Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Port of Alaska's North Extension Stabilization Step 1 Project in Anchorage, Alaska, 2832-2873 [2024-00511]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 10 (Tuesday, January 16, 2024)]
[Notices]
[Pages 2832-2873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00511]



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Vol. 89

Tuesday,

No. 10

January 16, 2024

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Port of Alaska's North Extension 
Stabilization Step 1 Project in Anchorage, Alaska; Notice

Federal Register / Vol. 89 , No. 10 / Tuesday, January 16, 2024 / 
Notices

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD572]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Port of Alaska's North 
Extension Stabilization Step 1 Project in Anchorage, Alaska

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Port of Alaska (POA) to incidentally harass marine mammals during 
construction activities associated with the North Extension 
Stabilization Step 1 (NES1) Project in Anchorage, Alaska.

DATES: This authorization is effective from April 1, 2024, through 
March 31, 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: Reny Tyson Moore, 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 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 July 19, 2022, NMFS received a request from the POA for an IHA 
to take marine mammals incidental to construction activities related to 
the NES1 project in Anchorage, Alaska. Following NMFS' review of the 
application, the POA submitted revised versions on December 27, 2022, 
July 28, 2023, and August 31, 2023. The application was deemed adequate 
and complete on September 7, 2023. The POA submitted a final version 
addressing additional minor corrections on September 21, 2023. The 
Federal Register notice of the proposed IHA and request for comments 
was published on November 6, 2023 (88 FR 76576). The POA's request is 
for take of seven species of marine mammals by Level B harassment and, 
for a subset of these species (i.e., harbor seal (Phoca vitulina) and 
harbor porpoise (Phocoena phocoena)), Level A harassment. Neither the 
POA nor NMFS expect serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.
    NMFS previously issued IHAs to the POA for similar work (85 FR 
19294, April 6, 2020; 86 FR 50057, September 7, 2021). The POA complied 
with all the requirements (e.g., mitigation, monitoring, and reporting) 
of the previous IHAs, and information regarding their monitoring 
results may be found in the Effects of the Specified Activity on Marine 
Mammals and their Habitat section of the Federal Register notice of the 
proposed IHA (88 FR 76576, November 6, 2023), the Estimated Take 
section in this notice of issuance, and online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
    This IHA will cover 1-year of the ongoing Port of Alaska 
Modernization Program (PAMP) for which the POA obtained prior IHAs and 
intends to request additional take authorization for subsequent facets 
of the program. The PAMP involves construction activities related to 
the modernization of the POA's marine terminals.

Description of Specified Activity

    The POA, located on Knik Arm in upper Cook Inlet, provides critical 
infrastructure for the citizens of Anchorage and a majority of the 
citizens of Alaska. The North Extension at the POA is a failed bulkhead 
structure that was constructed between 2005 and 2011. Parts of the 
North Extension bulkhead structure and the surrounding upland area are 
unstable and collapsing, and some of the sheet piles are visibly 
twisted and buckled. The structure presents safety hazards and 
logistical impediments to ongoing Port operations, and much of the 
upland area is currently unusable. The North Extension Stabilization 
(NES) project will result in removal of the failed sheet pile structure 
and reconfiguration and realignment of the shoreline within the North 
Extension, including the conversion of approximately 0.05 square 
kilometers (km\2\; 13 acres) of developed land back to intertidal and 
subtidal habitat within Knik Arm. The NES project will be completed in 
two distinct steps, NES1 and NES2, separated by multiple years and 
separate permitting efforts. This notice is applicable to an IHA for 
the incidental take of marine mammals during in-water construction 
associated with NES1.
    The NES1 project will involve the removal of portions of the failed 
sheet pile structure to stabilize the North Extension. The NES1 project 
will remove approximately half of the North Extension structure 
extending approximately 274-meters (m) north from the southern end of 
the North Extension. This project will also stabilize the remaining 
portion of the North Extension by creating an end-state embankment. 
While the majority of the Project will be demolition work, the term 
``construction'' as used herein refers to both construction and 
demolition work.
    In-water construction associated with this project includes 
vibratory installation and removal of 81 24-inch (61-centimeter (cm)) 
or 36-inch (91-cm) temporary steel pipe stability template piles as 
well as vibratory removal, splitting (via a sheet pile splitter used in

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conjunction with a vibratory hammer), pile cutting (via hydraulic 
shears or underwater ultrathermic cutting) and possible impact removal 
of approximately 4,216 sheet piles from the structure tailwalls, cell 
faces (bulkhead), and closure walls. Demolition of the failed sheet 
pile structure will be accomplished through excavation and dredging of 
impounded soils (fill material), and cutting and removal of the 
existing sheet piles, most likely through use of a pile splitter and 
vibratory hammer. It is assumed that pile splitting will produce the 
same or similar sound levels to a vibratory hammer used without the 
splitter attachment. Therefore, the use of a vibratory hammer to remove 
sheet piles and the use of a splitter is combined into a single 
category (i.e., vibratory hammer removal) and treated the same in our 
analysis.
    The first attempt to extract the sheet piles will be with direct 
vertical pulling or with a vibratory hammer; however, there may be 
complications with the sheet pile interlocks, which could become 
seized, and other means of pile removal may be required (i.e., impact 
removal, shearing, or torching). In addition, to minimize potential 
impacts on marine mammals from in-water sheet pile removal, removal in 
the dry would be maximized as feasible. The demolition plan also 
includes stabilization of the face sheets through installation of 
temporary piles and dredging back into the cell to relieve pressure on 
the sheet piles and to eliminate any release of material into Cook 
Inlet beyond natural tidal forces. It is anticipated that 3 sets of 27 
temporary piles would be required for a total of 81 installations and 
81 removals (table 1). Temporary piles would be installed and removed 
with a vibratory hammer. Sound produced by vibratory pile installation 
and removal and impact pile removal may result in the take of marine 
mammals, by harassment only. Sound produced by all other NES1 project 
activities (e.g., hydraulic shearing, ultrathermic cutting) are not 
expected to result in the take of marine mammals and, therefore, are 
not discussed further.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN16JA24.031

BILLING CODE 3510-22-C
    A detailed description of the planned NES1 project is provided in 
the Federal Register notice for the proposed IHA (88 FR 76576, November 
6, 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 
specific activity.

Dates and Duration

    The POA anticipates that NES1 in-water construction activities will 
begin on April 1, 2024 and extend through November 2024. In-water pile

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installation and removal associated with the NES1 project is 
anticipated to take place over approximately 246.5 hours on 110 
nonconsecutive days between these dates. While the exact sequence of 
demolition and construction is uncertain, an estimated schedule of 
sheet pile removal and temporary stability template pile installation 
and removal is shown in table 1.
    A detailed description of the timing and sequencing of the NES1 
project is provided in the Federal Register notice for the proposed IHA 
(88 FR 76576, November 6, 2023). Since that time, no changes have been 
made to the dates or duration. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for more 
information regarding the dates and duration of the NES1 project.

Specific Geographic Region

    The Municipality of Anchorage is located in the lower reaches of 
Knik Arm of upper Cook Inlet (see figure 2-1 in the POA's application). 
The POA sits on the industrial waterfront of Anchorage, just south of 
Cairn Point and north of Ship Creek (lat. 61[deg]15' N, long. 
149[deg]52' W; Seward Meridian). Knik Arm and Turnagain Arm are the two 
branches of upper Cook Inlet, and Anchorage is located where the two 
arms join. The POA's boundaries currently occupy an area of 
approximately 0.52 km\2\.
    A detailed description of the specific geographic region of the 
NES1 project is provided in the Federal Register notice for the 
proposed IHA (88 FR 76576, November 6, 2023). Since that time, no 
changes have been made to the specific geographic region. Therefore, a 
detailed description is not provided here. Please refer to that Federal 
Register notice for more information regarding the specific geographic 
region of the NES1 project.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to the POA was published 
in the Federal Register on November 6, 2023 (88 FR 76576). That notice 
described, in detail, the POA's activity, the marine mammal species 
that may be affected by the activity, and the anticipated effects on 
marine mammals. In that notice, we requested public input on the 
request for authorization described therein, our analyses, the proposed 
authorization, and any other aspect of the notice of proposed IHA, and 
requested that interested persons submit relevant information, 
suggestions, and comments.
    During the 30-day public comment period, NMFS received comments 
from the Center for Biological Diversity (CBD) and Eklutna, Inc. NMFS 
also received a letter from United States Geological Survey stating 
that they had no comment. All relevant, substantive comments, and NMFS' 
responses, are provided below. The comments and recommendations are 
available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. Please see the comment submissions for full details 
regarding the recommendations and supporting rationale.
    Comment 1: The CBD opposed NMFS' issuance of an IHA for 
construction and associated activities related to the NES1 project, 
stating that the proposed actions would further imperil the already 
critically endangered Cook Inlet beluga whale (CIBW) and that ``most of 
the proposed activities should not be authorized until and unless 
[NMFS] can ensure that take will not impede the survival and recovery 
of the [CIBW] population.''
    Response: NMFS shares CBD's concern regarding the impacts of human 
activities on CIBWs and is committed to supporting the conservation and 
recovery of the species. Under section 101(a)(5)(D) of the MMPA, NMFS 
considers the at risk status of CIBWs (and other species) in both the 
negligible impact analysis and through our consideration of impact 
minimization measures that support the least practicable adverse impact 
on those species. For example, the IHA for the NES1 project includes a 
requirement to implement shutdown zones for CIBWs that encompass the 
estimated Level B harassment zones. However, section 101(a)(5)(D) also 
mandates that NMFS ``shall issue'' an IHA if we are able to make the 
necessary findings for any specified activity for which incidental take 
is requested.
    In accordance with our implementing regulations at 50 CFR 
216.104(c), we use the best available scientific evidence to determine 
whether the taking by the specified activity within the specified 
geographic region will have a negligible impact on the species or stock 
and will not have an unmitigable adverse impact on the availability of 
such species or stock for subsistence uses. Based on the best 
scientific evidence available, NMFS determined that the take incidental 
to POA's NES1 project would have no more than a negligible impact on 
the affected species and stocks, including CIBW, and no unmitigable 
adverse impact on the availability of marine mammals for subsistence 
uses. Moreover, NMFS has required through the IHA implementation of 
mitigation and monitoring measures that balances the safety needs of 
this demolition project with reducing potential impacts to CIBWs and 
other marine mammals to the lowest level practicable, thereby providing 
the means of effecting the least practicable adverse impact on the 
affected species and stocks of marine mammals.
    Further, as described in the Federal Register notice of the 
proposed IHA (88 FR 76576, November 6, 2023), data from several years 
of scientific monitoring at the POA during previous work involving pile 
driving (occurring April through November) demonstrate there is no 
significant difference in beluga whale sightings during and in absence 
of pile driving (Kendell and Cornick, 2016). While we do anticipate 
some behavioral modifications to occur, these will likely be limited to 
increased travel speeds, reduced vocalizations, and potentially 
traveling in more cohesive groups (Kendell and Cornick, 2016). However, 
we anticipate behavior will return to normal after the whales move past 
the POA (e.g., when they reach productive foraging grounds north of the 
POA) as these areas would not be ensonified by pile driving noise. 
There is no evidence CIBWs have abandoned foraging in Knik Arm due to 
pile driving noise or that exposure to pile driving noise has resulted 
in more than a negligible impact to the CIBW population (e.g., 61N 
Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and Leonard, 
2022). In light of the mitigation and monitoring measures and 
scientific data to date, we anticipate the impacts of any Level B 
harassment to CIBWs will be limited to short-term, mild to moderate 
behavioral changes and will not affect the fitness of any individuals. 
Therefore, NMFS' negligible impact determination is well supported and 
the authorized take for the NES1 project is neither reasonably expected 
nor likely to adversely affect the stock through effects on annual 
rates of recruitment or survival and thus, will not contribute to or 
exacerbate the stock's decline. Additionally, the NMFS Alaska Regional 
Office issued a Biological Opinion (BiOp) on December 15, 2023, under 
section 7 of the Endangered Species Act (ESA), on the issuance of an 
IHA to the POA under section 101(a)(5)(D) of the MMPA by the NMFS 
Office of Protected Resources (OPR) that determined that the issuance 
of the IHA is not likely to jeopardize the continued existence of 
CIBWs.
    CBD cited a letter from the Marine Mammal Commission (MMC) 
submitted to NMFS in response to the issuance of an IHA for the POA's 
Petroleum and Cement Terminal (PCT) project (MMC, 2020) that 
specifically recommended for

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POA construction activities, that the Service ``defer issuance of the 
final incidental harassment authorizations to [the POA] or any other 
applicant proposing to conduct sound-producing activities in Cook Inlet 
until [it] has a reasonable basis for determining that authorizing any 
additional incidental harassment takes of Cook Inlet beluga whales 
would not contribute to or exacerbate the stock's decline.'' NMFS 
responded to this recommendation in the Federal Register notice of the 
final IHA for the PCT project (e.g., 85 FR 19294, April 1, 2020) and we 
incorporate that response by reference. In summary, that notice 
describes how there is no evidence that exposure to pile driving noise 
in Knik Arm has resulted in more than a negligible impact to the CIBW 
population. Therefore, NMFS negligible impact determination was well 
supported and the authorized take for the PCT project was neither 
reasonably expected nor likely to adversely affect the stock through 
effects on annual rates of recruitment or survival. Thus NMFS had a 
reasonable basis for determining that authorizing take incidental to 
the PCT project would not contribute to or exacerbate the stock's 
decline. Since the publication of this notice, no new information has 
become available that would suggest that determination was incorrect. 
Similarly, NMFS' independent evaluation of the best scientific evidence 
in this case supports our negligible impact determination and our 
finding that the authorized take for the NES1 project is neither 
reasonably expected nor likely to adversely affect the stock through 
effects on annual rates of recruitment or survival. Thus, NMFS has a 
reasonable basis for determining that authorizing take incidental to 
the NES1 project would not contribute to or exacerbate the stock's 
decline. NMFS did not receive any recommendations from the MMC 
regarding the proposed IHA for the NES1 project.
    Finally, we also note CBD's suggestion that this IHA authorizes the 
subject construction activities. We note that NMFS does not have 
authority under the MMPA or other statute to authorize the specified 
activity. NMFS' authority pertains only to the authorization of marine 
mammal take incidental to that activity and to the prescription of 
appropriate mitigation, monitoring, and reporting requirements.
    Comment 2: The CBD expressed concern regarding uncertainty in the 
trends of the CIBW population status. They stated that ``changes in 
survey methods bring into question the approach of determining any 
trend in population status.'' They cited scientific studies that 
confirm a negative trend in the population status of CIBWs.
    Response: CBD is incorrect in that survey methods for detecting 
trends in CIBW population have changed; the survey field methods are 
essentially unchanged since 2004 (Paul Wade, personal communication, 
December 11, 2023). The analysis methods used to detect trends in the 
CIBW population have been updated and implemented in recent studies 
examining the CIBW population, notably Sheldon and Wade (2019) and 
Goetz et al. (2023).
    Results of recent studies, including those cited by CBD, provide 
evidence that the CIBW population increased between 2004 and 2010, 
declined after 2010, and increased again from 2016 to 2022 (Jacobsen et 
al., 2020; Shelden and Wade, 2019; Warlick et al., 2023; Goetz et al., 
2023). While there is some uncertainty around CIBW population trend 
analyses, the results of these four studies are consistent in showing 
general trends. Thus, while the CBD were correct that some studies 
confirm a negative trend in beluga whale abundance, recent studies, 
which NMFS considers the best scientific information available, suggest 
this trend may now be increasing. Additional data in the coming years 
will help to inform whether the recent positive trend in the CIBW 
population will continue.
    Comment 3: The CBD states that NMFS must conduct a comprehensive 
analysis of all CIBW take and asserts that NMFS should place an overall 
cap on authorizations for CIBW incidental take. They state that the 
various construction, vessel traffic, oil and gas, and other activities 
are cumulatively threatening the conservation and recovery of CIBWs. 
CBD also provides examples for the number of takes authorized by NMFS 
for various time periods, citing Migura and Bollini (2021) and recent 
authorizations to the POA.
    Response: We note first that the Migura and Bollini (2021) paper 
cited by CBD seems to have led to a misunderstanding of the takes 
authorized or permitted by NMFS. In summary, CBD asserts that NMFS 
authorized nearly 120,000 takes of CIBWs from 2017 to 2025 and that in 
2020 alone, NMFS authorized the equivalent of 50 percent of the entire 
CIBW population to be ``incidentally'' harassed by industrial projects 
in the Inlet, such as oil and gas development and pile driving 
activities.
    The vast majority of the asserted ~120,000 total takes (99 
percent), including all of the very small amount of take by Level A 
harassment, were authorized under directed research or enhancement 
permits, which directly support research or actions identified in the 
Recovery Plan to address CIBW recovery goals. Further, the vast 
majority (~99 percent) of the total permitted research or enhancement 
take numbers cited by CBD are low-level MMPA Level B harassment from 
remote or non-invasive procedures that are considered not likely to 
adversely affect listed species pursuant to the ESA (i.e., no 
associated take under the ESA is either expected to occur or exempted 
for those specific activities).
    Regarding the comprehensive evaluation and minimization of 
permitted takes, we reference the analysis that has already been 
completed through NMFS' 2019 Biological and Conference Opinion on the 
Proposed Implementation of a Program for the Issuance of Permits for 
Research and Enhancement Activities on Cetaceans in the Arctic, 
Atlantic, Indian, Pacific, and Southern Oceans (NMFS, 2019), which 
determined that the research and enhancement takes permitted by the 
program would not jeopardize the existence of any of the affected 
species. As part of our programmatic framework for permitting directed 
take of ESA species, the Permits and Conservation Division will 
continue to closely evaluate the number and manner of CIBW takes 
requested by each applicant, how the proposed research ties to recovery 
plan goals, and the collective number of authorized and requested takes 
to consider the potential cumulative impact of the activities to the 
population. Each directed take annual report is reviewed to understand 
how authorized takes were actually used and to closely monitor the 
impacts that permitted research methods are having on the target 
animals.
    Regarding the incidental takes authorized for 2020, those takes 
represent instances of exposure above the Level B harassment threshold 
that could occur within a day. In other words, if those approximately 
130 takes were assumed to be 130 separate individual whales, it would 
mean that those individual whales were each behaviorally disturbed on 
one day in that year. The more likely scenario is that some of those 
130 exposures were takes of the same whale on a few different days, and 
in fact a lesser number of individuals were taken, but still on only a 
few days within a year. In all cases, the necessary findings under MMPA 
and ESA were made prior to the authorization of the take.
    Neither the MMPA nor NMFS' codified implementing regulations call 
for consideration of the take resulting from other activities in the 
negligible

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impact analysis. The preamble for NMFS' implementing regulations (54 FR 
40338, September 29, 1989) states, in response to comments, that the 
impacts from other past and ongoing anthropogenic activities are to be 
incorporated into the negligible impact analysis via their impacts on 
the baseline. Consistent with that direction, NMFS has factored into 
its negligible impact analysis the impacts of other past and ongoing 
anthropogenic activities via their impacts on the baseline (e.g., as 
reflected in the density/distribution and status of the species, 
population size and growth rate, and other relevant stressors (such as 
incidental mortality in commercial fisheries, Unusual Mortality Events 
(UMEs), and subsistence hunting); see the Negligible Impact Analyses 
and Determinations section of this notice of issuance). The 1989 final 
rule for the MMPA implementing regulations also addressed public 
comments regarding cumulative effects from future, unrelated 
activities. There, NMFS stated that such effects are not considered in 
making findings under section 101(a)(5) concerning negligible impact. 
In this case, this ITA as well as other ITAs currently in effect or 
proposed within the specified geographic region, are appropriately 
considered an unrelated activity relative to the others. The ITAs are 
unrelated in the sense that they are discrete actions under section 
101(a)(5)(D) issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals and will not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence uses. 
NMFS' implementing regulations require applicants to include in their 
request a detailed description of the specified activity or class of 
activities that can be expected to result in incidental taking of 
marine mammals (see 50 CFR 216.104(a)(1)). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, the POA was the applicant for the IHA, and we are 
responding to the specified activity as described in that application 
(and making the necessary findings on that basis). Therefore, setting 
limits on the number and types of CIBW takes across all activities in 
Cook Inlet would not be an appropriate requirement of an MMPA ITA. The 
take estimates NMFS authorizes represent the upper limits for 
individuals and some instances of take may represent multiple exposures 
to a single individual.
    Separately, setting blanket take limits may not be meaningful, as 
the nature and intensity of impacts from a given activity can vary 
widely. For example, an animal exposed to noise levels just above our 
harassment threshold in a non-critical area may experience a small 
behavioral change with no biological consequence while an animal 
exposed to very loud noise levels (but lower than levels that would 
result in a permanent threshold shift (PTS)) in an area where active 
critical foraging occurs could result in behavioral changes that may be 
more likely to impact fitness. While both of these examples would be 
characterized as Level B harassment, the resulting impact on the 
population could be different. Context differences such as these are 
analyzed in our negligible impact analysis for each application under 
the MMPA.
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated (1) that we would consider cumulative 
effects that are reasonably foreseeable when preparing a National 
Environmental Policy Act (NEPA) analysis, and (2) that reasonably 
foreseeable cumulative effects would also be considered under section 7 
of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS 
has written an Environmental Assessment (EA) that addressed cumulative 
impacts of the NES1 project and all past, present and reasonably 
foreseeable future actions. Additionally, the NMFS Alaska Regional 
Office issued a BiOp on December 15, 2023, under section 7 of the ESA, 
on the issuance of an IHA to the POA under section 101(a)(5)(D) of the 
MMPA by the NMFS OPR that independently considered the reasonably 
foreseeable cumulative effects of activities on ESA-listed species.
    Comment 4: The CBD asserts that NMFS's negligible impact 
determination is arbitrary and capricious and that the specified 
activities would have greater than a negligible impact on CIBWs. The 
CBD claims that NMFS failed to substantiate its assumption that impacts 
are negligible because CIBWs remained in the area during similar 
construction activities and that NMFS underestimated the impacts of 
pile driving on CIBWs. They state that pile driving threatens marine 
mammals by potentially displacing them from key foraging habitat, 
causing hearing loss, masking communications, and interfering with 
natural behaviors. They cite several studies regarding behavioral 
responses of marine mammals to pile driving.
    Response: NMFS disagrees with the CBD's claim that NMFS failed to 
substantiate our assumptions that impacts to CIBWs are negligible in 
our determination. In the Negligible Impact Analysis and Determination 
section of the Federal Register notice of the proposed IHA (88 FR 
76576, November 6, 2023) and this notice of issuance, we describe how 
the take estimated and authorized for the NES1 project will have a 
negligible impact on all of the affected species, including CIBWs (as 
discussed above). We discussed how this determination is based upon the 
authorized number of CIBWs that might be exposed briefly during the 110 
nonconsecutive days of activity, the low level of behavioral harassment 
that might result from an instance of take that could occur within a 
year, and the likelihood that the mitigation measures required further 
lessen the likelihood of exposures. NMFS has considered the status of 
CIBWs in its analysis, as well as the importance of reducing impacts 
from anthropogenic noise, but nonetheless, there is no evidence that 
brief exposure to low level noise causing Level B harassment would have 
a greater than negligible impact on CIBWs.
    NMFS' negligible impact finding considers a number of parameters 
including, but not limited to, the nature of the activities (e.g., 
duration, sound source), effects/intensity of the taking, the context 
of takes, and mitigation. For CIBWs, NMFS' finding did account for data 
demonstrating that CIBWs are not discouraged from entering Knik Arm and 
traveling to critical foraging grounds to the north when pile driving 
activities, such as those proposed by NES1, are occurring (e.g., 61N 
Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 2022), 
but it also relied on other data that show at most, low-level 
behavioral responses of CIBWs to pile driving activities. For example, 
during the POA's PCT and South Floating Dock (SFD) pile driving 
activities, CIBWs were more likely to display no reaction or to 
continue to move towards the POA during pile installation and removal 
(61N Environmental, 2021, 2022a, 2022b). In situations during which 
CIBWs showed a possible reaction to pile driving, individuals were 
observed either moving away from the pile driving activities or 
increasing their rate of travel (61N Environmental, 2021, 2022a, 
2022b). Other behavioral responses observed in relation to pile driving 
activities include moving silently

