[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Notices]
[Pages 59247-59253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23340]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XD330
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Breakwater Replacement Project in
Eastport, Maine
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental take authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA)
regulations, notification is hereby given that NMFS has issued an
Incidental Harassment Authorization (IHA) to the Maine Department of
Transportation (ME DOT) to take, by harassment, small numbers of four
species of marine mammals incidental to breakwater replacement project
in Eastport, Maine, between October 1, 2014, through September 30,
2015.
DATES: Effective October 1, 2014, through September 30, 2015.
ADDRESSES: A copy of the application containing a list of the
references used in this document, NMFS's Environmental Assessment (EA),
Finding of No Significant Impact (FONSI), and the IHA may be obtained
by telephoning the contact listed below (see FOR FURTHER INFORMATION
CONTACT) or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
Documents cited in this notice may be viewed, by appointment,
during regular business hours, at 1315 East West Highway, Silver
Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
[[Page 59248]]
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
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.''
Except with respect to certain activities not pertinent here, 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].
Summary of Request
On February 21, 2014, NMFS received an application from ME DOT
requesting an IHA for the take, by Level B harassment, of small numbers
of harbor seals (Phoca vitulina), gray seals (Halichoerus grypus),
harbor porpoises (Phocoena phocoena), and Atlantic white-sided dolphins
(Lagenorhynchus acutus) incidental to in-water construction activities
in Eastport, Maine. Upon receipt of additional information and a
revised application, NMFS determined the application complete and
adequate on May 6, 2014. On July 31, 2014, NMFS published a Federal
Register notice (FR 79 44407) for the proposed IHA. No changes were
made to the breakwater replacement work as described in the proposed
IHA. Please refer to Federal Register notice for the proposed IHA for a
detailed description of the project activities.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to ME DOT was published
in the Federal Register on July 31, 2014 (79 FR 44407). That notice
described, in detail, ME DOT's activity, the marine mammal species that
may be affected by the activity, and the anticipated effects on marine
mammals. During the 30-day public comment period, NMFS received
comments from the Marine Mammal Commission (Commission). All comments
specific to ME DOT's application that address the statutory and
regulatory requirements or findings NMFS must make to issue an IHA are
addressed in this section of the Federal Register notice.
Comment 1: The Commission questions the Level A and B harassment
zones presented in the Federal Register notice (79 FR 44407; July 31,
2014) for the proposed IHA. The zones presented by ME DOT, and
subsequently adopted in the proposed IHA, were based on measurements
for the Ocean Renewable Power Company, LLC, (ORPC) pile driving of 30-
in piles in much deeper water (26-32 m). However, the proposed ME DOT's
breakwater replacement will have piles as large as 36-inch and in water
depth much shallower (2.4-17 m). The Commission recommends NMFS refer
to the California Department of Transportation pile driving measurement
report (CALTRANS, 2009) for information regarding source levels of
larger piles as well as modeled take zone sizes.
The Commission recommended that NMFS (1) require ME DOT to use
exclusion zones greater than 10 m that are precautionary for pile
driving using both the impact and downhole hammer and (2) consult with
its analysts who have expertise in pile-driving activities and
associated in-situ monitoring to determine the appropriate exclusion
zones based on Level A harassment threshold of 180 dB re 1 [mu]Pa for
36-in piles installed using both an impact and down-hole hammer.
Response: After review of ME DOT's take zone calculation and
comparing those with empirical measurements for equivalent piles, NMFS
worked with ME DOT and recalculated the Level A and B harassment zones.
Subsequently, ME DOT adopted CALTRANS pile driving measurement data of
equivalent pile size (36-in diameter) in comparable environment to
establish Level B harassment zones for impact and vibratory pile
driving and Level A harassment zone for impact pile driving as
recommended by NMFS. Although there is no Level A harassment zone for
vibratory pile driving, ME DOT will voluntarily establish an exclusion
zone for vibratory pile driving at 30 meters from the source. There are
no empirical measures for pile driving using a downhole hammer,
nevertheless, ME DOT proposes to establish a 333-meter exclusion zone
and 1,000-meter zone of influence (ZOI) for downhole pile driving. This
distance is based on the observation by Nedwell and Edwards' (2002)
measurements of pile driving attenuation in saltwater. These zones will
be adjusted based on in-situ hydroacoustic monitoring and sound
measurements. The updated initial exclusion zones and zones of
influence (ZOIs) are provided in Table 1 below.
