 replacement project, however it is considered as Year 1 under
the 2023 Rule proposed for authorization.
Concurrent Activities--In order to maintain project schedules, it
is likely that multiple pieces of equipment would operate at the same
time within the project area. Table 2 provides a summary of the
possible equipment combinations by structure and construction year
where a maximum of four in-water activities may be occurring
simultaneously. As mentioned above, the method of installation, and
whether concurrent pile driving scenarios will be implemented, will be
determined by the construction crew once the project has begun.
Therefore, the total take estimate reflects the worst case scenario for
the proposed project.
Table 2--Summary of Possible Concurrent Pile Driving Scenarios
----------------------------------------------------------------------------------------------------------------
Total
Year Structure Pile types equipment Equipment (quantity)
quantity
----------------------------------------------------------------------------------------------------------------
Year 3...................... Pier 3................ Driving of precast 2 Rotary Drill (2).
bearing piles. 2 Impact Hammer (1),
Rotary Drill (1).
2 Impact Hammer (2).
CEP-102............... Driving 42-inch steel 2 Vibratory Hammer (2).
pipe and 28-inch 2 Impact Hammer (2).
steel sheet.
2 Vibratory Hammer (1),
Impact Hammer (1).
Year 4...................... Existing Pier 3 and Extraction of 14-inch 4 Vibratory Hammer (3),
CEP-102. timber piles from 4 Rotary Drill (1).
Pier 3 and Driving of .......... Vibratory Hammer (2),
42-inch steel pipe, 4 Impact Hammer (2),
sheet piles, and Rotary Drill (1).
precast concrete Vibratory (1), Impact
piles. Hammer (3).
Year 4-Year 5............... Existing Pier 3 and Extraction of 16- to 2 Vibratory Hammer (1),
CEP-102. 18-inch concrete 2 Rotary Drill (1).
piles from Pier 3 and Vibratory Hammer (1),
Driving of 24-inch Impact Hammer (1).
precast concrete
bearing piles.
----------------------------------------------------------------------------------------------------------------
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' Stock Assessment Reports
(SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS' website (https://www.fisheries.noaa.gov/find-species).
Table 3 lists all species or stocks for which take is expected and
proposed to be authorized for this activity, and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS'
SARs). While no serious injury or mortality is expected to occur, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All stocks managed under the MMPA in this region
are assessed in NMFS' U.S. draft 2022 SARs. All values presented in
Table 2 are the most recent available at the time of publication and
are available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
[[Page 14566]]
Table 3--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -,-, Y 1,396 (0, 1,380, 2016) 22 12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Bottlenose Dolphin.............. Tursiops truncatus..... Western North Atlantic -,-, Y 6,639 (0.41, 4,759, 48 12.2-21.5
(WNA) Coastal, 2016).
Northern Migratory.
WNA Coastal, Southern -, -, Y 3,751 (0.6, 2,353, 24 0-18.3
Migratory. 2016).
Northern North Carolina -, -, Y 823 (0.06, 782, 2017). 7.8 7.2-30
Estuarine.
Family Phocoenidae (porpoises):
Harbor Porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31, 74,034, 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
Gray seal \4\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22, 22,785, 1,458 4453
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ This stock abundance estimate is only for the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the
population, is estimated to be approximately 424,300 animals. The PBR value listed here is only for the U.S. portion of the stock, while M/SI reflects
both the Canadian and U.S. portions.
As indicated above, all five species (with seven managed stocks) in
Table 3 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. While North Atlantic
right whales (Eubalaena glacialis), minke whales (Balaenoptera
acutorostrata acutorostata), and fin whales (Balaenoptera physalus)
have been documented in the area, the temporal and/or spatial
occurrence of these whales is far outside the proposed area for this
project and take is not expected to occur. Therefore, they are not
discussed further beyond the explanation provided below.
Based on sighting data and passive acoustic studies, the North
Atlantic right whale could occur off the coast of Virginia year-round
(Department of Navy (DoN) 2009; Salisbury et al., 2016). They have also
been reported seasonally off Virginia during migrations in the spring,
fall, and winter (Cotter 2019). Right whales are known to frequent the
coastal waters of the mouth of the Chesapeake Bay (Knowlton et al.,
2002) and the area is a seasonal management area (November 1-April 30)
mandating reduced ship speeds out to approximately 20 nautical miles
(37 kilometers [km]); however, the project area is further inside the
Bay and away from this area.
North Atlantic right whales have stranded in Virginia, one each in
2001, 2002, 2004, 2005; three during winter (February and March) and
one in the summer (September) (Costidis et al., 2017, 2019). In January
2018, a dead, entangled North Atlantic right whale was observed
floating over 60 miles (96.6 km) offshore of Virginia Beach (Costidis
et al., 2019). All North Atlantic right whale strandings in Virginia
waters have occurred on ocean-facing beaches along Virginia Beach and
the barrier islands seaward of the lower Delmarva Peninsula (Costidis
et al., 2017). Right whales are not expected to occur in the project
area, and NMFS is not proposing to authorize take of this species.
Fin whales have been sighted off Virginia (Cotter 2019), and in the
Chesapeake Bay (Aschettino et al., 2018); however, they are not likely
to occur in the project area. Sightings have been documented around the
Chesapeake Bay Bridge Tunnel (CBBT) during winter months (Aschettino et
al., 2018).
Eleven fin whale strandings have occurred off Virginia from 1988 to
2016, mostly during the winter months of February and March, followed
by a few in the spring and summer months (Costidis et al., 2017). Six
of the strandings occurred in the Chesapeake Bay (three on the eastern
shore; three on the western shore) with the remaining five occurring on
the Atlantic coast (Costidis et al.,2017). Documented strandings near
the project area have occurred: February 2012, a dead fin whale washed
ashore on Oceanview Beach in Norfolk (Swingle et al., 2013); December
2017, a live fin whale stranded on a shoal in Newport News and died at
the site (Swingle et al., 2018); February 2014, a dead fin whale
stranded on a sand bar in Pocomoke Sound near Great Fox Island,
Accomack (Swingle et al., 2015); and, March 2007, a dead fin whale near
Craney Island, in the Elizabeth River, in Norfolk (Barco 2013). Only
stranded fin whales have been documented in the project area; no free
swimming fin whales have been observed. Fin whales are not expected to
occur in the project area, and NMFS is not proposing to authorize take
of this species.
[[Page 14567]]
Minke whales have been sighted off Virginia (CeTAP 1981, 1982;
Hyrenbach et al., 2012; Barco 2013; Mallette et al., 2016a, b; McLellan
2017; Engelhaupt et al., 2017, 2018; Cotter 2019), near the CBBT
(Aschettino et al., 2018), but sightings in the project area are from
strandings (Jensen and Silber 2004; Barco 2013; DoN 2009). In August
1994, a ship strike incident involved a minke whale in Hampton Roads
(Jensen and Silber 2004; Barco 2013). It was reported that the animal
was struck offshore and was carried inshore on the bow of a ship (DoN
2009). Twelve strandings of minke whales have occurred in Virginia
waters from 1988 to 2016 (Costidis et al., 2017). There have been six
minke whale stranding from 2017 through 2020 in Virginia waters. Minke
whales are not expected to occur in the project area, and NMFS is not
proposing to authorize take of this species.
Humpback Whale
Humpback whales are found worldwide in all oceans. In winter,
humpback whales from waters off New England, Canada, Greenland,
Iceland, and Norway, migrate to mate and calve primarily in the West
Indies, where spatial and genetic mixing among these groups occurs.
NMFS defines a humpback whale stock on the basis of feeding location,
i.e., Gulf of Maine. However, our reference to humpback whales in this
document refers to any individual of the species that are found in the
species geographic region. These individuals may be from the same
breeding population (e.g., West Indies breeding population of humpback
whales) but visit different feeding areas.
Based on photo-identification studies, only 39 percent of
individual humpback whales observed along the mid- and south Atlantic
U.S. coast are from the Gulf of Maine stock (Barco et al., 2002).
Therefore, the SAR abundance estimate is an underrepresentation of the
relevant population, i.e., the West Indies breeding population.
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 Distinct Population
Segments (DPSs) with different listing statuses (81 FR 62259; September
8, 2016) pursuant to the ESA. Humpback whales in the project area are
expected to be from 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. This DPS is
not ESA listed. Bettridge et al., (2003) estimated the size of the West
Indies DPS at 12,312 (95% CI 8,688-15,954) whales in 2004-05, which is
consistent with previous population estimates of approximately 10,000-
11,000 whales (Stevick et al., 2003; Smith et al., 1999) and the
increasing trend for the West Indies DPS (Bettridge et al., 2015).
Although humpback whales are migratory between feeding areas and
calving areas, individual variability in the timing of migrations may
result in the presence of individuals in high-latitude areas throughout
the year (Straley, 1990). Records of humpback whales off the U.S. mid-
Atlantic coast (New Jersey to North Carolina) from January through
March suggest these waters may represent a supplemental winter feeding
ground used by juvenile and mature humpback whales of U.S. and Canadian
North Atlantic stocks (LaBrecque et al., 2015).
Humpback whales are most likely to occur near the mouth of the
Chesapeake Bay and coastal waters of Virginia Beach between January and
March; however, they could be found in the area year-round, based on
shipboard sighting and stranding data (Barco and Swingle, 2014;
Aschettino et al., 2015; 2016; 2017; 2018). Photo-identification data
support the repeated use of the mid-Atlantic region by individual
humpback whales. Results of the vessel surveys show site fidelity in
the survey area for some individuals and a high level of occurrence
within shipping channels--an important high-use area by both the Navy
and commercial traffic (Aschettino et al., 2015; 2016; 2017; 2018).
Nearshore surveys conducted in early 2015 reported 61 individual
humpback whale sightings, and 135 individual humpback whale sightings
in late 2015 through May 2016 (Aschettino et al., 2016). Subsequent
surveys confirmed the occurrence of humpback whales in the nearshore
survey area: 248 individuals were detected in 2016-2017 surveys
(Aschettino et al., 2017), 32 individuals were detected in 2017-2018
surveys (Aschettino et al., 2018), and 80 individuals were detected in
2019 surveys (Aschettino et al., 2019). Sightings in the Hampton Roads
area in the vicinity of NAVSTA Norfolk were reported in nearshore
surveys and through tracking of satellite-tagged whales in 2016, 2017
and 2019. The numbers of whales detected, most of which were juveniles,
reflect the varying level of survey effort and changes in survey
objectives from year to year, and do not indicate abundance trends over
time. Most recently, the Hampton Roads Bridge-Tunnel Expansion Project
(HRBT), which spanned from September 2020 through July 10, 2021 did not
observe any humpback whales near the project site between Norfolk and
Hampton, VA over 197 days of observations (Hampton Roads Connector
Partners (HRCP), Unpublished).
Bottlenose Dolphin
Along the U.S. East Coast and northern Gulf of Mexico, the
bottlenose dolphin stock structure is well studied. There are currently
53 management stocks identified by NMFS in the western North Atlantic
and Gulf of Mexico, including oceanic, coastal, and estuarine stocks
(Hayes et al., 2017; Waring et al., 2015, 2016).
A recent study proposes that bottlenose dolphins inhabiting
nearshore coastal and estuarine waters between New York and Florida are
likely a separate species from their offshore counterparts (Costa et
al., 2022). The offshore form is larger in total length and skull
length, and has wider nasal bones than the coastal form. Both inhabit
waters in the western North Atlantic Ocean and Gulf of Mexico (Curry
and Smith, 1997; Hersh and Duffield, 1990; Mead and Potter, 1995) along
the U.S. Atlantic coast. The coastal species of bottlenose dolphin is
continuously distributed along the Atlantic coast south of Long Island,
New York, around the Florida peninsula, and along the Gulf of Mexico
coast. This type typically occurs in waters less than 25 meters deep
(Waring et al., 2015). The range of the offshore bottlenose dolphin
includes waters beyond the continental slope (Kenney, 1990), and
offshore bottlenose dolphins may move between the Gulf of Mexico and
the Atlantic (Wells et al., 1999).
Two coastal stocks are likely to be present in the project area:
the Western North Atlantic Northern Migratory Coastal stock and the
Western North Atlantic Southern Migratory Coastal stock. Additionally,
the Northern North Carolina Estuarine System stock may occur in the
project area.
Bottlenose dolphins are the most abundant marine mammal along the
Virginia coast and within the Chesapeake Bay, typically traveling in
groups of 2 to 15 individuals, but occasionally in groups of over 100
individuals (Engelhaupt et al., 2014; 2015; 2016). Bottlenose dolphins
of the Western North Atlantic Northern Migratory Coastal stock winter
along the coast of North Carolina and migrate as far north as Long
Island, New York, in the summer. They are rarely found north of North
Carolina in the winter (NMFS, 2018). The Western North Atlantic
Southern Migratory Coastal
[[Page 14568]]
stock occurs in waters of southern North Carolina from October to
December, moving south during winter months and north to North Carolina
during spring months. During July and August, the Western North
Atlantic Southern Migratory Coastal stock is presumed to occupy coastal
waters north of Cape Lookout, North Carolina, to the eastern shore of
Virginia (NMFS, 2018). It is possible that these animals also occur
inside the Chesapeake Bay and in nearshore coastal waters. The North
Carolina Estuarine System stock dolphins may also occur in the
Chesapeake Bay during July and August (NMFS, 2018a).