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through the area, decreased sighting durations, and the formation of 
more cohesive groups (Kendall and Cornick, 2015).
    NMFS understands that marine mammals will have varying responses to 
elevated noise levels resulting from pile driving activities such as 
masking of communication and foraging signals, avoidance behaviors, and 
more. However, NMFS disagrees with CBD that we have underestimated the 
impacts of pile driving on beluga whales. Marine mammal data collected 
at the POA during pile driving activities, as described above, provides 
evidence that effects of pile driving on CIBWs will be limited to 
temporary modifications in behavior such as increased swim speeds, 
tighter group formations, and cessation of vocalizations, but not 
through the loss of foraging capabilities or abandonment of habitat. 
Further, while masking of CIBW signals can have a profound impact on 
the communication of CIBWs (e.g., Brewer et al., 2023), the short-term 
duration and limited areas affected by the NES1 project make it very 
unlikely that the fitness of individual marine mammals would be 
impacted. In addition, the frequency range of pile driving activities 
is typically below 1 kHz (Richardson et al., 1995), which is below the 
peak frequencies for many CIBW communication signals (Brewer et al., 
2023). Therefore, while expected impacts to CIBWs from the NES1 project 
are considered Level B harassment events, they are events with 
relatively little consequence for individuals in terms of energetic 
effects or foregone opportunities to engage in important foraging or 
social behaviors.
    While exposure to elevated noise levels associated with the NES1 
project may result in low-level behavioral changes in CIBWs, NMFS' 
review of the best available scientific evidence, as summarized and 
cited herein, demonstrates that these responses do not rise to the 
level of having adverse effects on the reproduction or survival of 
CIBWs. CBD provides no evidence to the contrary. Therefore, NMFS has 
appropriately concluded that the activity will have a negligible impact 
on the CIBW population.
    Comment 5: The CBD expressed concern regarding the take estimates 
for CIBWs proposed by NMFS. They state that the take estimates fail to 
explain how pods of animals are accounted for and improperly discounts 
the estimated CIBW take with a 59 percent adjustment. They suggest that 
this supposed failure may result in a higher take than anticipated. 
They believe that take should be estimated without considering the 
demonstrated efficacy of the proposed mitigation requirements, with 
expected benefits of the mitigation requirements being described only 
separately.
    Response: CBD is concerned that exposure of one pod of whales to 
harassment by the construction could exceed the take authorized. They 
cite McGuire et al. (2020) which suggests CIBW groups can be between 61 
and 313 whales. CBD is correct that there have been large observations 
of CIBW pods, and that if one very large pod appeared near the POA 
during pile driving activities, it could result in the POA meeting or 
exceeding authorized take for this species. However, such large pods 
are not expected to be observed near the POA based on the best 
scientific information available, including recent marine mammal 
monitoring efforts. The mean (median, standard deviation) CIBW group 
size observed during the 2020 through 2022 POA and NMFS marine mammal 
monitoring efforts in Knik Arm were 4.28 (3, 4.86) whales (61N 
Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 2022). 
Further, the 95 percentile group size of CIBWs observed during these 
years was 12.30 individuals. This means that of the 495 documented CIBW 
groups in these data sets, 95 percent consisted of fewer than 12.3 
whales; 5 percent of the groups consisted of more than 12.3 whales. 
Lastly, the largest group observed during these efforts was 53 
individuals. Therefore, NMFS believes that the 72 takes by Level B 
harassment authorized for CIBW during the authorized one-year period 
adequately accounts for the possibility of the POA taking multiple pods 
(or groups) of CIBWs.
    The CBD stated that the 59 percent adjustment is ``based on one 
data point'' from the PCT project monitoring program. This is 
incorrect. As described in the Estimated Take sections of the Federal 
Register notice of the proposed IHA (88 FR 76576, November 6, 2023) and 
this notice of issuance, this adjustment was calculated by including 
data from all observations from April to November for each year of the 
PCT project, the same time frame over which the POA will be conducting 
the NES1 project. Between the two phases of the PCT project, 90 total 
Level B harassment takes were authorized and 53 were potentially 
realized (i.e., 53 CIBWs were observed within estimated Level B 
harassment zones), equating to an overall percentage of 59 percent 
(Note that simple occurrence within the estimated harassment zone in 
and of itself does not demonstrate that a take has occurred). In our 
calculations for estimating CIBW take in the Estimated Take sections of 
the Federal Register notice of the proposed IHA (88 FR 76576, November 
6, 2023) and this notice of issuance, NMFS did preliminarily calculate 
take for CIBWs without the 59% adjustment (i.e., 122 instances of 
take). However, we disagree with the CBD that the adjustment for 
mitigation requirements should be described separately and not be 
considered in the take estimation. This 59% adjustment is based on the 
effectiveness of monitoring during the PCT Phase 1 and PCT Phase 2 
projects, which most accurately reflect the current POA marine mammal 
monitoring program, the current program's effectiveness, and CIBW 
occurrence in the proposed project area. It is anticipated that the POA 
monitoring program during the NES1 project will be similar to that of 
the program implemented during the PCT project. Therefore, NMFS has 
determined that it is appropriate to include the adjustment in our 
calculation of authorized take.
    Comment 6: The CBD assert that the root mean square (RMS) 
thresholds of 120-decibels (dB) referenced to 1 micropascal (re 
1[mu]Pa) for continuous and 160 dB re 1[mu]Pa for impulsive or 
intermittent sources are insufficiently conservative to protect CIBWs. 
They cite Mooney et al. (2018), which suggests that wild beluga whales 
have highly sensitive hearing. They state that, at a minimum, NMFS 
should use a 120-dB threshold for all sound sources.
    Response: NMFS disagrees that we should apply a 120-dB threshold 
for Level B harassment from all sound sources based on beluga hearing 
sensitivity. First, we provide here some necessary background on 
implementation of acoustic thresholds. NMFS has historically used 
generalized acoustic thresholds based on received levels to predict the 
occurrence of behavioral disturbance rising to the level of Level B 
harassment, given the practical need to use a relatively simple 
threshold based on information that is available for most activities. 
Thresholds were selected largely in consideration of measured avoidance 
responses of mysticete whales to airgun signals and to industrial noise 
sources, such as drilling. The selected thresholds of 160-dB RMS sound 
pressure level (SPL) and 120-dB RMS SPL, respectively, have been 
extended for use for estimation of behavioral disturbance rising to the 
level of Level B harassment associated with noise exposure from sources 
associated with other common activities.

[[Page 2839]]

    Sound sources can be divided into broad categories based on various 
criteria or for various purposes. As discussed by Richardson et al. 
(1995), source characteristics include strength of signal amplitude, 
distribution of sound frequency and, importantly in context of these 
thresholds, variability over time. With regard to temporal properties, 
sounds are generally considered to be either continuous or transient 
(i.e., intermittent). Continuous sounds, which are produced by the 
industrial noise sources (such as vibratory pile driving) for which the 
120-dB behavioral threshold was selected, are simply those for which 
sound pressure levels remain above background sound during the 
observation period (ANSI, 2005). Intermittent sounds are defined as 
sounds with interrupted levels of low or no sound (NIOSH, 1998). Simply 
put, a continuous noise source produces a signal that continues over 
time, while an intermittent source produces signals of relatively short 
duration having an obvious start and end with predictable patterns of 
bursts of sound and silent periods (i.e., duty cycle) (Richardson and 
Malme, 1993). It is this fundamental temporal distinction that is most 
important for categorizing sound types in terms of their potential to 
cause a behavioral response. For example, Gomez et al. (2016) found a 
significant relationship between source type and marine mammal 
behavioral response when sources were split into continuous (e.g., 
shipping, icebreaking, drilling) versus intermittent (e.g., sonar, 
seismic, explosives) types. In addition, there have been various 
studies noting differences in responses to intermittent and continuous 
sound sources for other species (e.g., Neo et al., 2014; Radford et 
al., 2016; Nichols et al., 2015).
    Given the existing paradigm--dichotomous thresholds appropriate for 
generic use in evaluating the potential for behavioral disturbance 
rising to the level of Level B harassment resulting from exposure to 
continuous or intermittent sound sources--the CBD does not explain why 
potential harassment from an intermittent sound source (i.e., impact 
pile driving) should be evaluated using a threshold developed for use 
with continuous sound sources. As we have stated in prior responses to 
this recommendation, consideration of the preceding factors leads to a 
conclusion that the 160-dB threshold is more appropriate for use for 
intermittent sources such as impact pile driving than the 120-dB 
threshold.
    Further, any dB-based threshold itself is a step-function approach 
(i.e., animals exposed to received levels above the threshold are 
considered to be ``taken'' and those exposed to levels below the 
threshold are not); but, in reality, it is in fact intended as a sort 
of mid-point of likely behavioral responses (which are extremely 
complex depending on many factors including species, noise source, 
individual experience, and behavioral context). What this means is 
that, conceptually, the function recognizes that some animals exposed 
to levels below the threshold will in fact react in ways that are 
appropriately considered take, while others that are exposed to levels 
above the threshold will not. Use of a specific dB threshold allows for 
a simplistic quantitative estimate of take, while we can qualitatively 
address the variation in responses across different received levels in 
our discussion and analysis.
    Lastly, NMFS has acknowledged that the scientific evidence 
indicates that certain species are, in general, more acoustically 
sensitive than others. In particular, harbor porpoise and beaked whales 
are considered to be behaviorally sensitive, and it may be appropriate 
to consider use of lower Level B harassment thresholds for these 
species. Beluga whales have been observed to have sensitive hearing 
(<80 dB) in the frequency range of 16 to 100 kilohertz (kHz) (Mooney et 
al., 2018). However, noise from pile driving activities is typically 
below 1 kHz (Richardson et al., 1995), well outside this sensitive 
hearing range. Therefore, based on the best available science (i.e., 
Mooney et al., 2018), sensitivity in CIBW hearing does not support the 
application of a 120-dB threshold for Level B harassment from all pile 
driving sound sources. NMFS is currently engaged in an ongoing effort 
to develop updated guidance regarding the effects of anthropogenic 
sound on marine mammal behavior, and in this effort NMFS is considering 
this issue for assessing Level B harassment. However, until this work 
is completed and new guidelines are identified (if appropriate), NMFS 
will continue using the historical Level B harassment thresholds (or 
derivations thereof) and will appropriately evaluate behavioral 
disturbance rising to the level of Level B harassment due to 
intermittent sound sources relative to the 160-dB threshold.
    Comment 7: CBD states that NMFS should undertake the analysis using 
the framework provided by Southall et al. (2023) to determine the 
vulnerability of marine mammals to noise disturbance.
    Response: Southall et al. (2023) present an analytical framework 
for assessing the relative risk of anthropogenic disturbances, such as 
those resulting from noise, on marine vertebrates. This framework is 
based on both species-specific `vulnerability' (which accounts for 
population, life history, auditory communication systems, and 
environmental factors) and species-specific and scenario-specific 
`severity' (which includes population modeling methods for acute 
(short-term, project specific) exposure events) and a spatial-temporal-
spectral algorithm for estimating a disturbance magnitude metric from 
aggregate events (long-term, multiple years, and or multiple projects). 
For each species and exposure scenario, a vulnerability and severity 
risk rating are computed, which allows for the assessment of the 
overall risk of each scenario for each species. Lastly, in this 
framework a subjective consideration of confidence in the risk 
assessment scores is provided. The Southall et al. (2023) framework has 
been used to model results from the construction and operation of wind 
farms and seismic surveys.
    While the framework presented by Southall et al. (2023) is a useful 
tool for evaluating risk of marine mammals to exposure events, such as 
pile driving activities, it is intended to be used as a complementary 
tool to use when implementing marine policies. It is ``not intended to 
replicate or supersede current regulatory guidelines for auditory or 
behavioral impact'' (Southall et al., 2023). Furthermore, the framework 
presented by Southall et al. (2023) does not estimate defined impacts 
such as injury (equivalent to Level A harassment) or behavioral 
disturbance (equivalent to Level B harassment) that would inform take 
estimates. In the Federal Register notice of the proposed IHA (88 FR 
76576, November 6, 2023) and this notice of issuance, NMFS discusses 
the anticipated impacts of the NES1 project activities in the context 
of species status, which included an assessment of species population 
trends, life history traits, auditory communication systems, and 
environmental factors as well as estimated impacts of project 
activities. Thus, for this action, NMFS has determined that the 
application of the framework proposed by Southall et al. (2023) would 
not provide meaningful additive information in our assessment of take 
or in our negligible impact determination, and therefore, we do not 
apply it here.
    Comment 8: The CBD states that NMFS' negligible impact 
determination fails to adequately consider adverse impacts to CIBW 
critical habitat and biologically important areas (BIAs). In addition, 
they assert that the proposed NES1 project does not avoid or impose

[[Page 2840]]

any specific mitigation for the year-round CIBW BIA.
    Response: In our analysis, NMFS considered the potential for 
impacts to CIBWs and their habitat in general (see the Potential 
Effects of Specified Activities on Marine Mammals and their Habitat 
section of the Federal Register notice of the proposed IHA (88 FR 
76576, November 6, 2023). The CIBW Recovery Plan (NMFS, 2016b) 
determined that CIBWs having waters that do not restrict passage within 
or between critical habitat areas and having waters with in-water noise 
levels below levels resulting in abandonment of critical habitat were 
essential for the conservation of this species. While some marine 
mammals--largely harbor porpoise, which are generally considered as one 
of the most behaviorally sensitive marine mammal species--have been 
observed to abandon or reduce time spent in preferred habitat during 
periods of increased anthropogenic noise (e.g., Wartzok et al., 2003; 
Carstensen et al., 2006; D[auml]hne et al., 2012; Forney et al., 2017), 
CIBW presence in the project area has persisted during numerous periods 
of pile driving, dredging, and other construction activities at the 
POA. Previous monitoring data indicates that CIBWs are not abandoning 
critical habitat and are able to transit through the project area to 
primary foraging areas north of the Port. Instead, they travel more 
often and faster past the POA, more quietly, and in tighter groups 
(Kendall and Cornick, 2015; 61N Environmental, 2021, 2022a, 2022b). 
Moreover, marine mammal monitoring results from the POA and NMFS (e.g., 
61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 
2022) suggest that the areas that are expected to be impacted by noise 
during the NES1 project are not particularly important feeding or 
calving areas for CIBWs. Rather CIBWs typically transit through the 
area adjacent to the POA to foraging areas located to the north (e.g., 
Six Mile Creek, Eagle River, Eklutna River). For these reasons, NMFS 
expects the effects that sounds from the NES1 project will have on 
these essential features will be small (see NMFS, 2023a).
    Concerning BIAs, CBD improperly cited Ferguson et al. (2015) when 
referring to the CIBW BIA. This BIA was updated by Wild et al. (2023) 
as part of the BIA II effort, which built upon the 2015 study but used 
new methodology and structured expert elicitation principles to update 
existing BIAs, and identify and delineate new BIAs (see Harrison et 
al., 2023). In this new effort, Wild et al. (2023) defined a static, 
year-round, small and resident BIA for CIBWs whose boundary is 
consistent with NMFS' critical habitat designation, (including 
excluding the area adjacent to POA, illustrating that the area is of 
low value) (Wild et al., 2023).
    In regards to specific mitigation requirements for this year-round 
BIA, the proposed IHA does include a measure that requires the POA to 
make all practicable efforts to complete construction activities 
between April and July when CIBWs are typically found in lower numbers 
near the POA. However, due to the design of the existing sheet pile 
wall, the need for demolition to occur in a sequential manner to 
prevent structural failure, and uncertainty regarding construction 
progress until work is initiated, the POA cannot commit to restricting 
pile driving to these months. Given that the location and sequencing of 
the activity cannot be changed, NMFS has prescribed mitigation measures 
that affect the least practicable adverse impact on the stock. CBD did 
not provide a specific recommendation for NMFS to consider.
    Comment 9: The CBD stresses that NMFS should have analyzed the 
potential impact on feeding of preferred prey in making its negligible 
impact determination.
    Response: NMFS provided this information in the Acoustic Impacts 
section of the Federal Register notice of the proposed IHA (88 FR 
76576, November 6, 2023), and provides additional discussion in the 
Negligible Impact Analysis and Determination section for CIBWs of this 
notice. In summary, the habitat near the POA is not typically 
considered high quality foraging habitat for CIBWs and feeding is not a 
predominant behavior observed in CIBWs near the POA. Further, there is 
no evidence to suggest that CIBWs are restricted in transiting between 
preferred feeding areas during pile driving activities (e.g., 61N 
Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and Leonard, 
2022). Lastly, any impacts to preferred prey are anticipated to be 
temporary, and most likely limited to fish avoiding the action area.
    Comment 10: The CBD postulates that NMFS' small numbers 
determination is flawed because the amount of take proposed to be 
authorized is greater than 12 percent of the CIBW population and that 
NMFS' definition of small numbers ``conflates this criterion with the 
negligible impact requirement.'' CBD claims the incidental harassment 
authorization here violates the MMPA because it does not guarantee that 
only small numbers of CIBWs and other marine mammals impacted by the 
POA's activities will be taken.
    Response: CBD suggests that by defining small numbers to be 
relative to the overall population the criterion ends up being similar 
to the negligible impact finding and that Congress's intent was that 
the MMPA protect not only populations, but individual marine mammals. 
We disagree that our small numbers finding is conflated with our 
negligible impact finding. While ``small numbers'' is simply a percent 
of the population, our negligible impact finding considers a number of 
parameters including, but not limited to, the nature of the activities 
(e.g., duration, sound source), effects/intensity of the taking, the 
context of takes, and mitigation.
    The reference to a take limit of 12 percent for small numbers comes 
from a 2003 district court opinion (Natural Resources Defense Council 
v. Evans, 279 F.Supp.2d 1129 (N.D. Cal. 2003)). However, given the 
particular administrative record and circumstances in that case, 
including the fact that our small numbers finding for the challenged 
incidental take rule was based on an invalid regulatory definition of 
small numbers, we view the district court's opinion regarding 12 
percent as dicta.
    In NMFS' Final Rule for taking of marine mammals incidental to 
geophysical surveys in the Gulf of Mexico (86 FR 5322, January 19, 
2021), NMFS fully describes its interpretation and implementation of 
``small numbers''. Included as part of that discussion, NMFS explains 
the concept of ``small numbers'' in recognition that there could also 
be quantities of individuals taken that would correspond with 
``medium'' and ``large'' numbers. As such, NMFS has established that 
one-third of the most appropriate population abundance number--as 
compared with the assumed number of individuals taken--is an 
appropriate limit with regard to ``small numbers.'' This relative 
approach is consistent with the statement from the legislative history 
that ``[small numbers] is not capable of being expressed in absolute 
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)), 
and relevant case law (Center for Biological Diversity v. Salazar, 695 
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife 
Service reasonably interpreted ``small numbers'' by analyzing take in 
relative or proportional terms)).
    As described in the Small Numbers section of the Federal Register 
notice of the proposed IHA (88 FR 76576, November 6, 2023) and this 
notice of