Table 1--Updated Initial Harassment Zones
------------------------------------------------------------------------
Exclusion zone Zone of
(m) influence (m)
------------------------------------------------------------------------
Impact Pile Driving..................... 30 1,000
Vibratory Pile Driving.................. 30 1,000
Downhole Pile Driving................... 333 1,000
------------------------------------------------------------------------
Comment 2: The Commission also recommended that NMFS (1) consult
with its analysts who have expertise in pile-driving activities and
associated in-situ monitoring to estimate appropriate Level B
harassment zones for (a) 36-in pipe piles installed using impact and
down-hole hammers and vibratory hammers based on 160 and 120 dB re 1
[mu]Pa, respectively, (b) sheet piles installed using a vibratory
hammer based on 120 dB re 1 [mu]Pa, and (c) sheet piles removed using
either a vibratory extractor or underwater saw based on 120 dB re 1
[mu]Pa and (2) include those zones in the final IHA.
Response: For impact and vibratory pile driving, the initial
harassment zones are provided in Table 1 above. For sheet piles removal
using either a vibratory extractor or underwater saw based on 120 dB re
1 [mu]Pa, the initial zone are set to be 1000 m from the source. This
distance will be updated based on hydroacoustic measurements. These
zones are included in the final IHA issued to ME DOT.
[[Page 59249]]
Comment 3: The Commission recommended that NMFS (1) explicitly
require ME DOT to conduct in-situ measurements of all activities
(impact, down-hole, and vibratory installation of the 36-in piles and
vibratory extraction and sawing of the sheet piles) and, (2)(a) consult
with its analysts who have expertise in acoustic monitoring to
determine the appropriate methods for collecting the in-situ
measurements and establishing the duration of data collection (e.g., 10
piles or sheets using each method) and (b) include those methods in the
final IHA.
Response: NMFS agrees with the Commission that ME DOT and will
require ME DOT to conduct in-situ measurements of all activities.
However, NMFS does not agree with the Commission's recommendation of
including specific in-situ measurement methods in the final IHA. Due to
the timing of contractor bidding, ME DOT was not able to provide NMFS
with detailed hydroacoustic measurement methods prior to NMFS's
issuance of an IHA. Nevertheless, NMFS will review and approve the
contractor acoustic data collection method before ME DOT begins in-
water pile driving and removal activities.
Comment 4: The Commission recommends that NMFS explicitly require
in the final IHA ME DOT to conduct in-situ measurements of any
concurrent activities (impact, down-hole, and vibratory installation
and vibratory extraction and sawing of the sheet piles) and adjust the
individual Level A and B harassment zones accordingly.
Response: ME DOT will be required to conduct in-situ measurements
of any concurrent activities (impact, down-hole, and vibratory
installation and vibratory extraction and sawing of the sheet piles)
and adjust the individual Level A and B harassment zones accordingly.
Comment 5: The Commission noted that the Federal Register notice
for the proposed IHA indicated that ME DOT estimated the potential
numbers of takes based on the maximum group size of animals observed
during Ocean Renewable Power Company's (ORPC's) marine mammal
observations multiplied by the maximum expected number of pile-driving
and underwater-sawing days. However, the Commission points out that ME
DOT's application and apparently the numbers included in Table 8 of the
Federal Register notice for the proposed IHA were based on numbers of
marine mammals observed by ORPC on an hourly basis for each month
scaled to ME DOT's assumed activity hours. The Commission recommends
that NMFS authorize the estimated numbers of marine mammal takes for ME
DOT activities based on the maximum group size of animals observed
during ORPC's marine mammal observation effort multiplied by the
maximum expected number of pile/sheet installation and sheet removal
days, consistent with the ORPC incidental harassment authorization.
Response: NMFS worked with ME DOT and revised take estimates based
on maximum group size as recommended by the Commission. The updated
take numbers are provided in Table 2 below.
Table 2--Estimated Marine Mammal Takes by Level B Harassment
----------------------------------------------------------------------------------------------------------------
Estimated take Percentage of
Common species name by Level B Abundance of stock stock potentially Population trend
harassment affected
----------------------------------------------------------------------------------------------------------------
Gray seal....................... 456 Over 250,000 in 0.18 increasing
western North
Atlantic.
Harbor seal..................... ................. 70,142 in western 0.65 N/A
North Atlantic.
