Taking of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to City of Cordova Harbor Rebuild Project, Cordova, Alaska, 69145-69158 [2023-22096]

Download as PDF Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XD241] Taking of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to City of Cordova Harbor Rebuild Project, Cordova, Alaska National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued two incidental harassment authorizations (IHAs) to the City of Cordova (Cordova) to incidentally harass marine mammals during construction activities associated with a with the City of Cordova, Cordova Harbor Rebuild project, in Cordova, Alaska. DATES: These Authorizations are effective from October 1, 2023 through September 30, 2024 and October 1, 2024 through September 30, 2025. ADDRESSES: Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries. noaa.gov/national/marine-mammalprotection/incidental-takeauthorizations-construction-activities. In case of problems accessing these documents, please call the contact listed below. FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, Office of Protected Resources, NMFS, (301) 427– 8401. SUPPLEMENTARY INFORMATION: SUMMARY: ddrumheller on DSK120RN23PROD with NOTICES1 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 United States (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 VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 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 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. Summary of Request On February 16, 2023, NMFS received a request from the Cordova for two IHAs to take marine mammals incidental to pile driving and removal activities associated with the City of Cordova, Cordova Harbor Rebuild project, in Cordova, Alaska over the course of 2 years. Following NMFS’ review of the application, The City of Cordova (Cordova) submitted a revised version on April 19, 2023. The application was deemed adequate and complete on May 12, 2023. Cordova’s request for the first IHA is for take of 4 species of marine mammals by Level B harassment and, for a subset of these species, Level A harassment. For the second IHA, Cordova is requesting take of only Steller sea lion (Eumetopias jubatus) and harbor seal (Phocoena phocoena) by Level A and Level B harassment. Neither Cordova nor NMFS expect serious injury or mortality to result from this activity and, therefore, IHAs are appropriate. There are no changes from the proposed IHAs to the final IHAs. Description of Activity Cordova plans to replace existing structures in the Cordova Harbor in Cordova, Alaska. Over the course of 2 years spanning September 2023–April 2024 and September 2024–April 2025, Cordova will use a variety of methods, including vibratory, impact, and downthe-hole (DTH) pile driving to remove existing piles and to install new ones. Phase I will involve the removal of existing piles, the installation and removal of temporary piles, and the PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 69145 installation of permanent piles in the south harbor. During Phase I, 130 timber (12-inch (in) diameter; 0.3-meter (m) diameter) and 61 old steel (12-in (0.3-m) diameter) piles will be removed. Once the existing piles are removed, 155 16in (0.4-m), 70 18-in (0.5-m), and 30 30in (0.8-m) permanent steel piles will be installed. The installation and removal of 61 temporary 24-in (0.6-m) steel pipe piles will be completed to support permanent pile installation. Vibratory hammers, impact hammers, and DTH drilling will be used for the installation and removal of all piles. Piles will be removed by dead-pull or vibratory methods. The installation and removal of temporary piles will be conducted using vibratory hammers. All permanent piles will be initially installed with a vibratory hammer. After vibratory driving, if needed, piles will be impacted into the bedrock with an impact hammer. For some piles, a DTH drill will be needed to drive piles the final few inches of embedment. Phase II will involve the removal of existing piles, the installation and removal of temporary piles, and the installation of permanent piles in the north and south harbor. During Phase II, 268 12-in (0.3-m) timber piles will be removed. Then, 24 24-in (0.6-m) steel piles, 80 steel H-piles, and 80 steel sheet piles will be installed. The installation and removal of 31 temporary 24-in (0.6m) steel pipe piles will be completed to support permanent pile installation. As in Phase I, vibratory hammers, impact hammers, and DTH drilling will be used for the installation and removal of all piles. Piles will be removed by deadpull or vibratory methods. The installation and removal of temporary piles will be conducted using vibratory hammers. All permanent piles would be initially installed with a vibratory hammer. After vibratory driving, if needed, piles will be impacted into the bedrock with an impact hammer. For some piles, a DTH drill will be needed to drive piles the final few inches of embedment. A further detailed description of the planned construction project is provided in the Federal Register notice for the proposed IHAs (88 FR 45149, July 14, 2023). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specified activity. Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting). E:\FR\FM\05OCN1.SGM 05OCN1 69146 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices Comments and Responses A notice of NMFS’ proposal to issue two IHAs to Cordova was published in the Federal Register on July 14, 2023 (88 FR 45149). That notice described, in detail, Cordova’s activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, no public comments were received. 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, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS’ Stock Assessment Reports (SARs; https://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 1 lists all species or stocks for which take is expected and 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 anticipated or authorized here, 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 managed stocks in this region are assessed in NMFS’ Alaska Marine Mammal SARs. All values presented in Table 1 are the most recent available at the time of publication (including from the 2022 SARs) and are available online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-stock-assessments. TABLE 1—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES 1 Common name Scientific name Stock I ESA/ MMPA status; strategic (Y/N) 2 I Stock abundance (CV, Nmin, most recent abundance survey) 3 Annual M/SI 4 PBR I I Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Killer whale ......................... Family Phocoenidae (porpoises): Dall’s porpoise .................... Orcinus orca ............................. Phocoenoides dalli .................... Alaska Resident ........................ Gulf of Alaska/Aleutian Islands/ Bering Sea Transient. AT1 Transient ........................... -/-; N -/-; N 1,920 (N/A, 1,920, 2019) 587 (N/A, 587, 2012) ...... 19 5.9 1.3 0.8 -/D; N 7 (N/A, 7, 2019) .............. 0.1 0 Alaska ....................................... -/-; N UND (UND, UND, 2015) 5. UND 37 Order Carnivora—Pinnipedia Family Otariidae (eared seals and sea lions): Steller sea lion .................... Eumetopias jubatus .................. Western DPS ............................ E/D; Y 52,932 (N/A, 52,932, 2019). 318 254 Family Phocidae (earless seals): Harbor seal ......................... Phoca vitulina ........................... Prince William Sound ............... -/-; N 44,756 (N/A, 41,776, 2015). 1253 413 ddrumheller on DSK120RN23PROD with NOTICES1 1 Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy’s Committee on Taxonomy (https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies; Committee on Taxonomy, 2022). 2 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. 3 NMFS marine mammal stock assessment reports online at: https://www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 4 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, vessel 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. 5 Population estimate of 13,110 based on surveys from western Prince William Sound, as abundance estimates for the Alaska stock are more than 8 years old and are no longer considered reliable (Muto et al., 2022). This population estimate will be used for small numbers calculations. As indicated above, all four species (with six managed stocks) in Table 1 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. All species that could potentially occur in the planned project areas are included in VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 Table 10 of the IHA application. While northern fur seal, Pacific white-sided dolphin, harbor porpoise, humpback whale, fin whale, minke whale, and gray whale have been documented in Prince William Sound, the temporal and/or spatial occurrence of these species is PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. These species are all considered to be rare (no sightings in recent years) or very rare (no local knowledge of sightings within the project vicinity) E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices within Orca Bay according to the Prince William Sound Science Center in Cordova (Prince William Sound Science Center, 2022; Schinella, 2022). Given the shallow depths of the waters surrounding Cordova Harbor, it would also be unusual for many of these species to enter the project area. The take of these species has not been requested nor authorized and these species are not considered further in this document. A detailed description of the species likely to be affected by Cordova’s construction project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHAs (88 FR 45149, July 14, 2023); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to the NMFS website (https:// www.fisheries.noaa.gov/find-species) for generalized species accounts. 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 69147 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 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 2. TABLE 2—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 a ∼65-dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). ddrumheller on DSK120RN23PROD with NOTICES1 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. Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from Cordova’s pile driving activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of the proposed IHAs (88 FR 45149, July 14, 2023) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from Cordova’s pile driving activities on marine mammals and their habitat. That information and VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of the proposed IHAs (88 FR 45149, July 14, 2023). Estimated Take of Marine Mammals This section provides an estimate of the number of incidental takes authorized through these IHAs, 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, PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 nursing, breeding, feeding, or sheltering (Level B harassment). Authorized takes will primarily be by Level B harassment, as use of the acoustic sources (i.e., vibratory or impact pile driving and DTH 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 Dall’s porpoise and harbor seals, due to the cryptic nature of these species in context of larger predicted auditory injury zones. Auditory injury is unlikely to occur for mid-frequency species and otariids, based on the likelihood of the species in the action area, the ability to monitor the entire smaller shutdown zone, and because of the expected ease of detection for the former groups. The 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 authorized for this activity. Below we E:\FR\FM\05OCN1.SGM 05OCN1 69148 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices describe how the 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 would be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that would 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 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 permanent threshold shift (PTS) of some degree (equated to Level A harassment). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed. 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 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., seismic airguns) or intermittent (e.g., scientific sonar) sources. For in-air sounds, NMFS predicts that harbor seals exposed above received levels of 90 dB re 20 mPa (RMS) would be behaviorally harassed, and other pinnipeds would be harassed when exposed above 100 dB re 20 mPa (RMS). Generally speaking, Level B harassment take estimates based on these behavioral harassment thresholds are expected to include any likely takes by temporary threshold shift (TTS) as, in most cases, the likelihood of TTS occurs at distances from the source less than those at which behavioral harassment is likely. TTS of a sufficient degree can manifest as behavioral harassment, as reduced hearing sensitivity and the potential reduced opportunities to detect important signals (conspecific communication, predators, prey) may result in changes in behavior patterns that would not otherwise occur. Cordova’s planned activity includes the use of continuous (vibratory hammer and DTH drilling) and impulsive (DTH drilling and impact pile driving) sources, and therefore the 120and 160-dB re 1 mPa (RMS) thresholds 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). Cordova’s planned activity includes the use of impulsive (impact pile driving and DTH drilling) and nonimpulsive (vibratory hammer and DTH drilling) 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: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-acoustic-technicalguidance. TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset acoustic thresholds * (received level) Hearing group Impulsive ddrumheller on DSK120RN23PROD with NOTICES1 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. VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices 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. The sound field in the project area is the existing background noise plus additional construction noise from the planned project. Marine mammals are expected to be affected via sound generated by the primary components of the project (i.e., impact pile driving, vibratory pile driving and removal, and DTH). In order to calculate distances to the Level A harassment and Level B harassment thresholds for the methods and piles being used in this project, NMFS used acoustic monitoring data from other locations to develop source levels for the various pile types, sizes and methods (Table 4). This analysis uses the practical spreading loss model, a standard assumption regarding sound propagation for similar environments, to estimate transmission of sound through water. For this analysis, the transmission loss factor of 15 (4.5 dB per doubling of distance) is used. A weighting adjustment factor of 2.5 or 2, a standard default value for vibratory pile driving and removal or impact driving and DTH respectively, were 69149 used to calculate Level A harassment areas. NMFS recommends treating DTH systems as both impulsive and continuous, non-impulsive sound source types simultaneously. Thus, impulsive thresholds are used to evaluate Level A harassment, and continuous thresholds are used to evaluate Level B harassment. With regards to DTH mono-hammers, NMFS recommends proxy levels for Level A harassment based on available data regarding DTH systems of similar sized piles and holes (Denes et al., 2019; Guan and Miner, 2020; Reyff and Heyvaert, 2019; Reyff, 2020; Heyvaert and Reyff, 2021). TABLE 4—ESTIMATED UNDERWATER PROXY SOURCE LEVELS FOR PILE INSTALLATION AND REMOVAL Proxy source levels (dB) at 10 m Pile type Phase Reference Peak RMS I SEL I Vibratory Pile Driving 12- to 24-in timber pile removal. 