Vessel surveys conducted along coastal and offshore transects from
NAVSTA Norfolk to Virginia Beach in most months from August 2012 to
August 2015 reported bottlenose dolphins throughout the survey area,
including the vicinity of NAVSTA Norfolk (Engelhaupt et al., 2014;
2015; 2016). The final results from this project confirmed earlier
findings that bottlenose dolphins are common in the study area, with
highest densities in the coastal waters in summer and fall months.
However, bottlenose dolphins do not completely leave this area during
colder months, with approximately 200-300 individuals still present in
winter and spring months, which is commonly referred to as the
Chesapeake Bay resident dolphin population (Engelhaupt et al., 2016).
Harbor Porpoise
Harbor porpoises inhabit cool temperate-to-subpolar waters, often
where prey aggregations are concentrated (Watts and Gaskin, 1985).
Thus, they are frequently found in shallow waters, most often near
shore, but they sometimes move into deeper offshore waters. Harbor
porpoises are rarely found in waters warmer than 63 degrees Fahrenheit
(17 degrees Celsius) (Read 1999) and closely follow the movements of
their primary prey, Atlantic herring (Gaskin 1992).
In the western North Atlantic, harbor porpoise range from
Cumberland Sound on the east coast of Baffin Island, southeast along
the eastern coast of Labrador to Newfoundland and the Gulf of St.
Lawrence, then southwest to about 34 degrees North on the coast of
North Carolina (Waring et al., 2016). During winter (January to March),
intermediate densities of harbor porpoises can be found in waters off
New Jersey to North Carolina, and lower densities are found in waters
off New York to New Brunswick, Canada (Waring et al., 2016). Harbor
porpoises sighted off the mid-Atlantic during winter include porpoises
from other western North Atlantic populations (Rosel et al., 1999).
There does not appear to be a temporally coordinated migration or a
specific migratory route to and from the Bay of Fundy region (Waring et
al., 2016). During fall (October to December) and spring (April to
June), harbor porpoises are widely dispersed from New Jersey to Maine,
with lower densities farther north and south (LaBrecque et al., 2015).
Based on stranding reports, passive acoustic recorders, and
shipboard surveys, harbor porpoise occur in coastal waters primarily in
winter and spring months, but there is little information on their
presence in the Chesapeake Bay. They do not appear to be abundant in
the NAVSTA Norfolk area in most years, but this is confounded by wide
variations in stranding occurrences over the past decade. In the recent
HRBT project, zero harbor porpoises were observed near the project area
(HRCP, Unpublished).
Harbor Seal
The Western North Atlantic stock of harbor seals occurs in the
project area. Harbor seal distribution along the U.S. Atlantic coast
has shifted in recent years, with an increased number of seals reported
from southern New England to the mid-Atlantic region (DiGiovanni et
al., 2011; Hayes et al., 2021). Regular sightings of seals in Virginia
have become a common occurrence in winter and early spring (Costidis et
al., 2019). Winter haulout sites for harbor seals have been documented
in the Chesapeake Bay at the CBBT, on the Virginia Eastern Shore, and
near Oregon Inlet, North Carolina (Waring et al., 2016; Rees et al.,
2016; Jones et al., 2018).
Harbor seals regularly haul out on rocks around the portal islands
of the CBBT and on mud flats on the nearby southern tip of the Eastern
Shore from December through April (Rees et al., 2016; Jones et al.,
2018). Seals captured in 2018 on the Eastern Shore and tagged with
satellite-tracked tags that lasted from 2 to 5 months spent at least 60
days in Virginia waters before departing the area. All tagged seals
returned regularly to the capture site while in Virginia waters, but
individuals utilized offshore and Chesapeake Bay waters to different
extents (Ampela et al., 2019). The area that was utilized most heavily
was near the Eastern Shore capture site, but some seals ranged into the
Chesapeake Bay. To supplement this information, the HRBT project
reported seeing zero seals in or around the project area (HRCP,
Unpublished).
Gray Seal
The Western North Atlantic stock of gray seal occurs in the project
area. The western North Atlantic stock is centered in Canadian waters,
including the Gulf of St. Lawrence and the Atlantic coasts of Nova
Scotia, Newfoundland, and Labrador, Canada, and the northeast U.S.
continental shelf (Hayes et al., 2021). Gray seals range south into the
northeastern United States, with strandings and sightings as far south
as North Carolina (Hammill et al., 1998; Waring et al., 2004). Gray
seal distribution along the U.S. Atlantic coast has shifted in recent
years, with an increased number of seals reported in southern New
England (DiGiovanni et al., 2011; Kenney R.D., 2019; Waring et al.,
2016). Recent sightings included a gray seal in the lower Chesapeake
Bay during the winter of 2014 to 2015 (Rees et al., 2016). Along the
coast of the United States, gray seals are known to pup at three or
more colonies in Massachusetts and Maine.
Unusual Mortality Events
An unusual mortality even (UME) is defined under section 410(6) of
the MMPA as a stranding that is unexpected; involves a significant die-
off of any marine mammal population; and demands immediate response.
Currently, there are active UMEs for northeast pinnipeds (harbor and
gray seals) and humpback whales along the east coast.
Northeast Pinniped UME
Since June 2022, elevated numbers of sick and dead harbor seal and
gray seal have been documented along the southern and central coast of
Maine from Biddeford to Boothbay (including Cumberland, Lincoln, Knox,
Sagadahoc and York Counties). This event has been declared a UME.
Additional information is available at: https://www.fisheries.noaa.gov/2022-pinniped-unusual-mortality-event-along-maine-coast.
Atlantic Humpback Whale UME
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine through Florida. This
event was declared an UME in 2017 however. A portion of the whales have
shown evidence of pre-mortem vessel strike; however, this finding is
not consistent across all whales examined, and additional research is
needed. Additional information is available at https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.
[[Page 14569]]
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 4.
Table 4--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
Generalized hearing
Hearing group range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales).... 7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins, toothed 150 Hz to 160 kHz.
whales, beaked whales, bottlenose whales).
High-frequency (HF) cetaceans (true porpoises, 275 Hz to 160 kHz.
Kogia, river dolphins, Cephalorhynchid,
Lagenorhynchus cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true seals). 50 Hz to 86 kHz.
Otariid pinnipeds (OW) (underwater) (sea lions 60 Hz to 39 kHz.
and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determination section considers the content of this section, the
Estimated Take section, and the Proposed Mitigation section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals and whether those
impacts are reasonably expected to, or reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.
Description of Sound Sources
The marine soundscape is comprised of both ambient and
anthropogenic sounds. Ambient sound is defined as the all-encompassing
sound in a given place and is usually a composite of sound from many
sources both near and far. The sound level of an area is defined by the
total acoustical energy being generated by known and unknown sources.
These sources may include physical (e.g., waves, wind, precipitation,
earthquakes, ice, atmospheric sound), biological (e.g., sounds produced
by marine mammals, fish, and invertebrates), and anthropogenic sound
(e.g., vessels, dredging, aircraft, construction).
The sum of the various natural and anthropogenic sound sources at
any given location and time--which comprise ``ambient'' or
``background'' sound--depends not only on the source levels (as
determined by current weather conditions and levels of biological and
shipping activity) but also on the ability of sound to propagate
through the environment. In turn, sound propagation is dependent on the
spatially and temporally varying properties of the water column and sea
floor, and is frequency-dependent. As a result of the dependence on a
large number of varying factors, ambient sound levels can be expected
to vary widely over both coarse and fine spatial and temporal scales.
Sound levels at a given frequency and location can vary by 10-20 dB
from day to day (Richardson et al., 1995). The result is that,
depending on the source type and its intensity, sound from the
specified activity may be a negligible addition to the local
environment or could form a distinctive signal that may affect marine
mammals.
In-water construction activities associated with the project would
include vibratory pile removal, impact and vibratory pile driving, and
drilling. The sounds produced by these activities fall into one of two
general sound types: Impulsive and non-impulsive. Impulsive sounds
(e.g., explosions, gunshots, sonic booms, impact pile driving) are
typically transient, brief (less than 1 second), broadband, and consist
of high peak sound pressure with rapid rise time and rapid decay (ANSI
1986; NIOSH 1998; ANSI 2005; NMFS 2018). Non-impulsive sounds (e.g.,
aircraft, machinery operations such as drilling or dredging, vibratory
pile driving, and active sonar systems) can be broadband, narrowband or
tonal, brief or prolonged (continuous or intermittent), and typically
do not have the high peak sound pressure with raid rise/decay time that
impulsive sounds do (ANSI 1995; NIOSH 1998; NMFS 2018). The distinction
between these two sound types is important because they have differing
potential to cause physical effects, particularly with regard to
hearing (e.g., Ward 1997 in Southall et al., 2007).
Impact hammers operate by repeatedly dropping a heavy piston onto a
pile to drive the pile into the substrate. Sound generated by impact
hammers is
[[Page 14570]]
characterized by rapid rise times and high peak levels, a potentially
injurious combination (Hastings and Popper 2005). Vibratory hammers
install piles by vibrating them and allowing the weight of the hammer
to push them into the sediment. The vibrations produced also cause
liquefaction of the substrate surrounding the pile, enabling the pile
to be extracted or driven into the ground more easily. Vibratory
hammers produce significantly less sound than impact hammers. Peak
sound pressure levels (SPLs) may be 180 dB or greater, but are
generally 10 to 20 dB lower than SPLs generated during impact pile
driving of the same-sized pile (Oestman et al., 2009). Rise time is
slower, reducing the probability and severity of injury, and sound
energy is distributed over a greater amount of time (Nedwell and
Edwards 2002; Carlson et al., 2005). As mentioned previously, drilling
is considered a continuous source, similar to vibratory pile driving.
The drilling may be used before driving piles in order to facilitate
pile driving and hence is referred to as ``pre-drilling''. For the
proposed project, the drilling apparatus utilized would vary depending
on the different applications during in-water construction activities.
Drilling would be used as necessary to remove sand with shell fragments
or any obstructions in order to accelerate pile driving.
The likely or possible impacts of the Navy's proposed activity on
marine mammals could involve both non-acoustic and acoustic stressors.
Potential non-acoustic stressors could result from the physical
presence of the equipment and personnel; however, any impacts to marine
mammals are expected to be primarily acoustic in nature. Acoustic
stressors include effects of heavy equipment operation during pile
driving, removal and drilling.
Acoustic Impacts
The introduction of anthropogenic noise into the aquatic
environment from pile driving or drilling is the primary means by which
marine mammals may be harassed from the Navy's specified activity. In
general, animals exposed to natural or anthropogenic sound may
experience physical and psychological effects, ranging in magnitude
from none to severe (Southall et al., 2007). In general, exposure to
pile driving or drilling noise has the potential to result in auditory
threshold shifts and behavioral reactions (e.g., avoidance, temporary
cessation of foraging and vocalizing, changes in dive behavior).
Exposure to anthropogenic noise can also lead to non-observable
physiological responses such an increase in stress hormones. Additional
noise in a marine mammal's habitat can mask acoustic cues used by
marine mammals to carry out daily functions such as communication and
predator and prey detection. The effects of pile driving or drilling
noise on marine mammals are dependent on several factors, including,
but not limited to, sound type (e.g., impulsive vs. non-impulsive), the
species, age and sex class (e.g., adult male vs. mom with calf),
duration of exposure, the distance between the pile and there animal,
received levels, behavior at time of exposure, and previous history
with exposure (Wartzok et al., 2004; Southall et al., 2007). Here we
discuss physical auditory effects (threshold shifts) followed by
behavioral effects and potential impacts on habitat.
NMFS defines a noise-induced threshold shift (TS) as a change,
usually an increase, in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS 2018). The amount of
threshold shift is customarily expressed in decibels (dB). A TS can be
permanent or temporary. As described in NMFS (2018), there are numerous
factors to consider when examining the consequence of TS, including,
but not limited to, the signal temporal pattern (e.g., impulsive or
non-impulsive), likelihood an individual would be exposed for a long
enough duration or to a high enough level to induce a TS, the magnitude
of the TS, time to recovery (seconds to minutes or hours to days), the
frequency range of the exposure (i.e., spectral content), the hearing
and vocalization frequency range of the exposed species relative to the
signal's frequency spectrum (i.e., how an animal uses sound within the
frequency band of the signal; e.g., Kastelein et al., 2014), and the
overlap between the animal and the source (e.g., spatial, temporal, and
spectral).
Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent,
irreversible increase in the threshold of audibility at a specified
frequency or portion of an individual's hearing range above a
previously established reference level (NMFS 2018). Available data from
humans and other terrestrial mammals indicate that a 40 dB threshold
shift approximates PTS onset (see Ward et al., 1958, 1959; Ward 1960;
Kryter et al., 1966; Miller 1974; Ahroon et al., 1996; Henderson et
al., 2008). PTS levels for marine mammals are estimates, as with the
exception of a single study unintentionally inducing PTS in a harbor
seal (Kastak et al., 2008), there are no empirical data measuring PTS
in marine mammals largely due to the fact that, for various ethical
reasons, experiments involving anthropogenic noise exposure at levels
inducing PTS are not typically pursued or authorized (NMFS 2018).
Temporary Threshold Shift (TTS)--TTS is a temporary, reversible
increase in the threshold of audibility at a specified frequency or
portion of an individual's hearing range above a previously established
reference level (NMFS 2018). Based on data from cetacean TTS
measurements (see Southall et al., 2007), a TTS of 6 dB is considered
the minimum threshold shift clearly larger than any day-to-day or
session-to-session variation in a subject's normal hearing ability
(Schlundt et al., 2000; Finneran et al., 2000, 2002). As described in
Finneran (2015), marine mammal studies have shown the amount of TTS
increases with cumulative sound exposure level (SELcum) in
an accelerating fashion: At low exposures with lower SELcum,
the amount of TTS is typically small and the growth curves have shallow
slopes. At exposures with higher SELcum, the growth curves
become steeper and approach linear relationships with the noise SEL.