[[Page 2841]]

issuance, NMFS is authorizing take of less than 2 percent for eight 
stocks and 22 percent for one stock (i.e., CIBWs) and based on this 
analysis, NMFS finds that small numbers of marine mammals will be taken 
relative to the population size of the affected species or stocks.
    Comment 11: CBD asserts that NMFS relies on visual monitoring 
measures that it claims are ``known to be ineffective and inadequate'' 
to protect marine mammals.
    Response: NMFS disagrees the mitigation and monitoring measures 
included in this authorization are ineffective and inadequate and CBD 
does not provide additional information to support their claim. The IHA 
requires a minimum of two Protected Species Observer (PSO) stations, 
and that at each station, at least two PSOs must be on watch at any 
given time. Further, the PSO stations must be located so that the PSOs 
can fully monitor the shutdown zones and call for activities to be 
delayed when CIBWs are entering or observed within the Level B 
harassment zones. The POA has a demonstrated history of successfully 
implementing a rigorous monitoring program during recent construction 
projects in Knik Arm (i.e., PCT and SFD), and monitoring data from 
these projects provides evidence that their PSOs are capable of 
observing belugas out to 11,057-m from the NES1 project site. This 
distance is dependent on several factors such as visual acuity, sea 
state, glare, animal behavior/body type, speed of travel for vessel and 
animal, etc.; but this demonstrates that it is possible for PSOs to 
detect and identify marine mammals to the species level several km from 
the source, including CIBWs. In addition, Easley-Appleyard and Leonard 
(2022) reported that PSOs who worked for the PCT monitoring program 
expressed that they were effective at detecting CIBWs from two 
monitoring stations despite occasional challenges related to the timing 
of the detection and the ability to track multiple CIBW groups.
    The majority of the work for this project will be the vibratory 
removal of sheet piles, which has an estimated Level B harassment 
distance of 1,954-m. The largest zones will be associated with the 
installation and removal of the temporary steel pipe piles, which could 
have estimated Level B harassment zones up to 6,861-m. These distances 
are well within the distances that PSOs at the POA have effectively 
detected CIBWs as described above. Further, there are mitigation 
measures preventing pile driving from occurring if visibility in any 
portion of the shutdown zone (i.e., the Level B harassment zone for 
CIBWs) is obscured by weather or sea state. Therefore, we find the 
visual monitoring plan can reasonably be expected to be an effective 
tool at detecting marine mammals, ensuring the mitigation measures are 
adhered to.
    Comment 12: CBD suggests that construction should be restricted 
from August through October, and further states that NMFS ``should also 
consider time area restrictions that would further mitigate impacts to 
beluga whales and other marine mammals,'' though it provides no 
recommendations.
    Response: Time-area restrictions were considered for this project, 
in addition to the PSO requirements. We note that August through 
November are months with high CIBW abundance, and NMFS expects that the 
POA will likely have to shut down pile driving activities more 
frequently during that time period due to the increased presence of 
CIBWs in Knik Arm. NMFS is requiring the POA to complete in-water work 
as early in the construction season as is practicable. However, the 
design of the existing sheet pile wall, the safety requirements of the 
demolition sequencing, and the likely highly adaptive nature of the 
field work once construction commences do not allow NMFS to practicably 
restrict pile driving to any specific time periods or areas (e.g., only 
allowing pile driving April through July). Furthermore, there are 
potential consequences of pausing or delaying the construction season, 
including de-rating the structural capacity of the existing docks, a 
shutdown of dock operations due to deteriorated conditions, or an 
actual collapse of one or more dock structures. The potential for 
collapse increases with schedule delays, due to both worsening 
deterioration and the higher probability of a significant seismic event 
occurring. Any of these scenarios could have dire consequences for the 
populations of Anchorage and Alaska who are served by the POA. In this 
context, NMFS has determined that the current mitigation and monitoring 
measures affect the least practicable adverse impact on marine mammal 
species and stocks.
    Comment 13: CDB states that NMFS failed to consider other 
mitigation measures to reduce the proposed activities' impacts to the 
least practicable level such as bubble curtains placement 
configurations, pile caps, physical barrier technologies, such as 
dewatered cofferdams, passive acoustic monitoring (PAM), and sound 
source verification (SSV) studies.
    Response: CBD does not provide any specific information 
contradicting NMFS' determinations concerning whether these measures 
should be included in the suite of mitigation requirements determined 
to provide the means of effecting the least practicable adverse impact 
on the affected species or stocks of marine mammals. CBD states that 
bubble curtains were required for previous POA pile driving activities, 
and recommends that one could be placed beyond the construction area 
for the NES1 site due to spacing and safety concerns. They also state 
that NMFS could consider other noise mitigation technologies such as 
pile caps, dewatered cofferdams, and other physical barrier mitigation. 
CBD is correct that NMFS has required the POA to use bubble curtains 
for other POA pile driving activities. During construction of the PCT, 
two different types of bubble curtain systems were utilized, confined 
bubble curtain systems and unconfined bubble curtain systems. Both 
bubble curtain systems were expensive to construct, maintain, and 
repair. It was necessary to build several versions of each model for 
each pile size in case of damage and so that two or more piles could be 
simultaneously staged and prepared for installation, which was done in 
an effort to save time. Both bubble curtain systems were time-consuming 
to deploy and retrieve, adding an average of 6 hours (confined) and 4 
hours (unconfined) of deployment and retrieval time to each pile. Thus, 
as described in the Proposed Mitigation section of the Federal Register 
notice of the proposed IHA (88 FR 76576, November 6, 2023), adding a 
requirement for a bubble curtain may hinder production of the NES1 
project, which could push the in-water construction schedule further 
into the late summer months, which are known for higher CIBW abundance 
in lower Knik Arm, thus lengthening the duration of potential 
interactions between CIBW and in-water works. Lastly, data from prior 
SSV studies conducted during the PCT project (i.e., Illingworth & 
Rodkin (I&R), 2021a, 2022b), yielded mixed results regarding the 
efficacy of bubble curtains for use with vibratory hammers (which makes 
up the majority of the NES1 project). Therefore, a requirement to use 
bubble curtains in this case (aside from the cost and safety concerns) 
would likely have a detrimental impact over the full scope of the 
project.
    Further, dredging associated with the NES1 project will frequently 
require barges and vessels to maneuver through the area between the 
sheet pile face and the disposal area located in the middle of Knik 
Arm. Additional barges to stage

[[Page 2842]]

air compressors for a bubble curtain would add multiple anchor lines 
that would present a logistical challenge to the frequent vessel 
transit and increase the risk of a safety incident, particularly if 
there were to be an uncontrolled release of sediments from a structure 
collapse. Additional vessels, air compressors, and crew also increase 
the cost and potential negative impacts of the project. The POA 
believes this combination of logistical challenges, time requirements, 
and safety considerations make it impractical for the POA to use a 
bubble curtain for this project. NMFS has considered input from the 
POA, as well as other information, and concurs that use of bubble 
curtains is not practicable in this case. Additional information 
regarding practicability and efficacy concerns with using bubble 
curtains during the NES1 project were included in the Proposed 
Mitigation section of the Federal Register notice of the proposed IHA 
(88 FR 76576, November 6, 2023) and the Mitigation section of this 
notice.
    Pile cap cushions are commonly used in conjunction with an impact 
hammer to reduce stress on a pile during hammer blows. Their efficacy 
as an underwater sound attenuation measure during pile installation 
remains uncertain. There are safety and logistical concerns with the 
use of a pile cap cushion as they have been known to combust from the 
friction created during impact pile driving. The NES1 project does not 
involve the installation of piles using an impact hammer. Pile cap 
cushions are not compatible with vibratory pile installation or 
removal, or with sheet pile installation or removal. Therefore, the 
inclusion of pile caps is not a feasible option for this project.
    Other physical barrier technologies, such as dewatered cofferdams, 
would substantially increase project risks, construction schedule and 
costs. Cofferdams are typically sheet pile structures supported by 
cylindrical steel piles that would require installation and removal of 
temporary sheet and cylindrical piles along the entire length of the 
NES1 face sheets, which would increase potential impacts on CIBWs and 
other marine species. Other physical barriers installed into Knik Arm 
would also need to be engineered to a level to resist the tidal forces 
of Knik Arm, and would likely require pile supports, increasing 
impacts, duration, and cost. Thus, NMFS has determined that the 
recommendation of applying other physical barriers to mitigate noise 
from construction activities is not an appropriate addition to the 
required suite of mitigation measures for the NES1 project.
    In addition, the CBD states that NMFS should require PAM for marine 
mammals. The use of PAM for real-time mitigation purposes has been used 
in Cook Inlet for some studies. These efforts have generally not 
resulted in successful deployment of PAM or useful detections of marine 
mammals to inform mitigation and monitoring during the activities due 
to the environmental conditions of the region. For example, a real-time 
PAM system implemented as part of the 2012 Apache 3D seismic survey 
program in lower- and mid-Cook Inlet only yielded six confirmed marine 
mammal detections. One of these detections was of a CIBW, however, it 
did not result in a shutdown procedure (Lomac-MacNair et al., 2013). 
Similarly, a real-time PAM program was required in the IHA for the 2015 
SAExploration 3D seismic program. This program only detected 15 marine 
mammal detections (including 2 from CIBWs) over 310 hours. For these 
reasons, we have determined PAM is not likely to be sufficiently 
effective at detection for real-time mitigation for the POA's 
construction activities and, therefore, is not included in the IHA.
    Researchers have begun to implement more effective passive acoustic 
monitors for research purposes at several places in Cook Inlet (e.g., 
Castellote et al., 2020). However, the framework used by those 
researchers is impractical, particularly for the POA's planned 
activity. An article on NOAA's website (https://www.fisheries.noaa.gov/science-blog/beluga-whale-acoustic-monitoring-survey-post-3) 
illustrates the level of customization, expertise, and difficulty 
required to assemble a passive acoustic mooring to then deploy in the 
Inlet. Additionally, these instruments are stationary, which means to 
effectively use these monitors as a means of avoiding harassment of 
marine mammals during the POA's, the POA would need to build and 
successfully deploy dozens (or more) of stationary monitors along a 
route of travel that is subject to change depending upon weather or 
other environmental and shipping restrictions. Additionally, the data 
stored on these types of moorings is not accessible until they are 
retrieved by the researcher who deployed them. In the future, if an 
established network of passive acoustic monitors with shared access to 
the data is available, this could be a useful tool for implementing 
mitigation measures, but is currently not practicable. NMFS looks 
forward to advances in technology that could make real-time PAM a 
practicable mitigation measure in these areas in the future.
    Lastly, CBD recommends that NMFS should require that in-situ SSV 
studies be conducted to ensure that the Level A and Level B harassment 
zones are sufficient. Lessons learned from prior SSV studies carried 
out at the POA (e.g., I&R, 2021a, 2022b) indicate that Knik Arm is a 
very challenging environment to collect high quality acoustic data 
usable by NMFS, the POA, and others due to the presence of strong tidal 
currents, which can create substantial flow noise in recordings, and 
prevalent anthropogenic noise, which can mask acoustic signals of 
interest. Specifically during the NES1 project, multiple barges, tugs, 
and other support vessels, which can obscure signals of interest, will 
be within the action area at all times during the project. Further, 
active dredging and removal of above-water soils, and vessels with 
generators running will be present at all times. While both the POA and 
NMFS believe sound source data would be valuable, this measure is not 
practicable given the known challenges of the area.
    Comment 14: CBD asserts that NMFS should require larger exclusion 
zones.
    Response: CBD did not provide any additional information for NMFS 
to consider to support this recommendation. The exclusion zones 
proposed in the Federal Register notice of the proposed IHA (88 FR 
76576, November 6, 2023) (referred to as shutdown zones) are equivalent 
to the estimated Level B harassment zone for CIBWs. This is consistent 
with shutdown zones required in other recent ITAs issued to the POA for 
construction activities at the Port including the PCT (85 FR 19284, 
April 6, 2020) and SFD (86 FR 50057, September 7, 2021) projects, which 
resulted in the number of CIBWs occurring within estimated harassment 
zones being 59 percent and 7 percent of the authorized take for each 
project, respectively. Therefore, NMFS disagrees that the final IHA 
should include larger exclusion zones and requires the exclusion zones 
proposed in the Federal Register notice of the proposed IHA (88 FR 
76576, November 6, 2023) in the final IHA.
    Comment 15: The CBD asserts that a 1-year renewal should require 
new permitting and programmatic analysis of impacts.
    Response: NMFS disagrees with this assertion. NMFS' IHA Renewal 
process meets all statutory requirements. All IHAs issued, whether an 
initial IHA or a Renewal IHA, are valid for a period of not more than 
1-year. Renewal IHAs are limited to another year of identical or nearly 
identical activities in the same location or the same activities that 
were not completed within the 1-year period

[[Page 2843]]

of the initial IHA. Should a Renewal request be made, additional 
documentation would be required from the POA that NMFS would make 
publicly available and would use to verify that the activities are 
identical to those in the initial IHA, are nearly identical such that 
the changes would have either no effect on impacts to marine mammals or 
decrease those impacts, or are a subset of activities already analyzed 
and authorized but not completed under the initial IHA. NMFS would also 
confirm, among other things, that the activities would occur in the 
same location; involve the same species and stocks; provide for 
continuation of the same mitigation, monitoring, and reporting 
requirements; and that no new information had been received that would 
alter the prior analysis. If new information has been received that 
would alter the prior analysis, that information would be analyzed in 
the notice of the proposed Renewal IHA. A Renewal request would also 
contain a preliminary monitoring report, specifically to verify that 
effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. Any Renewal request is subject to an 
additional 15-day public comment period that provides the public an 
opportunity to review these few documents, provide any additional 
pertinent information and comment on whether they think the criteria 
for a Renewal have been met. Between the initial 30-day comment period 
on these same activities and the additional 15 days, the total comment 
period for a Renewal is 45 days.
    In addition to the IHA Renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress' intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for Renewals in the regulations, description of the process 
and express invitation to comment on specific potential Renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
Renewals respectively, NMFS has ensured that the public ``is invited 
and encouraged to participate fully in the agency decision-making 
process.''
    Regarding a programmatic analysis, we refer to our response to 
Comment 3.
    Comment 16: CBD asserts that the proposed activities will have an 
unmitigable adverse impact on subsistence uses. CBD states that the 
proposed activities may have an adverse impact on the availability of 
beluga whales, harbor seals, and Steller sea lions for Native Alaskan 
subsistence harvest. They also state that the IHA should require 
consultation with Native Alaskan communities to ensure adequate 
mitigation for subsistence harvest for harbor seals and Steller sea 
lions.
    Response: The POA sent letters to and conducted follow-up calls 
with the Kenaitze, Tyonek, Knik, Eklutna, Ninilchik, Salamatof, and 
Chickaloon Tribes informing them of the proposed project (i.e., timing, 
location, and features), the availability of the notice of proposed IHA 
for public comment, and inquiring about any marine mammal subsistence 
concerns they have. The POA also explained the measures that have been 
taken or will be taken to minimize any adverse effects of NES1 on the 
availability of marine mammals for subsistence uses. No Tribes or 
affected subsistence communities/users expressed concern over 
subsistence use during the 30-day public comment period for the 
proposed IHA. One letter was received from Eklutna Inc. requesting that 
Alaska Native residents with traditional knowledge about marine mammals 
and the local marine environment be involved in the monitoring and 
support roles related to the project (i.e., as PSOs) (see Comment 22 
Response), but it did not suggest concerns regarding unmitigable 
adverse impact on subsistence uses. The POA adequately communicated 
with representative Alaska Native subsistence users and Tribal members 
to ensure any concerns they had regarding marine mammal subsistence 
uses would be addressed, hence fulfilling any requirements provided by 
the MMPA.
    Overall, there is little subsistence use of marine mammals near the 
project area. There has been no subsistence harvest of CIBWs since 2005 
(NMFS, 2022d) and subsistence harvest of other marine mammals in upper 
Cook Inlet is limited to harbor seals. Steller sea lions are rare in 
upper Cook Inlet; therefore, subsistence use of this species is not 
common. Residents of the Native Village of Tyonek are the primary 
subsistence users in the upper Cook Inlet area, however no NES1 
activities will take place in or near Tyonek's identified traditional 
subsistence hunting areas. Additionally, the harvest of marine mammals 
in upper Cook Inlet is historically a small portion of the total 
subsistence harvest, and the number of marine mammals harvested in 
upper Cook Inlet is expected to remain low. The potential impacts from 
harassment on stocks that are harvested in Cook Inlet would be limited 
to minor behavioral changes (e.g., increased swim speeds, changes in 
dive time, temporary avoidance near the POA) within the vicinity of the 
POA or slight PTS. NMFS has found that the taking of marine mammals 
incidental to the NES1 project would have a negligible impact on the 
population, meaning we do not anticipate there to be adverse impacts on 
the annual rates of recruitment or survival. Therefore, the taking 
would not impede recovery of CIBW for potential future subsistence use. 
The full explanation and support for this finding is described further 
in the Unmitigable Adverse Impact Determination section of this notice.
    NMFS has required rigorous mitigation and monitoring measures in 
the IHA to reduce impacts to CIBWs, Steller sea lions, and harbor seals 
including shutdown measures at the Level B harassment zone for CIBWs 
and Level A harassment zone for harbor seals and Steller sea lions if 
pile driving is occurring and an animal enters the zone. These measures 
are expected to reduce both the scope and severity of potential 
harassment takes by reducing the potential for exposure above 
harassment thresholds. In addition to the mitigation measures, the POA 
will monitor from elevated platforms at a minimum of two locations 
dispersed throughout lower Knik Arm. All stations will have at least 
two NMFS-approved observers on-watch at any given time. Therefore, 
marine mammal detection effectiveness is expected to be high. In 
accordance with our implementing regulations at 50 CFR 216.104(c), we 
use the best available scientific evidence to determine whether the 
taking by the specified activity within the specified geographic region 
will have a negligible impact on the species or stock and will not have 
an unmitigable adverse impact on the availability of such species or 
stock for subsistence uses. Based on the scientific evidence available, 
NMFS determined that the impacts of the authorized take incidental to 
pile driving would result in a negligible impact and no unmitigable 
adverse impact on availability of marine mammals for subsistence uses.
    Comment 17: CBD states that NMFS must prepare a programmatic 
environmental impact statement (EIS) for its CIBW take authorizations. 
They state that at a minimum, NMFS should analyze the PAMP in a single 
NEPA review that considers all cumulative,

[[Page 2844]]

indirect, and direct environmental effects.
    Response: For clarity, NMFS' authorization does not ``approve 
activities''; that permitting responsibility lies with the United 
States Army Corps of Engineers (USACE). Rather, NMFS authorizes 
unintentional take of marine mammals incidental to specified 
activities. Therefore, under NEPA, NMFS must evaluate the impacts of 
our issuance of the ITA to the POA for the NES1 activities.
    NMFS originally declared its intent to prepare an EIS for oil and 
gas activities in Cook Inlet, Alaska (79 FR 61616, October 14, 2014). 
However, in a 2017 Federal Register notice (82 FR 41939, September 5, 
2017), NMFS indicated that due to a reduced number of ITA requests in 
the region, combined with funding constraints at that time, we were 
postponing any potential preparation of an EIS for oil and gas 
activities in Cook Inlet. As stated in the 2017 Federal Register 
notice, should the number of ITA requests, or anticipated requests, 
noticeably increase, NMFS will re-evaluate whether preparation of an 
EIS is necessary. Currently, the number of ITA requests for activities 
that may affect marine mammals in Cook Inlet is at such a level that 
preparation of an EIS is not yet necessary. Nonetheless, under NEPA, 
NMFS is required to consider cumulative effects of other potential 
activities in the same geographic area, and these are discussed in 
greater detail in the Final EA prepared for this issuance of an IHA to 
the POA for the NES1 project, which supports our finding that NMFS' 
issuance of the POA IHA will not have a significant impact on the human 
environment.
    CBD assert that NMFS should analyze the PAMP in a single NEPA 
review and comment that ``[NMFS] has already segmented analysis of the 
[PCT] and [SFD] and, here, the NES1 construction''. NMFS has 
appropriately analyzed and captured all past, present and reasonably 
foreseeable future actions under NEPA. This includes the projects 
associated with the PAMP, which each have independent utility and 
require separate authorizations and NEPA analyses. The EAs for each 
PAMP activity appropriately analyze the cumulative, indirect, and 
direct environmental effects of each specified action. They include an 
evaluation of each action's affected area, the scale and geographic 
extent of each action, and the degree of cumulative effects on 
resources (including the duration of impact, and whether the impacts 
were adverse and/or beneficial and their magnitude) under NEPA.
    CBD is correct that Federal agencies generally prepare an EIS for a 
major Federal action significantly affecting the quality of the human 
environment. While CBD acknowledges that significance is determined by 
considering the potential affected environment and the degree of the 
action (40 CFR 1501.3(b)), CBD argues that if this factor is met, then 
the agency must prepare an EIS. CBD further argues that, ``the impacts 
on an endangered species like the environmentally and culturally 
significant Cook Inlet beluga and its designated critical habitat is 
sufficient to trigger a full EIS.'' NMFS disagrees. NMFS can prepare an 
EA so long as the record supports the conclusion that potential impacts 
are not ``significant'' per 40 CFR 1501.3(b) for the purposes of NEPA. 
Based on the information presented in the application and NMFS' Policy 
and Procedures for Compliance with the NEPA and Related Authorities 
(Companion Manual (CM) for NOAA Administrative Order (NAO) 216-6A) 
(NOAA 2017), sections 3 and 7, NMFS' determination to prepare an EA is 
appropriate and in compliance with NEPA and 40 CFR 1501.3. NMFS 
appropriately signed a Finding of No Significant Impact (FONSI) for the 
issuance of the IHA for incidental take associated with the POA's NES1 
project in support of this determination. The FONSI concluded that 
NMFS' proposed action, the issuance of an IHA to the POA, will not 
meaningfully contribute to significant impacts to specific resources, 
given the limited scope of NMFS' action and required mitigation 
measures. Accordingly, preparation of an EIS for this action is not 
necessary.
    Comment 18: CBD believes the draft EA for the NES1 project fails to 
comply with the requirements of NEPA. They stipulate that the draft EA 
fails to consider a reasonable range of alternatives and lacks a 
meaningful environmental and cumulative impacts analysis.
    Response: In accordance with the NEPA and the Council on 
Environmental Quality (CEQ) Regulations, NMFS is required to consider a 
reasonable range of alternatives to a Proposed Action, as well as a No 
Action Alternative. Reasonable alternatives are viable options for 
meeting the purpose and need for the proposed action. The evaluation of 
alternatives under NEPA assists NMFS with understanding, and as 
appropriate, minimizing impacts through an assessment of alternative 
ways to achieve the purpose and need for our Proposed Action. 
Reasonable alternatives are carried forward for detailed evaluation 
under NEPA while alternatives considered but determined not to meet the 
purpose and need are not carried forward. For the purposes of this EA, 
an alternative will only meet the purpose and need if it satisfies the 
requirements of section 101(a)(5)(D) of the MMPA.
    In accordance with NOAA's implementing procedures, the CM for NAO 
216-6A, Section 6.B.i, NMFS is defining the No Action alternative as 
not authorizing the requested incidental take of marine mammals under 
Section 101(a)(5)(D) of the MMPA. This is consistent with our statutory 
obligation under the MMPA to either: (1) Deny the requested 
authorization; or (2) grant the requested authorization and prescribe 
mitigation, monitoring, and reporting requirements. The Preferred 
Alternative (i.e., issuance of the IHA) includes mandatory mitigation, 
monitoring, and reporting requirements for POA to achieve the MMPA 
standard of effecting the least practicable adverse impact on each 
species or stock of marine mammal and their habitat, paying particular 
attention to rookeries, mating grounds, and other areas of similar 
significance. Since NMFS is required to prescribe mitigation to effect 
the least practicable adverse impact on marine mammals, mitigation that 
reduces impacts on marine mammals is inherently included in Alternative 
2 (the proposed action) and is included as part of the analysis of 
alternative(s) in the Environmental Consequences chapter in the EA. 
NMFS described both the No Action Alternative and Preferred Alternative 
in the EA. We have also included an ``Alternatives Considered but 
Eliminated from Further Consideration'' section in the final EA that 
considered whether other alternatives could meet the purpose and need 
while supporting this applicant's proposal to demolish the NES. There 
is no requirement under NEPA to consider more than two alternatives, or 
to consider alternatives that are substantially similar to other 
alternatives or which have substantially similar consequences. NMFS' 
range of alternatives is based on the proposed action and the purpose 
and need, which are linked to NMFS' authorities under the MMPA. For the 
purposes of analysis under NEPA in the EA, an alternative will only 
meet the purpose and need if it satisfies the requirements under 
section 101(a)(5)(D) of the MMPA. Therefore, NMFS determined that, 
based on our authorities and criteria under the MMPA, which included 
criteria regarding mitigation measures, appropriate considerations were 
applied

