Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Falls Bridge Replacement Project in Blue Hill, Maine, 37864-37868 [2023-12343]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 111 (Friday, June 9, 2023)]
[Notices]
[Pages 37864-37868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12343]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC962]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Falls Bridge Replacement 
Project in Blue Hill, Maine

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

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization (IHA).

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SUMMARY: NMFS received a request from the Maine Department of 
Transportation (MEDOT) for the renewal of their currently active 
incidental harassment authorization (IHA) to take marine mammals 
incidental to Falls Bridge Replacement Project in Blue Hill, Maine. 
These activities consist of activities that are covered by the current 
authorization but will not be completed prior to its expiration. 
Pursuant to the Marine Mammal Protection Act, prior to issuing the 
currently active IHA, NMFS requested comments on both the proposed IHA 
and the potential for renewing the initial authorization if certain 
requirements were satisfied. The renewal requirements have been 
satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than June 26, 
2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and should be submitted via email to 
[email protected].

[[Page 37865]]

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

FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, an incidental harassment authorization is issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-year renewal IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA 
renewal) with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations 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 determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has preliminarily determined that the application of this 
categorical exclusion remains appropriate for this renewal IHA.

[[Page 37866]]

History of Request

    On December 8, 2021, NMFS issued an IHA to MEDOT to take marine 
mammals incidental to Falls Bridge Replacement Project in Blue Hill, 
Maine (86 FR 71034, December 14, 2021), effective from July 1, 2022 
through June 30, 2023. On March 3, 2023, NMFS received an application 
for the renewal of that initial IHA. As described in the application 
for renewal IHA, the activities for which incidental take is requested 
consist of activities that are covered by the initial authorization but 
will not be completed prior to its expiration. As required, the 
applicant also provided a preliminary monitoring report which confirms 
that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    The MEDOT construction project consists of creating a temporary 
bridge for vehicle traffic during work on the Falls Bridge; this will 
require the installation (and then removal when the project is 
complete) of 15 24-inch steel pipe piles. Work on the main bridge deck 
was not expected to incidentally harass marine mammals, however in 
order to facilitate that work, one or two large trestles (up to 100 
foot by 125 foot (30.5 by 38 meters) long) would be placed in the water 
next to the bridge. These trestles would require the installation of up 
to 60 24-inch diameter steel pipe piles. In addition to the temporary 
work trestles and temporary bridge, MEDOT anticipated the need for four 
temporary support towers during the demolition and removal of the 
existing bridge superstructure. The temporary support towers will be 
placed at the corners of the tied arch, approximately 20 feet (6.1 
meters) in from the existing bridge abutments. Up to 5 24-inch steel 
pipe piles will be needed to support each of the temporary support 
towers, for a total of 20 24-inch steel pipe piles.
    In total the initial project expected the installation and removal 
of 95 24-inch diameter steel pipe piles. It was expected that all 95 
piles would be installed in rock sockets (holes) in the bedrock created 
by down-the-hole (DTH) equipment. Impact pile driving would be used to 
seat the piles and potentially drive them through softer substrates. 
For piles driven in the center of the channel under the bridge (mostly 
for the trestles), additional lateral stability may require the use of 
rebar tension anchors drilled deeper into the substrate in the center 
of the piles and connected to the piles once installed. This would be 
accomplished by using an 8-inch diameter DTH bit. It was expected that 
no more than 65 of the 95 piles would require these tension anchors. 
Once the work on the bridge was complete, all 95 piles would be removed 
using a vibratory hammer. The DTH and impact hammer installation and 
vibratory extraction of the piles was expected to take up to 80 days of 
in-water work.
    Specifically, under the initial IHA, all project related pile 
installation activities were completed over a 2-day period in October 
and November 2022. MEDOT completed all pile driving with the use of an 
impact hammer, and the DTH method was not used by MEDOT. In addition, 
the number of driven piles was reduced from the previously estimated 95 
piles down to a total of 12 piles. Pile size was also reduced from 24-
inch steel pipe piles to 14-inch steel pipe piles.
    This renewal request is to cover the subset of the activities 
covered in the initial IHA that will not be completed during the 
effective IHA period. MEDOT plans to remove all 12 14-inch steel pipe 
piles through vibratory means between October and December of 2023. 
MEDOT estimates it will take 30 minutes to remove a single pile, with 
up to six piles removed per day.
    The likely or possible impacts of the MEDOT's proposed activity on 
marine mammals could involve both non-acoustic and acoustic stressors 
and is unchanged from the impacts described in the initial IHA. 
Potential non-acoustic stressors could result from the physical 
presence of the equipment, vessels, and personnel; however, any impacts 
to marine mammals are expected to primarily be acoustic in nature. 
Acoustic stressors include effects of heavy equipment operation during 
pile installation and removal. The effects of underwater and in-air 
noise and visual disturbance from the MEDOT's proposed activities have 
the potential to result in Level B harassment of marine mammals in the 
action area.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the notices of the proposed and 
final IHAs for the initial authorization (86 FR 61164, November 5, 
2021; 86 FR 71034, December 14, 2021). As previously mentioned, this 
request is for a subset of the activities authorized in the initial IHA 
that would not be completed prior to its expiration. The location, 
timing, and nature of the activities, including the types of equipment 
planned for use, are identical to those described in the previous 
notice for the initial IHA. Minor changes to the initial scope include 
the reduction of pile size and number of piles required. The initial 
scope planned for the installation and removal of 95 24-inch steel pipe 
piles. In total, 12 14-inch piles were installed. MEDOT is requesting a 
renewal IHA for vibratory removal of 12 14-inch steel pipe piles. The 
proposed renewal IHA would be effective from July 1, 2023 through June 
30, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notice of the proposed IHA for the initial authorization (86 FR 61164, 
November 5, 2021). NMFS has reviewed the monitoring data from the 
initial IHA, recent draft Stock Assessment Reports, information on 
relevant Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA (86 FR 61164, November 5, 2021).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which the 
authorization of take is proposed here may be found in the notice of 
the proposed IHA for the initial authorization (86 FR 61164, November 
5, 2021). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects our initial analysis 
of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed and final IHAs for the initial authorization (86 FR 61164, 
November 5, 2021; 86 FR 71034, December 14, 2021). Specifically, days