Depending on the degree (elevation of threshold in dB), duration
(i.e., recovery time), and frequency range of TTS, and the context in
which it is experienced, TTS can have effects on marine mammals ranging
from discountable to serious (similar to those discussed in auditory
masking, below). For example, a marine mammal may be able to readily
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal
is traveling through the open ocean, where ambient noise is lower and
there are not as many competing sounds present. Alternatively, a larger
amount and longer duration of TTS sustained during a time when
communication is critical for successful mother/calf interactions could
have more serious impacts. We note that reduced hearing sensitivity as
a simple function of aging has been observed in marine mammals, as well
as humans and other taxa (Southall et al., 2007), so we can infer that
strategies exist for coping with this condition to some degree, though
likely not without cost.
Currently, TTS data only exist for four species of cetaceans
(bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis)
and five species of pinnipeds exposed to a limited number of sound
sources (i.e., mostly tones and
[[Page 14571]]
octave-band noise) in laboratory settings (Finneran 2015). TTS was not
observed in trained spotted (Phoca largha) and ringed (Pusa hispida)
seals exposed to impulsive noise at levels matching previous
predictions of TTS onset (Reichmuth et al., 2016). In general, harbor
seals and harbor porpoises have a lower TTS onset than other measured
pinniped or cetacean species (Finneran 2015). Additionally, the
existing marine mammal TTS data come from a limited number of
individuals within these species. No data are available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS in
marine mammals or for further discussion of TTS onset thresholds,
please see Southall et al., (2007), Finneran and Jenkins (2012),
Finneran (2015), and Table 5 in NMFS (2018). Installing piles for this
project requires a combination of drilling, impact pile driving and
vibratory pile driving. For this project, these activities would not
occur at the same time and there would be pauses in activities
producing the sound during each day. Given these pauses and that many
marine mammals are likely moving through the ensonified area and not
remaining for extended periods of time, the potential for TS declines.
Behavioral Harassment--Exposure to noise from pile driving and
removal also has the potential to behaviorally disturb marine mammals.
Available studies show wide variation in response to underwater sound;
therefore, it is difficult to predict specifically how any given sound
in a particular instance might affect marine mammals perceiving the
signal. If a marine mammal does react briefly to an underwater sound by
changing its behavior or moving a small distance, the impacts of the
change are unlikely to be significant to the individual, let alone the
stock or population. However, if a sound source displaces marine
mammals from an important feeding or breeding area for a prolonged
period, impacts on individuals and populations could be significant
(e.g., Lusseau and Bejder 2007; Weilgart 2007; NRC 2005).
Disturbance may result in changing durations of surfacing and
dives, number of blows per surfacing, or moving direction and/or speed;
reduced/increased vocal activities; changing/cessation of certain
behavioral activities (such as socializing or feeding); visible startle
response or aggressive behavior (such as tail/fluke slapping or jaw
clapping); avoidance of areas where sound sources are located.
Pinnipeds may increase their haul out time, possibly to avoid in-water
disturbance (Thorson and Reyff 2006). Behavioral responses to sound are
highly variable and context-specific and any reactions depend on
numerous intrinsic and extrinsic factors (e.g., species, state of
maturity, experience, current activity, reproductive state, auditory
sensitivity, time of day), as well as the interplay between factors
(e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al.,
2007; Weilgart 2007; Archer et al., 2010). Behavioral reactions can
vary not only among individuals but also within an individual,
depending on previous experience with a sound source, context, and
numerous other factors (Ellison et al., 2012), and can vary depending
on characteristics associated with the sound source (e.g., whether it
is moving or stationary, number of sources, distance from the source).
In general, pinnipeds seem more tolerant of, or at least habituate more
quickly to, potentially disturbing underwater sound than do cetaceans,
and generally seem to be less responsive to exposure to industrial
sound than most cetaceans. Please see Appendices B and C of Southall et
al. (2007) and Gomez et al. (2016) for reviews of studies involving
marine mammals behavioral responses to sound.
Habituation can occur when an animal's response to a stimulus wanes
with repeated exposure, usually in the absence of unpleasant associated
events (Wartzok et al., 2003). Animals are most likely to habituate to
sounds that are predictable and unvarying. It is important to note that
habituation is appropriately considered as a ``progressive reduction in
response to stimuli that are perceived as neither aversive nor
beneficial,'' rather than as, more generally, moderation in response to
human disturbance (Bejder et al., 2009). The opposite process is
sensitization, when an unpleasant experience leads to subsequent
responses, often in the form of avoidance, at a lower level of
exposure.
As noted above, behavioral state may affect the type of response.
For example, animals that are resting may show greater behavioral
change in response to disturbing sound levels than animals that are
highly motivated to remain in an area for feeding (Richardson et al.,
1995; National Research Council (NRC), 2003; Wartzok et al., 2003).
Controlled experiments with captive marine mammals have showed
pronounced behavioral reactions, including avoidance of loud sound
sources (Ridgway et al., 1997; Finneran et al., 2003). Observed
responses of wild marine mammals to loud pulsed sound sources
(typically seismic airguns or acoustic harassment devices) have been
varied but often consist of avoidance behavior or other behavioral
changes suggesting discomfort (Morton and Symonds, 2002; see also
Richardson et al., 1995; Nowacek et al., 2007).
Available studies show wide variation in response to underwater
sound; therefore, it is difficult to predict specifically how any given
sound in a particular instance might affect marine mammals perceiving
the signal. If a marine mammal does react briefly to an underwater
sound by changing its behavior or moving a small distance, the impacts
of the change are unlikely to be significant to the individual, let
alone the stock or population. However, if a sound source displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on individuals and populations could be
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC,
2005). However, there are broad categories of potential response, which
we describe in greater detail here, that include alteration of dive
behavior, alteration of foraging behavior, effects to breathing,
interference with or alteration of vocalization, avoidance, and flight.
Changes in dive behavior can vary widely and may consist of
increased or decreased dive times and surface intervals as well as
changes in the rates of ascent and descent during a dive (e.g., Frankel
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et
al., 2004; Goldbogen et al., 2013a,b). Variations in dive behavior may
reflect interruptions in biologically significant activities (e.g.,
foraging) or they may be of little biological significance. The impact
of an alteration to dive behavior resulting from an acoustic exposure
depends on what the animal is doing at the time of the exposure and the
type and magnitude of the response.
Disruption of feeding behavior can be difficult to correlate with
anthropogenic sound exposure, so it is usually inferred by observed
displacement from known foraging areas, the appearance of secondary
indicators (e.g., bubble nets or sediment plumes), or changes in dive
behavior. As for other types of behavioral response, the frequency,
duration, and temporal pattern of signal presentation, as well as
differences in species sensitivity, are likely contributing factors to
differences in response in any given circumstance (e.g., Croll et al.,
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al.,
2007). A determination of whether foraging disruptions incur fitness
consequences would require information on or estimates of the energetic
requirements of the affected individuals and the relationship between
prey availability, foraging effort
[[Page 14572]]
and success, and the life history stage of the animal.
Variations in respiration naturally vary with different behaviors
and alterations to breathing rate as a function of acoustic exposure
can be expected to co-occur with other behavioral reactions, such as a
flight response or an alteration in diving. However, respiration rates
in and of themselves may be representative of annoyance or an acute
stress response. Various studies have shown that respiration rates may
either be unaffected or could increase, depending on the species and
signal characteristics, again highlighting the importance in
understanding species differences in the tolerance of underwater noise
when determining the potential for impacts resulting from anthropogenic
sound exposure (e.g., Kastelein et al., 2001, 2005, 2006; Gailey et
al., 2007).
Marine mammals vocalize for different purposes and across multiple
modes, such as whistling, echolocation click production, calling, and
singing. Changes in vocalization behavior in response to anthropogenic
noise can occur for any of these modes and may result from a need to
compete with an increase in background noise or may reflect increased
vigilance or a startle response. For example, in the presence of
potentially masking signals, humpback whales and killer whales have
been observed to increase the length of their songs (Miller et al.,
2000; Fristrup et al., 2003; Foote et al., 2004), while right whales
have been observed to shift the frequency content of their calls upward
while reducing the rate of calling in areas of increased anthropogenic
noise (Parks et al., 2007). In some cases, animals may cease sound
production during production of aversive signals (Bowles et al., 1994).
Avoidance is the displacement of an individual from an area or
migration path as a result of the presence of a sound or other
stressors, and is one of the most obvious manifestations of disturbance
in marine mammals (Richardson et al., 1995). For example, gray whales
are known to change direction--deflecting from customary migratory
paths--in order to avoid noise from seismic surveys (Malme et al.,
1984). Avoidance may be short-term, with animals returning to the area
once the noise has ceased (e.g., Bowles et al., 1994; Goold, 1996;
Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007).
Longer-term displacement is possible, however, which may lead to
changes in abundance or distribution patterns of the affected species
in the affected region if habituation to the presence of the sound does
not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann
et al., 2006).
A flight response is a dramatic change in normal movement to a
directed and rapid movement away from the perceived location of a sound
source. The flight response differs from other avoidance responses in
the intensity of the response (e.g., directed movement, rate of
travel). Relatively little information on flight responses of marine
mammals to anthropogenic signals exist, although observations of flight
responses to the presence of predators have occurred (Connor and
Heithaus, 1996, Bowers et al., 2018). The result of a flight response
could range from brief, temporary exertion and displacement from the
area where the signal provokes flight to, in extreme cases, marine
mammal strandings (Evans and England, 2001). However, it should be
noted that response to a perceived predator does not necessarily invoke
flight (Ford and Reeves, 2008), and whether individuals are solitary or
in groups may influence the response.
Behavioral disturbance can also impact marine mammals in more
subtle ways. Increased vigilance may result in costs related to
diversion of focus and attention (i.e., when a response consists of
increased vigilance, it may come at the cost of decreased attention to
other critical behaviors such as foraging or resting). These effects
have generally not been demonstrated for marine mammals, but studies
involving fish and terrestrial animals have shown that increased
vigilance may substantially reduce feeding rates (e.g., Beauchamp and
Livoreil, 1997). In addition, chronic disturbance can cause population
declines through reduction of fitness (e.g., decline in body condition)
and subsequent reduction in reproductive success, survival, or both
(e.g., Harrington and Veitch, 1992). However, Ridgway et al. (2006)
reported that increased vigilance in bottlenose dolphins exposed to
sound over a 5 day period did not cause any sleep deprivation or stress
effects.
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hour cycle). Disruption
of such functions resulting from reactions to stressors such as sound
exposure are more likely to be significant if they last more than one
diel cycle or recur on subsequent days (Southall et al., 2007).
Consequently, a behavioral response lasting less than one day and not
recurring on subsequent days is not considered particularly severe
unless it could directly affect reproduction or survival (Southall et
al., 2007). Note that there is a difference between multi-day
substantive behavioral reactions and multi-day anthropogenic
activities. For example, just because an activity lasts for multiple
days does not necessarily mean that individual animals are either
exposed to activity-related stressors for multiple days or, further,
exposed in a manner resulting in sustained multi-day substantive
behavioral responses.
Stress responses--An animal's perception of a threat may be
sufficient to trigger stress responses consisting of some combination
of behavioral responses, autonomic nervous system responses,
neuroendocrine responses, or immune responses (e.g., Seyle, 1950;
Moberg, 2000). In many cases, an animal's first and sometimes most
economical (in terms of energetic costs) response is behavioral
avoidance of the potential stressor. Autonomic nervous system responses
to stress typically involve changes in heart rate, blood pressure, and
gastrointestinal activity. These responses have a relatively short
duration and may or may not have a significant long-term effect on an
animal's fitness.
Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that
are affected by stress--including immune competence, reproduction,
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been
implicated in failed reproduction, altered metabolism, reduced immune
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha,
2000). Increases in the circulation of glucocorticoids are also equated
with stress (Romano et al., 2004).
The primary distinction between stress (which is adaptive and does
not normally place an animal at risk) and ``distress'' is the cost of
the response. During a stress response, an animal uses glycogen stores
that can be quickly replenished once the stress is alleviated. In such
circumstances, the cost of the stress response would not pose serious
fitness consequences. However, when an animal does not have sufficient
energy reserves to satisfy the energetic costs of a stress response,
energy resources must be diverted from other functions. This state of
distress will last until the animal replenishes its energetic reserves
sufficient to restore normal function.
Relationships between these physiological mechanisms, animal
behavior, and the costs of stress responses are well-studied through
controlled experiments and for both laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al.,
[[Page 14573]]
1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al.,
2005). Stress responses due to exposure to anthropogenic sounds or
other stressors and their effects on marine mammals have also been
reviewed (Fair and Becker, 2000; Romano et al., 2002b) and, more
rarely, studied in wild populations (e.g., Romano et al., 2002a). For
example, Rolland et al. (2012) found that noise reduction from reduced
ship traffic in the Bay of Fundy was associated with decreased stress
in North Atlantic right whales. These and other studies lead to a
reasonable expectation that some marine mammals will experience
physiological stress responses upon exposure to acoustic stressors and
that it is possible that some of these would be classified as
``distress.'' In addition, any animal experiencing TTS would likely
also experience stress responses (NRC, 2003), however distress is an
unlikely result of this project based on observations of marine mammals
during previous, similar construction projects.