12- to 24-in steel pile removal. 24-in steel template pile install/removal. 16-in steel pile ................... 18-in steel pile ................... 24-in steel pile ................... 30-in steel pile ................... Steel H-pile ....................... Steel sheet pile ................. I, II ........................ 162 ........................ Greenbusch et al., 2018; CALTRANS, 2020. I ........................ 161 ........................ NAVFAC (2013, 2015). I, II ........................ ........................ I I II I II II ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ ........................ 161.9 165 162 Denes et al., 2016. CALTRANS, 2015. Buehler et al., 2015. Impact Pile Driving 16-in steel pile ................... 18-in steel pile ................... 24-in steel pile ................... 30-in steel pile ................... Steel H-pile ....................... Steel sheet pile ................. I I II I II II 192.8 ........................ ........................ 210 200 205 181.1 ........................ ........................ 190 177 190 168.3 ........................ ........................ 177 170 180 Denes et al., 2016. NMFS 2023 analysis *. CALTRANS, 2015. CALTRANS, 2015. DTH Drilling 16-in steel pile ................... 18- to 24-in steel pile ........ 30-in steel pile ................... Steel H-pile ....................... I I, II I III ........................ ........................ ........................ 167 ........................ 174 159 ........................ 164 I........................ ........................ ........................ Heyvaert and Reyff, 2021. Denes et al., 2019); Reyff and Heyvaert, 2019; Reyff, 2020. Note: SEL= sound exposure level; RMS= root mean square. * NMFS used the mean of regionally relevant measurements to determine suitable proxy source values for these pile types. Projects included in the analysis were Navy (2012, 2013) and Miner (2020), following the methodology of Navy (2015). ddrumheller on DSK120RN23PROD with NOTICES1 TABLE 5—ESTIMATED IN-AIR PROXY SOURCE LEVELS FOR PILE INSTALLATION AND REMOVAL Pile type Phase Proxy source levels (dB) at 15 m Reference RMS Vibratory Pile Driving 24-in steel template pile install/removal ......................... 18-in steel pile ................................................................ Steel H-pile ..................................................................... VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 PO 00000 I Frm 00035 103.2 .............................. .............................. Fmt 4703 Sfmt 4703 Laughlin, 2010. E:\FR\FM\05OCN1.SGM 05OCN1 69150 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices TABLE 5—ESTIMATED IN-AIR PROXY SOURCE LEVELS FOR PILE INSTALLATION AND REMOVAL—Continued Pile type Proxy source levels (dB) at 15 m Phase Reference RMS Impact Pile Driving 18-in steel pile ................................................................ Steel H-pile ..................................................................... I 101 .............................. Ghebreghzabiher et al., 2017. DTH Drilling 1 18-in steel pile ................................................................ Steel H-pile ..................................................................... I 101 .............................. Ghebreghzabiher et al., 2017. Note: SEL= sound exposure level; RMS= root mean square. 1 We conservatively assume that the proxy value for DTH driving is the same as for impact driving. Level B Harassment Zones Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is: TL = B * log10 (R1/R2), Where: TL = transmission loss in dB B = transmission loss coefficient; for practical spreading equals 15 R1 = the distance of the modeled SPL from the driven pile, and R2 = the distance from the driven pile of the initial measurement. The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for Cordova’s planned underwater activities. The Level B harassment zones and approximate amount of area ensonified for the planned underwater activities are shown in Table 6. The Level B harassment zones for the planned upland pile driving activities that may generate airborne noise are shown in Table 5. Level A Harassment Zones 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 installation or removal, 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. The isopleths generated by the User Spreadsheet used the same TL coefficient as the Level B harassment zone calculations (i.e., the practical spreading value of 15). Inputs used in the User Spreadsheet (e.g., number of piles per day, duration and/or strikes per pile) are presented in Tables 1 and 2 in the Federal Register Notice of the proposed IHAs (88 FR 45149, July 14, 2023). The maximum RMS SPL, sound exposure level (SEL), and resulting isopleths are reported in Tables 4, 5, and 6. TABLE 6—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR PILE DRIVING ACTIVITIES Distances to Level A and Level B thresholds (m) Pile type Phase I >-------I MF Level B Level A HF Phocid Ensonified area 1 2 for Level B (km2) Otariid ~r-------------l ddrumheller on DSK120RN23PROD with NOTICES1 Vibratory Pile Driving 12- to 24-in timber pile removal. 12- to 24-in steel pile removal. 24-in steel template pile install/removal. 16-in steel pile ....... 18-in steel pile ....... 24-in steel pile ....... 30-in steel pile ....... Steel H-pile ............ VerDate Sep<11>2014 I, II 1.8 30.5 12.5 0.9 6,309.6 ................... 125. I 1.6 26.1 10.7 0.8 5,411.7 ................... 92. I, II 0.9 14.2 5.8 0.4 I I II I II 1.1 1.4 18.6 22.5 7.6 9.3 0.5 0.7 1.4 1.1 24.1 18.7 9.9 7.7 0.7 0.5 6,213.5 ................... 10,000 .................... 121.2. 314. 19:28 Oct 04, 2023 Jkt 262001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\05OCN1.SGM 05OCN1 69151 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices TABLE 6—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR PILE DRIVING ACTIVITIES—Continued Distances to Level A and Level B thresholds (m) Pile type Phase Steel sheet pile ...... In-air pile installation/removal. II I Level A Level B Ensonified area 1 2 for Level B (km2) MF HF Phocid Otariid 0.7 ........................ 11.8 ........................ 4.8 ........................ 0.3 ........................ 6,310 ...................... 68.6 (Phocid)/22.8 (Otariid). 125. 0.01 (Phocid)/0.002 (Otariid). Impact Pile Driving 16-in steel pile ....... 18-in steel pile ....... 24-in steel pile ....... 30-in steel pile ....... Steel H-pile ............ Steel sheet pile ...... In-air pile installation/removal. I I II I II II I 4.7 158.8 71.4 5.2 255 ......................... 0.2. 23.6 12.1 56.2 ........................ 791.3 405.3 1881.2 ........................ 355.5 182.1 845.2 ........................ 25.9 13.3 61.5 ........................ ................................ 1,000 ...................... 341.5 ...................... 1,000 ...................... 53.2 (Phocid)/16.8 (Otariid). 3.14. 0.37. 3.14. 0.009 (Phocid)/ 0.0009 (Otariid). DTH Drilling 16-in steel pile ....... 18- to 24-in steel pile. 30-in steel pile ....... Steel H-pile ............ In-air pile installation/removal. I I,II 32.1 1075.7 483.3 35.2 13,593.6 ................. 580.2. I II I 61.3 2,052.20 922 67.1 39,810.7 ................. 4976.6. ........................ ........................ ........................ ........................ 53.2 (Phocid)/16.8 (Otariid). 0.009 (Phocid)/ 0.0009 (Otariid). 1Areas were calculated based on areas of a circle with the specified radius from Table 4 and 5 and realized ensonified areas will be smaller due to truncation by land masses. 2The ensonified area within Cordova Harbor will be no more than 0.19 kilometers2 (km2). Marine Mammal Occurrence In this section we provide information about the occurrence of marine mammals, including presence, density, local knowledge, or other relevant information which will inform the take calculations. Daily occurrence probability of each marine mammal species in the action area is based on consultation with local researchers and marine professionals. Occurrence probability estimates are based on conservative density approximations for each species and factor in historic data of occurrence, seasonality, and group size in Orca Bay, Orca Inlet, and/or Prince William Sound. A summary of planned take is shown in Table 7. To accurately describe species occurrence near the action area, marine mammals were described as either common (multiple sightings every month, could occur each day), frequent (multiple sightings every year, could occur each month), or infrequent (few sightings every year, could occur each month). TABLE 7—ESTIMATED OCCURRENCE OF GROUP SIGHTINGS OF MARINE MAMMALS Species ddrumheller on DSK120RN23PROD with NOTICES1 Steller sea lion: (within harbor) ................................. (outside harbor) ............................... Harbor seal: (within harbor) ................................. (outside harbor) ............................... Killer whale ............................................. Dall’s porpoise ........................................ Group size a Frequency Seasonality Occurrence Common ........................... Common ........................... Year-round ........................ Year-round ........................ 1 group per day ................ 2 groups per day .............. b 4.1 Frequent ........................... Common ........................... Infrequent ......................... Infrequent ......................... Year-round Year-round Year-round Year-round 1 2 1 1 c 3.5 ........................ ........................ ........................ ........................ group per day ................ groups per day .............. group per 10 days ......... group per 10 days ......... b 4.1 c 3.5 d 14 e 4.3 a Group size was averaged from seasonal data (Steller sea lions and harbor seals), pod size (killer whales), and observational data (Dall’s porpoise) for more information see application. b Leonard and Wisdom, 2020; Sigler et al., 2017. c ADF&G, 2022a. d Muto et al., 2022. e Moran et al., 2018. Take Estimation Here we describe how the information provided above is synthesized to produce a quantitative estimate of the VerDate Sep<11>2014 19:28 Oct 04, 2023 Jkt 262001 take that is reasonably likely to occur and are authorized. For total underwater take estimate, the daily occurrence probability for a species was multiplied by the estimated group size and by the number of days PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 of each type of pile driving activity. Group size is based on the best available published research for these species and their presence in this area. E:\FR\FM\05OCN1.SGM 05OCN1 69152 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices Estimated take = Group size × Groups per day × Days of pile driving activity Take of pinnipeds by Level B harassment due to airborne noise was calculated based on the proportion of area within the harbor likely to be ensonified above the thresholds for harbor seals and other pinnipeds, respectively. The percent of the harbor ensonified was then multiplied by the number of days of pile driving, the group size, and groups per day, as done for underwater take estimates. The total numbers of takes by Level B harassment due to airborne noise authorized for harbor seal and Steller sea lion are seven and zero, respectively. Take by Level A harassment is authorized for Steller sea lions and harbor seals given that these species are known to spend extended periods of time within Cordova Harbor and most Level A harassment isopleths are contained within Cordova Harbor. The take by Level A harassment calculations are based on lower daily occurrence estimates for each species than take by Level B harassment calculations based on input from marine professionals in the community about their presence in within the smaller ensonified zone of the harbor (Table 7; Greenwood 2022). Take by Level A harassment is also authorized for Dall’s porpoise for impact driving of sheet piles and DTH drilling of 30 in and H-piles as it is not practicable to observe and shut down for porpoises throughout the entire Level A harassment zone (1,885 m for impact driving and 2,050 m for DTH drilling). Additionally, Level A harassment isopleths for most hearing groups and pile types were less than 10 m (Table 6) which is the minimum shutdown zone for this project (see Mitigation). Because the Level A harassment isopleths for those piles are within the minimum 10-m shutdown zone, no takes by Level A harassment are expected to occur from those activities, and therefore the predicted take by Level A harassment were removed from the total take calculations (Table 8). During Phase II, killer whale and Dall’s porpoise are not expected to occur within any harassment zones due to the relatively shallow water that will be ensonified (south of Spike Island into tidal mud flats) and therefore no take is authorized for these species. TABLE 8—TAKE OF MARINE MAMMALS BY LEVEL A AND LEVEL B HARASSMENT AND PERCENT OF STOCK TO BE TAKEN BY PHASE Authorized take Species Stock size 1 Stock/DPS Level A I Level B I Total take Percent of stock Phase I Steller sea lion ........... Harbor seal ................ Killer whale 2 .............. Dall’s porpoise ........... Western DPS .............................. Prince William Sound .................. Alaska Resident .......................... Gulf of Alaska/Aleutian Islands/ Bering Sea Transient. Alaska .......................................... 107 154 ........................ ........................ 788 681 83 26 895 835 83 26 52,932 44,756 1,920 587 1.69 1.87 4.35 4.35 10 32 42 13,110 0.32 730 623 828 756 52,932 44,756 1.56 1.69 Phase II Steller sea lion ........... Harbor seal ................ Western DPS .............................. Prince William Sound .................. 98 133 1 Stock size comes from the most recent SARs except for Dall’s porpoise whose stock estimate is based on surveys from western Prince William Sound only, as abundance estimates for the Alaska stock are more than 8 years old and no longer considered reliable (Muto et al., 2022). 