[[Page 37867]]

of operation, area or space within which harassment is likely to occur, 
and marine mammal occurrence data applicable to this authorization 
remain unchanged from the initial IHA. Similarly, the stocks taken, 
methods of take, daily take estimates and types of take remain 
unchanged from the initial IHA. The number of takes proposed for 
authorization in this renewal are a subset of the initial authorized 
takes that better represent the amount of activity left to complete. 
These takes, which reflect the lower number of remaining days of work, 
are indicated below in Table 1.

  Table 1--Proposed Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
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                                                                                                    Percent of
                    Species                                   Stock                Proposed take       stock
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Harbor porpoise...............................  Gulf Maine/Bay of Fundy.........              20            <0.1
Atlantic white-sided dolphin..................  Western North Atlantic..........              20            <0.1
Common dolphin................................  Western North Atlantic..........              80             0.1
Harbor seal...................................  Western North Atlantic..........             198             0.3
Gray seal.....................................  Western North Atlantic..........               8            <0.1
Harp seal.....................................  Western North Atlantic..........               1            <0.1
Hooded seal...................................  Western North Atlantic..........               1             UNK
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are almost identical to 
those included in the FR notice announcing the issuance of the initial 
IHA, and the discussion of the least practicable adverse impact 
included in that document remains accurate (86 FR 71034, December 14, 
2021). In the renewal IHA, the pile size and the amount of piles 
removed per day has been updated to reflect what occurred under the 
initial IHA. MEDOT's original shutdown zones were based on removal of 
three 24-inch steel piles per day. However, due to the reduced pile 
size used in the initial IHA, MEDOT plans to remove six 14-in steel 
piles per day causing larger Level A harassment isopleths. The Level A 
harassment isopleth for high frequency cetaceans increases from 25 
meters to 62 meters, therefore the shutdown zone for cetaceans 
increases from 50 meters to 100 meters and is reflected in Table 2 
below and in the proposed IHA renewal.
    The following mitigation, monitoring, and reporting measures are 
proposed for this renewal:
     The MEDOT must avoid direct physical interaction with 
marine mammals during construction activity. If a marine mammal comes 
within 10 meters 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.
     Conduct training between construction supervisors and 
crews and the marine mammal monitoring team and relevant MEDOT staff 
prior to the start of all pile driving activity and when new personnel 
join the work, so that responsibilities, communication procedures, 
monitoring protocols, and operational procedures are clearly 
understood.
     Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone.
     MEDOT will establish and implement the shutdown zones. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of the activity would occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area). Shutdown 
zones typically vary based on the activity type and marine mammal 
hearing group. To simplify implementation of shutdown zones, MEDOT has 
proposed to implement shutdown zones for two groups of marine mammals, 
cetaceans and pinnipeds, with the shutdown zone in each group being the 
largest of the shutdown zones for any of the hearing groups contained 
within that group. MEDOT has also voluntarily proposed to increase 
shutdown sizes above those we would typically require in order to be 
precautionary and protective to marine mammals. Due to the modification 
of pile size and duration as discussed above, the updated shutdown 
zones for the IHA renewal are in Table 2.