Harbor porpoise................. 456 79,883 in Gulf of 0.57 N/A
Maine/Bay of Fundy.
Atlantic white-sided dolphin.... 76 48,819 in the 0.16 N/A
western North
Atlantic.
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Comment 6: The Commission noted that a minke whale was observed
during ORPC marine mammal monitoring, but incidental taking of that
species was not proposed. Accordingly, the Commission recommended that
NMFS specify in its final IHA that ME DOT delay or cease pile
installation or sheet removal/sawing if an animal(s) from any species
or stock for which authorization has not been granted approaches or is
observed within any of the Level B harassment zones and would not
resume those activities until the animal(s) has been observed to leave
the Level B harassment zone.
Response: NMFS agrees with the Commission's recommendation and
included a condition in requiring ME DOT to delay or cease pile
installation or sheet removal/sawing if an animal(s) from any species
or stock for which authorization has not been granted approaches or is
observed within any of the Level B harassment zones and would not
resume those activities until the animal(s) has been observed to leave
the Level B harassment zone.
Comment 7: The Commission recommended that NMFS require ME DOT to
conduct monitoring out to the extent of the relevant Level B harassment
zones for vibratory pipe pile installation, vibratory sheet pile
installation, vibratory sheet extraction, and sheet sawing for at least
the majority of time spent conducting each of the four activities.
Response: NMFS agrees with the Commission's recommendation and has
included this condition in the final IHA.
Description of Marine Mammals in the Area of the Specified Activity
In the Federal Register notice (79 FR 44407; July 31, 2014) for the
proposed IHA and in ME DOT's IHA application, it was identified that
four marine mammal species under NMFS jurisdiction are likely to occur
in the construction area: Parbor seal (Phoca vitulina), gray seal
(Halichoerus grypus), harbor porpoise (Phocoena phocoena), and Atlantic
white-sided dolphin (Lagenorhynchus acutus). There is no change on the
information regarding the species in the vicinity of the construction
area.
Potential Effects of the Specified Activity on Marine Mammals
The effects of underwater noise from in-water pile driving and pile
removal associated with the Eastport breakwater construction activities
in Eastport, Maine, has the potential to result in Level B (behavioral)
harassment of marine mammal species and stocks in the vicinity of the
action area. The Notice of Proposed IHA included a discussion of the
effects of anthropogenic noise on marine mammals, which is not repeated
here. No instances of hearing threshold shifts, injury, serious injury,
or mortality are expected as a result of the breakwater construction
activities given the strong likelihood that marine mammals would avoid
the immediate vicinity of the pile driving area.
[[Page 59250]]
Potential Effects on Marine Mammal Habitat
The primary potential impacts to marine mammals and other marine
species are associated with elevated sound levels, but the project may
also result in additional effects to marine mammal prey species and
short-term local water turbidity caused by in-water construction due to
pile removal and pile driving. These potential effects are discussed in
detail in the Federal Register notice for the proposed IHA and are not
repeated here.
Mitigation
In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible
methods of taking pursuant to such activity, and other means of
effecting the least practicable impact on such species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such species
or stock for taking for certain subsistence uses (where relevant).
For the proposed ME DOT Eastport breakwater construction
activities, NMFS has required that ME DOT implement the following
mitigation measures to minimize the potential impacts to marine mammals
in the project vicinity.
Use of Noise Attenuation Devices
When using a diesel impact hammer to ``proof'' piles, ME DOT shall
use sound absorption cushions and/or a bubble curtain to reduce
hydroacoustic sound levels and avoid the potential for marine mammal
injury. Based on previous studies, sound attenuation devices are
expected to reduce sound levels by at least 5 dB.
Exclusion Zones and Zones of Influence (ZOIs)
The purpose of the proposed exclusion zone is to prevent Level A
harassment (injury) of any marine mammal species. During all in-water
impact pile driving, ME DOT shall establish a preliminary marine mammal
exclusion zone around each pile to avoid exposure to sounds at or above
180 dB. In addition, ME DOT shall establish ZOIs within which marine
mammals will be exposed to noise levels that could cause Level B
behavioral harassment. The received levels for Level B harassment from
impact and downhole hammers is 160 dB re 1 [mu]Pa, and from vibratory
hammer is 120 dB re 1 [mu]Pa. The preliminary distances of each zone
based on the results of CALTRANS' hydroacoustic monitoring and NMFS
recommendation are provided in Table 1 above.