[[Page 2845]]

to identify which alternatives to carry forward for analysis.
    CBD comments that the environmental and cumulative impacts section 
of the EA is not sufficient. CBD asserts that NMFS does not evaluate 
what the level of take will have on individual whales or the 
population, and fails to take into account any impact to CIBW pods. In 
addition, they state that NMFS does not include the most recent 
available information regarding the impacts of noise on marine mammals, 
and new information about CIBWs. In the draft EA, NMFS described both 
the general effects to marine mammals from exposure to noise (e.g., 
pile driving) and scientific literature identifying responses of CIBWs 
to pile driving at the POA in Chapter 4 of the EA. This includes, as 
described in the Federal Register notice of proposed IHA (88 FR 76576, 
November 6, 2023) and in our response to Comment 1, data from several 
years of recent scientific monitoring at the POA during previous work 
involving pile driving (e.g., Kendall and Cornick, 2016; 61N 
Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and Leonard, 
2022). In Chapter 3 of the EA we also describe anticipated impacts on 
marine mammal habitat and their prey. We believe these descriptions are 
sufficient with regard to the requirements of NEPA and the CEQ 
regulations.
    NMFS disagrees that we did not include the most recent available 
information about noise on marine mammals or new information about 
CIBWs. As described above, the EA includes an analysis of CIBW 
observations directly in relation to in-water construction, including 
pile driving activities from 2020 through 2021 that took place at the 
POA (61N Environmental, 2021, 2022a, 2022b, 2022c; Easley-Appleyard and 
Leonard, 2022). Chapter 4 of the EA also includes an assessment on the 
impacts on marine mammals to noise that includes recent information on 
permanent and temporary threshold shifts, avoidance or abandonment 
behaviors, changes in vocalizations, and the masking of communication 
and foraging signals. The impacts of the NES1 project on marine 
mammals, including CIBWs, are expected to represent short-term, 
localized, negligible, adverse, direct impacts. For CIBWs, NMFS 
anticipates these impacts will manifest as whales moving more quickly 
and silently through the area, in more cohesive groups, but not by 
habitat abandonment or ceasing traveling through Knik Arm.
    CBD also states that the draft EA fails to evaluate the cumulative 
impacts of other proposed projects and ongoing activities in Cook 
Inlet. In Chapter 4 of the draft EA, NMFS evaluated the cumulative 
impacts of the past, present, and reasonably foreseeable future actions 
in the action area, including projects associated with PAMP and the 
Alaska LNG project, which the CBD mentioned should be included, and 
research activities. These instances do not change NMFS' overall 
determination regarding the cumulative impacts of the NES1 project on 
marine mammals or marine mammal habitat. As stated in the draft EA, 
while consideration of activities in sum suggests an increase in 
industrialization of Cook Inlet, many of the past, present, and 
reasonably foreseeable future actions are spatially and temporally 
limited and do not permanently reduce or degrade the habitat available 
to marine mammals or their prey species. While the NES1 project would 
add an incremental contribution to the combined environmental impacts 
of other past, present, and reasonably foreseeable future actions; 
those direct and indirect adverse impacts are expected to be mainly 
short-term, localized, and minor, as described in the draft EA. None of 
the harassment authorized by NMFS in other ITAs would overlap in time 
or space with impacts from the NES1 Project.
    The CBD postulates that NMFS' consideration of climate change is 
inadequate. However, CBD improperly states that the proposed project is 
for cement and petroleum. That is incorrect as the proposed project is 
for the demolition of portions of the failed NES sheet pile structure 
and reconfiguration and realignment of the shoreline within the North 
Extension. NMFS considers climate change in its EA. However, as 
mentioned above NMFS does not authorize any of the POA's activities but 
rather take of marine mammals incidental to the POA's activities. While 
changes in environmental conditions due to climate change could result 
in prey distribution changes or loss for beluga whales or other marine 
mammals, the NES1 project is planned to occur during a 1-year period, 
during which time the impacts of climate change on marine mammals are 
likely to remain at baseline levels.
    Comment 19: CBD states that NMFS must comply with the ESA but 
asserts that NMFS should not issue take authorization under the ESA 
because such taking would jeopardize the continued existence of CIBWs.
    Response: In the Federal Register notice of the proposed IHA (88 FR 
76576, November 6, 2023), NMFS indicated that we requested section 7 
consultation under the ESA. CBD indicates they believe the proposed 
taking would jeopardize the recovery and survival of CIBWs but did not 
further explain how they reached this conclusion. NMFS has fully 
complied with the ESA. NMFS Alaska Region issued a BiOp on December 15, 
2023 concluding that issuance of take, by harassment, of CIBW, humpback 
whales (Mexico Distinct Population Segment (DPS) and Western DPS), and 
Steller sea lions would not jeopardize the continued existence of those 
stocks and the takings would not adversely modify critical habitat. The 
full analysis supporting these conclusions can be found in the BiOp 
(NMFS, 2023a).
    Comment 20: In their letter, CBD stated they did not believe NMFS 
should authorize take of CIBWs and other marine mammals but, if NMFS 
did take action to do so, we must impose stringent mitigation measures 
to ensure the least practicable adverse impact on protected species.
    Response: The proposed IHA included a suite of mitigation measures, 
which have been carried forward into the final IHA, which NMFS 
determined to effect the least practicable adverse impact on marine 
mammals, in accordance with the MMPA (see the Mitigation section).
    Comment 21: A commenter from Eklutna, Inc. representing the 
indigenous Dena'ina people of the Anchorage, Alaska area requested that 
Dena'ina individuals from the local area be trained and employed as 
NMFS-approved PSOs. They stated that the Dena'ina people possess a 
deep-seated knowledge and understanding of the local marine ecosystem, 
particularly concerning the marine mammals that NMFS aims to protect 
through its monitoring efforts. Given the significance of these species 
to their way of life and the potential impacts of the NES1 project, the 
commenter proposed that members of their community be actively involved 
in the monitoring and support roles related to the project. They 
stressed that this initiative would not only ensure effective 
monitoring of marine mammals, but also foster a sense of ownership and 
participation among the indigenous community in the conservation 
efforts.
    Response: NMFS agrees that Alaska Native residents with traditional 
knowledge about marine mammals and the local marine environment hold 
valuable knowledge and skills that are critical to the effectiveness of 
a PSO. In the final IHA, NMFS requires at least one PSO to have at 
least 1-year of prior experience performing the duties of a PSO during 
construction activity

[[Page 2846]]

pursuant to a NMFS-issued ITA or Letter of Concurrence. Other PSOs may 
substitute other relevant experience, education (degree in biological 
science or related field), or training for prior experience performing 
the duties of a PSO during construction activity pursuant to a NMFS-
issued ITA. For this project, in consideration of valuable traditional 
ecological knowledge that many community members hold, PSOs may also 
substitute relevant Alaska native traditional knowledge for experience. 
Regarding hiring preference for regional residents with traditional 
ecological knowledge, NMFS cannot require an IHA-holder to employ 
certain individuals, though it does require that an applicant request 
NMFS approval for all PSOs so that NMFS can confirm that they meet the 
requirements outlined in the IHA. NMFS has passed this recommendation 
on to the POA for its consideration and has suggested that the POA send 
letters to the Kenaitze, Tyonek, Knik, Eklutna, Ninilchik, Salamatof, 
and Chickaloon Tribes informing them of the hiring process when known.

Changes From the Proposed IHA to Final IHA

    As a result of the public comments received from CBD and Eklutna, 
Inc. (and summarized above), provisions were added to the final IHA and 
this Federal Register notice of issuance that incorporates additional 
discussion regarding impacts to CIBW preferred prey, and our 
clarification of requirements related to PSO qualifications (i.e., 
making clear that relevant Alaska native traditional knowledge can be 
considered as a substitute for relevant experience when considering 
prospective PSOs for the NES1 project).
    Since the Federal Register notice of the proposed IHA was published 
(88 FR 76576, November 6, 2023), NMFS became aware of an error in the 
calculation of the RMS SPLs that were used as proxies for unattenuated 
vibratory pile removal of steel pipe piles for this project. NMFS has 
recalculated these levels and has revised the Estimated Take section 
accordingly. Specifically, the RMS SPL proxy for the vibratory removal 
of 24-inch (61-cm) piles changed from 168-dB to 169-dB. The RMS SPL for 
the vibratory removal of 36-inch (91-cm) piles did not change (i.e., it 
remains 159-dB RMS). As a result of the change to the 24-inch (61-cm) 
RMS SPL, the Level B harassment zone for this activity increased from 
5,967-m to 6,861-m, and the Level A harassment zones for low-frequency 
cetaceans, mid-frequency cetaceans, high-frequency cetaceans, and 
phocid pinniped increased slightly (i.e., between 1-m to 7-m 
increases). Given the shutdown zone for CIBWs is equivalent to the 
Level B harassment zone (see the Mitigation section of this Federal 
Register notice of issuance), the shutdown zone for this activity has 
increased from 6,000-m to 6,900-m (6,861-m rounded up) for this 
species. The shutdown zone for low-frequency cetaceans also increased 
from 40-m to 50-m due to this change.
    In the proposed IHA, NMFS proposed to require the POA to submit 
interim weekly and monthly monitoring reports (that include raw 
electronic data sheets) during the NES1 construction season. Since the 
Federal Register notice of the proposed IHA published (88 FR 76576, 
November 6, 2023), the POA has expressed concern that the inclusion of 
raw electronic data sheets with weekly and monthly reports will not be 
feasible for their monitoring program. In addition, the raw data will 
need to be reviewed and corrected for any errors. Rather, the POA has 
agreed to submit the final electronic data sheets with the final draft 
summary report. NMFS has accepted this request and has revised the 
final IHA to indicate that the final electronic data sheets must be 
submitted with the final draft summary report instead of with the 
required weekly and monthly monitoring reports. This is consistent with 
reporting requirements for the PCT and SFD IHAs.
    Typographical errors identified in tables 2 and 13 in the Federal 
Register notice of the proposed IHA have been corrected in this Federal 
Register notice of issuance (see tables 1 and 10, respectively). In 
addition, some clarifying language regarding source levels proposed for 
impact pile removal and pile splitting has been added to the Estimated 
Take section. Lastly, in the Endangered Species Act section of the 
Federal Register notice of the proposed IHA, NMFS omitted reference to 
the Western North Pacific DPS of humpback whales as a listed species 
under the ESA for which NMFS OPR was requesting ESA section 7 
consultation. However, this species was considered in the formal 
consultation and is assessed in the BiOp issued by the NMFS Alaska 
Regional Office on December 15, 2023. No other changes have been made 
from the proposed IHA to the final IHA.

Description of Marine Mammals in the Area of Specified Activities

    There are seven species of marine mammals that may be found in 
upper Cook Inlet during the planned construction and demolition 
activities. Sections 3 and 4 of the IHA 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).
    Additional information on CIBWs may be found in NMFS' 2016 Recovery 
Plan for the CIBW, available online at https://www.fisheries.noaa.gov/resource/document/recovery-plan-cook-inlet-beluga-whale-delphinapterus-leucas, and NMFS' 2023 report on the abundance and trend of CIBWs in 
Cook Inlet in June 2021 and June 2022, available online at https://www.fisheries.noaa.gov/resource/document/abundance-and-trend-belugas-delphinapterus-leucas-cook-inlet-alaska-june-2021-and.
    Table 2 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 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' U.S. Alaska and Pacific SARs (e.g., Carretta, et al., 2023; Young 
et al.,

[[Page 2847]]

2023). Values presented in table 2 are the most recent available at the 
time of publication and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. The most recent abundance estimate for CIBWs, 
however, is available from Goetz et al. (2023) and available online at 
https://www.fisheries.noaa.gov/feature-story/new-abundance-estimate-endangered-cook-inlet-beluga-whales.
BILLING CODE 3510-22-P
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    On June 15, 2023, NMFS released an updated abundance estimate for 
endangered CIBWs in Alaska (Goetz et al., 2023) that incorporates 
aerial survey data from June 2021 and 2022, but which is not included 
in the most recent SAR (Young et al., 2023). Data collected during NMFS 
recent aerial survey effort suggest that the whale population is stable 
or may be increasing slightly. Goetz et al. (2023) estimated that the 
population size is currently between 290 and 386, with a median best 
estimate of 331. In accordance with the MMPA, this population estimate 
will be incorporated into the next draft CIBW SAR, which will be 
reviewed by an independent panel of experts, the Alaska Scientific 
Review Group. After this review, the SAR will be made available as a 
draft for public review before being finalized. We have determined that 
it is appropriate to consider the CIBW estimate of abundance reported 
by Goetz et al. (2023) in our analysis rather than the older estimate 
currently available from the Alaska SAR (Young et al., 2023) because it 
is based on the most recent and best available science.
    As indicated above, all seven species (with nine managed stocks) in 
table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. Minke whales 
(Balaenoptera acutorostrata) and Dall's porpoises (Phocoenoides dalli) 
also occur in Cook Inlet; however, the 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. Data from the 
Alaska Marine Mammal Stranding Network database (NMFS, unpublished 
data) provide additional support for these determinations. From 2011 to 
2020, only one minke whale and one Dall's porpoise were documented as 
stranded in the portion of Cook Inlet north of Point Possession. Both 
were dead upon discovery; it is unknown if they were alive upon their 
entry into upper Cook Inlet or drifted into the area with the tides. 
With very few exceptions, minke whales and Dall's porpoises do not 
occur in upper Cook Inlet, and therefore take of these species is 
considered unlikely.
    In addition, sea otters (Enhydra lutris) may be found in Cook 
Inlet. However, sea otters are managed by the U.S. Fish and Wildlife 
Service (USFWS) and are not considered further in this document.
    A detailed description of the species likely to be affected by the 
NES1 project, including a brief introduction to the affected stock as 
well as available information regarding population trends

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and threats, and information regarding local occurrence, were provided 
in the Federal Register notice of the proposed IHA (88 FR 76576, 
November 6, 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 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-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 3. Specific to this 
action, gray whales and humpback whales are considered low-frequency 
(LF) cetaceans, CIBWs, and killer whales are considered mid-frequency 
(MF) cetaceans, harbor porpoises are considered high-frequency (HF) 
cetaceans, Steller sea lions are otariid pinnipeds, and harbor seals 
are phocid pinnipeds.
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    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). This division between phocid and otariid pinnipeds is now 
reflected in the updated hearing groups proposed in Southall et al. 
(2019).
    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 the POA's construction 
activities have the potential to result in harassment of marine mammals 
in the vicinity of the POA. The Federal Register notice of the proposed 
IHA (88 FR 76576, November 6, 2023) included a discussion of the

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effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from the POA's construction activities on 
marine mammals and their habitat. That information and analysis is 
referenced in this notice of issuance of the final IHA and is not 
repeated here; please refer to the notice of the proposed IHA (88 FR 
76576, November 6, 2023).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which will inform both NMFS' consideration 
of ``small numbers,'' and the negligible impact determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes will primarily be by Level B harassment, as use of 
the acoustic sources (i.e., vibratory and impact pile driving) 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 HF cetaceans and phocids because 
predicted auditory injury zones are larger than for MF cetaceans and 
otariids. Auditory injury is unlikely to occur for mysticetes, MF 
cetaceans, and otariids due to measures described in the Mitigation 
section. 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 describe how the take numbers 
were estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above RMS SPL 
of 120-dB 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. 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.
    The POA's planned activity includes the use of continuous 
(vibratory pile driving) and intermittent (impact pile driving) noise 
sources, and therefore the RMS SPL thresholds of 120- and 160-dB re 1 
[mu]Pa are applicable.
    Level A Harassment. NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0; 
NMFS, 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). The POA's planned activity 
includes the use of impulsive (impact pile driving) and non-impulsive 
(vibratory driving) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
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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 (TL) 
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 removal and 
vibratory pile installation and removal). Calculation of the area 
ensonified by the specified action is dependent on the background sound 
levels at the project site, the source levels of the planned 
activities, and the estimated transmission loss coefficients for the 
planned activities at the site. These factors are addressed in order, 
below.
    Background Sound Levels at the Port of Alaska. As noted in the 
Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat section of the Federal Register notice of the proposed IHA (88 
FR 76576, November 6, 2023), the POA is an industrial facility in a 
location with high levels of commercial vessel traffic, port operations 
(including dredging), and extreme tidal flow. Previous measurements of 
background noise at the POA have recorded a background SPL of 122.2-dB 
RMS (Austin et al., 2016). NMFS concurred that this SPL reasonably 
represents background noise near the project area, and therefore we 
have used 122.2-dB RMS as the threshold for Level B harassment (instead 
of 120-dB RMS).