                Table 2--Minimum Required Shutdown Zones
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                                               Shutdown distance (m)
                Activity                 -------------------------------
                                             Cetaceans       Pinnipeds
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Vibratory Removal.......................             100              50
------------------------------------------------------------------------

     Monitoring must take place from 30 minutes prior to 
initiation of construction activity (i.e., pre-start clearance 
monitoring) through 30 minutes post-completion of construction 
activity.
     Pre-start clearance monitoring must be conducted during 
periods of visibility sufficient for the lead Protected Species 
Observer (PSO) to determine the shutdown zones clear of marine mammals. 
Construction may commence when the determination is made.
     If construction 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.
     MEDOT must use soft start techniques. Soft start requires 
contractors and equipment to slowly approach the work site creating a 
visual

[[Page 37868]]

disturbance allowing animals in close proximity to construction 
activities a chance to leave the area prior to stone resetting or new 
stone placement. Contractors shall avoid walking or driving equipment 
through the seal haulout. A soft start must be implemented at the start 
of each day's construction activity and at any time following cessation 
of activity for a period of 30 minutes or longer.
     The MEDOT must employ at least one PSO to monitor the 
shutdown and Level B harassment zones.
     Monitoring will be conducted 30 minutes before, during, 
and 30 minutes after 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 construction activity.
     The MEDOT must submit a draft report detailing all 
monitoring within 90 calendar days of the completion of marine mammal 
monitoring or 60 days prior to the issuance of any subsequent IHA for 
this project, whichever comes first.
     The MEDOT must prepare and submit final report within 30 
days following resolution of comments on the draft report from NMFS.
     The MEDOT must submit all PSO datasheets and/or raw 
sighting data (in a separate file from the Final Report referenced 
immediately above).
     The MEDOT must report injured or dead marine mammals.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (86 
FR 61164, November 5, 2021) and solicited public comments on both our 
proposal to issue the initial IHA for Falls Bridge Replacement Project 
and on the potential for a renewal IHA, should certain requirements be 
met. During the 30-day public comment period, NMFS received no comments 
on either the proposal to issue the initial IHA for the MEDOT's 
construction activities or on the potential for a renewal IHA.

Preliminary Determinations

    The proposed renewal request consists of a subset of activities 
analyzed through the initial authorization described above. In 
analyzing the effects of the activities for the initial IHA, NMFS 
determined that the MEDOT's activities would have a negligible impact 
on the affected species or stocks and that authorized take numbers of 
each species or stock were small relative to the relevant stocks (e.g., 
less than one-third the abundance of all stocks). The mitigation 
measures and monitoring and reporting requirements as described above 
are identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has preliminarily 
determined the following: (1) the required mitigation measures will 
effect the least practicable impact on marine mammal species or stocks 
and their habitat; (2) the authorized takes will have a negligible 
impact on the affected marine mammal species or stocks; (3) the 
authorized takes represent small numbers of marine mammals relative to 
the affected stock abundances; (4) MEDOT's activities will not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action; and, (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized 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.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to MEDOT for conducting Falls Bridge Replacement 
Project in Blue Hill, Maine, from July 1, 2023 through June 30, 2024, 
provided the previously described mitigation, monitoring, and reporting 
requirements are incorporated. A draft of the proposed and final 
initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We 
request comment on our analyses, the proposed renewal IHA, and any 
other aspect of this notice. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.

    Dated: June 5, 2023.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2023-12343 Filed 6-8-23; 8:45 am]
BILLING CODE 3510-22-P