Prior to commencing pile driving, ME DOT shall establish initial
harassment zones based on Table 1. These zones shall later be verified
by conducting hydroacoustic measurements of sound from in-water
construction activities. The hydroacousitc monitoring plan would
include the following elements: Monitoring for dB (rms) levels at 10 m
from the pile; monitoring at 100 m to proof the marine mammal
monitoring areas; and real time reporting of noise levels to the
construction team. ME DOT would provide NMFS with a report following
completion of the hydroacoustic monitoring.
If hydroacoustic monitoring indicates that threshold isopleths are
greater than the initial zones in Table 1, ME DOT would contact NMFS
within 48 hours and make the necessary adjustments. Likewise, if
threshold isopleths are actually less than originally calculated,
downward adjustments may be made to the exclusion zones and/or ZOIs.
The exclusion zone would be monitored continuously to ensure that
no marine mammals enter the area. An exclusion zone for vibratory pile
driving and underwater sawing is unnecessary as source levels would not
exceed the Level A harassment threshold.
Shutdown and Delay Procedures
If a PSO sees a marine mammal within or approaching the exclusion
zone prior to start of impact pile driving, the observer would notify
the on-site project lead (or other authorized individual) who would
then be required to delay pile driving until the marine mammal has has
moved out of the exclusion zone or if the animal has not been resighted
within 30 minutes. If a marine mammal is sighted within or on a path
toward the exclusion zone during pile driving, pile driving would cease
until that animal has moved out of the exclusion zone or 30 minutes has
lapsed since the last sighting.
In addition, although it is unlikely, if a marine mammal that is
not covered under the IHA is sighted in the vicinity of the project
area and is about to enter the ZOI, ME DOT shall implement shutdown
measures to ensure that the animal is not exposed to noise levels that
could result a take.
Soft-Start Procedures
A ``soft-start'' technique shall be used at the beginning of each
pile installation and each use of the underwater saw to allow any
marine mammal that may be in the immediate area to leave before the
pile hammer reaches full energy or saw begins sawing. For vibratory
pile driving, the soft-start procedure requires contractors to initiate
noise from the vibratory hammer for 15 seconds at 40-60 percent reduced
energy followed by a 1-minute waiting period. The procedure would be
repeated two additional times before full energy may be achieved. For
impact hammering, contractors would be required to provide an initial
set of three strikes from the impact hammer at 40 percent energy,
followed by a 1-minute waiting period, then two subsequent three-strike
sets. For operating the underwater saw, contractors would be required
to turn on the saw 3 or 4 times for 2 to 3 seconds each time over the
course of 30 seconds. Soft-start procedures would be conducted any time
hammering ceases for more than 30 minutes.
Mitigation Conclusions
NMFS has carefully evaluated the applicant's proposed mitigation
measures and considered a range of other measures in the context of
ensuring that NMFS prescribes the means of effecting the least
practicable impact on the affected marine mammal species and stocks and
their habitat. Our evaluation of potential measures included
consideration of the following factors in relation to one another:
The manner in which, and the degree to which, the
successful implementation of the measure is expected to minimize
adverse impacts to marine mammals.
The proven or likely efficacy of the specific measure to
minimize adverse impacts as planned.
The practicability of the measure for applicant
implementation.
Any mitigation measure(s) prescribed by NMFS should be able to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to received
levels of pile driving and pile removal or other activities expected to
result in the take of marine mammals (this goal may contribute to 1,
above, or to reducing harassment takes only).
(3) A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to received levels of pile driving and pile removal, or other
activities expected to
[[Page 59251]]
result in the take of marine mammals (this goal may contribute to 1,
above, or to reducing harassment takes only).
(4) A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to received
levels of pile driving, or other activities expected to result in the
take of marine mammals (this goal may contribute to a, above, or to
reducing the severity of harassment takes only).
(5) Avoidance or minimization of adverse effects to marine mammal
habitat, paying special attention to the food base, activities that
block or limit passage to or from biologically important areas,
permanent destruction of habitat, or temporary destruction/disturbance
of habitat during a biologically important time.
(6) For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has determined that the
proposed mitigation measures provide the means of effecting the least
practicable impact on marine mammals 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 ITA 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 ITAs
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 in the proposed action area.
USCG submitted a marine mammal monitoring plan as part of the IHA
application. It can be found at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be modified or supplemented based on
comments or new information received from the public during the public
comment period.