[[Page 2852]]

    Sound Source Levels of Specified Activities. The intensity of pile 
driving sounds is greatly influenced by factors such as the type of 
piles (material and diameter), hammer type, and the physical 
environment (e.g., sediment type) in which the activity takes place. In 
order to calculate the distances to the Level A harassment and the 
Level B harassment sound thresholds for the methods and piles being 
used in this project, the POA used acoustic monitoring data from sound 
source verification studies to develop proxy source levels for the 
various pile types, sizes and methods (table 5). While site-specific 
sound source verification studies have been conducted at the POA, the 
vast majority of the measurements recorded in those studies were made 
when bubble curtains were deployed around the sound source, which act 
to attenuate sound levels (Austin et al., 2016; I&R, 2021a, 2021b). 
Bubble curtains are not a feasible mitigation measure for the NES1 
project due to the demolition and sequencing nature of the project (see 
the Mitigation section of this notice for additional discussion), and 
therefore the majority of the proxy values for this project are based 
on measurements recorded from locations other than the POA.
    Underwater sound was measured in 2008 at the POA for the Marine 
Terminal Redevelopment Project (MTRP) during installation of sheet 
piles to assess potential impacts of sound on marine species. Sound 
levels for installation of sheet piles measured at 10-m typically 
ranged from 147- to 161-dB RMS, with a mean of approximately 155-dB RMS 
(James Reyff, unpublished data). An SPL of 162-dB RMS was reported in 
(California Department of Transportation (CALTRANS), 2020) summary 
tables for 24-inch (61-cm) steel sheet piles. This is a more rigid type 
of sheet pile that requires a large vibratory driver (James Reyff, 
personal communication, August 26, 2020). Based on the 2008 
measurements at the POA and the CALTRANS data, a value of 160-dB RMS 
was assumed for vibratory removal of sheet piles.
    NMFS concurred that the source levels proposed by the POA for all 
pile sizes during impact removal and vibratory installation of all pile 
types are appropriate to use for calculating harassment isopleths for 
the POA's planned NES1 activities (table 5). Impact removal is the 
process of hitting a pile with an impact hammer with a small number of 
strikes (up to 50 per pile) to loosen it from the soil so that it can 
be removed via other means such as direct pulling or with a vibratory 
hammer. There are no data to our knowledge available on impact removal 
of this nature. The POA proposed to use SPL values measured during the 
impact installation of 24-inch (61-cm) AZ steel sheet piles from the 
Berth 23, Port of Oakland Project (CALTRANS, 2020) for this activity. 
Given this is the best available information, NMFS has accepted the 
POA's proposed SPLs for this activity.
    However, the source levels proposed by the POA for vibratory pile 
removal were based on limited data collected at the POA. Therefore, 
NMFS considered and evaluated all data related to unattenuated 
vibratory removal of 24-inch (61-cm) and 36-inch (91-cm) steel pipe 
piles available, including sound source verification data measured at 
the POA during the PCT project (Reyff et al., 2021a) and elsewhere 
(i.e., Coleman, 2011; U.S. Navy, 2012; I&R, 2017). NMFS gathered data 
from publicly available reports that reported driving conditions and 
specified vibratory removal for certain piles. If vibratory removal was 
not specifically noted for a given pile, we excluded that data from the 
analysis. Mean RMS SPLs reported by these studies were converted into 
pressure values, and pressure values for piles from each project were 
averaged to give a single SPL for each project. The calculated project 
means were then averaged and converted back into dBs to give a single 
recommended SPL (rounded to the nearest whole dB) for each pile type.
    Ten measurements were available for unattenuated vibratory removal 
of 24-inch (61-cm) piles: 3 from Columbia River Crossing in Oregon 
(mean RMS SPL of 173-dB; Coleman, 2011), 5 from Joint Expeditionary 
Base Little Creek in Norfolk, Virginia (mean RMS SPL of 148-dB; I&R, 
2017), and 2 from the PCT project at the POA (mean RMS SPL of 169-dB; 
I&R, 2021a, 2023). The calculated average SPL for unattenuated 
vibratory removal of 24-inch (61-cm) steel pipe piles from these 
studies was 169-dB RMS (table 5). Forty measurements were available for 
unattenuated vibratory removal of 36-inch (91-cm) piles: 38 from the 
U.S. Navy Test Pile Program at Naval Base Kitsap in Bangor, Washington 
(mean RMS SPL of 160-dB; U.S. Navy, 2012), and 2 from the PCT project 
at the POA (mean RMS SPL of 159-dB; I&R, 2021, 2023). The calculated 
average SPL for unattenuated vibratory removal of 36-inch (91-cm) steel 
pipe piles from these studies was 159-dB RMS (table 5). Note that the 
proxy values in table 5 represent SPL referenced at a distance of 10- m 
from the source.
    Interestingly, the RMS SPLs for the unattenuated vibratory removal 
of 24-inch (61-cm) piles were much louder than the unattenuated 
vibratory removal of 36-inch (91-cm) piles, and even louder than the 
unattenuated vibratory installation of 24-inch piles. I&R (2023) 
suggest that at least for data recorded at the POA, the higher 24-inch 
(61-cm) removal levels are likely due to the piles being removed at 
rates of 1,600 to 1,700 revolutions per minute (rpm), while 36-inch 
(91-cm) piles, which are significantly heavier than 24-inch (61-cm) 
piles), were removed at a rate of 1,900 rpm. The slower rates combined 
with the lighter piles would cause the hammer to easily ``jerk'' or 
excite the 24-inch (61-cm) piles as they were extracted, resulting in a 
louder rattling sound and louder sound levels. This did not occur for 
the 36-inch (91-cm) piles, which were considerably heavier due to 
increased diameter, longer length, and greater thickness.

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    A splitter will be used in conjunction with a vibratory hammer to 
make vertical cuts in sheet piles as necessary to help with their 
removal. The POA assumes that a pile splitter will produce the same or 
similar sound levels as a vibratory hammer without the splitter 
attachment; therefore, the POA combined use of a vibratory hammer to 
remove sheet pile and use of a splitter into a single category (i.e., 
vibratory hammer removal). NMFS is currently unaware of any 
hydroacoustic measurements of pile splitting with a vibratory hammer. 
NMFS specifically requested comments on the proposed SPL values for 
vibratory pile splitting in the Federal Register notice of the proposed 
IHA (88 FR 76576, November 6, 2023). No additional data or 
recommendations for proxy SPLs for these activities were received 
during the public comment period. Given this is the best available 
information, NMFS has accepted the POA's proposed SPLs and assessments.
    Transmission Loss. For unattenuated impact pile driving, the POA 
proposed to use 15 as the TL coefficient, meaning they assumed 
practical spreading loss (i.e., the POA assumes TL = 
15*Log10(range)); NMFS concurred with this value and has 
used the practical spreading loss model for impact driving in this 
analysis.
    The TL coefficient that the POA proposed for unattenuated vibratory 
installation and removal of piles is 16.5 (i.e., TL = 
16.5*Log10(range)). This value is an average of measurements 
obtained from two 48-inch (122-cm) piles installed via an unattenuated 
vibratory hammer in 2016 (Austin et al., 2016). To assess the 
appropriateness of this TL coefficient to be used for the NES1 project, 
NMFS examined and analyzed additional TL measurements recorded at the 
POA. This included a TL coefficient of 22 (deep hydrophone measurement) 
from the 2004 unattenuated vibratory installation of one 36-inch (91-
cm) pile in Knik Arm (Blackwell, 2004), as well as TL coefficients 
ranging from 10.3 to 18.2 from the unattenuated vibratory removal of 
24-inch (61 cm) and 36-inch (91-cm) piles and the unattenuated 
vibratory installation of one 48-inch (122-cm) pile at the POA in 2021 
(I&R 2021, 2023). To account for statistical interdependence due to 
temporal correlations and equipment issues across projects, values were 
averaged first within each individual project, and then across 
projects. The mean and median value of the measured TL coefficients for 
unattenuated vibratory piles in Knik Arm by project were equal to 18.9 
and 16.5, respectively. NMFS used the project median TL coefficient of 
16.5 during unattenuated vibratory installation and removal of all 
piles during the NES1 project. This value is representative of all 
unattenuated vibratory measurements in the Knik Arm. Further, 16.5 is 
the mean of the 2016 measurements, which were made closer to the NES1 
project area than other measurements and were composed of measurements 
from multiple directions (both north and south/southwest).
    Estimated Harassment Isopleths. All estimated Level B harassment 
isopleths are reported in table 6. At POA, Level B harassment isopleths 
from the NES1 project will be limited by the coastline along Knik Arm 
along and across from the project site. The maximum predicted isopleth 
distance is 6,861-m during vibratory removal of 24-inch (61-cm) steel 
pipe piles.
    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources such as pile driving, 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

[[Page 2854]]

expected to incur PTS. Inputs used in the User Spreadsheet are reported 
in table 6 and the resulting isopleths and ensonified areas are 
reported in table 7.
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Marine Mammal Occurrence and Take Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
informed the take calculation. We also describe how the information 
provided above was synthesized to produce a quantitative estimate of 
the take that is reasonably likely to occur and is authorized.

Gray Whale

    Sightings of gray whales in the project area are rare. Few, if any, 
gray whales are expected to approach the project area. However, based 
on three separate sightings of single gray whales near the POA in 2020 
and 2021 (61N Environmental, 2021, 2022a; Easley-Appleyard and Leonard, 
2022), the POA anticipates that up to six individuals could be within 
estimated harassment zones during NES1 project activities. Therefore, 
NMFS authorized six takes by Level B harassment for gray whales during 
the NES1 project. Take by Level A harassment is not anticipated or 
authorized. The Level A harassment zones (table 7) are smaller than the 
required shutdown zones (see the Mitigation section). It is unlikely 
that a gray whale will enter and remain within the Level A harassment 
zone long enough to incur PTS.

Humpback Whale

    Sightings of humpback whales in the project area are rare, and few, 
if any, humpback whales are expected to approach the project area. 
However, there have been a few observations of humpback whales near the 
POA as described in the Description of Marine Mammals in the Area of 
Specified Activities section of the Federal Register notice of the 
proposed IHA (88 FR 76576, November 6, 2023). Based on the two 
sightings in 2017 of what was likely a single individual at the 
Anchorage Public Boat Dock at Ship Creek (ABR, Inc., 2017) south of the 
project area, the POA requested authorization of six takes of humpback 
whales. However, given the maximum number of humpback whales observed 
within a single construction season was two (in 2017), NMFS instead 
anticipates that only up to four humpback whales could be exposed to 
project-related underwater noise during the NES1 project. Therefore, 
NMFS authorized four takes by Level B harassment for humpback whales 
during the NES1 project. Take by Level A harassment is not anticipated 
or authorized. The Level A harassment zones (table 7) are smaller than 
the required shutdown zones (see the Mitigation section), therefore, it 
is unlikely that a humpback whale will enter and remain within the 
Level A harassment zone long enough to incur PTS.

Killer Whale

    Few, if any, killer whales are expected to approach the NES1 
project area. No killer whales were sighted during previous monitoring 
programs for POA construction projects, including the 2016 TPP, 2020 
PCT, and 2022 SFD projects (Prevel-Ramos et al., 2006; Markowitz and 
McGuire, 2007; Cornick and Saxon-Kendall, 2008, 2009; Cornick et al., 
2010, 2011; ICRC, 2009, 2010, 2011, 2012; Cornick and Pinney, 2011; 
Cornick and Seagars, 2016; 61N Environmental, 2021, 2022b), until PCT 
construction in 2021, when two killer whales were sighted (61N 
Environmental, 2022a). Previous sightings of transient killer whales 
have documented pod sizes in upper Cook Inlet between one and six 
individuals (Shelden et al., 2003). Therefore, the POA conservatively 
estimated that no more than one small pod (assumed to be six 
individuals) could be within estimated harassment zones during NES1 
project activities.
    Take by Level A harassment is not anticipated or authorized due to 
the implementation of shutdown zones, which will be larger than the 
Level A harassment zones (described below in the Mitigation section), 
and the low likelihood that killer whales will approach this distance 
for sufficient duration to incur PTS. Therefore, NMFS authorized six 
takes by Level B harassment for killer whales.

[[Page 2856]]

Harbor Porpoise

    Monitoring data recorded from 2005 through 2022 were used to 
evaluate hourly sighting rates for harbor porpoises in the NES1 project 
area (see table 4-3 in the POA's application). During most years of 
monitoring, no harbor porpoises were observed. However, there has been 
an increase in harbor porpoise sightings in upper Cook Inlet in recent 
decades (e.g., 61N Environmental, 2021, 2022a; Shelden et al., 2014). 
The highest sighting rate for any recorded year during in-water pile 
installation and removal was an average of 0.037 harbor porpoises per 
hour during PCT construction in 2021, when observations occurred across 
most months. Given the uncertainty around harbor porpoise occurrence at 
the POA and potential that occurrence is increasing, it is estimated 
that approximately 0.07 harbor porpoises per hour (the 2021 rate of 
0.037 harbor porpoises per hour doubled) may be observed near the NES1 
project area per hour of hammer use. With 246.5 hours of in-water pile 
installation and removal, the POA estimated that there could be 18 
instances where harbor porpoises (0.07 harbor porpoises per hour * 
246.5 hours = 17.3 harbor porpoises rounded up to 18 harbor porpoises) 
could be within estimated harassment zones during NES1 project 
activities.
    Harbor porpoises are small, lack a visible blow, have low dorsal 
fins, an overall low profile, and a short surfacing time, making them 
difficult to observe (Dahlheim et al., 2015). To account for the 
possibility that a harbor porpoise could enter a Level A harassment 
zone and remain there for sufficient duration to incur PTS before 
activities were shut down, the POA assumed that 5 percent of estimated 
harbor porpoise takes (1 take of harbor porpoise; 5 percent of 18 = 
0.9, rounded up to 1) could be taken by Level A harassment. In its 
request, the POA rounded this estimate up to two to account for the 
average group size of this species, However, NMFS has determined such 
adjustments are generally unnecessary for purposes of estimating 
potential incidents of Level A harassment and did not concur with the 
request. At relatively close distances, NMFS believes it unlikely that 
groups will necessarily adhere to each other for sufficient duration 
for the entire group to incur PTS. While it is unlikely that a harbor 
porpoise could enter a Level A harassment zone for sufficient duration 
to incur PTS given the required shutdown measures (see the Mitigation 
section for more information) and potential for avoidance behavior, 
this species moves quickly and can be difficult to detect and track, 
therefore, NMFS authorized 1 take by Level A harassment and 17 takes by 
Level B harassment for harbor porpoises, for a total of 18 instances of 
take.

Steller Sea Lion

    Steller sea lions are anticipated to occur in low numbers within 
the NES1 project area as summarized in the Description of Marine 
Mammals in the Area of Specified Activities section of the Federal 
Register of the proposed IHA (88 FR 76576, November 6, 2023). Similar 
to the approach used above for harbor porpoises, the POA used 
previously recorded sighting rates of Steller sea lions near the POA to 
estimate requested take for this species. During SFD construction in 
May and June of 2022, the hourly sighting rate for Steller sea lions 
was 0.028. The hourly sighting rate for Steller sea lions in 2021, the 
most recent year with observations across most months, was 
approximately 0.01. Given the uncertainty around Steller sea lion 
occurrence at the POA and potential that occurrence is increasing, the 
POA estimated that approximately 0.06 Steller sea lions per hour (the 
May and June 2022 rate of 0.028 Steller sea lions per hour doubled) may 
be observed near the NES1 project areas per hour of hammer use. With 
246.5 hours of in-water pile installation and removal, the POA 
estimates that 15 Steller sea lions (0.06 sea lions per hour * 246.5 
hours = 14.79 sea lions rounded up to 15) could be within estimated 
harassment zones during NES1 project activities. However, the highest 
number of Steller sea lions that have been observed during the 2020-
2022 monitoring efforts at the POA was nine individuals (eight during 
PCT Phase 1 monitoring and one during NMFS 2021 monitoring). Given the 
POA's estimate assumes a higher Steller sea lion sighting rate (0.06) 
than has been observed at the POA and results in an estimate that is 
much larger than the number of Steller sea lions observed in a year, 
NMFS believed that the 15 estimated takes requested by the POA 
overestimated potential exposures of this species. NMFS instead 
authorized nine takes by Level B harassment for Steller sea lions 
during the NES1 project.
    The largest Level A harassment zone for Steller sea lions is 6-m. 
While it is unlikely that a Steller sea lion will enter a Level A 
harassment zone for sufficient duration to incur PTS, the POA is aware 
of a Steller sea lion that popped up next to a work skiff during the 
TPP in 2016, which was documented as a potential take by Level A 
harassment by the PSOs on duty at the time. Pile driving, however, was 
not occurring at the time the event was recorded and a brief 
observation of an animal within a Level A harassment zone does not 
necessarily mean the animal experienced Level A harassment (other 
factors such as duration within the harassment zone need to be taken 
into consideration). However, as a result of the aforementioned event, 
the POA requested authorization of an additional two takes of Steller 
sea lions by Level A harassment. Given the small Level A harassment 
zone (6-m), and shutdown zones of >= 10-m (see the Mitigation section), 
NMFS believes that it is unlikely that a Steller sea lion will be 
within the Level A harassment zone for sufficient duration to incur 
PTS. Therefore, NMFS did not authorize take by Level A harassment for 
Steller sea lions. Rather, all nine estimated takes are authorized as 
Level B harassment.

Harbor Seal

    No known harbor seal haulout or pupping sites occur in the vicinity 
of the POA. In addition, harbor seals are not known to reside in the 
NES1 project area, but they are seen regularly near the mouth of Ship 
Creek when salmon are running, from July through September. With the 
exception of newborn pups, all ages and sexes of harbor seals may occur 
in the NES1 project area. Any harassment of harbor seals during in-
water pile installation and removal will involve a limited number of 
individuals that may potentially swim through the NES1 project area or 
linger near Ship Creek.
    The POA evaluated marine mammal monitoring data to calculate hourly 
sighting rates for harbor seals in the NES1 project area (see table 4-1 
in the POA's application). Of the 524 harbor seal sightings in 2020 and 
2021, 93.7 percent of the sightings were of single individuals; only 
5.7 percent of sightings were of 2 individual harbor seals, and only 
0.6 percent of sightings reported 3 harbor seals. Sighting rates of 
harbor seals were highly variable and appeared to have increased during 
monitoring between 2005 and 2022. It is unknown whether any potential 
increase was due to local population increases or habituation to 
ongoing construction activities. The highest individual hourly sighting 
rate recorded for a previous year was used to quantify take of harbor 
seals for in-water pile installation and removal associated with NES1. 
This occurred in 2021 during PCT Phase 2 construction, when harbor 
seals were observed from May through September. A total of 220 harbor 
seal

[[Page 2857]]

sightings were observed over 734.9 hours of monitoring, at an average 
rate of 0.30 harbor seal sightings per hour. The maximum monthly 
sighting rate occurred in September 2020 and was 0.51 harbor seal 
sightings per hour. Based on these data, the POA estimated that 
approximately one harbor seal (the maximum monthly sighting rate (0.51) 
rounded up) may be observed near the NES1 project per hour of hammer 
use. This approximate sighting rate of one harbor seal per hour was 
also used to calculate potential exposures of harbor seals for the SFD 
project (86 FR 50057, September 7, 2021). Therefore, the POA estimated 
that during the 246.5 hours of anticipated in-water pile installation 
and removal, up to 247 harbor seals (1 harbor seal per hour * 246.5 
hours = 246.5 harbor seals, rounded up to 247) could be within 
estimated harassment zones.
    Harbor seals often appear curious about onshore activities and may 
approach closely. The mouth of Ship Creek, where harbor seals linger, 
is about 2,500-m from the southern end of the NES1 and is therefore 
outside of the Level A harassment zones calculated for harbor seals 
(table 7). However, given the potential difficulty of tracking 
individual harbor seals along the face of the NES1 site and their 
consistent low-level use of the POA area, NMFS anticipates the 
potential for some take by Level A harassment for harbor seals. For the 
SFD project, NMFS authorized 8.6 percent of estimated harbor seal takes 
as potential Level A harassment based on the proportion of previous 
harbor seal sightings within the estimated Level A harassment zones for 
that project (86 FR 50057, September 7, 2021), but the NES1 Project is 
more distant from Ship Creek than SFD. NMFS therefore anticipated that 
a smaller proportion of takes by Level A harassment may occur during 
the NES1 project, and reduced this percentage to 5 percent. Therefore, 
NMFS authorized 13 harbor seal takes (5 percent of 247 exposures) by 
Level A harassment and 234 takes (247 exposures minus 13) by Level B 
harassment, for a total of 247 takes.

Beluga Whale

    For the POA's PCT and SFD projects, NMFS used a sighting rate 
methodology to calculate potential exposure (equated to take) of CIBWs 
to sound levels above harassment criteria produced by the POA's 
construction activities (85 FR 19294, April 6, 2020; 86 FR 50057, 
September 7, 2021, respectively). For the PCT project, NMFS used data 
collected during marine mammal observations from 2005 to 2009 (Kendall 
and Cornick, 2015) and the total number of monthly observation hours 
during these efforts to derive hourly sighting rates of CIBWs per month 
of observation (April through November) (85 FR 19294, April 6, 2020). 
For the SFD project, observation data from 2020 PCT construction were 
also incorporated into the analysis (86 FR 50057, September 7, 2021; 
61N Environmental, 2021).
    The marine mammal monitoring programs for the PCT and SFD projects 
produced a unique and comprehensive data set of CIBW locations and 
movements (table 8; 61N Environmental, 2021, 2022a, 2022b; Easley-
Appleyard and Leonard, 2022) that is the most current data set 
available for Knik Arm. During the PCT and SFD projects, the POA's 
marine mammal monitoring programs included 11 PSOs working from 4 
elevated, specially designed monitoring stations located along a 9-km 
stretch of coastline surrounding the POA. The number of days data was 
collected varied among years and project, with 128 days during PCT 
Phase 1 in 2020, 74 days during PCT Phase 2 in 2021, and 13 days during 
SFD in 2022 (see table 6-7 in the POA's application for additional 
information regarding CIBW monitoring data). PSOs during these projects 
used 25-power ``big-eye'' and hand-held binoculars to detect and 
identify marine mammals, and theodolites to track movements of CIBW 
groups over time and collect location data while they remained in view.
    These POA monitoring programs were supplemented in 2021 with a 
NMFS-funded visual marine mammal monitoring project that collected data 
during non-pile driving days during PCT Phase 2 (table 8; Easley-
Appleyard and Leonard, 2022). NMFS replicated the POA monitoring 
efforts, as feasible, including use of 2 of the POA's monitoring 
platforms, equipment (Big Eye binoculars, theodolite, 7x50 reticle 
binoculars), data collection software, monitoring and data collection 
protocol, and observers; however, the NMFS-funded program utilized only 
4 PSOs and 2 observation stations along with shorter (4- to 8-hour) 
observation periods compared to PCT or SFD data collection, which 
included 11 PSOs, 4 observation stations, and most observation days 
lasting close to 10 hours. Despite the differences in effort, the NMFS 
dataset fills in gaps during the 2021 season when CIBW presence began 
to increase from low presence in July and is thus valuable in this 
analysis. NMFS' PSO's monitored for 231.6 hours on 47 non-consecutive 
days in July, August, September, and October.
    Distances from CIBW sightings to the project site from the POA and 
NMFS-funded monitoring programs ranged from less than 10-m up to nearly 
15-km during these monitoring programs. These robust marine mammal 
monitoring programs in place from 2020 through 2022 located, 
identified, and tracked CIBWs at greater distances from the NES1 
project site than previous monitoring programs (i.e., Kendall and 
Cornick, 2015), and contributed to a better understanding of CIBW 
movements in upper Cook Inlet (e.g., Easley-Appleyard and Leonard, 
2022).
    Given the evolution of the best available data of CIBW presence in 
upper Cook Inlet, particularly regarding the distances at which CIBWs 
were being observed and documented (which increased during the PCT and 
SFD compared to earlier monitoring efforts), the POA proposed, and NMFS 
concurred, that the original sighting rate methodology used for the PCT 
and SFD projects was no longer the best approach for calculating 
potential take of CIBWs for the NES1 project. The recent and 
comprehensive data set of CIBW locations and movements from the PCT and 
SFD projects (61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard 
and Leonard, 2022) provided the opportunity for refinement of the 
previously used sighting rate methodology with updated data. Data for 
2020, 2021, and 2022 were selected for the updated sighting rate 
analysis for the NES1 project because they are the most current data 
available and are therefore most likely to accurately represent future 
CIBW occurrence at the project site, which may be affected by CIBW 
population size, CIBW movement patterns through Knik Arm, environmental 
change (including climate change), differences in salmon and other prey 
abundance among years, and other factors (table 8). The data from 2005 
to 2009 (Kendall and Cornick, 2015), which were used by NMFS for the 
sighting rate analyses for the PCT and SFD IHAs, were not included in 
this analysis due to the changes in observation programs and age of the 
data collected. Monitoring data from the 2016 TPP (Cornick and Seagars, 
2016) were also not included in the analysis because of limited hours 
observed, limited seasonal coverage, and differences in the observation 
programs.