Acoustic Masking--Sound can disrupt behavior through masking, or
interfering with, and animal's ability to detect, recognize, or
discriminate between acoustic signals of interest (e.g., those used for
intraspecific communication and social interactions, prey detection,
predator avoidance, navigation) (Richardson et al., 1995). Masking
occurs when the receipt of a sound is interfered with by another
coincident sound at similar frequencies and at similar or higher
intensity, and may occur whether the sound is natural (e.g., snapping
shrimp, wind, waves, precipitation) or anthropogenic (e.g., pile
driving, shipping, sonar, seismic exploration) in origin. The ability
of a noise source to mask biologically important sounds depends on the
characteristics of both the noise source and the signal of interest
(e.g., signal-to-noise ratio, temporal variability, direction), in
relation to each other and to an animal's hearing abilities (e.g.,
sensitivity, frequency range, critical rations, frequency
discrimination, directional discrimination, age or TTS hearing loss),
and existing ambient noise and propagation conditions. Masking of
natural sounds can result when human activities produce high levels of
background sound at frequencies important to marine mammals.
Conversely, if the background level of underwater sound is high (e.g.,
on a day with strong wind and high waves), an anthropogenic sound
source would not be detectable as far away as would be possible under
quieter conditions and would itself be masked.
Airborne Acoustic Effects--Although pinnipeds are known to haul-out
regularly on man-made objects, such as the nearby Chesapeake Bay Bridge
Tunnel, we believe that incidents of take resulting solely from
airborne sound are unlikely due to the sheltered proximity between the
proposed project area and these haulout sites (over 16 miles (26 km)).
There is a possibility that an animal could surface in-water, but with
head out, within the area in which airborne sound exceeds relevant
thresholds and thereby be exposed to levels of airborne sound that we
associate with harassment, but any such occurrence would likely be
accounted for in our estimate of incidental take from underwater sound.
Therefore, authorization of incidental take resulting from airborne
sound for pinnipeds is not warranted, and airborne sound is not
discussed further here. Cetaceans are not expected to be exposed to
airborne sounds that would result in harassment as defined under the
MMPA.
Marine Mammal Habitat Effects
The Navy's construction activities could have localized, temporary
impacts on marine mammal habitat by increasing in-water sound pressure
levels and slightly decreasing water quality. However, since the focus
of the proposed action is pile driving and drilling, no net habitat
loss is expected as the new Pier 3 will be immediately north of the
existing Pier 3 and, once complete, the current Pier 3 will be
demolished. Construction activities are of short duration and would
likely have temporary impacts on marine mammal habitat through
increases in underwater sounds. Increased noise levels may affect the
acoustic habitat (see masking discussion above) and adversely affect
marine mammal prey in the vicinity of the project area (see discussion
below). During pile driving activities, elevated levels of underwater
noise would ensonify the project area where both fishes and marine
mammals may occur and could affect foraging success. Additionally,
marine mammals may avoid the area during construction, however
displacement due to noise is expected to be temporary and is not
expected to result in long-term effects to the individuals or
populations.
Temporary and localized reduction in water quality will occur
because of in-water construction activities as well. Most of this
effect will occur during the installation and removal of piles when
bottom sediments are disturbed. The installation of piles will disturb
bottom sediments and may cause a temporary increase in suspended
sediment in the project area. In general, turbidity associated with
pile installation is localized to about 25-ft (7.6 meter) radius around
the pile (Everitt et al., 1980). Cetaceans are not expected to be close
enough to the pile driving areas to experience effects of turbidity,
and any pinnipeds could avoid localized areas of turbidity. Therefore,
we expect the impact from increased turbidity levels to be discountable
to marine mammals and do not discuss it further.
In-Water Construction Effects on Potential Foraging Habitat--The
proposed activities would not result in permanent impacts to habitats
used directly by marine mammals except for the actual footprint of the
new Pier 3. The total seafloor area affected by pile installation and
removal is a very small area compared to the vast foraging area
available to marine mammals in the project area and lower Chesapeake
Bay. Pile extraction and installation may have impacts on benthic
invertebrate species primarily associated with disturbance of sediments
that may cover or displace some invertebrates. The impacts will be
temporary and highly localized, and no habitat will be permanently
displaced by construction. Therefore, it is expected that impacts on
foraging opportunities for marine mammals due to the demolition and
reconstruction of Pier 3 would be minimal.
It is possible that avoidance by potential prey (i.e., fish) in the
immediate area may occur due to temporary loss of this foraging
habitat. The duration of fish avoidance of this area after pile driving
stops is unknown, but we anticipate a rapid return to normal
recruitment, distribution and behavior. Any behavioral avoidance by
fish of the disturbed area would still leave large areas of fish and
marine mammal foraging habitat in the nearby vicinity in the project
area and lower Chesapeake Bay.
Effects on Potential Prey--Sound may affect marine mammals through
impacts on the abundance, behavior, or distribution of prey species
(e.g., fish). Marine mammal prey varies by species, season, and
location. Here, we describe studies regarding the effects of noise on
known marine mammal prey.
Fish utilize the soundscape and components of sound in their
environment to perform important functions such as foraging, predator
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy and peripheral sensory structures,
which vary among species, fishes hear
[[Page 14574]]
sounds using pressure and particle motion sensitivity capabilities and
detect the motion of surrounding water (Fay et al., 2008). The
potential effects of noise on fishes depends on the overlapping
frequency range, distance from the sound source, water depth of
exposure, and species-specific hearing sensitivity, anatomy, and
physiology. Key impacts to fishes may include behavioral responses,
hearing damage, barotrauma (pressure-related injuries), and mortality.
Fish react to sounds which are especially strong and/or
intermittent low-frequency sounds, and behavioral responses such as
flight or avoidance are the most likely effects. Short duration, sharp
sounds can cause overt or subtle changes in fish behavior and local
distribution. The reaction of fish to noise depends on the
physiological state of the fish, past exposures, motivation (e.g.,
feeding, spawning, migration), and other environmental factors.
Hastings and Popper (2005) identified several studies that suggest fish
may relocate to avoid certain areas of sound energy. Additional studies
have documented effects of pile driving on fish, although several are
based on studies in support of large, multiyear bridge construction
projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings,
2009). Several studies have demonstrated that impulse sounds might
affect the distribution and behavior of some fishes, potentially
impacting foraging opportunities or increasing energetic costs (e.g.,
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al.,
1992; Santulli et al., 1999; Paxton et al., 2017). However, some
studies have shown no or slight reaction to impulse sounds (e.g., Pena
et al., 2013; Wardle et al., 2001; Jorgenson and Gyselman, 2009; Cott
et al., 2012).
SPLs of sufficient strength have been known to cause injury to fish
and fish mortality. However, in most fish species, hair cells in the
ear continuously regenerate and loss of auditory function likely is
restored when damaged cells are replaced with new cells. Halvorsen et
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours
for one species. Impacts would be most severe when the individual fish
is close to the source and when the duration of exposure is long.
Injury caused by barotrauma can range from slight to severe and can
cause death, and is most likely for fish with swim bladders. Barotrauma
injuries have been documented during controlled exposure to impact pile
driving (Halvorsen et al., 2012b; Casper et al., 2013).
The most likely impact to fish from pile driving activities at the
project areas would be temporary behavioral avoidance of the area. The
duration of fish avoidance of an area after pile driving stops is
unknown, but a rapid return to normal recruitment, distribution and
behavior is anticipated.
The area impacted by the project is relatively small compared to
the available habitat in the remainder of the project area and the
lower Chesapeake Bay, and there are no areas of particular importance
that would be impacted by this project. Any behavioral avoidance by
fish of the disturbed area would still leave significantly large areas
of fish and marine mammal foraging habitat in the nearby vicinity. As
described in the preceding, the potential for the Navy's construction
to affect the availability of prey to marine mammals or to meaningfully
impact the quality of physical or acoustic habitat is considered to be
insignificant.
Estimated Take
This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of ``small numbers,'' and the negligible impact
determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as noise
generated from in-water pile driving (vibratory and impact) and
drilling has the potential to result in disruption of behavioral
patterns for individual marine mammals. There is also some potential
for auditory injury (Level A harassment) to result, primarily for high-
and low-frequency species and phocids because predicted auditory injury
zones are larger than for mid-frequency species. However, auditory
injury is unlikely to occur for low- and mid- frequency species as
proposed shutdown zones encompass the entirely of the auditory injury
zones for all proposed activities (see Proposed Mitigation section).
The proposed mitigation and monitoring measures are expected to
minimize the severity of the taking to the extent practicable.
As described previously, no serious injury or mortality is
anticipated or proposed to be authorized for this activity. Below we
describe how the proposed take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the proposed take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater
[[Page 14575]]
anthropogenic noise above root-mean-squared pressure received levels
(RMS SPL) of 120 dB (referenced to 1 micropascal (re 1 [mu]Pa)) for
continuous (e.g., vibratory pile-driving, drilling) and above RMS SPL
160 dB re 1 [mu]Pa for non-explosive impulsive (e.g., impact pile
driving) or intermittent (e.g., scientific sonar) sources.
The Navy's construction includes the use of continuous (vibratory
pile driving/removal, drilling) and impulsive (impact pile driving)
sources, and therefore the 120 and 160 dB re 1 [mu]Pa (rms) are
applicable.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). As
previously noted, the Navy's proposed activity includes the use of non-
impulsive (vibratory pile driving/removal, drilling) and impulsive
(impact pile driving) sources.
These thresholds are provided in the table below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
www.fisheries.noaa.gov/national/marine-mammal-p-rotection/marine-mammal-acoustic-technical-guidance.
Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
In order to calculate the distances to the Level A harassment and
the Level B harassment sound thresholds for the methods and piles being
used in this project, NMFS used acoustic monitoring data from other
locations to develop proxy source levels for various pile types (Table
6). Generally we choose source levels from similar pile types and
locations (e.g., geology, bathymetry) similar to the project. At this
time, NMFS is not aware of reliable source levels available for
polymeric piles using vibratory pile installation, therefore source
levels for timber pile driving were used as a proxy. Vibratory pile
driving of polymeric piles expected to occur under the 2022 IHA has yet
to occur and therefore has not been measured. Similarly, the following
proxies were used as source levels for piles where no data was
available: Source levels from the 48-inch steel pile from Naval Base
Kitsap at Bangor, Washington (Caltrans 2020) was used as a proxy for 42
inch steel pipe piles (impact); the 30-inch steel pipe pile was used as
a proxy for the 28 inch steel sheet pile (impact and vibratory); source
levels for timber piles were used as a proxy for concrete as they are
expected to have similar sound levels as they are similarly sized, non-
metallic, and will be removed using the same methods.
Very little information is available regarding source levels for
in-water drilling activities associated with nearshore pile
installation. Measurements made during a pile drilling project in 1-5 m
(3-16 ft) depth at Santa Rosa Island, CA, by Dazey et al. (2012) appear
to provide the best available proxy source levels for proposed
activities. Dazey et al. (2012) reported average rms source levels
ranging from 151 to 157 db re 1 [mu]Pa during 62 days that spanned all
related drilling activities during a single season.
Table 6--Project Sound Source Levels and Proxy Source Levels Used for Acoustic Modeling
--------------------------------------------------------------------------------------------------------------------------------------------------------
Peak SPL (re 1 RMS SPL (re 1 SEL (re 1
Pile type Pile size (inch) Method [mu]Pa (rms)) [mu]Pa (rms)) [mu]Pa (rms)) Source
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steel Pipe Pile......... 42............................. Impact.............. 213 190 177 Caltrans 2020.
Vibratory........... N/A 168 N/A Sitka 2017.
Steel Sheet............. 28............................. Impact \1\.......... 211 196 181 NAVFAC SW 2020.
Vibratory \2\....... N/A 167 167 Navy 2015.
Concrete Pile........... 24............................. Impact.............. 189 176 163 Illingworth and
Rodkin 2017.
Vibratory Removal 185 162 157 Caltrans 2020.
\3\.
Concrete Pile........... 18............................. Impact \3\.......... 185 166 154 Caltrans 2020.
Vibratory Removal 185 162 157 Caltrans 2020.
\4\.
Polymeric Pile.......... 13............................. Impact.............. 177 153 ............... Denes et al., 2016.
Vibratory \5\....... 185 162 157 Caltrans 2020.
[[Page 14576]]
Timber Pile............. 14............................. Vibratory Install/ 185 162 157 Caltrans 2020.
Removal.
N/A \6\................. ``Multiple pile sizes'' \6\.... Drilling............ N/A 154 N/A Dazey et al., 2012.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ A source level value for impact pile driving of 28-inch steel sheet piles could not be found so a value for a 30-inch steel pipe pile has been used
as a proxy (NAVFAC SW, 2020 [p.A-4]).
\2\ A source level value for vibratory pile driving of 28-inch steel sheet piles could not be found so a value for a 30-inch steel pipe pile has been
used as a proxy (Navy, 2015 [p. 14]).
\3\ Data on vibratory extraction of concrete piles is not available, however source levels are expected to be similar to the levels produced by timber
piles as they are similar in size, material and removal method.
\4\ Proxy data for 18-inch octagonal piles.
\5\ Vibratory proxy for polymeric/plastic piles is unavailable; we assume SPL to be consistent with timber.
\6\ See Table 2 for pile types/size that may use drilling, as needed.