2 AT1 transient stock take calculation resulted in 0.3 takes, therefore no takes were requested or are authorized. ddrumheller on DSK120RN23PROD with NOTICES1 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. 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)). VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 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, as well as subsistence uses. 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 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 (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. Mitigation Measures Cordova must follow mitigation measures as specified below: • Ensure that construction supervisors and crews, the monitoring team, and relevant Cordova staff are trained prior to the start of all pile driving and DTH drilling activity, 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; • Employ Protected Species Observers (PSOs) and establish monitoring locations as described in the E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices application and the IHAs. The Holder must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions. For all pile driving and removal at least one PSO must be used. The PSO will be stationed as close to the activity as possible; • The placement of the PSOs during all pile driving and removal and DTH drilling activities will ensure that the entire shutdown zone is visible during pile installation; • Monitoring must take place from 30 minutes prior to initiation of pile driving or DTH drilling activity (i.e., pre-clearance monitoring) through 30 minutes post-completion of pile driving or DTH drilling activity; • Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine that the shutdown zones indicated in Table 9 are clear of marine mammals. Pile driving and DTH drilling may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals; • Cordova must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent 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; • If a marine mammal is observed entering or within the shutdown zones indicated in Table 9, pile driving and DTH drilling must be delayed or halted. If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone (Table 9) or 15 minutes have passed without redetection of the animal; and • As planned by the applicant, in water activities will take place only between civil dawn and civil dusk when PSOs can effectively monitor for the presence of marine mammals; during conditions with a Beaufort Sea State of 4 or less. Pile driving and DTH drilling may continue for up to 30 minutes after sunset during evening civil twilight, as necessary to secure a pile for safety prior to demobilization during this time. The length of the post-activity monitoring period may be reduced if darkness precludes visibility of the shutdown and monitoring zones. Shutdown Zones Cordova will establish shutdown zones for all pile driving and DTH drilling activities. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity will occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones will be based upon the Level A harassment isopleth for each pile size/type and driving method where applicable, as shown in Table 9. For in-water heavy machinery activities other than pile driving, if a marine mammal comes within 10 m, work will stop and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions. A 10-m shutdown zone serves to protect marine mammals from physical interactions with project vessels during pile driving and other construction activities, such as barge positioning or drilling. If an activity is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the 69153 animal has voluntarily exited and been visually confirmed beyond the shutdown zone indicated in Table 9 or 15 minutes have passed without redetection of the animal. Construction activities must be halted upon observation of 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. All marine mammals will be monitored in the Level B harassment zones and throughout the area as far as visual monitoring can take place. If a marine mammal enters the Level B harassment zone, construction activities including in-water work will continue and the animal’s presence within the estimated harassment zone will be documented. Cordova will also establish shutdown zones for all marine mammals for which take has not been authorized or for which incidental take has been authorized but the authorized number of takes has been met. These zones are equivalent to the Level B harassment zones for each activity. If a marine mammal species not covered under these IHAs enters the shutdown zone, all in-water activities will cease until the animal leaves the zone or has not been observed for at least 15 minutes, and NMFS will be notified about species and precautions taken. Pile driving will proceed if the non-IHA species is observed to leave the Level B harassment zone or if 15 minutes have passed since the last observation. If shutdown and/or clearance procedures will result in an imminent safety concern, as determined by Cordova or its designated officials, the in-water activity will be allowed to continue until the safety concern has been addressed, and the animal will be continuously monitored. TABLE 9—SHUTDOWN AND MONITORING ZONES Pile type Minimum shutdown zone (m) Phase MF Barge movements, pile positioning, etc. I, II HF 10 Monitoring zone (m) Phocid 10 Otariid 10 10 10. ddrumheller on DSK120RN23PROD with NOTICES1 Vibratory Pile Driving 12- to 24-in timber pile removal 12- to 24-in steel pile removal 24-in steel template pile install/ removal. 16- to 24-in steel pile. 30-in steel pile .......................... Steel H-pile ............................... Steel sheet pile ........................ VerDate Sep<11>2014 18:37 Oct 04, 2023 I, II I I, II 10 10 10 35 35 25 25 20 10 10 10 10 6,310. 5,425. 5,425. I II II 10 10 10 25 35 25 10 25 10 10 10 10 6,225. 10,000. 6,310. Jkt 262001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\05OCN1.SGM 05OCN1 69154 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices TABLE 9—SHUTDOWN AND MONITORING ZONES—Continued Pile type Minimum shutdown zone (m) Phase MF In-air pile install/removal .......... II I........................ Monitoring zone (m) HF Phocid Otariid ........................ ........................ ........................ 70 (phocids)/25 (otariids). 75 360 185 500 ........................ 10 25 25 75 ........................ 255. 1,000. 350. 1,000. 55 (phocids)/20 (otariids). 500 500 500 ........................ 40 75 75 ........................ 13,594. 39,811. 39,811. 55 (phocids)/20 (otariids). Impact Pile Driving 16- to 24-in steel pile ............... 30-in steel pile .......................... Steel H-pile ............................... Steel sheet pile ........................ In-air pile install ........................ I I II II I I I 10 25 25 75 ........................ 185 800 410 1,000 ........................ DTH Drilling 16- to 24-in pile ........................ 30-in pile ................................... Steel H-pile ............................... In-air pile install ........................ I, II I II I I I 35 75 75 ........................ Protected Species Observers The placement of PSOs during all construction activities (described in the 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 would be delayed until the PSO is confident marine mammals within the shutdown zone could be detected. PSOs will monitor the full shutdown zones and the remaining Level A harassment and the Level B harassment zones to the extent practicable. 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 areas outside the shutdown zones and thus prepare for a potential cessation of activity should the animal enter the shutdown zone. ddrumheller on DSK120RN23PROD with NOTICES1 Pre-Activity Monitoring Prior to the start of daily in-water construction activity, or whenever a break in pile driving or DTH drilling 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 9, pile driving activity will be delayed or halted. If work ceases for more than 30 minutes, the preactivity monitoring of the shutdown zones would commence. A VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 1,000 1,000 1,000 ........................ determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye). Soft-Start Procedures Soft-start procedures 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. Based on our evaluation of the applicant’s planned measures NMFS has determined that the 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. 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 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 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 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, E:\FR\FM\05OCN1.SGM 05OCN1 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 • Mitigation and monitoring effectiveness. Visual Monitoring Marine mammal monitoring must be conducted in accordance with the conditions in this section and the IHAs. Marine mammal monitoring during pile driving activities will be conducted by PSOs meeting NMFS’ following requirements: • Independent PSOs (i.e., not construction personnel) who have no other assigned tasks during monitoring periods will be used; • At least one PSO will have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; • Other PSOs may substitute education (degree in biological science or related field) or training for experience; and • Where a team of three or more PSOs is required, a lead observer or monitoring coordinator will be designated. The lead observer will be required to have prior experience working as a marine mammal observer during construction. 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; • 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; • Cordova must employ up to five PSOs depending on the size of the monitoring and shutdown zones. A minimum of two PSOs (including the lead PSO) must be assigned to the active pile driving location to monitor the shutdown zones and as much of the Level B harassment zones as possible; • Cordova must establish monitoring locations with the best views of VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 monitoring zones as described in the IHAs and Application; • Up to five monitors will be used at a time depending on the size of the monitoring area. PSOs will be deployed in strategic locations around the area of potential effects at all times during inwater pile driving and removal. PSOs will be positioned at locations that provide full views of the impact hammering monitoring zone and the Level A harassment Shutdown Zones. All PSOs will have access to highquality binoculars, range finders to monitor distances, and a compass to record bearing to animals as well as radios or cells phones for maintaining contact with work crews; • During work in the south harbor, up to three PSOs will be stationed at the following locations: along the south harbor parking area, on the Breakwater Trail, and at a viewpoint along New England Cannery Road; and • During work in the north harbor, up to five PSOs will be stationed at the following locations: along the north harbor parking area, on the Breakwater Trail, at the viewpoint along the shore near Saddle Point, at a viewpoint along Whitshed Road, and on a vessel in Orca Inlet. Monitoring will be conducted 30 minutes before, during, and 30 minutes after all in water construction activities. In addition, PSOs will record all incidents of marine mammal occurrence, regardless of distance from activity, and will document any behavioral reactions in concert with distance from 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. Cordova shall conduct briefings between construction supervisors and crews, PSOs, Cordova staff prior to the start of all pile driving activities and when new personnel join the work. These briefings will explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. Reporting A draft marine mammal monitoring report will be submitted to NMFS within 90 days after the completion of pile driving and removal activities for each IHA, or 60 days prior to a requested date of issuance from any future IHAs for projects at the same location, whichever comes first. The report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 69155 sheets. Specifically, the report must include: (1) Dates and times (begin and end) of all marine mammal monitoring; (2) Construction activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method (i.e., impact, vibratory, or DTH drilling) and the total equipment duration for vibratory removal for each pile or total number of strikes for each pile (impact driving); (3) PSO locations during marine mammal monitoring; (4) 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; and (5) Upon observation of a marine mammal, the following information: (a) Name of PSO who sighted the animal(s) and PSO location and activity at the time of sighting; (b) Time of sighting; (c) Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentifiable), PSO confidence in identification, and the composition of the group if there is a mix of species; (d) Distance and bearing of each marine mammal observed relative to the pile being driven for each sightings (if pile driving was occurring at time of sighting); (e) Estimated number of animals (min/max/best estimate); (f) Estimated number of animals by cohort (adults, juveniles, neonates, group composition, sex class, etc.); (g) Animal’s closest point of approach and estimated time spent within the harassment zone; (h) 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 from the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching); (i) Number of marine mammals detected within the harassment zones and shutdown zones; by species; and (j) Detailed information about any implementation of any mitigation triggered (e.g., shutdowns and delays), a description of specific actions that ensured, and resulting changes in behavior of the animal(s), if any. If no comments are received from NMFS within 30 days, the draft reports E:\FR\FM\05OCN1.SGM 05OCN1 69156 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices 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. ddrumheller on DSK120RN23PROD with NOTICES1 Reporting Injured or Dead Marine Mammals In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the IHA-holder must immediately cease the specified activities and report the incident to the Office of Protected Resources (OPR) (PR.ITP.MonitoringReports@noaa.gov), NMFS and to the Alaska Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, Cordova 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 IHAs. The IHA-holder must not resume their activities until notified by NMFS. The report must include the following information: • Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); • Species identification (if known) or description of the animal(s) involved; • Condition of the animal(s) (including carcass condition if the animal is dead); • Observed behaviors of the animal(s), if alive; • If available, photographs or video footage of the animal(s); and • General circumstances under which the animal was discovered. 