[[Page 2858]]

[GRAPHIC] [TIFF OMITTED] TN16JA24.039

    The sighting rate methodology used for the PCT (85 FR 19294, April 
6, 2020) and SFD (86 FR 50057, September 7, 2021) projects used 
observations of CIBWs recorded in Knik Arm, regardless of observation 
distance to the POA, to produce a single monthly sighting rate that was 
then used to calculate potential CIBW take for all activities, 
regardless of the size of the ensonified areas for the project 
activities (i.e., take was calculated solely based on the monthly 
sighting rates and the estimated hours of planned activities, and did 
not consider the estimated sizes of the ensonified areas). This method 
may have overestimated potential CIBW takes when harassment zones were 
small because distant CIBWs will have been included in the sighting 
rate. This method also resulted in takes estimates that were identical 
for installation and removal of all pile sizes, regardless of pile 
driving method used (e.g., vibratory, impact) or implementation of 
attenuation systems, since the calculation did not consider the size of 
the ensonified areas.
    NMFS and the POA collaboratively developed a new sighting rate 
methodology for the NES1 project that incorporated a spatial component 
for CIBW observations, which allows for more accurate estimation of 
potential take of CIBWs for this project. NMFS proposes to use this 
approach to estimate potential takes of CIBW for authorization. During 
the POA's and NMFS' marine mammal monitoring programs for the PCT and 
SFD projects, PSOs had an increased ability to detect, identify, and 
track CIBWs groups at greater distances from the project work site when 
compared with previous years because of the POA's expanded monitoring 
program as described above. This meant that observations of CIBWs in 
the 2020-2022 dataset (table 8) include sightings of individuals at 
distances far outside the ensonified areas estimated for the NES1 
project (table 7). Therefore, it is not appropriate to group all CIBW 
observations from these datasets into a single sighting rate as was 
done for the PCT and SFD projects. Rather, CIBW observations should be 
considered in relation to their distance to the NES1 project site when 
determining appropriate sighting rates to use when estimating take for 
this project. This helps to ensure that the sighting rates used to 
estimate take are representative of CIBW presence in the NES1 
ensonified areas.
    To incorporate a spatial component into the sighting rate 
methodology, the POA calculated each CIBW group's closest point of 
approach (CPOA) relative to the NES1 project site. The 2020-2022 marine 
mammal monitoring programs (table 8) enabled the collection, in many 
cases, of multiple locations of CIBW groups as they transited through 
Knik Arm, which allowed for track lines to be interpolated for many 
groups. The POA used these track lines, or single recorded locations in 
instances where only one sighting location was available, to calculate 
each group's CPOA. CPOAs were calculated in ArcGIS software using the 
Global Positioning System (GPS) coordinates provided for documented 
sightings of each group (for details on data collection methods, see 
61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 
2022) and the NES1 location midpoint, centered on the project site. A 
CIBW group was defined as a sighting of one or more CIBWs as determined 
during data collection. The most distant CPOA location to NES1 was 
11,057-m and the closest CPOA location was 15-m.
    The cumulative density distribution of CPOA values represents the 
percentage of CIBW observations that were within various distances to 
the NES1 action site (figure 1). This distribution shows how CIBW 
observations differed with distances to the NES1 site and was used to 
infer appropriate distances within which to estimate spatially-derived 
CIBW sighting rates (figure 1). The POA

[[Page 2859]]

implemented a piecewise regression model that detected breakpoints 
(i.e., points within the CPOA data at which statistical properties of 
the sequence of observational distances changed) in the cumulative 
density distribution of the CPOA locations, which they proposed to 
represent spatially-based sighting rate bins for use in calculating 
CIBW sighting rates. The POA used the ``Segmented'' package (Muggeo, 
2020) in the R Statistical Software Package (R Core Team, 2022) to 
determine statistically significant breakpoints in the linear distances 
of the CIBW data using this regression method (see section 6.5.5.3 of 
the POA's application for more details regarding this statistical 
analysis). This analysis identified breakpoints in the CPOA locations 
at 74-, 1,651-, 2,808-, and 7,368-m (figure 1).
[GRAPHIC] [TIFF OMITTED] TN16JA24.040

    Piecewise regression is a common tool for modeling ecological 
thresholds (Lopez et al., 2020; Whitehead et al., 2016; Atwood et al., 
2016). In a similar scenario to the one outlined above, Mayette et al. 
(2022) used piecewise regression methods to model the distances between 
two individual CIBWs in a group in a nearshore and a far shore 
environment. For the POA's analysis, the breakpoints (i.e., 74-, 1,651-
, 2,808-, and 7,368-m) detect a change in the frequency of CIBW groups 
sighted and the slope of the line between two points indicates the 
magnitude of change. A greater positive slope indicates a greater 
accumulation of sightings over the linear distance (x-axis) between the 
defining breakpoints, whereas a more level slope (i.e., closer to zero) 
indicates a lower accumulation of sightings over that linear distance 
(x-axis) between those defining breakpoints (figure 1; see table 6-8 in 
the POA's application for the slope estimates for the empirical 
cumulative distribution function).
    The breakpoints identified by the piecewise regression analysis are 
in agreement with what is known about CIBW behavior in Knik Arm based 
on recent monitoring efforts (61N Environmental, 2021, 2022a, 2022b; 
Easley-Appleyard and Leonard, 2022). Observation location data 
collected during POA monitoring programs indicate that CIBWs were 
consistently found in higher numbers in the nearshore areas, along both 
shorelines, and were found in lower numbers in the center of the Arm. 
Tracklines of CIBW group movements collected from 2020 to 2022 show 
that CIBWs displayed a variety of movement patterns that included 
swimming close to shore past the POA on the east side of Knik Arm 
(defined by breakpoint 1 at 74-m), with fewer CIBWs swimming in the 
center of Knik Arm (breakpoints 1 to 2, at 74- to 1,651-m). CIBWs 
commonly swam past the POA close to shore on the west side of Knik Arm, 
with no CIBWs able to swim farther from the POA in that area than the 
far shore (breakpoints 2 to 3, at 1,651- to 2,808-m). Behaviors and 
locations beyond breakpoint 4 (7,368-m) include swimming past the mouth 
of Knik Arm between the Susitna River area and Turnagain Arm; milling 
at the mouth of Knik Arm but not entering the Arm; and milling to the 
northwest of the POA without exiting Knik Arm. The shallowness of slope 
5, at distances greater than 7,368-m, could be due to detection falloff 
from a proximity (distance) bias, which occurs when PSOs are less 
likely to detect CIBW groups that are farther away than groups that are 
closer.
    The POA, in collaboration with NMFS, used the distances detected by 
the breakpoint analysis to define five sighting rate distance bins for 
CIBWs in the NES1 project area. Each breakpoint (74-, 1,651-, 2,808-, 
and 7,368-m, and the complete data set of observations [>7,368-m]) was 
rounded to the nearest meter and considered the outermost limit of each 
sighting rate bin, resulting in five identified bins (table 9). All 
CIBW observations less than or equal to

[[Page 2860]]

each bin's breakpoint distance were used to calculated that bin's 
respective monthly sighting rates (e.g., all sightings from 0- to 74-m 
are included in the sighting rates calculated for bin number 1, all 
sightings from 0 to 1,651-m are included in the sighting rates 
calculated for bin number 2, and so on). NES1 construction is 
anticipated to take place from April through November 2024, therefore 
monthly sighting rates were only derived for these months (table 9).
[GRAPHIC] [TIFF OMITTED] TN16JA24.041

    Potential exposures (equated with takes) of CIBWs were calculated 
by multiplying the total number of vibratory installation or removal 
hours per month for each sized/shaped pile based on the anticipated 
construction schedule (table 1) with the corresponding sighting rate 
month and sighting rate distance bin (table 10). For example, the Level 
B harassment isopleth distance for the vibratory installation of 24-
inch (61-cm) piles is 2,245-m, which falls within bin number 3 (table 
9). Therefore, take for this activity was calculated by multiplying the 
total number of hours estimated each month to install 24-inch (61-cm) 
piles via a vibratory hammer by the monthly CIBW sighting rates 
calculated for bin number 3 (table 10). The resulting estimated CIBW 
exposures were totaled for all activities in each month (table 11).
    In their calculation of CIBW take, the POA assumed that only 24-
inch (61-cm) template piles will be installed (rather than 36-inch (91-
cm)) and removed during the project. If 36-inch (91-cm) piles are used 
for temporary stability template piles, it is assumed that the 
potential impacts of this alternate construction scenario and method on 
marine mammals are fungible (i.e., that potential impacts of 
installation and removal of 36-inch (91-cm) steel pipe piles will be 
similar to the potential impacts of installation and removal of 24-inch 
(61-cm) steel pipe piles based on the estimated ensonified areas and 
relevant sighting rate bins). Using the monthly activity estimates in 
hours (table 1) and monthly calculated sighting rates (CIBWs/hour) for 
the spatially derived distance bins (table 10), the POA estimated that 
there could be up to 122 (121.1 rounded up to 122) instances of CIBW 
take where during the NES1 project (table 11).
BILLING CODE 3510-22-P

[[Page 2861]]

[GRAPHIC] [TIFF OMITTED] TN16JA24.042

BILLING CODE 3510-22-C
    For the PCT (85 FR 19294, April 6, 2020) and SFD (86 FR 50057, 
September 7, 2021) projects, NMFS accounted for the implementation of 
mitigation measures (e.g., shutdown procedures implemented when CIBWs 
entered or approached the estimated Level B harassment zone) by 
applying an

[[Page 2862]]

adjustment factor to CIBW take estimates. This was based on the 
assumption that some Level B harassment takes will likely be avoided 
based on required shutdowns for CIBWs at the Level B harassment zones 
(see the Mitigation section of those notices for more information). For 
the PCT project, NMFS compared the number of realized takes at the POA 
to the number of authorized takes for previous projects from 2008 to 
2017 and found the percentage of realized takes ranged from 12 to 59 
percent with an average of 36 percent (85 FR 19294, April 6, 2020). 
NMFS then applied the highest percentage of previous realized takes (59 
percent during the 2009-2010 season) to ensure potential takes of CIBWs 
were fully evaluated. In doing so, NMFS assumed that approximately 59 
percent of the takes calculated would be realized during PCT and SFD 
construction (85 FR 19294, April 6, 2020; 86 FR 50057, September 7, 
2021) and that 41 percent of the calculated CIBW Level B harassment 
takes would be avoided by successful implementation of required 
mitigation measures.
    The POA calculated the adjustment for successful implementation of 
mitigation measures for NES1 using the percentage of realized takes for 
the PCT project (see table 6-12 in the POA's application). The recent 
data from PCT Phase 1 and PCT Phase 2 most accurately reflected the 
current marine mammal monitoring program, the current program's 
effectiveness, and CIBW occurrence in the NES1 project area. Between 
the 2 phases of the PCT project, 90 total Level B harassment takes were 
authorized and 53 were potentially realized (i.e., number of CIBWs 
observed within estimated Level B harassment zones), equating to an 
overall percentage of 59 percent. The SFD Project, during which only 7 
percent of authorized take was potentially realized, represented 
installation of only 12 piles during a limited time period and does not 
represent the much higher number of piles and longer construction 
season anticipated for NES1.
    NMFS has determined that the 59-percent adjustment accurately 
accounts for the efficacy of the POA's marine mammal monitoring program 
and required shutdown protocols. NMFS therefore assumes that 
approximately 59 percent of the takes calculated for NES1 may actually 
be realized. This adjusts the potential takes by Level B harassment of 
CIBWs authorized from 122 to 72 (table 11). Take by Level A harassment 
is not anticipated or authorized because the POA will be required to 
shutdown activities when CIBWs approach and or enter the Level B 
harassment zone (see the Mitigation section for more information).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN16JA24.043

    In summary, the total amount of Level A harassment and Level B 
harassment authorized for each marine mammal stock is presented in 
table 12.

[[Page 2863]]

[GRAPHIC] [TIFF OMITTED] TN16JA24.044

BILLING CODE 3510-22-C

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for ITAs to include information about 
the availability and feasibility (economic and technological) of 
equipment, methods, and manner of conducting the activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks, and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, and impact on 
operations.
    The POA presented mitigation measures in section 11 of their 
application that were modeled after the requirements included in the 
IHAs issued for Phase 1 and Phase 2 PCT construction (85 FR 19294, 
April 6, 2020) and for SFD construction (86 FR 50057, September 7, 
2021), which were designed to minimize the total number, intensity, and 
duration of harassment events for CIBWs and other marine mammal species 
during those projects (61N Environmental, 2021, 2022a, 2022b). NMFS 
concurred that these proposed measures reduce the potential for CIBWs, 
and other marine mammals, to be adversely impacted by the planned 
activity.
    The POA must employ the following mitigation measures:
     Ensure that construction supervisors, crews, contractors, 
other personnel operating at the site, the monitoring team, and 
relevant POA staff are trained on all mitigation, monitoring, and 
reporting requirements, and all implementing protocols or procedures, 
as relevant to their respective role or position prior to the start of 
all pile installation and removal activities, so that responsibilities, 
communication procedures, monitoring protocols, and operational 
procedures

[[Page 2864]]

are clearly understood. New personnel joining during the project must 
be trained prior to commencing work;
     Employ PSOs and establish monitoring locations as 
described in section 5 of the IHA and the POA's Marine Mammal 
Monitoring and Mitigation Plan (see appendix B of the POA's 
application). The POA must monitor the project area to the maximum 
extent possible based on the required number of PSOs, required 
monitoring locations, and environmental conditions;
     The POA, construction supervisors and crews, PSOs, and 
relevant POA staff must avoid direct physical interaction with marine 
mammals during construction activities. If a marine mammal comes within 
10-m of such activity, operations shall cease and vessels must reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions, as necessary to avoid direct physical interaction;
     Monitoring must take place from 30 minutes prior to 
initiation of pile driving (i.e., pre-start clearance monitoring) 
through 30 minutes post-completion of pile driving;
     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 13 are clear of marine mammals. Pile 
driving may commence following 30 minutes of observation when the 
determination is made that the shutdown zones are clear of marine 
mammals or when the mitigation measures required specifically for CIBWs 
(below) are satisfied;
     For all construction activities, shutdown zones must be 
established following table 13. The purpose of a shutdown zone is 
generally to define an area within which shutdown of activity will 
occur upon sighting of a marine mammal (or in anticipation of an animal 
entering the defined area). In addition to the shutdown zones specified 
in table 13 and the minimum shutdown zone of 10-m described above, 
requirements included in NMFS' IHA, the POA will implement a minimum 
100-m shutdown zone around the active NES1 project work site, including 
around activities other than pile installation or removal that NMFS has 
determined do not present a reasonable potential to cause take of 
marine mammals. Shutdown zones for pile installation and removal will 
vary based on the type of construction activity and by marine mammal 
hearing group (table 13). Here, shutdown zones are larger than or equal 
to the calculated Level A harassment isopleths shown in table 6 for 
species other than CIBW and are equal to the estimated Level B 
harassment isopleths for CIBWs;
[GRAPHIC] [TIFF OMITTED] TN16JA24.045

     Marine mammals observed anywhere within visual range of 
the PSO must be tracked relative to construction activities. If a 
marine mammal is observed entering or within the shutdown zones 
indicated in table 13, pile driving 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 13, or 15 minutes (non-CIBWs) or 30 minutes (CIBWs) have passed 
without re-detection of the animal;
     The POA 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. PSOs shall begin observing for marine mammals 30 
minutes before ``soft start'' or in-water pile installation or removal 
begins; and
     Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone.
    The following additional mitigation measures are required for 
CIBWs:
     The POA must make all practicable efforts to complete 
construction activities between April and July, when CIBWs are 
typically found in lower numbers near the NES1 site;

[[Page 2865]]

     Prior to the onset of pile driving or removal, should a 
CIBW be observed within the estimated Level B harassment zone (table 7) 
(i.e. the CIBWs shutdown zone column in table 13), pile driving must 
not commence until the whale(s) has voluntarily traveled at least 100-m 
beyond the estimated Level B harassment zone and is on a path away from 
such zone, or the whale has not been re-sighted within 30 minutes;
     If pile installation or removal has commenced, and a 
CIBW(s) is observed within or likely to enter the estimated Level B 
harassment zone, pile installation or removal must be delayed. Pile 
driving may not commence until the whale has voluntarily traveled at 
least 100-m beyond the Level B harassment zone and is on a path away 
from such zone, or until no CIBW has been observed in the Level B 
harassment zone for 30 minutes; and
     If during installation and removal of piles, PSOs can no 
longer effectively monitor the entirety of the CIBW Level B harassment 
zone due to environmental conditions (e.g., fog, rain, wind), pile 
driving may continue only until the current segment of the pile is 
driven; no additional sections of pile or additional piles may be 
driven until conditions improve such that the Level B harassment zone 
can be effectively monitored. If the Level B harassment zone cannot be 
monitored for more than 15 minutes, the entire Level B harassment zone 
will be cleared again for 30 minutes prior to pile driving.
    In addition to these additional mitigation measures, NMFS had 
requested that the POA restrict all pile driving and removal work to 
April to July, when CIBWs are typically found in lower numbers. 
However, given the safety and environmental concerns of collapse of the 
Northern Extension once removal work commences, required sequencing of 
pile installation and removal and fill removal, and uncertainties and 
adaptive nature of the work, the POA stated that it cannot commit to 
restricting pile driving and removal to April to July. Instead, as 
required in the mitigation measures, NMFS will require the POA to 
complete as much work as is practicable in April to July to reduce the 
amount of pile driving and removal activities needed in August through 
November.
    For previous IHAs issued to the POA (PCT: 85 FR 19294, April 6, 
2020; SFD: 86 FR 50057, September 7, 2021), the use of a bubble curtain 
to reduce noise has been required as a mitigation measure for certain 
pile driving scenarios. The POA did not propose to use a bubble curtain 
system during the NES1 project, stating that it is not a practicable 
mitigation measure for this demolition project. NMFS concurred with 
this determination. Practicability concerns include the following:
     NES1 construction activities include installation of 
round, temporary, stability template piles to shore up the filled NES1 
structure while fill material and sheet piles are removed. Stability 
template piles that will be required for demolition of the sheet pile 
structure are located in proximity of the sheet piles. A bubble curtain 
will not physically fit between the sheet piles and the template piles;
     Bubble curtains cannot be installed around the sheet piles 
as they are removed because the structure consists of sheet piles that 
are connected to one another and used to support fill-material. It will 
not be possible to place a bubble curtain system along the sheet pile 
face for similar reasons, including lack of space for the bubble 
curtain and the structures and equipment that will be needed to install 
and operate it, and the high likelihood that it could not function or 
be retrieved; and
     NES1 is a failed structure, and has been deemed ``globally 
unstable'' and poses significant risk for continued deterioration and 
structural collapse. If the existing structure were to collapse during 
deconstruction and sheet pile removal, there is risk of a significant 
release of impounded fill material into CIBW habitat, the POA's vessel 
operating and mooring areas, and the USACE Anchorage Harbor Project. 
Due to the stability risk of the existing impounded material, it is 
expected that construction and demolition means and methods will be 
highly adaptive once actual field work commences, and use of a bubble 
curtain with deconstruction will limit operations in the field and 
create significant health and safety issues.
    The POA also has efficacy concerns about requiring a bubble curtain 
for NES1 construction activities. Adding a requirement for a bubble 
curtain may hinder production, due to the time required to install and 
remove the bubble curtain itself. This has the potential to drive the 
in-water construction schedule further into the late summer months, 
which are known for higher CIBW abundance in lower Knik Arm, thus 
lengthening the duration of potential interactions between CIBW and in-
water work. Therefore, NMFS is concerned that use of a bubble curtain 
may not be an effective measure, given the potential that bubble 
curtain use could ultimately result in increased impacts to CIBW, in 
addition to the aforementioned practicability issues.
    Based on our evaluation of the applicant's planned measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures required herein 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,

[[Page 2866]]

acoustic habitat, or other important physical components of marine 
mammal habitat); and
     Mitigation and monitoring effectiveness.
    The POA will implement a marine mammal monitoring and mitigation 
strategy intended to avoid and minimize impacts to marine mammals (see 
appendix B of the POA's application for their Marine Mammal Monitoring 
and Mitigation Plan). Marine mammal monitoring will be conducted at all 
times when in-water pile installation and removal is taking place. 
Additionally, PSOs will be on-site monitoring for marine mammals during 
in-water cutting of sheet piles with shears or an ultrathermic torch.
    The marine mammal monitoring and mitigation program that is planned 
for NES1 construction is modeled after the stipulations outlined in the 
IHAs for Phase 1 and Phase 2 PCT construction (85 FR 19294, April 6, 
2020) and the IHA for SFD construction (86 FR 50057, September 7, 
2021).