Table 7--Source Level Matrix for Concurrent Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
42-inch 28-inch 14-inch 14-inch 24-inch 18-inch 14-inch
Pile diameter steel pipe steel pipe timber polymeric concrete concrete timber Multiple
--------------------------------------------------------------------------------------------------------------------------------------------------------
SSL 168 167 162 162 162 162 162 154
42-inch Steel Pipe................. 168 171 171 169 169 169 169 169 168
28-inch Steel Pipe................. 167 171 170 168 168 168 168 168 167
14-inch Timber..................... 162 169 168 165 165 165 165 165 163
14-inch Polymeric.................. 162 169 168 165 165 165 165 165 163
24-inch Concrete................... 162 169 168 165 165 165 165 165 163
18-inch Concrete................... 162 169 168 165 165 165 165 165 163
14-inch Timber..................... 162 169 168 165 165 165 165 165 163
Multiple........................... 154 168 167 163 163 163 163 163 157
--------------------------------------------------------------------------------------------------------------------------------------------------------
The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources, such as pile driving, removal, and drilling, the
optional User Spreadsheet tool predicts the distance at which, if a
marine mammal remained at that distance for the duration of the
activity, it would be expected to incur PTS. Inputs used in the
optional User Spreadsheet tool are reported in Table 1 and Table 2, and
source levels used in the User Spreadsheet are reported in Table 6. The
resulting isopleths are reported in Table 7 (impact pile driving),
Table 8 (vibratory pile driving/removal, and drilling), and Table 9
(concurrent pile driving scenarios) below.
Table 8--Level A and Level B Harassment Isopleths for Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) Level B
Year Pile driving site Source ---------------------------------------------------- (behavioral)
LF MF HF Phocids (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2............... CEP-176..................... 42-inch Steel Pipe............... 1,482 53 1,766 793 1,000
28-inch Steel Sheets............. 1,783 63 2,123 954 2,512
CEP-175..................... 13-inch Polymeric Piles.......... 17 1 20 9 3
CEP-102..................... 24-inch Square Precast Concrete.. 117 4 139 63 117
18-inch Square Precast Concrete.. 7 0 9 4 25
Pier 3 (bearing piles)...... 24-inch Square Precast Concrete.. 254 9 302 136 117
Year 3............... Pier 3 (Fender Piles)....... 24-inch Square Precast Concrete.. 37 1 44 20 117
18-inch Steel Pipe............... 661 24 788 354 25
CEP-102..................... 42-inch Steel Pipe............... 1,002 36 1,193 536 1,000
28-inch Steel Sheet.............. 1,783 63 2,123 954 2,512
Year 4............... CEP-102..................... 24-inch Square Precast Concrete.. 117 4 139 63 117
18-inch Square Precast Concrete.. 7 0 9 4 25
42-inch Steel Pipe............... 1,002 36 1,193 536 1,000
28-inch Steel Sheet.............. 1,783 63 2,123 954 2,512
Year 5............... CEP-102..................... 24-inch Square Precast Concrete.. 117 4 139 63 117
18-inch Square Precast Concrete.. 7 0 9 4 25
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 9--Level A and Level B Harassment Isopleths for Vibratory Pile Driving, Removal and Drilling
----------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) \1\ Level B
Year Pile driving Source ---------------------------------------------------- behavioral
site LF MF HF Phocids (m)
----------------------------------------------------------------------------------------------------------------
Year 2.. CEP-176........ 42-inch Steel Pipe 127 11 188 77 15,849
(Vibratory).
28-inch Steel Sheet 100 9 147 61 13,594
(Vibratory).
CEP-175........ 13-inch Polymeric 15 1 22 9 6,310
Piles (Vibratory).
CEP-102........ 24-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
[[Page 14577]]
18-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
Year 3.. Pier 3 (Fender 24-inch Square 1 0 1 1 1,848
Piles). Precast Concrete
(Drilling).
CEP-102........ 42-inch Steel Pipe 80 7 118 49 15,849
(Vibratory Install).
28-inch Steel Sheet 100 9 147 61 13,594
Piles (Vibratory).
18-inch Square 35 3 51 21 6,310
Precast Concrete
(Vibratory
Extraction).
Year 4.. CEP-102........ 24-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
14-inch Timber 68 6 101 41 6,310
(Vibratory
Extraction).
18-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
42-inch Steel Pipe 80 7 118 49 15,849
(Vibratory).
28-inch Steel Sheet 100 9 147 61 13,594
(Vibratory).
18-inch Square 35 3 51 21 6,310
Precast Concrete
(Vibratory
Extraction).
Existing Pier 3 24-inch Square 42 4 62 25 6,310
Precast Concrete
(Vibratory
Extraction).
16-inch and 18-inch 37 3 55 23 6,310
Square Precast
Concrete (Vibratory
Extraction).
Year 5.. CEP-102........ 24-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
18-inch Square 1 0 1 0 1,848
Precast Concrete
(Drilling).
Existing Pier 3 16-inch and 18-inch 37 3 55 23 6,310
Square Precast
Concrete (Vibratory
Extraction).
----------------------------------------------------------------------------------------------------------------
Table 10--Level A and Level B Harassment Isopleths for Concurrent Pile Driving and Drilling Scenarios
----------------------------------------------------------------------------------------------------------------
Level A harassment isopleths (m) Level B
Year Pile driving Source ---------------------------------------------------- behavioral
site LF MF HF Phocids (m)
----------------------------------------------------------------------------------------------------------------
2....... CEP-176 Install of 42-inch 549 49 811 334 25,119
Bulkhead. steel pipe and 28-
inch steel sheets.
2....... CEP-176 Install of two 42- 320 28 472 194 25,119
Bulkhead. inch steel pipe
piles.
2....... CEP-176 and CEP- Install of 42-inch 166 15 246 101 15,849
102. steel pipe and 24-
inch Square precast
concrete.
2....... CEP-176 and CEP- Install of 42-inch 254 23 376 155 18,478
175. steel pipe piles
and 13-inch
polymeric piles.
3....... Pier 3......... Install of 24-inch 2 0.1 2 1 2,929
Square precast
concrete fender
piles using two
drills.
3....... CEP-102 Install of 42-inch 507 45 750 308 25,119
Bulkhead. steel pipe and 28-
inch steel sheets.
4....... Existing Pier 3 Extraction of 14- 981 87 1,450 596 25,119
CEP-102 inch timber piles,
Platform. install of 42-inch
steel pipe and 28-
inch steel sheets,
and rotary drilling
of 24-inch Square
precast concrete.
5....... Existing Pier 3 Concurrent 77 7 114 47 7,356
CEP-102 extraction of 16-
Platform. and 18-inch Square
precast concrete
and rotary drilling
of 24-inch Square
precast concrete.
----------------------------------------------------------------------------------------------------------------
The maximum distance to the Level A harassment threshold during
construction would be during the impact driving of 28 inch steel sheets
at CEP-176 and CEP-102 (1783 m for humpback whale; 63 m for bottlenose
dolphin; 2123 m for harbor porpoises; and 954 m for pinnipeds). The
largest calculated Level B harassment isopleth extends out to 25,119 m,
which would result from concurrent pile driving of the scenarios
presented in Table 10. While 25,119 m may not be an attainable
observable distance in all directions, the Level B harassment zone will
be monitored to the maximum extent possible.
Marine Mammal Occurrence and Take Estimation
In this section we provide information about the presence, density,
or group dynamics of marine mammals that will inform the take
calculations. We describe how the information provided above is brought
together to produce a quantitative take estimate for each species.
Humpback Whales
Humpback whales occur in the mouth of the Chesapeake Bay and
nearshore waters of Virginia during winter and spring months. Several
satellite tagged humpback whales were detected west of the Chesapeake
Bay Bridge Tunnel, including two individuals with locations near NAVSTA
Norfolk and Joint Expeditionary Base Little Creek (Aschettino et al.,
2017). Group size was not reported in these surveys, however most
whales detected were juveniles. Although two individuals were detected
in the vicinity of the proposed project activities, there is no
evidence that they linger for multiple days. Because no density
estimates are available for the species in this area, the Navy
estimated one potential sighting of a group of average size (2
individuals) every 60 days of pile driving. Therefore, given the number
of project days expected in each year (Table 1), NMFS is proposing to
authorize a total of 19 takes by Level B harassment of humpback whale
over the five-year authorization, with no more than seven takes by
Level B harassment in a given year.
The largest Level A harassment zone for low-frequency cetaceans
extends approximately 1783 m from the source during impact pile driving
of the 28-inch steel sheet piles (Table 8). The Navy plans to shut down
if a humpback whale is sighted within any of the Level A harassment
zones for all activities, as indicated in Table 11. Therefore, the Navy
did not request, and NMFS is not proposing to authorize, take by Level
A harassment of humpback whales.
Bottlenose Dolphin
The expected number of bottlenose dolphins in the project area was
estimated using inshore seasonal
[[Page 14578]]
densities provided in Engelhaupt et al. (2016) from vessel line-
transect surveys near NAVSTA Norfolk and adjacent areas near Virginia
Beach, Virginia, from August 2012 through August 2015 (Engelhaupt et
al., 2016). This density includes sightings inshore of the Chesapeake
Bay from NAVSTA Norfolk west to the Thimble Shoals Bridge, and is the
most representative density for the project area. To calculate
potential Level B harassment takes of bottlenose dolphin, NMFS
conservatively multiplied the density of 1.38 dolphin/km\2\ (from
Englehaupt et al., 2016) by the largest Level B harassment isopleth for
each project location (Table 8, 9 and 10), and then by the number of
days associated with that activity (Table 1). For example, to calculate
Level B harassment takes associated with work at the existing Pier 3 in
year 2, NMFS multiplied the density (1.38 dolphins/km\2\) by the
largest Level B harassment zone for impact pile driving on the 24-inch
concrete bearing piles at the new Pier 3 (0.043 km\2\) by the
proportional number of pile driving days for that activity (70 days)
for a total of 4 Level B harassment takes at Pier 3, for that activity
in year 1. Takes by Level B harassment were calculated for both
individual pile driving activities and concurrent pile driving
activities, as authorized takes are conservatively based on the
scenario that produces more takes by Level B harassment (Table 11).
Therefore, NMFS proposes to authorize 28,480 \1\ takes by Level B
harassment of bottlenose dolphin across all five years, with no more
than 13,190 takes in a given year.
---------------------------------------------------------------------------
\1\ Note: This total number of takes by Level B harassment
proposed for authorization differs from that in the Navy's request
for Rulemaking. The number presented here conservatively uses
exposure estimates for concurrent pile driving scenarios in Year 5,
which were higher than those produced for individual pile driving
activities.
---------------------------------------------------------------------------
Harbor Porpoise
Harbor porpoises are known to occur in the coastal waters near
Virginia Beach (Hayes et al., 2019). Density data for this species
within the project vicinity do not exist or were not calculated because
sample sizes were too small to produce reliable estimates of density.
Harbor porpoise sighting data collected by the U.S. Navy near NAVSTA
Norfolk and Virginia Beach from 2012 to 2015 (Engelhaupt et al. 2014;
2015; 2016) did not produce enough sightings to calculate densities.
One group of two harbor porpoises was seen during spring 2015
(Engelhaupt et al. 2016). Elsewhere in their range, harbor porpoises
typically occur in groups of two to three individuals (Carretta et al.
2001; Smultea et al. 2017).
Because there are no density estimates for the species in the
proposed project area, the Navy conservatively estimated one harbor
porpoise sighting (of two individuals) once every 60 days of pile
driving or drilling. Therefore, the assumption of two individuals per
60 days was used for calculation of take numbers. Total pile driving
days for Year 2 would be 185 days, Year 3 would be 92 days, Year 4
would be 204 days, and Year 5 would have 32 days. Takes by Level B
harassment were calculated for both individual pile driving activities
and concurrent pile driving activities, as authorized takes are
conservatively based on the scenario that produced the larger exposure
estimate (Table 11). Using the above methodology, NMFS calculated an
exposure estimate of 19 incidents of take for harbor porpoises.
The largest Level A harassment zone for high-frequency cetaceans is
2,123 m during impact pile driving of the 28-inch steel sheet piles.
The Navy has proposed to shut down at 500 m for harbor porpoises during
the aforementioned activity, in addition to shorter distances where
appropriate for other proposed activities as noted in Table13 as a
reasonable area to observe for harbor porpoises and implement shutdown
procedures while avoiding an impracticable number of shutdowns.
Consequently, the Navy has requested authorization of take by Level A
harassment for harbor porpoise during the course of the project. Take
by Level A harassment may not actually occur due to the duration of
time harbor porpoise would be required to remain within the Level A
harassment zone to accumulate enough energy to experience PTS. However,
as a precaution NMFS proposes to authorize a total of 4 takes by Level
A harassment as requested by the Navy (Table 11) with no more than 2
takes by Level A harassment occurring in a given year, and 15 total
takes by Level B harassment with no more than 5 takes by Level B
harassment occurring in a given year, equaling the aforementioned total
of 19 takes over 5 years.
Harbor Seal
The expected number of harbor seals in the project area was
estimated using systematic land- and vessel-based survey data for in-
water and hauled out seals collected by the U.S. Navy at the CBBT rock
armor and portal islands from 2014 through 2019 (Jones et al., 2020).
The average daily seal count from the field season ranged from 8 to 23
seals, with an average of 13.6 harbor seals across all the field
seasons.