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 VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 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 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, the discussion of our analysis applies to all the species listed in Table 1, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity. Also, because both the number and nature of the estimated takes anticipated to occur are identical in Phase I and Phase II, the analysis below applies to each of the IHAs. Pile driving and DTH drilling 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 B harassment and, for some species, Level A harassment from underwater sounds generated by pile driving. Potential takes could occur if individuals are present in the ensonified zone when these activities are underway. No serious injury or mortality is expected, even in the absence of required mitigation measures, given the nature of the activities. Further, no take by Level A harassment is anticipated for killer whales due to the application of planned mitigation measures, such as shutdown zones that encompass the Level A harassment zones for the species, the rarity of the species near the action area, and the shallow depths of the harbor. The potential for harassment will be minimized through the construction method and the implementation of the planned mitigation measures (see Mitigation section). Take by Level A harassment is authorized for three species (Steller sea lion, harbor seal, and Dall’s porpoise) as the Level A harassment isopleths exceed PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 the size of the shutdown zones for specific construction scenarios. Additionally, the two pinniped species are common in and around the action area. Therefore, there is the possibility that an animal could enter a Level A harassment zone and remain within that zone for a duration long enough to incur PTS. Take by Level A harassment of these species is therefore authorized. Any take by Level A harassment is expected to arise from, at most, a small degree of PTS (i.e., minor degradation of hearing capabilities within regions of hearing that align most completely with the energy produced by impact pile driving such as the low-frequency region below 2 kilohertz (kHz)), not severe hearing impairment or impairment within the ranges of greatest hearing sensitivity. Animals would need to be exposed to higher levels and/or longer duration than are expected to occur here in order to incur any more than a small degree of PTS. Further, the amount of authorized take by Level A harassment is very low for the marine mammal stocks and species. If hearing impairment occurs, it is most likely that the affected animal would lose only a few decibels in its hearing sensitivity. Due to the small degree anticipated, any PTS potential incurred would not be expected to affect the reproductive success or survival of any individuals, much less result in adverse impacts on the species or stock. The Level A harassment zones identified in Table 6 are based upon an animal exposed to pile driving or DTH drilling of several piles per day (up to 25 piles per day for vibratory removal, 10 piles per day of vibratory installation, 6 piles per day of impact driving, and 4 piles per day of DTH drilling). Given the short duration to impact drive or vibratory install or extract, or use DTH drilling, each pile and break between pile installations (to reset equipment and move piles 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 patterns in the area. If an animal was exposed to accumulated sound energy, 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. Additionally, some subset of the individuals that are behaviorally harassed could also simultaneously incur some small degree of TTS for a short duration of time. However, since E:\FR\FM\05OCN1.SGM 05OCN1 ddrumheller on DSK120RN23PROD with NOTICES1 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices the hearing sensitivity of individuals that incur TTS is expected to recover completely within minutes to hours, it is unlikely that the brief hearing impairment would affect the individual’s long-term ability to forage and communicate with conspecifics, and will therefore not likely impact reproduction or survival of any individual marine mammal, let alone adversely affect rates of recruitment or survival of the species or stock. The nature of the pile driving project precludes the likelihood of serious injury or mortality. For all species and stocks, take would occur within a limited, confined area (adjacent to the project site) of the stock’s range. Take by Level A and Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. Further, the amount of take authorized is extremely small when compared to stock abundance. Behavioral responses of marine mammals to pile driving, pile removal, and DTH drilling in Cordova Harbor and the surrounding Orca Inlet are expected to be mild, short term, and temporary. Marine mammals within the Level B harassment zones may not show any visual cues they are disturbed by activities or they could become alert, avoid the area, leave the area, or display other mild responses that are not observable such as changes in vocalization patterns. Given that pile driving, pile removal, and DTH drilling are temporary activities and effects will cease when equipment is not operating, any harassment occurring will be temporary. Additionally, many of the species present in region will only be present temporarily based on seasonal patterns or during transit between other habitats. These species will be exposed to even smaller periods of noisegenerating activity, further decreasing the impacts. The same regions are also a part of the western distinct population segment (DPS) Steller sea lion ESA critical habitat. While Steller sea lions are common in the project area, there are no essential physical and biological habitat features, such as haulouts or rookeries, within the planned project area. The nearest haulout and rookery are over 30 km away from the planned project area. Therefore, the planned project is not expected to have significant adverse effects on the critical habitat of Wester DPS Steller sea lions. No areas of specific biological importance (e.g., ESA critical habitat, other BIAs, or other areas) for any other species are known to co-occur with the project area. VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 In addition, it is unlikely that minor noise effects in a small, localized area of habitat will have any effect on each stock’s ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. In summary and as described above, the following factors primarily support our 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 serious injury or mortality is anticipated or authorized; • Take by Level A harassment will be very small amounts and of low degree; • Take by Level A harassment is authorized only for Steller sea lions, harbor seals, and Dall’s porpoise; • For all species, the Orca Inlet and the Cordova Harbor is a very small and peripheral part of their range; • Anticipated takes by Level B harassment are relatively low for all stocks. Level B harassment will be primarily in the form of behavioral disturbance, resulting in avoidance of the project areas around where impact or vibratory pile driving is occurring, with some low-level TTS that may limit the detection of acoustic cues for relatively brief amounts of time in relatively confined footprints of the activities; • Effects on species that serve as prey for marine mammals from the activities are expected to be short-term and, therefore, any associated impacts on marine mammal feeding are not expected to result in significant or longterm consequences for individuals, or to accrue to adverse impacts on their populations; • The ensonified areas are very small relative to the overall habitat ranges of all species and stocks, and will not adversely affect ESA-designated critical habitat for any species or any areas of known biological importance; • The lack of anticipated significant or long-term negative effects to marine mammal habitat; and • Cordova will implement mitigation measures including soft-starts and shutdown zones to minimize the numbers of marine mammals exposed to injurious levels of sound, and to ensure that take by Level A harassment is, at most, a small degree of PTS. PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 69157 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 monitoring and mitigation measures, NMFS finds that the total marine mammal take, specific to each of the 2 consecutive years of planned activity, will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted previously, only take of small numbers of marine mammals 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 amount of take NMFS plans to authorize, specific to each of the 2 consecutive years of planned activity, is below one-third of the estimated stock abundance for all species (in fact, take of individuals is less than 5 percent of the abundance of the affected stocks, see Table 8). This is likely a conservative estimate because we assume all takes are of different individual animals, which is likely not the case. Some individuals may return multiple times in a day, but PSOs will count them as separate takes if they cannot be individually identified. The most recent estimate for the Alaska stock of Dall’s porpoise was 13,110 animals; however this number accounts for only a portion of the stock’s range. Therefore, the 42 authorized takes (including 10 Level A takes) of this stock are believed to be an even smaller portion of the overall stock abundance. Based on the analysis contained herein of the planned activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, for each of the 2 consecutive years of planned activity, NMFS finds that small numbers of marine mammals would be taken E:\FR\FM\05OCN1.SGM 05OCN1 69158 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices relative to the population size of the affected species or stocks. ddrumheller on DSK120RN23PROD with NOTICES1 Unmitigable Adverse Impact Analysis and Determination In order to issue an IHA, NMFS must find that the specified activity will not have an ‘‘unmitigable adverse impact’’ on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined ‘‘unmitigable adverse impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. The Alutiiq and Eyak people of Prince William Sound traditionally harvested marine mammals, however the last recorded subsistence harvest in Cordova was in 2014 as part of a regional effort to update the status of subsistence uses in Exxon Valdez Oil Spill communities, during which no marine mammals were harvested in Cordova (Fall and Zimpelman 2016). In the decades since the Exxon Valdez Oil Spill, there have been declines in the number of households hunting and harvesting larger marine mammals in Prince William Sound. Surveys gathering subsistence data found that 10 percent or fewer households harvest or use harbor seals or sea lions (Poe et al., 2010). Subsistence hunters in Prince William Sound report having to travel farther from their home communities to be successful when harvesting marine mammals (Keating et al., 2020). The planned project is not likely to adversely impact the availability of any marine mammal species or stocks that are commonly used for subsistence purposes or to impact subsistence harvest of marine mammals in the region because: • There is no recent recorded subsistence harvest of marine mammals in the area; • Construction activities are localized and temporary; • Mitigation measures will be implemented to minimize disturbance of marine mammals in the action area; and, • The project will not result in significant changes to availability of subsistence resources. VerDate Sep<11>2014 18:37 Oct 04, 2023 Jkt 262001 Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the planned mitigation and monitoring measures, NMFS has determined that there will not be an unmitigable adverse impact on subsistence uses from Cordova’s planned activities. previously explained mitigation, monitoring and reporting requirements. Dated: September 29, 2023. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2023–22096 Filed 10–4–23; 8:45 am] BILLING CODE 3510–22–P Endangered Species Act DEPARTMENT OF COMMERCE There is one marine mammal species (western DPS Steller sea lion) with confirmed occurrence in the project area that is listed as endangered under the ESA. The NMFS Alaska Regional Office issued a Biological Opinion on September 28, 2023 under section 7 of the ESA on the issuance of two IHAs to Cordova under section 101(a)(5)(D) of the MMPA by the NMFS Office of Protected Resources. The Biological Opinion concluded that this action is not likely to jeopardize the continued existence of Western Distinct Population Segment (DPS) Steller sea lions. In addition, the proposed action is not likely to adversely affect Western North Pacific DPS humpback whales, Mexico DPS humpback whales, fin whales, or Steller sea lion critical habitat. National Oceanic and Atmospheric Administration 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 evaluate our proposed action (i.e., the issuance of two IHAs) and alternatives 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 NAO 216– 6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of these IHAs qualifies to be categorically excluded from further NEPA review. Authorizations NMFS has issued two consecutive IHAs to Cordova for the potential harassment of small numbers of marine mammal species incidental to the Cordova Harbor Rebuild project, in Cordova, Alaska, that includes the PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 [RTID 0648–XD446] New England Fishery Management Council; Public Meeting National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. AGENCY: The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Committee via webinar to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate. DATES: This webinar will be held on Monday, November 13, 2023, at 9:30 a.m. ADDRESSES: Webinar registration URL information: https://attendee. gotowebinar.com/register/ 4122443360576842070. Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. FOR FURTHER INFORMATION CONTACT: Cate O’Keefe, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492. SUPPLEMENTARY INFORMATION: SUMMARY: Agenda The Groundfish Committee will meet to discuss recommendations from the Recreational Advisory Panel and Groundfish Advisory Panel. They will review draft Framework Adjustment 66 alternatives and draft impacts analysis and recommend preferred alternatives to the Council. They will receive an update on Framework Adjustment 68/ Acceptable Biological Catches (ABC) Control Rules. They will also continue development of the Atlantic Cod Transition Plan as well as possibly recommend 2024 priorities to the Council. The Committee will discuss other business if necessary. E:\FR\FM\05OCN1.SGM 05OCN1