Monitoring measures prescribed by NMFS should accomplish one or
more of the following general goals:
(1) An increase in the probability of detecting marine mammals,
both within the mitigation zone (thus allowing for more effective
implementation of the mitigation) and in general to generate more data
to contribute to the analyses mentioned below;
(2) An increase in our understanding of how many marine mammals are
likely to be exposed to levels of pile driving that we associate with
specific adverse effects, such as behavioral harassment, TTS, or PTS;
(3) An increase in our understanding of how marine mammals respond
to stimuli expected to result in take and how anticipated adverse
effects on individuals (in different ways and to varying degrees) may
impact the population, species, or stock (specifically through effects
on annual rates of recruitment or survival) through any of the
following methods:
[ssquf] Behavioral observations in the presence of stimuli compared
to observations in the absence of stimuli (need to be able to
accurately predict received level, distance from source, and other
pertinent information);
[ssquf] Physiological measurements in the presence of stimuli
compared to observations in the absence of stimuli (need to be able to
accurately predict received level, distance from source, and other
pertinent information);
[ssquf] Distribution and/or abundance comparisons in times or areas
with concentrated stimuli versus times or areas without stimuli;
(4) An increased knowledge of the affected species; and
(5) An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.
Monitoring Measures
Hydroacoustic monitoring shall be performed using appropriate
method reviewed and approved by NMFS at the initial installation of
each pile driving and pile extraction method and underwater sawing to
ensure that the harassment isopleths are not extending past the initial
distances established and to assess the efficiency of the sound
attenuation devices.
In addition, ME DOT shall conduct in-situ hydroacoustic
measurements of any concurrent activities (impact, down-hole, and
vibratory installation and vibratory extraction and sawing of the sheet
piles) and adjust the individual Level A and B harassment zones
accordingly.
For visual monitoring of marine mammals, ME DOT shall designate two
biologically-trained, on-site protected species observers (PSOs),
approved in advance by NMFS, to monitor the exclusion zone
(preliminarily set at 30 m) for marine mammals 30 minutes before,
during, and 30 minutes after all impact pile driving activities and
call for shut down if any marine mammal is observed within or
approaching the exclusion zone. These PSOs would be positioned on the
pier. One observer would survey inwards toward the pile driving site
and the second observer would conduct behavioral monitoring outwards to
a distance of 1 km during all impact pile driving.
PSOs shall provide 100% coverage for marine mammal exclusion zones
and conduct monitoring out to the extent of the relevant Level B
harassment zones for vibratory pile driving, vibratory sheet pile
driving, vibratory sheet pile extraction, and sheet sawing for at least
the majority of time spent (>50%) conducting each of the four
activities.
PSOs shall be provided with the equipment necessary to effectively
monitor for marine mammals (for example, high-quality binoculars,
compass, and range-finder as well as a digital SLR camera with
telephoto lens and video capability) in order to determine if animals
have entered into the exclusion zone or Level B harassment isopleth and
to record species, behaviors, and responses to pile driving.
Reporting
ME DOT is required to submit a report to NMFS within 90 days of
completion of in-water construction activities. The report would
include data from marine mammal sightings (such as date, time,
location, species, group size, and behavior), any observed reactions to
construction, distance to operating pile hammer, and construction
activities occurring at time of sighting and environmental data for the
period (wind speed and direction, Beaufort sea state, cloud cover, and
visibility).
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA
(if issued), such as an injury (Level A harassment), serious injury, or
mortality, ME DOT would immediately cease the specified activities and
immediately report the incident to the Permits and Conservation
Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or
by email to [email protected] and [email protected] and the
Greater Atlantic Regional Fisheries Office Stranding Coordinator
([email protected]). The report must include the following
information:
Time, date, and location (latitude/longitude) of the
incident;
Name and type of vessel involved;
Vessel's speed during and leading up to the incident;
[[Page 59252]]
Description of the incident;
Status of all sound source use in the 24 hrs preceding the
incident;
Water depth;
Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
Description of all marine mammal observations in the 24
hrs preceding the incident;
Species identification or description of the animal(s)
involved;
Fate of the animal(s); and
Photographs or video footage of the animal(s) (if
equipment is available).
Activities would not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with ME DOT to
determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. ME DOT may not resume their
activities until notified by NMFS via letter, email, or telephone.