The Navy expects, and NMFS concurs, that harbor seals are likely to
be present from November to April. Consistent with previous nearby
projects (87 FR 15945; March 31, 2022, 86 FR 24340; May 6, 2021, 86 FR
17458; April 2, 2021), NMFS calculated take by Level B harassment by
multiplying 13.6 seals by the number of pile driving days expected to
occur from November through April (seal season): 74 days in Year 2, 23
days in Year 3, 133 days in Year 4. And 32 days in Year 5. Potential
takes by Level A harassment were calculated based on the number of
production days within seal season on which the Level A harassment
isopleth exceeds the shutdown zone of 200 m (42 days in Year 2; 3 days
in Year 3; and 0 days in Year 4 and 5), assuming that approximately 10
percent of harbor seal exposures would be at or above the Level A
harassment threshold. Potential takes by Level B harassment were
calculated by subtracting the Level A harassment takes estimated per
year from the total calculated takes. Consistent with previous species,
take estimates are based on the scenario (individual or concurrent)
that produced the higher take estimate (Table 11). Therefore, the Navy
is requesting and NMFS is proposing to authorize a total of 4,182 takes
by Level B harassment and 61 takes by Level A harassment (Table 12).
Gray Seal
Very little information is available about the occurrence of gray
seals in the Chesapeake Bay and coastal waters. Although the population
of the United States may be increasing, there are only a few records
available at the known haulout sites in Virginia used by gray seals,
strandings are rare, and they have not been reported in shipboard
surveys. Assuming that they may utilize the Chesapeake Bay waters, the
Navy conservatively estimates one gray seal may be exposed to elevated
noise levels for every 60 days of vibratory pile driving during the six
month period when they are most likely to be present. Similar to harbor
seals, the maximum number of pile driving days where gray seals may be
exposed during seal season per year were used for calculations. The
scenario (concurrent or individual activities) that produced the larger
exposure estimate is proposed for authorization (Table 11). Therefore,
the Navy has requested and NMFS is proposing to authorize 5 takes by
Level B harassment. Given the low likelihood of encountering gray seals
during the project and low number of days in
[[Page 14579]]
which Level A harassment isopleths may exceed proposed shutdown zones,
no take by Level A harassment is proposed for authorization.
Table 11--Calculated Takes by Level A and Level B Harassment for Concurrent and Individual Pile Driving, Removal
and Drilling Scenarios \1\
----------------------------------------------------------------------------------------------------------------
Individual activities Concurrent activities
Year Species ---------------------------------------------------------------
Level A Level B Level A Level B
----------------------------------------------------------------------------------------------------------------
2............................. Humpback whale.. 0 6 0 2
BND--Northern 0 2691 0 5609
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 2 4 0 1
Harbor seal..... 57 949 25 832
Gray seal....... 0 1 0 1
3............................. Humpback whale.. 0 3 0 1
BND--Northern 0 3061 0 1440
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 0 3 0 1
Harbor seal..... 4 309 7 537
Gray seal....... 0 0 0 1
4............................. Humpback whale.. 0 7 0 1
BND--Northern 0 13190 0 3023
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 2 5 0 1
Harbor seal..... 0 1809 26 232
Gray seal....... 0 2 0 0
5............................. Humpback whale.. 0 2 0 3
BND--Northern 0 383 0 6620
Migratory.
BND--Southern
Migratory.
BND--NC
Estuarine.
Harbor porpoise. 0 1 0 3
Harbor seal..... 0 435 0 1115
Gray seal....... 0 2 0 1
----------------------------------------------------------------------------------------------------------------
\1\ Potential takes by Level A and Level B harassment are conservatively based on the scenario (individual vs.
concurrent pile driving, removal, or drilling) that produced the highest exposure estimate. Therefore, the
number of takes by Level A and Level B harassment proposed for authorization is italicized and used to
determine percent of stock.
Table 12--Proposed Authorized Takes by Level A and Level B Harassment by Species and Stock in Comparison to Stock Abundance
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed take
Year Species Abundance -------------------------------- Total Percent of
Level A Level B stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
2......................................... Humpback whale \a\.......... 1396 0 6 6 0.43
BND--Northern Migratory \b\ 6639 0 5609 2705 40.74
\c\.
BND--Southern Migratory \b\ 3751 2705 72.10
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 2 4 6 0.01
Harbor seal................. 61336 57 949 1006 1.64
Gray seal................... 27300 0 1 1 0.00
3......................................... Humpback whale \a\.......... 1396 0 3 3 0.21
BND--Northern Migratory \b\ 6639 0 3061 1431 21.55
\c\.
BND--Southern Migratory \b\ 3751 1431 38.15
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 0 3 3 0.00
Harbor seal................. 61336 7 537 544 0.89
Gray seal................... 27300 0 1 1 0.00
4......................................... Humpback whale \a\.......... 1396 0 7 7 0.50
BND--Northern Migratory \b\ 6639 0 13190 6495 97.83
\c\.
BND--Southern Migratory \b\ 3751 6495 173.15
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 2 5 7 0.01
Harbor seal................. 61336 26 1783 1809 2.95
Gray seal................... 27300 0 2 2 0.01
5......................................... Humpback whale \a\.......... 1396 0 3 3 0.21
BND--Northern Migratory \b\ 6639 0 6620 3210 48.35
\c\.
BND--Southern Migratory \b\ 3751 3210 85.58
\c\.
BND--NC Estuarine \b\ \c\... 823 200 24.30
Harbor porpoise............. 95543 0 3 3 0.00
[[Page 14580]]
Harbor seal................. 61336 0 1115 1115 1.82
Gray seal................... 27300 0 2 2 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ West Indies DPS. Please see the Description of Marine Mammals in the Area of Specified Activities section for further discussion.
\b\ Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow the same
probability of presence in the project area. Please see Small Numbers section for additional information.
\c\ Assumes multiple repeated takes of the same individuals from a small portion of each stock as well as repeated takes of Chesapeake Bay resident
population (size unknown). Please see Small Numbers section for additional information.
Proposed Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
In addition to the measures described later in this section, the
Navy will employ the following mitigation measures:
The Navy will conduct briefings between construction
supervisors and crews, the marine mammal monitoring team, and Navy
staff prior to the start of all pile driving activity and when new
personnel join the work, to explain responsibilities, communication
procedures, marine mammal monitoring protocol, and operational
procedures;
If a marine mammal comes within 10 meters of construction
activities, including in-water heavy machinery work not being analyzed
in this proposed rule, operations shall cease and vessels shall reduce
speed to the minimum level required to maintain steerage and safe
working conditions;
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 is within the
harassment zone.
The following mitigation measures apply to the Navy's in-water
construction activities.
Establishment of Shutdown Zones--The Navy will establish shutdown
zones for all pile driving and removal and drilling activities. 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 will vary based on the activity type and marine mammal hearing
group (Table 13).
Protected Species Observers (PSOs)--The placement of PSOs during
all pile driving and removal and drilling activities (described in the
Proposed Monitoring and Reporting section) will ensure that the entire
shutdown zone is visible. Should environmental conditions deteriorate
such that the entire shutdown zone would not be visible (e.g., fog,
heavy rain), pile driving and removal and drilling must be delayed
until the PSO is confident marine mammals within the shutdown zone
could be detected.
Monitoring for Level A and B Harassment--The Navy will monitor the
Level B harassment zones (areas where SPLs are equal to or exceed the
160 dB rms threshold for impact pile driving, and the 120 dB rms
threshold during drilling and vibratory pile driving and removal) and
Level A harassment zones to the extent practicable, and all of the
shutdown zones, during all pile driving, removal or drilling days.
Monitoring zones provide utility for observing by establishing
monitoring protocols for areas adjacent to the shutdown zones.
Monitoring zones enable observers to be aware of and communicate the
presence of marine mammals in the project area outside the shutdown
zone and thus prepare for a potential cessation of activity should the
animal enter the shutdown zone.
Pre-Activity Monitoring--Prior to the start of daily in-water
construction activity, or whenever a break in pile driving/removal of
30 minutes or longer occurs, PSOs will observe the shutdown and
monitoring zones for a period of 30 minutes. The shutdown zone will be
considered cleared when a marine mammal has not been observed within
the zone for that 30-minute period. If a marine mammal is observed
within the shutdown zones listed in Table 13, pile driving and drilling
activity must be delayed or halted. If pile driving and/or drilling 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 zones or 15
minutes have passed without re-detection of the animal. When a marine
mammal for which Level B harassment take is authorized is present in
the Level B harassment zone, activities may begin. If work ceases for
more than 30 minutes, the pre-activity monitoring of the shutdown zones
will commence. A determination that the shutdown zone is clear must be
made during a period of
[[Page 14581]]
good visibility (i.e., the entire shutdown zone and surrounding waters
must be visible to the naked eye).
Soft Start--Soft-start procedures are used to provide additional
protection to marine mammals by providing warning and/or giving marine
mammals a chance to leave the area prior to the hammer operating at
full capacity. For impact pile driving, contractors will be required to
provide an initial set of three strikes from the hammer at reduced
energy, followed by a 30-second waiting period, then two subsequent
reduced-energy strike sets. Soft start will 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.
Table 13--Proposed Shutdown Zones \1\
----------------------------------------------------------------------------------------------------------------
Level B
Shutdown Shutdown Shutdown (behavioral)
Pile type, size, and distance (m) distance (m) distance (m) harassment
LOA year driving method for humpback for harbor for all other distance (m)
whales porpoise species all marine
mammals
----------------------------------------------------------------------------------------------------------------
Year 2............... Impact Install 42-inch 1,490 500 200 1,000
steel pipe piles.
Vibratory Install 42-inch 140 200 70 2,500
steel pipe piles.
Impact Install 28-inch 1,790 500 200 2,500
steel sheet piles.
Vibratory Install 28-inch 110 150 80 2,500
steel sheet piles.
Impact Install 13-inch 20 30 30 30
polymeric piles.
Vibratory Install 13-inch 20 30 30 2,500
polymeric piles.
Impact Install 24-inch 260 500 200 117
precast concrete bearing
piles.
Impact Install 18-inch 10 10 10 30
precast concrete fender
piles.
Pre-drilling............. 10 10 10 2,500
Year 3............... Impact Install 24-inch 40 50 30 120
precast concrete fender
piles.
Impact Install 18-inch 700 500 200 30
steel piles.
Impact Install 42-inch 1,010 500 200 1,000
steel pipe piles.
Vibratory Install 42-inch 90 120 50 2,500
steel pipe piles.
Impact Install 28-inch 1,790 500 200 2,500
steel sheet piles.
Vibratory Install 28-inch 110 150 70 2,500
steel sheet piles.
Vibratory Extract 18-inch 40 60 30 2,500
precast concrete fender
piles.
Pre-drilling............. 10 10 10 2,500
Year 4............... Impact Install 24-inch 120 150 70 120
precast concrete bearing
piles.
Vibratory Extract 14-inch 70 110 50 2,500
timber piles.
Impact Install 18-inch 10 10 10 30
precast concrete fender
piles.
Impact Install 42-inch 1,010 500 200 1,000
steel pipe piles.
Vibratory Install 42-inch 90 120 50 2,500
steel pipe piles.
Vibratory Extract 24-inch 50 70 30 2,500
concrete fender piles.
Impact Install 28-inch 1,790 500 200 2,500
steel sheet piles.
Vibratory Install 28-inch 120 150 70 2,500
steel sheet piles.
Vibratory Extract 18-inch 40 60 30 2,500
precast concrete fender
piles.
Vibratory Extract 16- to 40 60 30 2,500
18-inch precast concrete
bearing piles.
Pre-drilling............. 10 10 10 2,500
Year 5............... Vibratory Extract 16- to 40 60 30 2,500
18-inch precast concrete
bearing piles.
Impact Install 24-inch 120 150 70 120
precast concrete bearing
piles.
Impact Install 18-inch 10 10 10 30
precast concrete fender
piles.
Pre-drilling............. 10 10 10 2,500
----------------------------------------------------------------------------------------------------------------
\1\ Calculated Level A harassment isopleths for concurrent pile driving were smaller than those calculated for
individual impact pile driving, vibratory pile driving and removal, and drilling. Therefore, proposed shutdown
zones conservatively reflect individual activity.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has preliminarily
determined that the proposed mitigation measures provide the means of
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Proposed Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral
[[Page 14582]]
context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
Mitigation and monitoring effectiveness.
The Navy will submit a Marine Mammal Monitoring Plan to NMFS for
approval in advance of the start of construction.
Visual Monitoring
Marine mammal monitoring during pile driving and removal
must be conducted by qualified, NMFS approved PSOs, in accordance with
the following: PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods;
At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization;
PSOs must be approved by NMFS prior to beginning any
activity subject to this proposed rulemaking; and
Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer must have prior experience performing the duties of a PSO
during construction activity pursuant to a NMFS-issued incidental take
authorization.
PSOs must have the following additional qualifications:
Ability to conduct field observations and collect data
according to assigned protocols;
Experience or training in the field identification of
marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
The Navy must establish the following monitoring locations and
visual monitoring of the entire shutdown zones must occur for all pile
driving and drilling activities. For all pile driving activities, a
minimum of one PSO must be assigned to the active pile driving or
drilling location to monitor the shutdown zones and as much of the
Level A and Level B harassment zones as possible. If the active project
location includes demolition activities, then the next adjacent pier
may be used as an appropriate monitoring location ensuring that the
aforementioned criteria is met. Monitoring must be conducted by a
minimum of three PSOs for any activity with an associated harassment
isopleth over 1000 m. All other activities would require a minimum of
two PSOs. For activities in Table 8, 9 and 10, with Level B harassment
zones larger than 3000 m, at least one PSO must be stationed on either
Pier 14 or the North Jetty to monitor the part of the zone exceeding
the edge of the Norfolk Naval Station (see Figure 3). The third PSO for
activities whose harassment isopleths exceed 1000 m would be located on
Pier 1. PSOs will be placed at the best vantage point(s) practicable to
monitor for marine mammals and implement shutdown/delay procedures (See
Figure 3 for representative monitoring locations). If changes are
necessary to ensure full coverage of the proposed shutdown zones, the
Navy shall contact NMFS to alter observer locations (e.g., vessel
blocking view from pier locations). Additionally, the shutdown/
monitoring zones may be modified with NMFS' approval following NMFS'
acceptance of an acoustic monitoring report.