Agencies

[Federal Register Volume 88, Number 192 (Thursday, October 5, 2023)]
[Notices]
[Pages 69145-69158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22096]

[[Page 69145]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD241]

Taking of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to City of Cordova Harbor Rebuild
Project, Cordova, Alaska

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued two incidental harassment authorizations (IHAs) to
the City of Cordova (Cordova) to incidentally harass marine mammals
during construction activities associated with a with the City of
Cordova, Cordova Harbor Rebuild project, in Cordova, Alaska.

DATES: These Authorizations are effective from October 1, 2023 through
September 30, 2024 and October 1, 2024 through September 30, 2025.

ADDRESSES: Electronic copies of the application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call
the contact listed below.

FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, Office of
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by United States (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 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.

Summary of Request

On February 16, 2023, NMFS received a request from the Cordova for
two IHAs to take marine mammals incidental to pile driving and removal
activities associated with the City of Cordova, Cordova Harbor Rebuild
project, in Cordova, Alaska over the course of 2 years. Following NMFS'
review of the application, The City of Cordova (Cordova) submitted a
revised version on April 19, 2023. The application was deemed adequate
and complete on May 12, 2023. Cordova's request for the first IHA is
for take of 4 species of marine mammals by Level B harassment and, for
a subset of these species, Level A harassment. For the second IHA,
Cordova is requesting take of only Steller sea lion (Eumetopias
jubatus) and harbor seal (Phocoena phocoena) by Level A and Level B
harassment. Neither Cordova nor NMFS expect serious injury or mortality
to result from this activity and, therefore, IHAs are appropriate.
There are no changes from the proposed IHAs to the final IHAs.

Description of Activity

Cordova plans to replace existing structures in the Cordova Harbor
in Cordova, Alaska. Over the course of 2 years spanning September 2023-
April 2024 and September 2024-April 2025, Cordova will use a variety of
methods, including vibratory, impact, and down-the-hole (DTH) pile
driving to remove existing piles and to install new ones.
Phase I will involve the removal of existing piles, the
installation and removal of temporary piles, and the installation of
permanent piles in the south harbor. During Phase I, 130 timber (12-
inch (in) diameter; 0.3-meter (m) diameter) and 61 old steel (12-in
(0.3-m) diameter) piles will be removed. Once the existing piles are
removed, 155 16-in (0.4-m), 70 18-in (0.5-m), and 30 30-in (0.8-m)
permanent steel piles will be installed. The installation and removal
of 61 temporary 24-in (0.6-m) steel pipe piles will be completed to
support permanent pile installation. Vibratory hammers, impact hammers,
and DTH drilling will be used for the installation and removal of all
piles. Piles will be removed by dead-pull or vibratory methods. The
installation and removal of temporary piles will be conducted using
vibratory hammers. All permanent piles will be initially installed with
a vibratory hammer. After vibratory driving, if needed, piles will be
impacted into the bedrock with an impact hammer. For some piles, a DTH
drill will be needed to drive piles the final few inches of embedment.
Phase II will involve the removal of existing piles, the
installation and removal of temporary piles, and the installation of
permanent piles in the north and south harbor. During Phase II, 268 12-
in (0.3-m) timber piles will be removed. Then, 24 24-in (0.6-m) steel
piles, 80 steel H-piles, and 80 steel sheet piles will be installed.
The installation and removal of 31 temporary 24-in (0.6-m) steel pipe
piles will be completed to support permanent pile installation. As in
Phase I, vibratory hammers, impact hammers, and DTH drilling will be
used for the installation and removal of all piles. Piles will be
removed by dead-pull or vibratory methods. The installation and removal
of temporary piles will be conducted using vibratory hammers. All
permanent piles would be initially installed with a vibratory hammer.
After vibratory driving, if needed, piles will be impacted into the
bedrock with an impact hammer. For some piles, a DTH drill will be
needed to drive piles the final few inches of embedment.
A further detailed description of the planned construction project
is provided in the Federal Register notice for the proposed IHAs (88 FR
45149, July 14, 2023). Since that time, no changes have been made to
the planned activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specified activity. Mitigation, monitoring, and
reporting measures are described in detail later in this document
(please see Mitigation and Monitoring and Reporting).

[[Page 69146]]

Comments and Responses

A notice of NMFS' proposal to issue two IHAs to Cordova was
published in the Federal Register on July 14, 2023 (88 FR 45149). That
notice described, in detail, Cordova's activity, the marine mammal
species that may be affected by the activity, and the anticipated
effects on marine mammals. During the 30-day public comment period, no
public comments were received.

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, instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; https://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 1 lists all species or stocks for which take is expected and
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 anticipated or authorized here, 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 managed stocks in this region are assessed in
NMFS' Alaska Marine Mammal SARs. All values presented in Table 1 are
the most recent available at the time of publication (including from
the 2022 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

Table 1--Species Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer whale.................... Orcinus orca........... Alaska Resident........ -/-; N 1,920 (N/A, 1,920, 19 1.3
2019).
Gulf of Alaska/Aleutian -/-; N 587 (N/A, 587, 2012).. 5.9 0.8
Islands/Bering Sea
Transient.
AT1 Transient.......... -/D; N 7 (N/A, 7, 2019)...... 0.1 0
Family Phocoenidae (porpoises):
Dall's porpoise................. Phocoenoides dalli..... Alaska................. -/-; N UND (UND, UND, 2015) UND 37
\5\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
Steller sea lion................ Eumetopias jubatus..... Western DPS............ E/D; Y 52,932 (N/A, 52,932, 318 254
2019).
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Prince William Sound... -/-; N 44,756 (N/A, 41,776, 1253 413
2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies; Committee on Taxonomy, 2022).
\2\ 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.
\3\ NMFS marine mammal stock assessment reports online at: https://www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum
estimate of stock abundance. In some cases, CV is not applicable.
\4\ 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, vessel 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.
\5\ Population estimate of 13,110 based on surveys from western Prince William Sound, as abundance estimates for the Alaska stock are more than 8 years
old and are no longer considered reliable (Muto et al., 2022). This population estimate will be used for small numbers calculations.

As indicated above, all four species (with six managed stocks) in
Table 1 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. All species that could
potentially occur in the planned project areas are included in Table 10
of the IHA application. While northern fur seal, Pacific white-sided
dolphin, harbor porpoise, humpback whale, fin whale, minke whale, and
gray whale have been documented in Prince William Sound, the temporal
and/or spatial occurrence of these species is such that take is not
expected to occur, and they are not discussed further beyond the
explanation provided here. These species are all considered to be rare
(no sightings in recent years) or very rare (no local knowledge of
sightings within the project vicinity)

[[Page 69147]]

within Orca Bay according to the Prince William Sound Science Center in
Cordova (Prince William Sound Science Center, 2022; Schinella, 2022).
Given the shallow depths of the waters surrounding Cordova Harbor, it
would also be unusual for many of these species to enter the project
area. The take of these species has not been requested nor authorized
and these species are not considered further in this document.
A detailed description of the species likely to be affected by
Cordova's construction project, including brief introductions to the
species and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the Federal Register notice for the
proposed IHAs (88 FR 45149, July 14, 2023); since that time, we are not
aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to the NMFS website (https://www.fisheries.noaa.gov/find-species) for
generalized species accounts.

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 2.

Table 2--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions 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 a ~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

The effects of underwater noise from Cordova's pile driving
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the project area. The notice of the
proposed IHAs (88 FR 45149, July 14, 2023) included a discussion of the
effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from Cordova's pile driving activities on
marine mammals and their habitat. That information and analysis is
incorporated by reference into this final IHA determination and is not
repeated here; please refer to the notice of the proposed IHAs (88 FR
45149, July 14, 2023).

Estimated Take of Marine Mammals

This section provides an estimate of the number of incidental takes
authorized through these IHAs, 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 will primarily be by Level B harassment, as use of
the acoustic sources (i.e., vibratory or impact pile driving and DTH
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
Dall's porpoise and harbor seals, due to the cryptic nature of these
species in context of larger predicted auditory injury zones. Auditory
injury is unlikely to occur for mid-frequency species and otariids,
based on the likelihood of the species in the action area, the ability
to monitor the entire smaller shutdown zone, and because of the
expected ease of detection for the former groups. The 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 authorized for this activity. Below we

[[Page 69148]]

describe how the 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 would be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that would 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 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 permanent threshold shift (PTS) of some
degree (equated to Level A harassment). Thresholds have also been
developed identifying the received level of in-air sound above which
exposed pinnipeds would likely be behaviorally harassed.
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 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., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. For in-air sounds, NMFS predicts that harbor
seals exposed above received levels of 90 dB re 20 [mu]Pa (RMS) would
be behaviorally harassed, and other pinnipeds would be harassed when
exposed above 100 dB re 20 [mu]Pa (RMS). Generally speaking, Level B
harassment take estimates based on these behavioral harassment
thresholds are expected to include any likely takes by temporary
threshold shift (TTS) as, in most cases, the likelihood of TTS occurs
at distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
Cordova's planned activity includes the use of continuous
(vibratory hammer and DTH drilling) and impulsive (DTH drilling and
impact pile driving) sources, and therefore the 120- and 160-dB re 1
[mu]Pa (RMS) thresholds 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). Cordova's
planned activity includes the use of impulsive (impact pile driving and
DTH drilling) and non-impulsive (vibratory hammer and DTH drilling)
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:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Table 3--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[mu]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.

[[Page 69149]]

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.
The sound field in the project area is the existing background
noise plus additional construction noise from the planned project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., impact pile driving, vibratory
pile driving and removal, and DTH).
In order to calculate distances to the Level A harassment and Level
B harassment thresholds for the methods and piles being used in this
project, NMFS used acoustic monitoring data from other locations to
develop source levels for the various pile types, sizes and methods
(Table 4). This analysis uses the practical spreading loss model, a
standard assumption regarding sound propagation for similar
environments, to estimate transmission of sound through water. For this
analysis, the transmission loss factor of 15 (4.5 dB per doubling of
distance) is used. A weighting adjustment factor of 2.5 or 2, a
standard default value for vibratory pile driving and removal or impact
driving and DTH respectively, were used to calculate Level A harassment
areas.
NMFS recommends treating DTH systems as both impulsive and
continuous, non-impulsive sound source types simultaneously. Thus,
impulsive thresholds are used to evaluate Level A harassment, and
continuous thresholds are used to evaluate Level B harassment. With
regards to DTH mono-hammers, NMFS recommends proxy levels for Level A
harassment based on available data regarding DTH systems of similar
sized piles and holes (Denes et al., 2019; Guan and Miner, 2020; Reyff
and Heyvaert, 2019; Reyff, 2020; Heyvaert and Reyff, 2021).