Visual Monitoring

    Monitoring must be conducted by qualified, NMFS-approved PSOs, in 
accordance with the following:
     PSOs must be independent of the activity contractor (e.g., 
employed by a subcontractor) and have no other assigned tasks during 
monitoring periods. At least one PSO must have prior experience 
performing the duties of a PSO during construction activity pursuant to 
a NMFS-issued ITA or Letter of Concurrence. Other PSOs may substitute 
other relevant experience (including relevant Alaska native traditional 
knowledge), education (degree in biological science or related field), 
or training for prior experience performing the duties of a PSO. PSOs 
must be approved by NMFS prior to beginning any activity subject to 
this IHA;
     The POA must employ PSO stations at a minimum of two 
locations from which PSOs can effectively monitor the shutdown zones 
(table 13). Concerns about the stability of the NES1 project area 
preclude determination of the exact number and locations of PSO 
stations until the Construction Contractor develops their Construction 
Work Plan. PSO stations must be positioned at the best practical 
vantage points that are determined to be safe. Likely locations include 
the Anchorage Public Boat Dock at Ship Creek to the south of the NES1 
project site, and a location to the north of the project site, such as 
the northern end of POA property near Cairn Point (see North Extension 
area on figure 12-1 in the POA's application) or at Port MacKenzie 
across Knik Arm (see figure 12-1 in the POA's application for potential 
locations of PSO stations). A location near the construction activity 
may not be possible given the risk of structural collapse as outlined 
in the POA's IHA application. Placing a PSO on the northernmost portion 
of Terminal 3 will also be considered if deemed safe. Areas near Cairn 
Point or Port MacKenzie have safety, security, and logistical issues, 
which will need to be considered. Cairn Point proper is located on 
military land and has bear presence, and restricted access does not 
allow for the location of an observation station at this site. 
Tidelands along Cairn Point are accessible only during low tide 
conditions and have inherent safety concerns of being trapped by rising 
tides. Port MacKenzie is a secure port that is relatively remote, 
creating safety, logistical, and physical staffing limitations due to 
lack of nearby lodging and other facilities. The roadway travel time 
between port sites is approximately 2-3 hours. An adaptive management 
measure is planned for a monitoring location north of the project site, 
once the Construction Contractor has been selected and more detailed 
discussions can occur. Temporary staffing of a northerly monitoring 
station during peak marine mammal presence time periods and/or when 
shutdown zones are large will be considered;
     PSOs stations must be elevated platforms constructed on 
top of shipping containers or a similar base that is at least 8' 6'' 
high (i.e., the standard height of a shipping container) that can 
support up to three PSOs and their equipment. The platforms must be 
stable enough to support use of a theodolite and must be located to 
optimize the PSO's ability to observe marine mammals and the harassment 
zones;
     Each PSO station must have at least two PSOs on watch at 
any given time; one PSO must be observing, one PSO must be recording 
data (and observing when there are no data to record). Teams of three 
PSOs must include at least one PSO who must be observing and one PSO 
who must be recording data (and observing when there are no data to 
record). The third PSO may help to observe, record data, or rest. In 
addition, if POA is conducting non-NES1-related in-water work that 
includes PSOs, the NES1 PSOs must be in real-time contact with those 
PSOs, and both sets of PSOs must share all information regarding marine 
mammal sightings with each other;
     A designated lead PSO must always be on site. The lead 
observer must have prior experience performing the duties of a PSO 
during in-water construction activities pursuant to a NMFS-issued ITA 
or Letter of Concurrence. Each PSO station must also have a designated 
lead PSO specific to that station and shift;
     PSOs will use a combination of equipment to perform marine 
mammal observations and to verify the required monitoring distance from 
the project site, including 7 by 50 binoculars, 20x/40x tripod mounted 
binoculars, 25 by 150 ``big eye'' tripod mounted binoculars, and 
theodolites; and
     PSOs must record all observations of marine mammals, 
regardless of distance from the pile being driven. PSOs shall document 
any behavioral responses in concert with distance from piles being 
driven or removed.
    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 record required information 
including but not limited to the number and species of marine mammals 
observed; dates and times when in-water construction activities were 
conducted; dates, times, and reason for implementation of mitigation 
(or why mitigation was not implemented when required); and marine 
mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Reporting

    NMFS will require the POA to submit interim weekly and monthly 
monitoring reports during the NES1 construction season. These reports 
must include a summary of marine mammal species and behavioral 
observations, construction shutdowns or delays, and construction work 
completed. They also must include an assessment of the amount of 
construction remaining to be completed (i.e., the number of estimated 
hours of work remaining), in addition to the number of CIBWs observed 
within estimated harassment zones to date.
    A draft summary marine mammal monitoring report (that includes 
final electronic data sheets) must be submitted to NMFS within 90 days 
after the completion of all construction activities, or 60 days prior 
to a requested

[[Page 2867]]

date of issuance of any future ITA 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. PSO data sheets should be submitted in a 
format that can be queried such as a spreadsheet or database (i.e., 
digital images of data sheets are not sufficient). Specifically, the 
report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including the number and type of piles driven or 
removed and by what method (i.e., impact or vibratory), the total 
equipment duration for vibratory installation and removal, and the 
total number of strikes for each pile during impact driving;
     PSO locations during marine mammal monitoring;
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
     Upon observation of a marine mammal, the following 
information: name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting; time of sighting; identification of the 
animal(s) (e.g., genus/species, lowest possible taxonomic level, or 
unidentified), PSO confidence in identification, and the composition of 
the group if there is a mix of species; distance and bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); estimated 
number of animals (minimum, maximum, and best estimate); estimated 
number of animals by cohort (adults, juveniles, neonates, group 
composition, sex class, etc.); animal's closest point of approach and 
estimated time spent within the harassment zone; group spread and 
formation (for CIBWs only); description of any marine mammal behavioral 
observations (e.g., observed behaviors such as feeding or traveling), 
including an assessment of behavioral responses that may have resulted 
from the activity (e.g., no response or changes in behavioral state 
such as ceasing feeding, changing direction, flushing, or breaching);
     Number of marine mammals detected within the harassment 
zones and shutdown zones, by species; and
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. 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 
OPR, NMFS ([email protected]), and to the Alaska 
Regional Stranding Coordinator as soon as feasible. If the death or 
injury was clearly caused by the specified activity, the POA 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 IHA. The POA must not resume their activities until notified by 
NMFS. The report must include the following information:
     Time, date, and location (latitude and 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, this introductory discussion of our analysis 
applies to all the species listed in table 12, except CIBWs, given that 
many of the anticipated effects of this project on different marine 
mammal stocks are expected to be relatively similar in nature. For 
CIBWs, there are meaningful differences in anticipated individual 
responses to activities, impact of expected take on the population, or 
impacts on habitat; therefore, we provide a separate detailed analysis 
for CIBWs following the analysis for other species for which we 
authorize take.
    NMFS has identified key factors which may be employed to assess the 
level of analysis necessary to conclude whether potential impacts 
associated with a specified activity should be considered negligible. 
These include (but are not limited to) the type and magnitude of 
taking, the amount and importance of the available habitat for the 
species or stock that is affected, the duration of the anticipated 
effect to the species or stock, and the status of the species or stock. 
The potential effects of the specified actions on gray whales, humpback 
whales, killer whales, harbor porpoises, Steller sea lions, and harbor 
seals are discussed below. Some of these factors also apply to CIBWs; 
however, a more detailed analysis for CIBWs is provided in a separate 
sub-section below.
    Pile driving associated with the project, as outlined previously, 
has 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

[[Page 2868]]

species, Level A harassment, from underwater sounds generated by pile 
driving. Potential takes could occur if marine mammals are present in 
zones ensonified above the thresholds for Level B harassment or Level A 
harassment, identified above, while activities are underway.
    The POA's planned activities and associated impacts will occur 
within a limited, confined area of the stocks' range. The work will 
occur in the vicinity of the NES1 site and sound from the planned 
activities will be blocked by the coastline along Knik Arm along the 
eastern boundaries of the site, and for those harassment isopleths that 
extend more than 3,000-m (i.e., the vibratory installation of 36-inch 
(91-cm) piles and vibratory removal of 24-inch (61-inch) piles), 
directly across the Arm along the western shoreline (see figure 6-4 in 
the POA's application)). The intensity and duration of take by Level A 
and Level B harassment will be minimized through use of mitigation 
measures described herein. Further the amount of take authorized is 
small when compared to stock abundance (see table 12). In addition, 
NMFS does not anticipate that serious injury or mortality will occur as 
a result of the POA's planned activity given the nature of the 
activity, even in the absence of required mitigation.
    Exposures to elevated sound levels produced during pile driving may 
cause behavioral disturbance of some individuals. Behavioral responses 
of marine mammals to pile driving at the NES1 project site are expected 
to be mild, short term, and temporary. Effects on individuals that are 
taken by Level B harassment, as enumerated in the Estimated Take 
section, on the basis of reports in the literature as well as 
monitoring from other similar activities at the POA and elsewhere, will 
likely be limited to reactions such as increased swimming speeds, 
increased surfacing time, or decreased foraging (if such activity were 
occurring; e.g., Ridgway et al., 1997; Nowacek et al., 2007; Thorson 
and Reyff, 2006; Kendall and Cornick, 2015; Goldbogen et al., 2013b; 
Piwetz et al., 2021). 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 or increased haul out time (e.g., Tougaard et 
al., 2003; Carstensen et al., 2006; Thorson and Reyff, 2006; Parks et 
al., 2007; Brandt et al., 2011; Graham et al., 2017). However, as 
described in the Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat section of the Federal Register notice of the 
proposed IHA (88 FR 76576, November 6, 2023), marine mammals, excepting 
CIBWs, observed within Level A and Level B harassment zones related to 
recent POA construction activities have not shown any acute observable 
reactions to pile driving activities that have occurred during the PCT 
and SFD projects (61N Environmental, 2021, 2022a, 2022b).
    Some of the species present in the region will only be present 
temporarily based on seasonal patterns or during transit between other 
habitats. These temporarily present species will be exposed to even 
smaller periods of noise-generating activity, further decreasing the 
impacts. Most likely, individual animals will simply move away from the 
sound source and be temporarily displaced from the area. Takes may also 
occur during important feeding times. The project area though 
represents a small portion of available foraging habitat and impacts on 
marine mammal feeding for all species should be minimal.
    The activities analyzed here are similar to numerous other 
construction activities conducted in Alaska (e.g., 86 FR 43190, August 
6, 2021; 87 FR 15387, March 18, 2022), including the PCT and SFD 
projects within Upper Knik Arm (85 FR 19294, April 6, 2020; 86 FR 
50057, September 7, 2021, respectively) which have taken place with no 
known long-term adverse consequences from behavioral harassment. Any 
potential reactions and behavioral changes are expected to subside 
quickly when the exposures cease and, therefore, no such long-term 
adverse consequences should be expected (e.g., Graham et al., 2017). 
For example, harbor porpoises returned to a construction area between 
pile-driving events within several days during the construction of 
offshore wind turbines near Denmark (Carstensen et al., 2006). The 
intensity of Level B harassment events will be minimized through use of 
mitigation measures described herein, which were not quantitatively 
factored into the take estimates. The POA will use PSOs stationed 
strategically to increase detectability of marine mammals during in-
water construction activities, enabling a high rate of success in 
implementation of shutdowns to avoid or minimize injury for most 
species. Further, given the absence of any major rookeries and haulouts 
within the estimated harassment zones, we assume that potential takes 
by Level B harassment will have an inconsequential short-term effect on 
individuals and will not result in population-level impacts.
    As stated in the mitigation section, the POA will implement 
shutdown zones that equal or exceed the Level A harassment isopleths 
shown in table 7. Take by Level A harassment is authorized for some 
species (harbor seals and harbor porpoises) to account for the 
potential that an animal could enter and remain within the Level A 
harassment zone for a duration long enough to incur PTS. Any take by 
Level A harassment is expected to arise from, at most, a small degree 
of PTS because animals will 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.
    Due to the levels and durations of likely exposure, animals that 
experience PTS will likely only receive slight PTS, i.e., minor 
degradation of hearing capabilities within regions of hearing that 
align most completely with the frequency range of the energy produced 
by POA's in-water construction activities (i.e., the low-frequency 
region below 2 kHz), not severe hearing impairment or impairment in the 
ranges of greatest hearing sensitivity. If hearing impairment does 
occur, it is most likely that the affected animal will lose a few dBs 
in its hearing sensitivity, which in most cases is not likely to 
meaningfully affect its ability to forage and communicate with 
conspecifics. There are no data to suggest that a single instance in 
which an animal accrues PTS (or TTS) and is subject to behavioral 
disturbance will result in impacts to reproduction or survival. If PTS 
were to occur, it will be at a lower level likely to accrue to a 
relatively small portion of the population by being a stationary 
activity in one particular location. Additionally, and as noted 
previously, some subset of the individuals that are behaviorally 
harassed could also simultaneously incur some small degree of TTS for a 
short duration of time. Because of the small degree anticipated, 
though, any PTS or TTS potentially incurred here is not expected to 
adversely impact individual fitness, let alone annual rates of 
recruitment or survival.
    Theoretically, repeated, sequential exposure to pile driving noise 
over a long duration could result in more severe impacts to individuals 
that could affect a population (via sustained or repeated disruption of 
important behaviors such as feeding, resting, traveling, and 
socializing; Southall et al., 2007). Alternatively, marine mammals 
exposed to repetitious construction sounds may become

[[Page 2869]]

habituated, desensitized, or tolerant after initial exposure to these 
sounds (reviewed by Richardson et al., 1995; Southall et al., 2007). 
Given that marine mammals still frequent and use Knik Arm despite being 
exposed to pile driving activities across many years, these severe 
population level impacts are not anticipated. The absence of any 
pinniped haulouts or other known non-CIBW home-ranges in the NES1 
action area further decreases the likelihood of severe population level 
impacts.
    The NES1 project is also not expected to have significant adverse 
effects on any marine mammal habitat. The project activities will occur 
within the same footprint as existing marine infrastructure, and when 
construction is complete, subtidal and intertidal habitats previously 
lost at the project site will be restored. Impacts to the immediate 
substrate are anticipated, but these will be limited to minor, 
temporary suspension of sediments, which can impact water quality and 
visibility for a short amount of time but which will not be expected to 
have any effects on individual marine mammals. While the area is 
generally not high quality habitat, it is expected to be of higher 
quality to marine mammals and fish after NES1 construction is complete 
as the site returns to its natural state and is colonized by marine 
organisms. Further, there are no known BIAs near the project zone, 
except for CIBWs, that will be impacted by the POA's planned 
activities.
    Impacts to marine mammal prey species are also expected to be minor 
and temporary and to have, at most, short-term effects on foraging of 
individual marine mammals, and likely no effect on the populations of 
marine mammals as a whole. Overall, the area impacted by the NES1 
project is very small compared to the available surrounding habitat, 
and does not include habitat of particular importance. The most likely 
impact to prey will be temporary behavioral avoidance of the immediate 
area. During construction activities, it is expected that some fish and 
marine mammals will temporarily leave the area of disturbance, thus 
impacting marine mammals' foraging opportunities in a limited portion 
of their foraging range. But, because of the relatively small area of 
the habitat that may be affected, and lack of any habitat of particular 
importance, the impacts to marine mammal habitat are not expected to 
cause significant or long-term negative consequences. Further, as 
described above, additional habitat for marine mammal prey will be 
available after the completion of the POA's construction activities 
likely providing additional foraging, migrating, and rearing habitats 
to fish and foraging habitat to marine mammals.
    In summary and as described above, the following factors support 
our negligible impact determinations for the affected stocks of gray 
whales, humpback whales, killer whales, harbor porpoises, Steller sea 
lions, and harbor seals:
     No takes by mortality or serious injury are anticipated or 
authorized;
     Any acoustic impacts to marine mammal habitat from pile 
driving (including to prey sources as well as acoustic habitat, and 
including resulting behavioral impacts e.g., from masking) are expected 
to be temporary and minimal;
     Take will not occur in places and/or times where take will 
be more likely to accrue to impacts on reproduction or survival, such 
as within ESA-designated or proposed critical habitat, BIAs, or other 
habitats critical to recruitment or survival (e.g., rookery);
     The project area represents a very small portion of the 
available foraging area for all potentially impacted marine mammal 
species;
     Take will only occur within upper Cook Inlet--a limited, 
confined area of any given stock's home range;
     Monitoring reports from similar work in Knik Arm have 
documented little to no observable effect on individuals of the same 
species impacted by the specified activities;
     The required mitigation measures (i.e., soft starts, pre-
clearance monitoring, shutdown zones) are expected to be effective in 
reducing the effects of the specified activity by minimizing the 
numbers of marine mammals exposed to injurious levels of sound, and by 
ensuring that any take by Level A harassment is, at most, a small 
degree of PTS and of a lower degree that will not impact the fitness of 
any animals; and
     The intensity of anticipated takes by Level B harassment 
is low for all stocks consisting of, at worst, temporary modifications 
in behavior, and will not be of a duration or intensity expected to 
result in impacts on reproduction or survival.
    Cook Inlet Beluga Whales. For CIBWs, we further discuss our 
negligible impact findings in the context of potential impacts to this 
endangered stock based on our evaluation of the take authorized (table 
12).
    As described in the Recovery Plan for the CIBW (NMFS, 2016b), NMFS 
determined the following physical or biological features are essential 
to the conservation of this species: (1) Intertidal and subtidal waters 
of Cook Inlet with depths less than 9-m mean lower low water and within 
8-km of high and medium flow anadromous fish streams; (2) Primary prey 
species consisting of four species of Pacific salmon (Chinook, sockeye, 
chum, and coho), Pacific eulachon, Pacific cod, walleye pollock, 
saffron cod, and yellowfin sole; (3) Waters free of toxins or other 
agents of a type and amount harmful to CIBWs; (4) Unrestricted passage 
within or between the critical habitat areas; and (5) Waters with in-
water noise below levels resulting in the abandonment of critical 
habitat areas by CIBWs. The NES1 project will not impact essential 
features 1-3 listed above. All construction will be done in a manner 
implementing best management practices to preserve water quality, and 
no work will occur around creek mouths or river systems leading to prey 
abundance reductions. In addition, no physical structures will restrict 
passage; however, impacts to the acoustic habitat are relevant and 
discussed here.
    Monitoring data from the POA suggest pile driving does not 
discourage CIBWs from entering Knik Arm and traveling to critical 
foraging grounds such as those around Eagle Bay (e.g., 61N 
Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 2022). 
As described in the Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat section of the Federal Register notice of the 
proposed IHA (88 FR 76576, November 6, 2023), sighting rates were not 
different in the presence or absence of pile driving (Kendall and 
Cornick, 2015). In addition, large numbers of CIBWs have continued to 
use Knik Arm and pass through the area during pile driving projects 
that have taken place at the POA during the past two decades (Funk et 
al., 2005; Prevel-Ramos et al., 2006; Markowitz and McGuire, 2007; 
Cornick and Saxon-Kendall, 2008, 2009; ICRC, 2009, 2010, 2011, 2012; 
Cornick et al., 2010, 2011; Cornick and Pinney, 2011; Cornick and 
Seagars, 2016; POA, 2019), including during the recent PCT and SFD 
construction projects (61N Environmental, 2021, 2022a, 2022b; Easley-
Appleyard and Leonard, 2022). These findings are not surprising as food 
is a strong motivation for marine mammals. As described in Forney et 
al. (2017), animals typically favor particular areas because of their 
importance for survival (e.g., feeding or breeding), and leaving may 
have significant costs to fitness (reduced foraging success, increased 
predation risk, increased exposure to other anthropogenic threats). 
Consequently,