Monitoring will be conducted 30 minutes before, during, and 30
minutes after all in water construction activities. In addition,
observers shall record all incidents of marine mammal occurrence,
regardless of distance from activity, and shall document any behavioral
reactions in concert with distance from drilling or piles being driven
or removed. Pile driving activities include the time to install or
remove a single pile or series of piles, as long as the time elapsed
between uses of the pile driving equipment is no more than 30 minutes.
BILLING CODE 3510-22-P
[[Page 14583]]
[GRAPHIC] [TIFF OMITTED] TP09MR23.012
Figure 3. Proposed Protected Species Observer Locations at Naval
Station Norfolk at Norfolk, Virginia
Acoustic Monitoring
The Navy plans to implement in situ acoustic monitoring efforts to
measure SPLs from in-water construction activities for pile types and
methods that have not been previously collected at NAVSTA Norfolk
(Table 14). The Navy will collect and evaluate acoustic sound recording
levels during pile driving activities. Hydrophones would be placed at
locations 33 ft from the noise source and, where the potential for
Level A (PTS onset) harassment exists, at a second representative
monitoring location that is a distance of 20 times the depth of water
at the pile location. For the pile driving events acoustically
measured, 100 percent of the data will be analyzed. Please see the
Navy's Marine Mammal Monitoring Plan and application for additional
detail.
Table 14--Hydroacoustic Monitoring Summary
[GRAPHIC] [TIFF OMITTED] TP09MR23.013
\1\ Data has previously been collected on the impact driving of
24-inch concrete piles and timber piles at NAVSTA Norfolk;
therefore, no additional data collection is proposed for these pile
types.
\2\ Some piles may be either vibratory or pile driving, or a
combination of both. Pre-drilling may not be utilized if site
conditions do not require it. The hydroacoustic report at the end of
construction will clarify which
[[Page 14584]]
installation method was utilized and monitored for each pile type.
BILLING CODE 3510-22-C
Environmental data shall be collected, including but not limited
to, the following: Wind speed and direction, air temperature, humidity,
surface water temperature, water depth, wave height, weather
conditions, other factors that could contribute to influencing
underwater sound levels (e.g., aircrafts, boats, etc.).
Reporting
The Navy is required to submit an annual report on all activities
and marine mammal monitoring results to NMFS within 90 days following
the end of each construction year. Additionally, a draft comprehensive
5-year summary report must be submitted to NMFS within 90 days of the
end of the project. The annual reports will include an overall
description of work completed, a narrative regarding marine mammal
sightings, and associated PSO data sheets. Specifically, the report
must include:
Dates and times (begin and end) of all marine mammal
monitoring
Construction activities occurring during each daily
observation period, including: (a) how many and what type of piles were
driven or removed and the method (i.e., impact or vibratory); and (b)
the total duration of time for each pile (vibratory driving) or hole
(drilling) and number of strikes for each pile (impact driving);
PSO locations during marine mammal monitoring; and
Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
Upon observation of a marine mammal the following information must
be reported:
Name of PSO who sighted the animal(s) and PSO location and
activity at the time of sighting;
Time of sighting;
Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
Distance and location of each observed marine mammal
relative to the pile being driven or hole being drilled for each
sighting;
Estimated number of animals (min/max/best estimate);
Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
Description of any marine mammal behavioral observations
(e.g., no response or changes in behavioral state such as ceasing
feeding, changing direction, flushing, or breaching);
Number of marine mammals detected within the harassment
zones, by species; and
Detailed information about implementation of any
mitigation (e.g., shutdowns and delays), a description of specified
actions that ensured, and resulting changes in behavior of the
animal(s), if any.
The acoustic monitoring report must contain the informational
elements described in the Marine Mammal Monitoring Plan and, at
minimum, must include:
Hydrophone equipment and methods: Recording device,
sampling rate, distance (m) from the pile where recordings were made;
depth of water and recording device(s);
Type and size of pile being driven, substrate type, method
of driving during recordings (e.g., hammer model and energy), and total
pile driving duration;
Whether a sound attenuation device is used and, if so, a
detailed description of the device used and the duration of its use per
pile;
For impact pile driving and/or drilling (per pile): Number
of strikes and strike rate; depth of substrate to penetrate; pulse
duration and mean, median, and maximum sound levels (dB re: 1
[micro]Pa): Root mean square sound pressure level (SPLrms);
cumulative sound exposure level (SELcum), peak sound
pressure level (SPLpeak), and single-strike sound exposure
level (SELs-s); and
For vibratory driving/removal and/or drilling (per pile):
Duration of driving per pile; mean, median, and maximum sound levels
(dB re: 1 [micro]Pa): Root mean square sound pressure level
(SPLrms), cumulative sound exposure level
(SELcum) (and timeframe over which the sound is averaged).
If no comments are received from NMFS within 30 days, the draft
reports will constitute the final reports. If comments are received, a
final report addressing NMFS' comments must be submitted within 30 days
after receipt of comments. All PSO datasheets and/or raw sighting data
must be submitted with the draft marine mammal report.
Reporting of Injured or Dead Marine Mammals
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the Navy shall report the
incident to NMFS Office of Protected Resources (OPR)
([email protected]), NMFS (301-427-8401) and to the
Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator
(866-755-6622) as soon as feasible. The report must include the
following information:
[ssquf] Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
[ssquf] Species identification (if known) or description of the
animal(s) involved;
[ssquf] Condition of the animal(s) (including carcass condition if
the animal is dead);
[ssquf] Observed behaviors of the animal(s), if alive;
[ssquf] If available, photographs or video footage of the
animal(s); and
[ssquf] General circumstances under which the animal was
discovered.
If the death or injury was clearly caused by the specified
activity, the Navy must immediately cease the specified activities
until NMFS OPR is able to review the circumstances of the incident and
determine what, if any, additional measures are appropriate to ensure
compliance with the terms of this proposed rule. The Navy shall not
resume their activities until notified by NMFS that they can continue.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing
[[Page 14585]]
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the baseline (e.g., as reflected in the
regulatory status of the species, population size and growth rate where
known, ongoing sources of human-caused mortality, or ambient noise
levels).
To avoid repetition, this introductory discussion of our analysis
applies to all the species listed in Table 3, given that many of the
anticipated effects of this project on different marine mammal stocks
are expected to be relatively similar in nature. Where there are
meaningful differences between species or stocks, or groups of species,
in anticipated individual responses to activities, impact of expected
take on the population due to differences in population status, or
impacts on habitat, they are described independently in the analysis
below.
Construction activities associated with the project, as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level A and Level B harassment from underwater sounds generated by
pile driving activities, pile removal, and drilling. Potential takes
could occur if marine mammals are present in zones ensonified above the
thresholds for Level A and Level B harassment, identified above, while
activities are underway.
The Level A harassment zones identified in Tables 6 and 7 are based
upon an animal exposed to pile driving or drilling multiple piles per
day. Considering the short duration to impact drive each pile and
breaks between pile installations (to reset equipment and move pile
into place), an animal would have to remain within the area estimated
to be ensonified above the Level A harassment threshold for multiple
hours. This is highly unlikely given marine mammal movement throughout
the area, especially for small, fast moving species such as small
cetaceans and pinnipeds. Additionally, no Level A harassment is
anticipated for humpback whales due to the required mitigation
measures, which we expect the Navy will be able to effectively
implement given the majority of the Level A harassment zones are small
(under 300 m except for a few activities where additional PSOs will be
utilized to cover the entirety of the Level A harassment zone), and
high visibility of humpback whales. If an animal was exposed to
sufficient accumulated sound energy to incur PTS, the resulting PTS
would likely be small (e.g., PTS onset) at lower frequencies where pile
driving energy is concentrated, and unlikely to result in impacts to
individual fitness, reproduction, or survival.
The nature of activities included in the Navy's pile driving
project precludes the likelihood of serious injury or mortality. For
all species and stocks, take will occur within a limited, confined area
(immediately surrounding NAVSTA Norfolk in the Chesapeake Bay area) of
the stock's range. Level A and Level B harassment will be reduced to
the level of least practicable adverse impact through use of mitigation
measures described herein. Furthermore, the amount of take authorized
is extremely small when compared to stock abundance for all species
aside from bottlenose dolphins, however take authorized for bottlenose
dolphins is still expected to be small relative to the stock abundance
as described in the Small Numbers section.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as
increased swimming speeds, increased surfacing time, or decreased
foraging (if such activity were occurring) (e.g., Thorson and Reyff
2006). Individual animals, even if taken multiple times, will most
likely move away from the sound source and be temporarily displaced
from the areas of pile driving or drilling, although even this reaction
has been observed primarily only in association with impact pile
driving. The pile driving and drilling activities analyzed here are
similar to, or less impactful than, numerous other construction
activities conducted along both Atlantic and Pacific coasts, which have
taken place with no known long-term adverse consequences from
behavioral harassment. Furthermore, many projects similar to this one
are also believed to result in multiple takes of individual animals
without any documented long-term adverse effects. Level B harassment
will be minimized through use of mitigation measures described herein
and, if sound produced by project activities is sufficiently
disturbing, animals are likely to simply avoid the area while the
activity is occurring, particularly as the project is located on a busy
waterfront with high amounts of vessel traffic.
UMEs have been declared for Northeast pinnipeds (including harbor
seal and gray seal) and Atlantic humpback whale. However, we do not
expect authorized takes to exacerbate or compound upon these ongoing
UMEs. As noted previously, no injury, serious injury, or mortality is
expected or authorized, and Level B harassment takes of humpback whale,
harbor seal and gray seal will be reduced to the level of least
practicable adverse impact through the incorporation of the mitigation
measures. For the WNA stock of gray seal, the estimated stock abundance
is 27,300 (424,300 including estimates in Canadian waters). Given that
only 1-2 takes by Level B harassment are authorized for this stock
annually, we do not expect this authorization to exacerbate or compound
upon the ongoing UME.
For the WNA stock of harbor seals, the estimated abundance is
61,336 individuals. The estimated M/SI (339) is well below the PBR
(1,729). As such, the Level B harassment takes of harbor seal are not
expected to exacerbate or compound upon the ongoing UMEs.
With regard to humpback whales, the UME does not yet provide cause
for concern regarding population-level impacts. 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., 12,312 (95 percent CI 8,688-
15,954) whales in 2004-2005 (Bettridge et al., 2003)), and appears to
be experiencing consistent growth. NMFS is proposing to authorize no
more than eight takes by Level B harassment annually of humpback whale.
The project is also not expected to have significant adverse
effects on affected marine mammals' habitats. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. The
[[Page 14586]]
activities may cause some fish to leave the area of disturbance, thus
temporarily impacting marine mammals' foraging opportunities in a
limited portion of the foraging range; but, because of the short
duration of the activities and the relatively small area of the habitat
that may be affected (with no known particular importance to marine
mammals), the impacts to marine mammal habitat are not expected to
cause significant or long-term negative consequences.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect any of the species
or stocks through effects on annual rates of recruitment or survival:
No mortality is anticipated or authorized;
Authorized Level A harassment would be very small amounts
and of low degree;
The intensity of anticipated takes by Level B harassment
is relatively low for all stocks;
The number of anticipated takes is very low for humpback
whale, harbor porpoise, and gray seal;
The specified activity and associated ensonified areas are
very small relative to the overall habitat ranges of all species and do
not include habitat areas of special significance;
The lack of anticipated significant or long-term negative
effects to marine habitat;
The presumed efficacy of the mitigation measures in
reducing the effects of the specified activity;
Monitoring reports from similar work in the Chesapeake Bay
have documented little to no effect on individuals of the same species
impacted by similar activities.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted previously, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
The maximum annual take of take NMFS proposes to authorize for the
five marine mammal stocks is below one-third of the estimated stock
abundance for all species except for the WNA southern coastal migratory
stock and the WNA northern coastal migratory stock of bottlenose
dolphins (see Table 12).
There are three bottlenose dolphin stocks that could occur in the
project area. Therefore, largest estimated annual take by Level B
harassment of 13,190 bottlenose dolphin would likely be split among the
western WNA northern coastal migratory stock, the WNA southern coastal
migratory stock, and the northern North Carolina Estuarine stock
(NNCES). Based on the stocks' respective occurrence in the area, NMFS
estimates that there would be no more than 200 takes from the NNCES
stock, representing 24 percent of that population, with the remaining
takes split evenly between the northern and southern coastal migratory
stocks. Based on the consideration of various factors as described
below, we have preliminarily determined that the number of individuals
taken will comprise of less than one-third of the best available
population abundance estimate of either coastal migratory stock.
Detailed descriptions of the stocks' ranges have been provided in the
Description of Marine Mammals in the Area of Specified Activities
section.