Table 4--Estimated Underwater Proxy Source Levels for Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
Proxy source levels (dB) at 10 m
Pile type Phase ------------------------------------------------ Reference
Peak RMS SEL
----------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
12- to 24-in timber pile I, II .............. 162 .............. Greenbusch et al.,
removal. 2018; CALTRANS,
2020.
12- to 24-in steel pile I .............. 161 .............. NAVFAC (2013, 2015).
removal.
24-in steel template pile I, II .............. .............. ....................
install/removal.
16-in steel pile............. I .............. .............. ....................
18-in steel pile............. I .............. .............. ....................
24-in steel pile............. II .............. .............. ....................
30-in steel pile............. I .............. 161.9 .............. Denes et al., 2016.
Steel H-pile................. II .............. 165 .............. CALTRANS, 2015.
Steel sheet pile............. II .............. 162 .............. Buehler et al.,
2015.
----------------------------------------------------------------------------------------------------------------
Impact Pile Driving
----------------------------------------------------------------------------------------------------------------
16-in steel pile............. I 192.8 181.1 168.3 Denes et al., 2016.
18-in steel pile............. I .............. .............. .............. ....................
24-in steel pile............. II .............. .............. .............. ....................
30-in steel pile............. I 210 190 177 NMFS 2023 analysis
*.
Steel H-pile................. II 200 177 170 CALTRANS, 2015.
Steel sheet pile............. II 205 190 180 CALTRANS, 2015.
----------------------------------------------------------------------------------------------------------------
DTH Drilling
----------------------------------------------------------------------------------------------------------------
16-in steel pile............. I .............. 167 159 Heyvaert and Reyff,
2021.
18- to 24-in steel pile...... I, II .............. .............. .............. ....................
30-in steel pile............. I .............. 174 164 Denes et al., 2019);
Reyff and Heyvaert,
2019; Reyff, 2020.
Steel H-pile................. II .............. .............. .............. ....................
----------------------------------------------------------------------------------------------------------------
Note: SEL= sound exposure level; RMS= root mean square.
* NMFS used the mean of regionally relevant measurements to determine suitable proxy source values for these
pile types. Projects included in the analysis were Navy (2012, 2013) and Miner (2020), following the
methodology of Navy (2015).

Table 5--Estimated In-Air Proxy Source Levels for Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
Proxy source
levels (dB) at
Pile type Phase 15 m Reference
-------------------
RMS
----------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
24-in steel template pile install/ I 103.2 Laughlin, 2010.
removal.
18-in steel pile........................ ...................... ................. ...........................
Steel H-pile............................ ...................... ................. ...........................
----------------------------------------------------------------------------------------------------------------

[[Page 69150]]

Impact Pile Driving
----------------------------------------------------------------------------------------------------------------
18-in steel pile........................ I 101 Ghebreghzabiher et al.,
2017.
Steel H-pile............................ ...................... ................. ...........................
----------------------------------------------------------------------------------------------------------------
DTH Drilling \1\
----------------------------------------------------------------------------------------------------------------
18-in steel pile........................ I 101 Ghebreghzabiher et al.,
2017.
Steel H-pile............................ ...................... ................. ...........................
----------------------------------------------------------------------------------------------------------------
Note: SEL= sound exposure level; RMS= root mean square.
\1\ We conservatively assume that the proxy value for DTH driving is the same as for impact driving.

Level B Harassment Zones

Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:

TL = B * log10 (R1/R2),

Where:
TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven
pile, and
R2 = the distance from the driven pile of the initial
measurement.

The recommended TL coefficient for most nearshore environments is
the practical spreading value of 15. This value results in an expected
propagation environment that would lie between spherical and
cylindrical spreading loss conditions, which is the most appropriate
assumption for Cordova's planned underwater activities. The Level B
harassment zones and approximate amount of area ensonified for the
planned underwater activities are shown in Table 6. The Level B
harassment zones for the planned upland pile driving activities that
may generate airborne noise are shown in Table 5.

Level A Harassment Zones

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 installation or removal, 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. The isopleths generated by the User
Spreadsheet used the same TL coefficient as the Level B harassment zone
calculations (i.e., the practical spreading value of 15). Inputs used
in the User Spreadsheet (e.g., number of piles per day, duration and/or
strikes per pile) are presented in Tables 1 and 2 in the Federal
Register Notice of the proposed IHAs (88 FR 45149, July 14, 2023). The
maximum RMS SPL, sound exposure level (SEL), and resulting isopleths
are reported in Tables 4, 5, and 6.

Table 6--Level A and Level B Harassment Isopleths for Pile Driving Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Distances to Level A and Level B thresholds (m)
---------------------------------------------------------------- Ensonified area 1
Pile type Phase Level A Level B 2 for Level B
---------------------------------------------------------------- (km\2\)
MF HF Phocid Otariid
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
12- to 24-in timber pile removal I, II 1.8 30.5 12.5 0.9 6,309.6........... 125.
12- to 24-in steel pile removal. I 1.6 26.1 10.7 0.8 5,411.7........... 92.
24-in steel template pile I, II 0.9 14.2 5.8 0.4 ..................
install/removal.
16-in steel pile................ I 1.1 18.6 7.6 0.5 ..................
18-in steel pile................ I 1.4 22.5 9.3 0.7 ..................
24-in steel pile................ II .............. .............. .............. .............. ..................
30-in steel pile................ I 1.4 24.1 9.9 0.7 6,213.5........... 121.2.
Steel H-pile.................... II 1.1 18.7 7.7 0.5 10,000............ 314.

[[Page 69151]]

Steel sheet pile................ II 0.7 11.8 4.8 0.3 6,310............. 125.
In-air pile installation/removal I .............. .............. .............. .............. 68.6 (Phocid)/22.8 0.01 (Phocid)/
(Otariid). 0.002 (Otariid).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
16-in steel pile................ I 4.7 158.8 71.4 5.2 255............... 0.2.
18-in steel pile................ I ..................
24-in steel pile................ II .............. .............. .............. .............. .................. ..................
30-in steel pile................ I 23.6 791.3 355.5 25.9 1,000............. 3.14.
Steel H-pile.................... II 12.1 405.3 182.1 13.3 341.5............. 0.37.
Steel sheet pile................ II 56.2 1881.2 845.2 61.5 1,000............. 3.14.
In-air pile installation/removal I .............. .............. .............. .............. 53.2 (Phocid)/16.8 0.009 (Phocid)/
(Otariid). 0.0009 (Otariid).
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH Drilling
--------------------------------------------------------------------------------------------------------------------------------------------------------
16-in steel pile................ I 32.1 1075.7 483.3 35.2 13,593.6.......... 580.2.
18- to 24-in steel pile......... I,II .............. .............. .............. .............. ..................
30-in steel pile................ I 61.3 2,052.20 922 67.1 39,810.7.......... 4976.6.
Steel H-pile.................... II .............. .............. .............. .............. ..................
In-air pile installation/removal I .............. .............. .............. .............. 53.2 (Phocid)/16.8 0.009 (Phocid)/
(Otariid). 0.0009 (Otariid).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Areas were calculated based on areas of a circle with the specified radius from Table 4 and 5 and realized ensonified areas will be smaller due to
truncation by land masses.
\2\The ensonified area within Cordova Harbor will be no more than 0.19 kilometers\2\ (km\2\).

Marine Mammal Occurrence

In this section we provide information about the occurrence of
marine mammals, including presence, density, local knowledge, or other
relevant information which will inform the take calculations.
Daily occurrence probability of each marine mammal species in the
action area is based on consultation with local researchers and marine
professionals. Occurrence probability estimates are based on
conservative density approximations for each species and factor in
historic data of occurrence, seasonality, and group size in Orca Bay,
Orca Inlet, and/or Prince William Sound. A summary of planned take is
shown in Table 7. To accurately describe species occurrence near the
action area, marine mammals were described as either common (multiple
sightings every month, could occur each day), frequent (multiple
sightings every year, could occur each month), or infrequent (few
sightings every year, could occur each month).

Table 7--Estimated Occurrence of Group Sightings of Marine Mammals
----------------------------------------------------------------------------------------------------------------
Species Frequency Seasonality Occurrence Group size \a\
----------------------------------------------------------------------------------------------------------------
Steller sea lion:
(within harbor).............. Common............. Year-round......... 1 group per day.... \b\ 4.1
(outside harbor)............. Common............. Year-round......... 2 groups per day... \b\ 4.1
Harbor seal:
(within harbor).............. Frequent........... Year-round......... 1 group per day.... \c\ 3.5
(outside harbor)............. Common............. Year-round......... 2 groups per day... \c\ 3.5
Killer whale..................... Infrequent......... Year-round......... 1 group per 10 days \d\ 14
Dall's porpoise.................. Infrequent......... Year-round......... 1 group per 10 days \e\ 4.3
----------------------------------------------------------------------------------------------------------------
\a\ Group size was averaged from seasonal data (Steller sea lions and harbor seals), pod size (killer whales),
and observational data (Dall's porpoise) for more information see application.
\b\ Leonard and Wisdom, 2020; Sigler et al., 2017.
\c\ ADF&G, 2022a.
\d\ Muto et al., 2022.
\e\ Moran et al., 2018.

Take Estimation

Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and are authorized.
For total underwater take estimate, the daily occurrence
probability for a species was multiplied by the estimated group size
and by the number of days of each type of pile driving activity. Group
size is based on the best available published research for these
species and their presence in this area.

[[Page 69152]]

Estimated take = Group size x Groups per day x Days of pile driving
activity

Take of pinnipeds by Level B harassment due to airborne noise was
calculated based on the proportion of area within the harbor likely to
be ensonified above the thresholds for harbor seals and other
pinnipeds, respectively. The percent of the harbor ensonified was then
multiplied by the number of days of pile driving, the group size, and
groups per day, as done for underwater take estimates. The total
numbers of takes by Level B harassment due to airborne noise authorized
for harbor seal and Steller sea lion are seven and zero, respectively.
Take by Level A harassment is authorized for Steller sea lions and
harbor seals given that these species are known to spend extended
periods of time within Cordova Harbor and most Level A harassment
isopleths are contained within Cordova Harbor. The take by Level A
harassment calculations are based on lower daily occurrence estimates
for each species than take by Level B harassment calculations based on
input from marine professionals in the community about their presence
in within the smaller ensonified zone of the harbor (Table 7; Greenwood
2022). Take by Level A harassment is also authorized for Dall's
porpoise for impact driving of sheet piles and DTH drilling of 30 in
and H-piles as it is not practicable to observe and shut down for
porpoises throughout the entire Level A harassment zone (1,885 m for
impact driving and 2,050 m for DTH drilling). Additionally, Level A
harassment isopleths for most hearing groups and pile types were less
than 10 m (Table 6) which is the minimum shutdown zone for this project
(see Mitigation). Because the Level A harassment isopleths for those
piles are within the minimum 10-m shutdown zone, no takes by Level A
harassment are expected to occur from those activities, and therefore
the predicted take by Level A harassment were removed from the total
take calculations (Table 8).
During Phase II, killer whale and Dall's porpoise are not expected
to occur within any harassment zones due to the relatively shallow
water that will be ensonified (south of Spike Island into tidal mud
flats) and therefore no take is authorized for these species.

Table 8--Take of Marine Mammals by Level A and Level B Harassment and Percent of Stock To Be Taken by Phase
--------------------------------------------------------------------------------------------------------------------------------------------------------
Authorized take
Species Stock/DPS ------------------------------------------------ Stock size \1\ Percent of
Level A Level B Total take stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phase I
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steller sea lion.......................... Western DPS................. 107 788 895 52,932 1.69
Harbor seal............................... Prince William Sound........ 154 681 835 44,756 1.87
Killer whale \2\.......................... Alaska Resident............. .............. 83 83 1,920 4.35
Gulf of Alaska/Aleutian .............. 26 26 587 4.35
Islands/Bering Sea
Transient.
Dall's porpoise........................... Alaska...................... 10 32 42 13,110 0.32
--------------------------------------------------------------------------------------------------------------------------------------------------------
Phase II
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steller sea lion.......................... Western DPS................. 98 730 828 52,932 1.56
Harbor seal............................... Prince William Sound........ 133 623 756 44,756 1.69
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Stock size comes from the most recent SARs except for Dall's porpoise whose stock estimate is based on surveys from western Prince William Sound
only, as abundance estimates for the Alaska stock are more than 8 years old and no longer considered reliable (Muto et al., 2022).
\2\ AT1 transient stock take calculation resulted in 0.3 takes, therefore no takes were requested or are authorized.