[[Page 2870]]

animals may be highly motivated to maintain foraging behavior in 
historical foraging areas despite negative impacts (e.g., Rolland et 
al., 2012). Previous monitoring data indicates CIBWs are responding to 
pile driving noise, but not through abandonment of critical habitat, 
including primary foraging areas north of the port. Instead, they 
travel more often and faster past the POA, more quietly, and in tighter 
groups (Kendall and Cornick, 2015; 61N Environmental, 2021, 2022a, 
2022b).
    While the habitat near the POA is not typically considered high 
quality foraging habitat for CIBWs and feeding is not a predominant 
behavior observed in CIBWs near the POA (61N Environmental, 2021, 
2022a, 2022b; Easley-Appleyard and Leonard, 2022), CIBWs have been 
observed exhibiting foraging behaviors during pile driving activities 
in the action area. For example, Saxon-Kendall et al. (2013) recorded 
echolocation clicks (which can be indicative of feeding behavior) 
during the MTRP both while pile driving was occurring and when it was 
not. While the action area is located within designated essential fish 
habitat (EFH) for chum, coho, Chinook, sockeye, and pink salmon; there 
are no designated areas of particular concern in the vicinity of the 
POA. Still, increased turbidity, elevation in noise levels during pile 
driving, and small spills have the potential to impact fish, including 
preferred prey of CIBWs including Pacific salmon (Chinook, sockeye, 
chum, and coho), Pacific eulachon, Pacific cod, walleye pollock, 
saffron cod, and yellowfin sole. However, CIBWs are known to typically 
forage in or near river mouths (e.g., Six Mile Creek, Eagle River, 
Eklutna River) from late spring through summer, which contain 
predictable salmon runs, and in nearshore bays and estuaries in the 
fall, when anadromous fish runs decline. Further, there is no evidence 
to suggest that CIBWs are restricted in transiting between preferred 
feeding areas during pile driving activities (e.g., 61N Environmental, 
2021, 2022a, 2022b, 2022c; Easley-Appleyard and Leonard, 2022). Thus, 
while there may be some impacts to CIBW prey and CIBW foraging 
behaviors in the action area, NMFS anticipates that these impacts would 
be temporary, and most likely related to fish avoiding the action area. 
NMFS does not anticipate that these impacts would rise to the level of 
adversely impacting annual rates of recruitment or survival.
    During PCT and SFD construction monitoring, little variability was 
evident in CIBW behaviors recorded from month to month, or between 
sightings that coincided with in-water pile installation and removal 
and those that did not (61N Environmental, 2021, 2022a, 2022b; Easley-
Appleyard and Leonard, 2022). Of the 386 CIBWs groups sighted during 
PCT and SFD construction monitoring, 10 groups were observed during or 
within minutes of in-water impact pile installation and 56 groups were 
observed during or within minutes of vibratory pile installation or 
removal (61N Environmental, 2021, 2022a, 2022b). In general, CIBWs were 
more likely to display no reaction or to continue to move towards the 
PCT or SFD during pile installation and removal. In the situations 
during which CIBWs showed a possible reaction (6 groups during impact 
driving and 13 groups during vibratory driving), CIBWs were observed 
either moving away immediately after the pile driving activities 
started or were observed increasing their rate of travel.
    NMFS funded a visual marine mammal monitoring project in 2021 
(described in the Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat of the Federal Register notice of the 
proposed IHA; 88 FR 76576, November 6, 2023) to supplement sighting 
data collected by the POA monitoring program during non-pile driving 
days in order to further evaluate the impacts of anthropogenic 
activities on CIBWs (Easley-Appleyard and Leonard, 2022). Preliminary 
results suggest that group size ranged from 1 to 34 whales, with an 
average of 3 to 5.6, depending on the month. September had the highest 
sighting rate with 4.08 whales per hour, followed by October and August 
(3.46 and 3.41, respectively). Traveling was recorded as the primary 
behavior for 80 percent of the group sightings and milling was the 
secondary behavior most often recorded. Sighting duration varied from a 
single surfacing lasting less than 1 minute to 380 minutes. Preliminary 
findings suggest these results are consistent with the results from the 
POA's PCT and SFD monitoring efforts. For example, group sizes ranged 
from 2.38 to 4.32 depending on the month and the highest sighting rate 
was observed in September (1.75). In addition, traveling was the 
predominant behavior observed for all months and categories of 
construction activity (i.e., no pile driving, before pile driving, 
during pile driving, between pile driving, or after pile driving), 
being recorded as the primary behavior for 86 percent of all sightings, 
and either the primary or secondary behavior for 95 percent of 
sightings.
    Easley-Appleyard and Leonard (2022) also asked PSOs to complete a 
questionnaire post-monitoring that provided NMFS with qualitative data 
regarding CIBW behavior during observations. Specifically during pile 
driving events, the PSOs noted that CIBW behaviors varied; however, 
multiple PSOs noted seeing behavioral changes specifically during 
impact pile driving (which will only be used when necessary to loosen 
piles for vibratory removal or direct pulling during the NES1 project) 
and not during vibratory pile driving. CIBWs were observed sometimes 
changing direction, turning around, or changing speed during impact 
pile driving. There were numerous instances where CIBWs were seen 
traveling directly towards the POA during vibratory pile driving before 
entering the Level B harassment zone (POA was required to shutdown 
prior to CIBWs entering the Level B harassment zone), which is 
consistent with findings during the POA's PCT and SFD monitoring 
efforts (61N Environmental, 2021, 2022a, 2022b). The PSOs also reported 
that it seemed more likely for CIBWs to show more cryptic behavior 
during pile driving (e.g., surfacing infrequently and without clear 
direction), though this seemed to vary across months (Easley-Appleyard 
and Leonard, 2022).
    We anticipate that disturbance to CIBWs will manifest in the same 
manner when they are exposed to noise during the NES1 project: whales 
will move quickly and silently through the area in more cohesive 
groups. We do not believe exposure to elevated noise levels during 
transit past the POA has adverse effects on reproduction or survival as 
the whales continue to access critical foraging grounds north of the 
POA, even if having shown a potential reaction during pile driving, and 
tight associations help to mitigate the potential for any contraction 
of communication space for a group. We also do not anticipate that 
CIBWs will abandon entering or exiting Knik Arm, as this is not evident 
based on previous years of monitoring data (e.g., Kendall and Cornick, 
2015; 61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard and 
Leonard, 2022), and the pre-pile driving clearance mitigation measure 
is designed to further avoid any potential abandonment. Finally, as 
described in the Potential Effects of Specified Activities on Marine 
Mammals and Their Habitat of the Federal Register notice of the 
proposed IHA (88 FR 76576, November 6, 2023), both telemetry (tagging) 
and acoustic data suggest CIBWs likely stay in upper Knik Arm (i.e., 
north of the NES1 project site) for several days or weeks before 
exiting Knik Arm. Specifically, a CIBW

[[Page 2871]]

instrumented with a satellite link time/depth recorder entered Knik Arm 
on August 18, 1999 and remained in Eagle Bay until September 12, 1999 
(Ferrero et al., 2000). Further, a recent detailed re-analysis of the 
satellite telemetry data confirms how several tagged whales exhibited 
this same movement pattern: whales entered Knik Arm and remained there 
for several days before exiting through lower Knik Arm (Shelden et al., 
2018). This longer-term use of upper Knik Arm will avoid repetitive 
exposures from pile driving noise.
    There is concern that exposure to pile driving at the POA could 
result in CIBWs avoiding Knik Arm and thereby not accessing the 
productive foraging grounds north of POA such as Eagle River flats 
thus, impacting essential feature number five above. Although the data 
previously presented demonstrate CIBWs are not abandoning the area 
(i.e., no significant difference in sighting rate with and without pile 
driving), results of an expert elicitation (EE) at a 2016 workshop, 
which predicted the impacts of noise on CIBW survival and reproduction 
given lost foraging opportunities, helped to inform our assessment of 
impacts on this stock. The 2016 EE workshop used conceptual models of 
an interim population consequences of disturbance (PCoD) for marine 
mammals (NRC, 2005; New et al., 2014; Tollit et al., 2016) to help in 
understanding how noise-related stressors might affect vital rates 
(survival, birth rate and growth) for CIBW (King et al., 2015). NMFS 
(2016b) suggests that the main direct effects of noise on CIBW are 
likely to be through masking of vocalizations used for communication 
and prey location and habitat degradation. The 2016 workshop on CIBWs 
was specifically designed to provide regulators with a tool to help 
understand whether chronic and acute anthropogenic noise from various 
sources and projects are likely to be limiting recovery of the CIBW 
population. The full report can be found at https://www.smruconsulting.com/publications/ with a summary of the EE portion 
of the workshop below.
    For each of the noise effect mechanisms chosen for EE, the experts 
provided a set of parameters and values that determined the forms of a 
relationship between the number of days of disturbance a female CIBW 
experiences in a particular period and the effect of that disturbance 
on her energy reserves. Examples included the number of days of 
disturbance during the period April, May, and June that would be 
predicted to reduce the energy reserves of a pregnant CIBW to such a 
level that she is certain to terminate the pregnancy or abandon the 
calf soon after birth, the number of days of disturbance in the period 
April-September required to reduce the energy reserves of a lactating 
CIBW to a level where she is certain to abandon her calf, and the 
number of days of disturbance where a female fails to gain sufficient 
energy by the end of summer to maintain themselves and their calves 
during the subsequent winter. Overall, median values ranged from 16 to 
69 days of disturbance depending on the question. However, for this 
elicitation, a ``day of disturbance'' was defined as any day on which 
an animal loses the ability to forage for at least one tidal cycle 
(i.e., it forgoes 50-100 percent of its energy intake on that day). The 
day of disturbance considered in the context of the report is notably 
more severe than the Level B harassment expected to result from these 
activities, which as described is expected to be comprised 
predominantly of temporary modifications in the behavior of individual 
CIBWs (e.g., faster swim speeds, more cohesive group structure, 
decreased sighting durations, cessation of vocalizations). Also, NMFS 
authorized 72 instances of takes, with the instances representing 
disturbance events within a day--this means that either 72 different 
individual CIBWs are disturbed on no more than 1 day each, or some 
lesser number of individuals may be disturbed on more than 1 day, but 
with the product of individuals and days not exceeding 72. Given the 
overall anticipated take, it is unlikely that any one CIBW will be 
disturbed on more than a few days. Further, the mitigation measures 
NMFS has prescribed for the NES1 project are designed to avoid the 
potential that any animal will lose the ability to forage for one or 
more tidal cycles should they be foraging in the NES1 project area, 
which is not known to be a particularly important feeding area for 
CIBWs. While Level B harassment (behavioral disturbance) will be 
authorized, the POA's mitigation measures will limit the severity of 
the effects of that Level B harassment to behavioral changes such as 
increased swim speeds, tighter group formations, and cessation of 
vocalizations, not the loss of foraging capabilities. Regardless, this 
elicitation recognized that pregnant or lactating females and calves 
are inherently more at risk than other animals, such as males. NMFS has 
determined all CIBWs warrant pile driving shutdown to be protective of 
potential vulnerable life stages, such as pregnancy, that cannot be 
determined from observations, and to avoid more severe behavioral 
reaction.
    NMFS has prescribed mitigation measures to minimize exposure to 
CIBWs, specifically, shutting down pile driving should a CIBW approach 
or enter the Level B harassment zone. These measures are designed to 
ensure CIBWs will not abandon critical habitat and exposure to pile 
driving noise will not result in adverse impacts on the reproduction or 
survival of any individuals. The location of the PSOs will allow for 
detection of CIBWs and behavioral observations prior to CIBWs entering 
the Level B harassment zone. Further, impact driving appeared to cause 
behavioral reactions more readily than vibratory hammering (61N 
Environmental, 2021, 2022a, 2022b), which will only be used in 
situations where sheet piles remain seized in the sediments and cannot 
be loosened or broken free with a vibratory hammer, which is expected 
to be uncommon during the NES1 project. If impact driving does occur, 
the POA must implement soft starts, which ideally allows animals to 
leave a disturbed area before the full-power driving commences 
(Tougaard et al., 2012). Although NMFS does not anticipate CIBWs will 
abandon entering Knik Arm in the presence of pile driving with the 
required mitigation measures, PSOs will be integral to identifying if 
CIBWs are potentially altering pathways they would otherwise take in 
the absence of pile driving. Finally, take by mortality, serious 
injury, or Level A harassment of CIBWs is not anticipated or 
authorized.
    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 the CIBWs through effects on 
annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     The area of exposure will be limited to habitat primarily 
used as a travel corridor. Data demonstrates Level B harassment of 
CIBWs typically manifests as increased swim speeds past the POA, 
tighter group formations, and cessation of vocalizations, rather than 
through habitat abandonment;
     No critical foraging grounds (e.g., Eagle Bay, Eagle 
River, Susitna Delta) will be impacted by pile driving; and
     While animals may be harassed more than once, exposures 
are not likely to exceed more than a few per year for any given 
individual and are not expected to occur on sequential days; thereby 
decreasing the likelihood of physiological impacts caused by chronic 
stress or masking.
    Based on the analysis contained herein of the likely effects of the

[[Page 2872]]

specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the specified 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.
    For all stocks, except for the Mexico-North Pacific stock of 
humpback whales whose abundance estimate is unknown, the amount of 
taking is less than one-third of the best available population 
abundance estimate (in fact it is less than 2 percent for all stocks, 
except for CIBWs whose authorized take is 22 percent of the stock; 
table 12). The number of animals authorized to be taken from these 
stocks would be considered small relative to the relevant stock's 
abundances even if each estimated take occurred to a new individual. 
The amount of take authorized likely represents smaller numbers of 
individual harbor seals and Steller sea lions. Harbor seals tend to 
concentrate near Ship Creek and have small home ranges. It is possible 
that a single individual harbor seal may linger near the POA, 
especially near Ship Creek, and be counted multiple times each day as 
it moves around and resurfaces in different locations. Previous Steller 
sea lion sightings identified that if a Steller sea lion is within Knik 
Arm, it is likely lingering to forage on salmon or eulachon runs and 
may be present for several days. Therefore, the amount of take 
authorized likely represents repeat exposures to the same animals. For 
all species, PSOs will count individuals as separate unless they cannot 
be individually identified.
    Abundance estimates for the Mexico-North Pacific stock of humpback 
whales are based upon data collected more than 8 years ago and, 
therefore, current estimates are considered unknown (Young et al., 
2023). The most recent minimum population estimates (NMIN) 
for this population include an estimate of 2,241 individuals between 
2003 and 2006 (Martinez-Aguilar, 2011) and 766 individuals between 2004 
and 2006 (Wade, 2021). NMFS' Guidelines for Assessing Marine Mammal 
Stocks suggest that the NMIN estimate of the stock should be 
adjusted to account for potential abundance changes that may have 
occurred since the last survey and provide reasonable assurance that 
the stock size is at least as large as the estimate (NMFS, 2023b). The 
abundance trend for this stock is unclear; therefore, there is no basis 
for adjusting these estimates (Young et al., 2023). Assuming the 
population has been stable, the 4 takes of this stock authorized 
represents small numbers of this stock (0.18 percent of the stock 
assuming a NMIN of 2,241 individuals and 0.52 percent of the 
stock assuming an NMIN of 766 individuals).
    Based on the analysis contained herein of the planned activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken 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.
    While no significant subsistence activity currently occurs within 
or near the POA, Alaska Natives have traditionally harvested 
subsistence resources, including marine mammals, in upper Cook Inlet 
for millennia. CIBWs are more than a food source; they are important to 
the cultural and spiritual practices of Cook Inlet Native communities 
(NMFS, 2008b). Dena'ina Athabascans, currently living in the 
communities of Eklutna, Knik, Tyonek, and elsewhere, occupied 
settlements in Cook Inlet for the last 1,500 years and have been the 
primary traditional users of this area into the present.
    NMFS estimated that 65 CIBWs per year (range 21-123) were killed 
between 1994 and 1998, including those successfully harvested and those 
struck and lost. NMFS concluded that this number was high enough to 
account for the estimated 14 percent annual decline in population 
during this time (Hobbs et al., 2008); however, given the difficulty of 
estimating the number of whales struck and lost during the hunts, 
actual mortality may have been higher. During this same period, 
population abundance surveys indicated a population decline of 47 
percent, although the reason for this decline should not be associated 
solely with subsistence hunting and likely began well before 1994 (Rugh 
et al., 2000).
    In 1999, a moratorium was enacted (Pub. L. 106-31) prohibiting the 
subsistence harvest of CIBWs except through a cooperative agreement 
between NMFS and the affected Alaska Native organizations. NMFS began 
working cooperatively with the Cook Inlet Marine Mammal Council 
(CIMMC), a group of tribes that traditionally hunted CIBWs, to 
establish sustainable harvests. CIMMC voluntarily curtailed its 
harvests in 1999. In 2000, NMFS designated the Cook Inlet stock of 
beluga whales as depleted under the MMPA (65 FR 34590, May 31, 2000). 
NMFS and CIMMC signed Co-Management of the Cook Inlet Stock of Beluga 
Whales agreements in 2000, 2001, 2002, 2003, 2005, and 2006. CIBW 
harvests between 1999 and 2006 resulted in the strike and harvest of 
five whales, including one whale each in 2001, 2002, and 2003, and two 
whales in 2005 (NMFS, 2008b). No hunt occurred in 2004 due to higher-
than-normal mortality of CIBWs in 2003, and the Native Village of 
Tyonek agreed to not hunt in 2007. Since 2008, NMFS has examined how 
many CIBWs could be harvested during 5-year intervals based on 
estimates of population size and growth rate and determined that no 
harvests would occur between 2008 and 2012 and between 2013 and 2017 
(NMFS, 2008b). The CIMMC was disbanded by unanimous vote of the CIMMC 
member Tribes' representatives in June 2012, and a replacement group of 
Tribal members has not been formed

[[Page 2873]]

to date. There has been no subsistence harvest of CIBWs since 2005 
(NMFS, 2022d).
    Subsistence harvest of other marine mammals in upper Cook Inlet is 
limited to harbor seals. Steller sea lions are rare in upper Cook 
Inlet; therefore, subsistence use of this species is not common. 
However, Steller sea lions are taken for subsistence use in lower Cook 
Inlet. Residents of the Native Village of Tyonek are the primary 
subsistence users in the upper Cook Inlet area. While harbor seals are 
hunted for subsistence purposes, harvests of this for traditional and 
subsistence uses by Native peoples have been low in upper Cook Inlet 
(e.g., 33 harbor seals were harvested in Tyonek between 1983 and 2013; 
see table 8-1 in the POA's application), although these data are not 
currently being collected and summarized. As the POA's planned project 
activities will take place within the immediate vicinity of the POA, no 
activities will occur in or near Tyonek's identified traditional 
subsistence hunting areas. As the harvest of marine mammals in upper 
Cook Inlet is historically a small portion of the total subsistence 
harvest, and the number of marine mammals using upper Cook Inlet is 
proportionately small, the number of marine mammals harvested in upper 
Cook Inlet is expected to remain low.
    The potential impacts from harassment on stocks that are harvested 
in Cook Inlet will be limited to minor behavioral changes (e.g., 
increased swim speeds, changes in dive time, temporary avoidance near 
the POA, etc.) within the vicinity of the POA. Some PTS may occur; 
however, the shift is likely to be slight due to the implementation of 
mitigation measures (e.g., shutdown zones, pre-clearance monitoring, 
soft starts) and the shift will be limited to lower pile driving 
frequencies, which are on the lower end of phocid and otariid hearing 
ranges. In summary, any impacts to harbor seals will be limited to 
those seals within Knik Arm (outside of any hunting area) and the very 
few takes of Steller sea lions in Knik Arm will be far removed in time 
and space from any hunting in lower Cook Inlet.
    The POA will communicate with representative Alaska Native 
subsistence users and Tribal members to identify and explain the 
measures that have been taken or will be taken to minimize any adverse 
effects of NES1 on the availability of marine mammals for subsistence 
uses. In addition, the POA will adhere to the following procedures 
during Tribal consultation regarding marine mammal subsistence use 
within the Project area:
    (1) Send letters to the Kenaitze, Tyonek, Knik, Eklutna, Ninilchik, 
Salamatof, and Chickaloon Tribes informing them of the planned project 
(i.e., timing, location, and features). Include a map of the planned 
project area; identify potential impacts to marine mammals and 
mitigation efforts, if needed, to avoid or minimize impacts; and 
inquire about possible marine mammal subsistence concerns they have;
    (2) Follow up with a phone call to the environmental departments of 
the seven Tribal entities to ensure that they received the letter, 
understand the project, and have a chance to ask questions. Inquire 
about any concerns they might have about potential impacts to 
subsistence hunting of marine mammals;
    (3) Document all communication between the POA and Tribes; and
    (4) If any Tribes express concerns regarding project impacts to 
subsistence hunting of marine mammals, propose a Plan of Cooperation 
between the POA and the concerned Tribe(s).
    The NES1 project features and activities, in combination with a 
number of actions to be taken by the POA during project implementation, 
should avoid or mitigate any potential adverse effects on the 
availability of marine mammals for subsistence uses. Furthermore, 
although construction will occur within the traditional area for 
hunting marine mammals, the project area is not currently used for 
subsistence activities. In-water pile installation and removal will 
follow mitigation procedures to minimize effects on the behavior of 
marine mammals, and impacts will be temporary.
    The POA has expressed, if desired, regional subsistence 
representatives may support project marine mammal biologists during the 
monitoring program by assisting with collection of marine mammal 
observations and may request copies of marine mammal monitoring 
reports.
    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 required mitigation and 
monitoring measures, NMFS has determined that there will not be an 
unmitigable adverse impact on subsistence uses from the POA's planned 
activities.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS OPR consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with the NMFS Alaska 
Regional Office.
    There are three marine mammal species (the Mexico DPS and Western 
North Pacific DPS of humpback whale, CIBWs, and western DPS Steller sea 
lion) with confirmed occurrence in the project area that are listed as 
endangered or threatened under the ESA. The NMFS Alaska Regional Office 
issued a BiOp on December 15, 2023, under section 7 of the ESA, on the 
issuance of an IHA to the POA under section 101(a)(5)(D) of the MMPA by 
the NMFS OPR. The BiOp concluded that the specified action is not 
likely to jeopardize the continued existence of the Mexico DPS and 
Western North Pacific DPS of humpback whale, CIBWs, or western DPS 
Steller sea lions, and is not likely to destroy or adversely modify 
CIBW critical habitat. There is no critical habitat designated for 
humpback whales or Steller sea lions in the action area.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NAO 216-6A, NMFS must review our proposed 
action (i.e., the issuance of an IHA) with respect to potential impacts 
on the human environment. Accordingly, NMFS prepared an Environmental 
Assessment (EA). The EA supported a FONSI. A copy of the EA and FONSI 
is available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Authorization

    NMFS has issued an IHA to the POA for the potential harassment of 
small numbers of seven marine mammal species incidental to the NES1 
project in Anchorage, Alaska, that includes the previously explained 
mitigation, monitoring and reporting requirements.

    Dated: January 8, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-00511 Filed 1-12-24; 8:45 am]
BILLING CODE 3510-22-P