Both the northern migratory coastal and southern migratory coastal
stocks have expensive ranges and they are the only dolphin stocks
thought to make broad scale, seasonal migrations in coastal waters of
the western North Atlantic. Given the large ranges associated with
these two stocks, it is unlikely that large segments of either stock
would approach the project area and enter into the Chesapeake Bay. The
majority of both stocks are likely to be found widely dispersed across
their respective habitat ranges and unlikely to be concentrated in or
near the Chesapeake Bay.
Furthermore, the Chesapeake Bay and nearby offshore waters
represent the boundaries of the ranges of each of the two coastal
stocks during migration. The northern migratory coastal stock is found
during warm water months from coastal Virginia, including the
Chesapeake Bay and Long Island, New York. The stock migrates south in
late summer and fall. During cold water months, dolphins may be found
in coastal waters from Cape Lookout, North Carolina, to the North
Carolina/Virginia border. During January-March, the southern Migratory
coastal stock appears to move as far south as northern Florida. From
April-June, the stock moves back north to North Carolina. During the
warm water months of July-August, the stock is presumed to occupy the
coastal waters north of Cape Lookout, North Carolina, to Assateague,
Virginia, including the Chesapeake Bay. There is likely some overlap
between the northern southern migratory stocks during spring and fall
migrations, but the extent of overlap is unknown.
The Chesapeake Bay and waters offshore of the mouth are located on
the periphery of the migratory ranges of both coastal stocks (although
during different seasons). Additionally, each of the migratory coastal
stocks are likely to be located in the vicinity of the Bay for
relatively short timeframes. Given the limited number of animals from
each migratory coastal stock likely to be found at the seasonal
migratory boundaries of their respective ranges, in combination with
the short time periods (~2 months) animals might remain at these
boundaries, it is reasonable to assume that takes are likely to occur
only within some small portion of either of the migratory coastal
stocks.
Many of the dolphin observations in the Bay are likely repeated
sightings of the same individuals. The Potomac-Chesapeake Dolphin
Project has observed over 1,200 unique animals since observations began
in 2015. Re-sightings of the same individual can be highly variable.
Some dolphins are observed once per year, while others are highly
regular with greater than 10 sightings per year (Mann, Personal
Communication). Similarly, using available photo-identification data,
Engelhaupt et al. (2016) determined that specified individuals were
often observed in close proximity to their original sighting locations
and were observed multiple times in the same season or same year.
Ninety-one percent of re-sighted individuals (100 of 110) in the study
area were recorded less than 30 kilometers from the initial sighting
location. Multiple sightings of the same individual would considerably
reduce the number of individual animals that are taken by harassment.
Furthermore, the existence of a resident dolphin
[[Page 14587]]
population in the Bay would increase the percentage of dolphin takes
that are actually re-sightings of the same individuals.
In summary and as described above, the following factors primarily
support our determination regarding the incidental take of small
numbers of the affected stocks of a species or stock:
The take of marine mammal stocks proposed for
authorization comprises less than 3 percent of any stock abundance
(with the exception of the three bottlenose dolphin stocks);
Potential bottlenose dolphin takes in the project area are
likely to be allocated among three distinct stocks;
Bottlenose dolphin stocks in the project area have
extensive ranges and it would be unlikely to find a high percentage of
the individuals of any one stock concentrated in a relatively small
area such as the project area or the Chesapeake Bay;
The Chesapeake Bay represents the migratory boundary for
each of the specified dolphin stocks and it would be unlikely to find a
high percentage of any stock concentrated at such boundaries; and
Many of the takes would likely be repeats of the same
animals and likely from a resident population of the Chesapeake Bay.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS preliminarily finds that small numbers of marine
mammals will be taken relative to the population size of the affected
species or stock.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Navy construction activities would contain an adaptive management
component. The reporting requirements associated with this proposed
rule are designed to provide NMFS with monitoring data from completed
projects to allow consideration of whether any changes are appropriate.
The use of adaptive management allows NMFS to consider new information
from different sources to determine (with input from the Navy regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.
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. 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.
Request for Information
NMFS requests that interested persons submit comments, information,
and suggestions concerning the Navy's request and the proposed
regulations (see ADDRESSES). All comments will be reviewed and
evaluated as we prepare a final rule and make final determinations on
whether to issue the requested authorization. This proposed rule and
supporting documents provide all environmental information relating to
our proposed action for public review.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have
significant economic impact on a substantial number of small entities.
The U.S. Navy is the sole entity that would be subject to the
requirements in these proposed regulations, and the Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. Because of this certification, a regulatory
flexibility analysis in not required and none has been prepared.
This proposed rule does not contain a collection-of-information
requirement subject to the provisions of the Paperwork Reduction Act
(PRA) because the applicant is a Federal agency.
List of Subjects in 50 CFR Part 217
Acoustics, Administrative practice and procedure, Construction,
Endangered and threatened species, Marine mammals, Mitigation and
Monitoring requirements, Reporting requirements, Wildlife.
Dated: March 2, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, NOAA proposes to amend 50
CFR part 217 as follows:
PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Revise subpart L to read as follows:
Subpart L--Taking and Importing Marine Mammals Incidental to Navy
Construction of the Pier 3 Replacement Project at Naval Station
Norfolk at Norfolk, Virginia
Sec.
217.110 Specified activity and geographical region.
217.111 Effective dates.
217.112 Permissible methods of taking.
217.113 Prohibitions.
217.114 Mitigation requirements.
217.115 Requirements for monitoring and reporting.
217.116 Letters of Authorization.
217.117 Renewals and modifications of Letters of Authorization.
217.118 [Reserved]
217.119 [Reserved]
[[Page 14588]]
Sec. 217.110 Specified activity and geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
construction activities related to the replacement of Pier 3 at Naval
Station Norfolk at Norfolk, Virginia.
(b) The taking of marine mammals by the Navy may be authorized in a
Letter of Authorization (LOA) only if it occurs at Naval Station
Norfolk, Norfolk, Virginia.
Sec. 217.111 Effective dates.
Regulations in this subpart are effective for a period of five
years from the date of issuance.
Sec. 217.112 Permissible methods of taking.
Under an LOA issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.116, the Holder of the LOA (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.110(b) by harassment associated with
construction activities related to replacement of Pier 3, provided the
activity is in compliance with all terms, conditions, and requirements
of the regulations in this subpart and the applicable LOA.
Sec. 217.113 Prohibitions.
(a) Except for the takings contemplated in Sec. 217.112 and
authorized by a LOA issued under Sec. Sec. 216.106 of this chapter and
217.116, it is unlawful for any person to do any of the following in
connection with the activities described in Sec. 217.110:
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 217.116;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA after NMFS
determines such taking results in more than a negligible impact on the
species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS
determined such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved].
Sec. 217.114 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.110(a),
the mitigation measures contained in this subpart and any LOA issued
under Sec. Sec. 216.106 of this chapter and 217.116 must be
implemented by the Navy. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy,
supervisory construction personnel, lead protected species observers
(PSOs), and any other relevant designees of the Navy operating under
the authority of the LOA at all times that activities subject to the
LOA are being conducted;
(2) The Navy must ensure that construction supervisors and crews,
the monitoring team, and relevant Navy staff are trained prior to the
start of activities subject to any issued LOA, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood. New personnel joining
during the project must be trained prior to commencing work;
(3) The Navy, construction supervisors and crews, and relevant Navy
staff must 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, as necessary to avoid direct physical interaction;
(4) The Navy must employ PSOs and establish monitoring locations as
described in the NMFS-approved Marine Mammal Monitoring Plan. The Navy
must monitor the project area to the maximum extent possible based on
the required number of PSOs, required monitoring locations, and
environmental conditions;
(5) For all pile driving and drilling activity, the Navy shall
implement shutdown zones with radial distances as identified in a LOA
issued under Sec. 217.116. If a marine mammal is observed entering or
within the shutdown zone, such operations must be delayed or halted.
(6) Monitoring must take place from 30 minutes prior to initiation
of pile driving or drilling activity (i.e., pre-start clearance
monitoring) through 30 minutes post-completion of pile driving or
drilling activity.
(7) Pre-start clearance monitoring must be conducted during periods
of visibility sufficient for the lead PSO to determine that the
shutdown zones are clear of marine mammals. Pile driving and drilling
may commence following 30 minutes of observation when the determination
is made that the shutdown zones are clear of marine mammals
(8) If pile driving and/or drilling 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.
(9) 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.
(10) The Navy must use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
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.
(b) [Reserved]
Sec. 217.115 Requirements for monitoring and reporting.
(a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS
for approval in advance of construction. Marine mammal monitoring must
be conducted in accordance with the conditions in this section and the
NMFS-approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods;
(2) At least one PSO must have prior experience performing the
duties of an observer during construction activity pursuant to a NMFS-
issued incidental take authorization;
(3) Other observers may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of an observer during
construction activity pursuant to a NMFS-issued incidental take
authorization;
(4) One observer must be designated as lead observer or monitoring
coordinator. The lead observer must have prior experience performing
the
[[Page 14589]]
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
(5) Observers must be approved by NMFS prior to beginning any
activity subject to any issued LOA;
(6) For all pile driving activities, a minimum of two observers
shall be stationed at the best vantage points practicable to monitor
for marine mammals and implement shutdown/delay procedures;
(7) For all pile driving activities, a minimum of two observers
shall be stationed at the active pile driving site, docks, or piers to
monitor the harassment and shutdown zones, and as described in the
Marine Mammal Monitoring Plan. For shutdown zones exceeding 1000
meters, a minimum of three observers shall be stationed appropriately,
as described in the Marine Mammal Monitoring Plan, to monitor the
entire shutdown zone.
(8) The Navy shall monitor the harassment zones to the extent
practicable and the entire shutdown zones. The Navy shall monitor at
least a portion of the Level B harassment zone on all pile driving
days.
(9) The Navy shall conduct hydroacoustic data collection in
accordance with a Marine Mammal Monitoring Plan that must be approved
by NMFS in advance of construction.
(10) The shutdown/monitoring zones may be modified with NMFS'
approval following NMFS' acceptance of an acoustic monitoring report.
(11) The Navy must submit a draft monitoring report to NMFS within
90 calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the project. The reports must detail the
monitoring protocol and summarize the data recorded during monitoring.
Final annual reports and the final comprehensive report must be
prepared and submitted within 30 days following resolution of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 days of receipt of the draft report, the report must be
considered final. If comments are received, a final report addressing
NMFS comments must be submitted within 30 days after receipt of
comments. The reports must at minimum contain the informational
elements described below (as well as any additional information
described in the Marine Mammal Monitoring Plan), including:
(i) Dates and times (begin and end) of all marine mammal
monitoring;
(ii) Construction activities occurring during each daily
observation period, including the number and type of piles that were
driven or removed and by what method (i.e., impact, vibratory or
drilling), total duration of driving time for each pile (vibratory and
drilling) and number of strikes for each pile (impact);
(iii) PSO locations during marine mammal monitoring;
(iv) Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
(v) Upon observation of a marine mammal, the follow information:
(A) Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
(B) Time of sighting;
(C) Identification of the animal(s) (e.g., genus/species, lowest
possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
(D) Distance and location of each observed marine mammal relative
to the pile being driven for each sighting;
(E) Estimated number of animals (min/max/best estimate);
(F) Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
(G) Animal's closest point of approach and estimated time spent
within the harassment zone;
(vi) Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted form the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
(vii) Number of marine mammals detected within the harassment
zones, by species; and
(viii) Detailed information about implementation of any mitigation
(e.g., shutdown and delays), a description of specific actions that
ensued, and resulting changes in behavior of the animal(s), if any.
(12) The Holder must submit all PSO datasheets and/or raw sighting
data within the draft report.
(13) All draft and final monitoring reports must be submitted to
[email protected] and [email protected].
(14) The Navy must report hydroacoustic data collected as required
by a LOA issued under Sec. Sec. 216.106 of this chapter and 217.116
and as discussed in the Navy's Marine Mammal Monitoring Plan approved
by NMFS.
(15) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the Navy shall
report the incident to the Office of Protected Resources (OPR), NMFS
and to the Greater Atlantic Region New England/Mid-Atlantic Regional
Stranding Coordinator as soon as feasible. If the death or injury was
clearly caused by the specified activity, the Navy must immediately
cease the specified activities until NMFS is able to review the
circumstances of the incident and determine what, if any, additional
measures are appropriate to ensure compliance with the terms of the
authorization. The Navy must not resume their activities until notified
by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if
the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s);
and
(vi) General circumstances under which the animal was discovered.
Sec. 217.116 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Navy must
apply for and obtain a modification of the LOA as described in Sec.
217.116.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
[[Page 14590]]
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the
level of taking must be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.
Sec. 217.117 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.116 for the activity identified in Sec. 217.110(a) may be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a notice
of proposed LOA in the Federal Register, including the associated
analysis of the change, and solicit public comment before issuing the
LOA.
(c) A LOA issued under Sec. Sec. 216.106 of this chapter and
217.116 for the activity identified in Sec. 217.110(a) may be modified
by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with Navy regarding
the practicability of the modifications) if doing so creates a
reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring set forth in the preamble for these
regulations;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
must publish a notice of proposed LOA in the Federal Register and
solicit public comment;
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in a LOA issued pursuant to Sec. Sec. 216.106 of
this chapter and 217.116, a LOA may be modified without prior notice or
opportunity for public comment. Notification would be published in the
Federal Register within 30 days of the action.
Sec. Sec. 217.118-217.119 [Reserved]
[FR Doc. 2023-04613 Filed 3-8-23; 8:45 am]
BILLING CODE 3510-22-P