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. 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, as
well as subsistence uses. 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.

Mitigation Measures

Cordova must follow mitigation measures as specified below:
Ensure that construction supervisors and crews, the
monitoring team, and relevant Cordova staff are trained prior to the
start of all pile driving and DTH drilling activity, 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;
Employ Protected Species Observers (PSOs) and establish
monitoring locations as described in the

[[Page 69153]]

application and the IHAs. The Holder must monitor the project area to
the maximum extent possible based on the required number of PSOs,
required monitoring locations, and environmental conditions. For all
pile driving and removal at least one PSO must be used. The PSO will be
stationed as close to the activity as possible;
The placement of the PSOs during all pile driving and
removal and DTH drilling activities will ensure that the entire
shutdown zone is visible during pile installation;
Monitoring must take place from 30 minutes prior to
initiation of pile driving or DTH drilling activity (i.e., pre-
clearance monitoring) through 30 minutes post-completion of pile
driving or DTH drilling activity;
Pre-start clearance monitoring must be conducted during
periods of visibility sufficient for the lead PSO to determine that the
shutdown zones indicated in Table 9 are clear of marine mammals. Pile
driving and DTH drilling may commence following 30 minutes of
observation when the determination is made that the shutdown zones are
clear of marine mammals;
Cordova must use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
three strikes at reduced energy, followed by a 30-second waiting
period, then two subsequent reduced-energy strike sets. A soft start
must be implemented at the start of each day's impact pile driving and
at any time following cessation of impact pile driving for a period of
30 minutes or longer;
If a marine mammal is observed entering or within the
shutdown zones indicated in Table 9, pile driving and DTH drilling must
be delayed or halted. If pile driving is delayed or halted due to the
presence of a marine mammal, the activity may not commence or resume
until either the animal has voluntarily exited and been visually
confirmed beyond the shutdown zone (Table 9) or 15 minutes have passed
without re-detection of the animal; and
As planned by the applicant, in water activities will take
place only between civil dawn and civil dusk when PSOs can effectively
monitor for the presence of marine mammals; during conditions with a
Beaufort Sea State of 4 or less. Pile driving and DTH drilling may
continue for up to 30 minutes after sunset during evening civil
twilight, as necessary to secure a pile for safety prior to
demobilization during this time. The length of the post-activity
monitoring period may be reduced if darkness precludes visibility of
the shutdown and monitoring zones.

Shutdown Zones

Cordova will establish shutdown zones for all pile driving and DTH
drilling activities. The purpose of a shutdown zone is generally to
define an area within which shutdown of the activity will occur upon
sighting of a marine mammal (or in anticipation of an animal entering
the defined area). Shutdown zones will be based upon the Level A
harassment isopleth for each pile size/type and driving method where
applicable, as shown in Table 9.
For in-water heavy machinery activities other than pile driving, if
a marine mammal comes within 10 m, work will stop and vessels will
reduce speed to the minimum level required to maintain steerage and
safe working conditions. A 10-m shutdown zone serves to protect marine
mammals from physical interactions with project vessels during pile
driving and other construction activities, such as barge positioning or
drilling. If an activity 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 indicated in Table 9 or 15 minutes have passed without
re-detection of the animal. Construction activities must be halted upon
observation of 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.
All marine mammals will be monitored in the Level B harassment
zones and throughout the area as far as visual monitoring can take
place. If a marine mammal enters the Level B harassment zone,
construction activities including in-water work will continue and the
animal's presence within the estimated harassment zone will be
documented.
Cordova will also establish shutdown zones for all marine mammals
for which take has not been authorized or for which incidental take has
been authorized but the authorized number of takes has been met. These
zones are equivalent to the Level B harassment zones for each activity.
If a marine mammal species not covered under these IHAs enters the
shutdown zone, all in-water activities will cease until the animal
leaves the zone or has not been observed for at least 15 minutes, and
NMFS will be notified about species and precautions taken. Pile driving
will proceed if the non-IHA species is observed to leave the Level B
harassment zone or if 15 minutes have passed since the last
observation.
If shutdown and/or clearance procedures will result in an imminent
safety concern, as determined by Cordova or its designated officials,
the in-water activity will be allowed to continue until the safety
concern has been addressed, and the animal will be continuously
monitored.

Table 9--Shutdown and Monitoring Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum shutdown zone (m)
Pile type Phase ---------------------------------------------------------------- Monitoring zone (m)
MF HF Phocid Otariid
--------------------------------------------------------------------------------------------------------------------------------------------------------
Barge movements, pile positioning, etc. I, II 10 10 10 10 10.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
12- to 24-in timber pile removal....... I, II 10 35 25 10 6,310.
12- to 24-in steel pile removal........ I 10 35 20 10 5,425.
24-in steel template pile install/ I, II 10 25 10 10 5,425.
removal.
16- to 24-in steel pile................
30-in steel pile....................... I 10 25 10 10 6,225.
Steel H-pile........................... II 10 35 25 10 10,000.
Steel sheet pile....................... II 10 25 10 10 6,310.

[[Page 69154]]

In-air pile install/removal............ I .............. .............. .............. .............. 70 (phocids)/25
(otariids).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
16- to 24-in steel pile................ I 10 185 75 10 255.
30-in steel pile....................... I 25 800 360 25 1,000.
Steel H-pile........................... II 25 410 185 25 350.
Steel sheet pile....................... II 75 1,000 500 75 1,000.
In-air pile install.................... I .............. .............. .............. .............. 55 (phocids)/20
(otariids).
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH Drilling
--------------------------------------------------------------------------------------------------------------------------------------------------------
16- to 24-in pile...................... I, II 35 1,000 500 40 13,594.
30-in pile............................. I 75 1,000 500 75 39,811.
Steel H-pile........................... II 75 1,000 500 75 39,811.
In-air pile install.................... I .............. .............. .............. .............. 55 (phocids)/20
(otariids).
--------------------------------------------------------------------------------------------------------------------------------------------------------

Protected Species Observers

The placement of PSOs during all construction activities (described
in the 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 would be delayed until the PSO is confident
marine mammals within the shutdown zone could be detected.
PSOs will monitor the full shutdown zones and the remaining Level A
harassment and the Level B harassment zones to the extent practicable.
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 areas outside the shutdown
zones 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 or DTH drilling 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 9, pile driving activity will be delayed or halted. If
work ceases for more than 30 minutes, the pre-activity monitoring of
the shutdown zones would commence. A determination that the shutdown
zone is clear must be made during a period of good visibility (i.e.,
the entire shutdown zone and surrounding waters must be visible to the
naked eye).

Soft-Start Procedures

Soft-start procedures 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.
Based on our evaluation of the applicant's planned measures NMFS
has determined that the 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.

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 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,

[[Page 69155]]

Mitigation and monitoring effectiveness.

Visual Monitoring

Marine mammal monitoring must be conducted in accordance with the
conditions in this section and the IHAs. Marine mammal monitoring
during pile driving activities will be conducted by PSOs meeting NMFS'
following requirements:
Independent PSOs (i.e., not construction personnel) who
have no other assigned tasks during monitoring periods will be used;
At least one PSO will have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
Other PSOs may substitute education (degree in biological
science or related field) or training for experience; and
Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator will be designated. The lead
observer will be required to have prior experience working as a marine
mammal observer during construction.
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;
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;
Cordova must employ up to five PSOs depending on the size
of the monitoring and shutdown zones. A minimum of two PSOs (including
the lead PSO) must be assigned to the active pile driving location to
monitor the shutdown zones and as much of the Level B harassment zones
as possible;
Cordova must establish monitoring locations with the best
views of monitoring zones as described in the IHAs and Application;
Up to five monitors will be used at a time depending on
the size of the monitoring area. PSOs will be deployed in strategic
locations around the area of potential effects at all times during in-
water pile driving and removal. PSOs will be positioned at locations
that provide full views of the impact hammering monitoring zone and the
Level A harassment Shutdown Zones. All PSOs will have access to high-
quality binoculars, range finders to monitor distances, and a compass
to record bearing to animals as well as radios or cells phones for
maintaining contact with work crews;
During work in the south harbor, up to three PSOs will be
stationed at the following locations: along the south harbor parking
area, on the Breakwater Trail, and at a viewpoint along New England
Cannery Road; and
During work in the north harbor, up to five PSOs will be
stationed at the following locations: along the north harbor parking
area, on the Breakwater Trail, at the viewpoint along the shore near
Saddle Point, at a viewpoint along Whitshed Road, and on a vessel in
Orca Inlet.
Monitoring will be conducted 30 minutes before, during, and 30
minutes after all in water construction activities. In addition, PSOs
will record all incidents of marine mammal occurrence, regardless of
distance from activity, and will document any behavioral reactions in
concert with distance from 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.
Cordova shall conduct briefings between construction supervisors
and crews, PSOs, Cordova staff prior to the start of all pile driving
activities and when new personnel join the work. These briefings will
explain responsibilities, communication procedures, marine mammal
monitoring protocol, and operational procedures.

Reporting

A draft marine mammal monitoring report will be submitted to NMFS
within 90 days after the completion of pile driving and removal
activities for each IHA, or 60 days prior to a requested date of
issuance from any future IHAs for projects at the same location,
whichever comes first. The report will include an overall description
of work completed, a narrative regarding marine mammal sightings, and
associated PSO data sheets. Specifically, the report must include:
(1) Dates and times (begin and end) of all marine mammal
monitoring;
(2) Construction activities occurring during each daily observation
period, including the number and type of piles driven or removed and by
what method (i.e., impact, vibratory, or DTH drilling) and the total
equipment duration for vibratory removal for each pile or total number
of strikes for each pile (impact driving);
(3) PSO locations during marine mammal monitoring;
(4) 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; and
(5) Upon observation of a marine mammal, the following information:
(a) Name of PSO who sighted the animal(s) and PSO location and
activity at the time of sighting;
(b) Time of sighting;
(c) Identification of the animal(s) (e.g., genus/species, lowest
possible taxonomic level, or unidentifiable), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
(d) Distance and bearing of each marine mammal observed relative to
the pile being driven for each sightings (if pile driving was occurring
at time of sighting);
(e) Estimated number of animals (min/max/best estimate);
(f) Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, sex class, etc.);
(g) Animal's closest point of approach and estimated time spent
within the harassment zone;
(h) 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 from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
(i) Number of marine mammals detected within the harassment zones
and shutdown zones; by species; and
(j) Detailed information about any implementation of any mitigation
triggered (e.g., shutdowns and delays), a description of specific
actions that ensured, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
reports

[[Page 69156]]

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.

Reporting Injured or Dead Marine Mammals

In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the IHA-holder must
immediately cease the specified activities and report the incident to
the Office of Protected Resources (OPR)
([email protected]), NMFS and to the Alaska Regional
Stranding Coordinator as soon as feasible. If the death or injury was
clearly caused by the specified activity, Cordova 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
IHAs. The IHA-holder must not resume their activities until notified by
NMFS. The report must include the following information:
Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
Species identification (if known) or description of the
animal(s) involved;
Condition of the animal(s) (including carcass condition if
the animal is dead);
Observed behaviors of the animal(s), if alive;
If available, photographs or video footage of the
animal(s); and
General circumstances under which the animal was
discovered.

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 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, the discussion of our analysis applies to all
the species listed in Table 1, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. There is little information about the nature or severity of
the impacts, or the size, status, or structure of any of these species
or stocks that would lead to a different analysis for this activity.
Also, because both the number and nature of the estimated takes
anticipated to occur are identical in Phase I and Phase II, the
analysis below applies to each of the IHAs.
Pile driving and DTH drilling 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 B harassment and, for some
species, Level A harassment from underwater sounds generated by pile
driving. Potential takes could occur if individuals are present in the
ensonified zone when these activities are underway.
No serious injury or mortality is expected, even in the absence of
required mitigation measures, given the nature of the activities.
Further, no take by Level A harassment is anticipated for killer whales
due to the application of planned mitigation measures, such as shutdown
zones that encompass the Level A harassment zones for the species, the
rarity of the species near the action area, and the shallow depths of
the harbor. The potential for harassment will be minimized through the
construction method and the implementation of the planned mitigation
measures (see Mitigation section).
Take by Level A harassment is authorized for three species (Steller
sea lion, harbor seal, and Dall's porpoise) as the Level A harassment
isopleths exceed the size of the shutdown zones for specific
construction scenarios. Additionally, the two pinniped species are
common in and around the action area. Therefore, there is the
possibility that an animal could enter a Level A harassment zone and
remain within that zone for a duration long enough to incur PTS. Take
by Level A harassment of these species is therefore authorized. Any
take by Level A harassment is expected to arise from, at most, a small
degree of PTS (i.e., minor degradation of hearing capabilities within
regions of hearing that align most completely with the energy produced
by impact pile driving such as the low-frequency region below 2
kilohertz (kHz)), not severe hearing impairment or impairment within
the ranges of greatest hearing sensitivity. Animals would need to be
exposed to higher levels and/or longer duration than are expected to
occur here in order to incur any more than a small degree of PTS.
Further, the amount of authorized take by Level A harassment is
very low for the marine mammal stocks and species. If hearing
impairment occurs, it is most likely that the affected animal would
lose only a few decibels in its hearing sensitivity. Due to the small
degree anticipated, any PTS potential incurred would not be expected to
affect the reproductive success or survival of any individuals, much
less result in adverse impacts on the species or stock.
The Level A harassment zones identified in Table 6 are based upon
an animal exposed to pile driving or DTH drilling of several piles per
day (up to 25 piles per day for vibratory removal, 10 piles per day of
vibratory installation, 6 piles per day of impact driving, and 4 piles
per day of DTH drilling). Given the short duration to impact drive or
vibratory install or extract, or use DTH drilling, each pile and break
between pile installations (to reset equipment and move piles 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 patterns in the
area. If an animal was exposed to accumulated sound energy, 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.
Additionally, some subset of the individuals that are behaviorally
harassed could also simultaneously incur some small degree of TTS for a
short duration of time. However, since

[[Page 69157]]

the hearing sensitivity of individuals that incur TTS is expected to
recover completely within minutes to hours, it is unlikely that the
brief hearing impairment would affect the individual's long-term
ability to forage and communicate with conspecifics, and will therefore
not likely impact reproduction or survival of any individual marine
mammal, let alone adversely affect rates of recruitment or survival of
the species or stock.
The nature of the pile driving project precludes the likelihood of
serious injury or mortality. For all species and stocks, take would
occur within a limited, confined area (adjacent to the project site) of
the stock's range. Take by Level A and Level B harassment will be
reduced to the level of least practicable adverse impact through use of
mitigation measures described herein. Further, the amount of take
authorized is extremely small when compared to stock abundance.
Behavioral responses of marine mammals to pile driving, pile
removal, and DTH drilling in Cordova Harbor and the surrounding Orca
Inlet are expected to be mild, short term, and temporary. Marine
mammals within the Level B harassment zones may not show any visual
cues they are disturbed by activities or they could become alert, avoid
the area, leave the area, or display other mild responses that are not
observable such as changes in vocalization patterns. Given that pile
driving, pile removal, and DTH drilling are temporary activities and
effects will cease when equipment is not operating, any harassment
occurring will be temporary. Additionally, many of the species present
in region will only be present temporarily based on seasonal patterns
or during transit between other habitats. These species will be exposed
to even smaller periods of noise-generating activity, further
decreasing the impacts.
The same regions are also a part of the western distinct population
segment (DPS) Steller sea lion ESA critical habitat. While Steller sea
lions are common in the project area, there are no essential physical
and biological habitat features, such as haulouts or rookeries, within
the planned project area. The nearest haulout and rookery are over 30
km away from the planned project area. Therefore, the planned project
is not expected to have significant adverse effects on the critical
habitat of Wester DPS Steller sea lions. No areas of specific
biological importance (e.g., ESA critical habitat, other BIAs, or other
areas) for any other species are known to co-occur with the project
area.
In addition, it is unlikely that minor noise effects in a small,
localized area of habitat will have any effect on each stock's ability
to recover. In combination, we believe that these factors, as well as
the available body of evidence from other similar activities,
demonstrate that the potential effects of the specified activities will
have only minor, short-term effects on individuals. The specified
activities are not expected to impact rates of recruitment or survival
and will therefore not result in population-level impacts.
In summary and as described above, the following factors primarily
support our 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 serious injury or mortality is anticipated or
authorized;
Take by Level A harassment will be very small amounts and
of low degree;
Take by Level A harassment is authorized only for Steller
sea lions, harbor seals, and Dall's porpoise;
For all species, the Orca Inlet and the Cordova Harbor is
a very small and peripheral part of their range;
Anticipated takes by Level B harassment are relatively low
for all stocks. Level B harassment will be primarily in the form of
behavioral disturbance, resulting in avoidance of the project areas
around where impact or vibratory pile driving is occurring, with some
low-level TTS that may limit the detection of acoustic cues for
relatively brief amounts of time in relatively confined footprints of
the activities;
Effects on species that serve as prey for marine mammals
from the activities are expected to be short-term and, therefore, any
associated impacts on marine mammal feeding are not expected to result
in significant or long-term consequences for individuals, or to accrue
to adverse impacts on their populations;
The ensonified areas are very small relative to the
overall habitat ranges of all species and stocks, and will not
adversely affect ESA-designated critical habitat for any species or any
areas of known biological importance;
The lack of anticipated significant or long-term negative
effects to marine mammal habitat; and
Cordova will implement mitigation measures including soft-
starts and shutdown zones to minimize the numbers of marine mammals
exposed to injurious levels of sound, and to ensure that take by Level
A harassment is, at most, a small degree of PTS.
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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take, specific to
each of the 2 consecutive years of planned activity, will have a
negligible impact on all affected marine mammal species or stocks.

Small Numbers

As noted previously, only take of small numbers of marine mammals
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 amount of take NMFS plans to authorize, specific to each of the
2 consecutive years of planned activity, is below one-third of the
estimated stock abundance for all species (in fact, take of individuals
is less than 5 percent of the abundance of the affected stocks, see
Table 8). This is likely a conservative estimate because we assume all
takes are of different individual animals, which is likely not the
case. Some individuals may return multiple times in a day, but PSOs
will count them as separate takes if they cannot be individually
identified.
The most recent estimate for the Alaska stock of Dall's porpoise
was 13,110 animals; however this number accounts for only a portion of
the stock's range. Therefore, the 42 authorized takes (including 10
Level A takes) of this stock are believed to be an even smaller portion
of the overall stock abundance.
Based on the analysis contained herein of the planned activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, for each of the 2 consecutive years of planned
activity, NMFS finds that small numbers of marine mammals would be
taken

[[Page 69158]]

relative to the population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

In order to issue an IHA, NMFS must find that the specified
activity will not have an ``unmitigable adverse impact'' on the
subsistence uses of the affected marine mammal species or stocks by
Alaskan Natives. NMFS has defined ``unmitigable adverse impact'' in 50
CFR 216.103 as an impact resulting from the specified activity: (1)
That is likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by (i) causing the
marine mammals to abandon or avoid hunting areas, (ii) directly
displacing subsistence users, or (iii) placing physical barriers
between the marine mammals and the subsistence hunters; and (2) That
cannot be sufficiently mitigated by other measures to increase the
availability of marine mammals to allow subsistence needs to be met.
The Alutiiq and Eyak people of Prince William Sound traditionally
harvested marine mammals, however the last recorded subsistence harvest
in Cordova was in 2014 as part of a regional effort to update the
status of subsistence uses in Exxon Valdez Oil Spill communities,
during which no marine mammals were harvested in Cordova (Fall and
Zimpelman 2016).
In the decades since the Exxon Valdez Oil Spill, there have been
declines in the number of households hunting and harvesting larger
marine mammals in Prince William Sound. Surveys gathering subsistence
data found that 10 percent or fewer households harvest or use harbor
seals or sea lions (Poe et al., 2010). Subsistence hunters in Prince
William Sound report having to travel farther from their home
communities to be successful when harvesting marine mammals (Keating et
al., 2020).
The planned project is not likely to adversely impact the
availability of any marine mammal species or stocks that are commonly
used for subsistence purposes or to impact subsistence harvest of
marine mammals in the region because:
There is no recent recorded subsistence harvest of marine
mammals in the area;
Construction activities are localized and temporary;
Mitigation measures will be implemented to minimize
disturbance of marine mammals in the action area; and,
The project will not result in significant changes to
availability of subsistence resources.
Based on the description of the specified activity, the measures
described to minimize adverse effects on the availability of marine
mammals for subsistence purposes, and the planned mitigation and
monitoring measures, NMFS has determined that there will not be an
unmitigable adverse impact on subsistence uses from Cordova's planned
activities.

Endangered Species Act

There is one marine mammal species (western DPS Steller sea lion)
with confirmed occurrence in the project area that is listed as
endangered under the ESA. The NMFS Alaska Regional Office issued a
Biological Opinion on September 28, 2023 under section 7 of the ESA on
the issuance of two IHAs to Cordova under section 101(a)(5)(D) of the
MMPA by the NMFS Office of Protected Resources. The Biological Opinion
concluded that this action is not likely to jeopardize the continued
existence of Western Distinct Population Segment (DPS) Steller sea
lions. In addition, the proposed action is not likely to adversely
affect Western North Pacific DPS humpback whales, Mexico DPS humpback
whales, fin whales, or Steller sea lion critical habitat.

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 evaluate our proposed action (i.e., the issuance of two IHAs)
and alternatives 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 NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of these IHAs qualifies to be categorically excluded from
further NEPA review.

Authorizations

NMFS has issued two consecutive IHAs to Cordova for the potential
harassment of small numbers of marine mammal species incidental to the
Cordova Harbor Rebuild project, in Cordova, Alaska, that includes the
previously explained mitigation, monitoring and reporting requirements.

Dated: September 29, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-22096 Filed 10-4-23; 8:45 am]
BILLING CODE 3510-22-P

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