In the event that ME DOT discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (i.e., in less than
a moderate state of decomposition as described in the next paragraph),
ME DOT would immediately report the incident to the Permits and
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401, and/or by email to [email protected] and
[email protected] and the Greater Atlantic Regional Fisheries Office
Stranding Coordinator at 978-281-9300 ([email protected]). The
report must include the same information identified in the paragraph
above. Activities may continue while NMFS reviews the circumstances of
the incident. NMFS would work with ME DOT to determine whether
modifications in the activities are appropriate.
In the event that ME DOT discovers an injured or dead marine
mammal, and the lead PSO determines that the injury or death is not
associated with or related to the activities authorized in the IHA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), ME DOT would report the incident
to the Permits and Conservation Division, Office of Protected
Resources, NMFS, at 301-427-8401, and/or by email to
[email protected] and [email protected] and the NMFS Stranding
Hotline (866-755-6622) and/or by email to the Greater Atlantic Regional
Fisheries Office Stranding Coordinator ([email protected]), within
24 hrs of the discovery. ME DOT would provide photographs or video
footage (if available) or other documentation of the stranded animal
sighting to NMFS and the Marine Mammal Stranding Network. Activities
may continue while NMFS reviews the circumstances of the incident.
Estimated Take of Incidental Harassment
Except with respect to certain activities not pertinent here, 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].
As discussed above, in-water pile driving (vibratory and impact)
and pile removal generate loud noises that could potentially harass
marine mammals in the vicinity of the ME DOT's proposed Eastport
breakwater replacement project.
Currently, NMFS uses 120 dB re 1 [mu]Pa and 160 dB re 1 [mu]Pa at
the received levels for the onset of Level B harassment for non-impulse
(vibratory pile driving and removal) and impulse sources (impact pile
driving) underwater, respectively. Table 3 summarizes the current NMFS
marine mammal take criteria.
Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound
------------------------------------------------------------------------
Criterion
Criterion definition Threshold
------------------------------------------------------------------------
Level A Harassment (Injury)..... Permanent 180 dB re 1 [mu]Pa
Threshold Shift (cetaceans)/190
(PTS) (Any level dB re 1 [mu]Pa
above that which (pinnipeds) root
is known to cause mean square
TTS). (rms).
Level B Harassment.............. Behavioral 160 dB re 1 [mu]Pa
Disruption (for (rms).
impulse noises).
Level B Harassment.............. Behavioral 120 dB re 1 [mu]Pa
Disruption (for (rms).
non-impulse
noise).
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Distances to NMFS' harassment thresholds were calculated based on
the expected sound levels at each source and the expected attenuation
rate of sound (Table 1). The 30-m distance to the Level A harassment
threshold provides PSOs plenty of time and adequate visibility to
prevent marine mammals from being exposed to sound levels that reach
the Level A harassment threshold during impact pile driving.
The estimated number of marine mammals potentially taken is based
on ORPC's marine mammal monitoring observations between 2007 and 2010.
Based on marine mammal sightings during that period, further
consultation between ORPC and NMFS, and the estimated number of pile
driving and underwater sawing days for the Eastport Breakwater project,
ME DOT requests authorization for the incidental take of 456 seals
(because they cannot always be identified to the species-level), 456
harbor porpoises, and 76 Atlantic white-sided dolphins. The estimated
take is based on the maximum group size of animals observed during
ORPC's marine mammal observations multiplied by the maximum expected
number of pile driving and underwater sawing days.
Analysis and Determinations
Negligible Impact
Negligible impact is ``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 Level B harassment 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 behavioral harassment,
NMFS must consider other factors, such as the likely nature of any
responses (their intensity, duration, etc.), the context of any
responses (critical reproductive time or location, migration, etc.), as
well as the number and nature of estimated Level A harassment takes,
the number of estimated mortalities, and effects on habitat.
ME DOT's proposed Eastport breakwater replacement project would
[[Page 59253]]
involve pile driving and removal activities as well as the use of an
underwater saw. Elevated noise levels are expected to be generated as a
result of these activities. However, ME DOT would use noise attenuation
devices (e.g., pile cushions, bubble curtains) during impact pile
driving to ensure that sound levels of 180 dB (rms) do not extend more
than 10 m from the pile, which eliminates the potential for injury
(PTS) and TTS. Given the required mitigation and monitoring, no
injuries or mortalities are anticipated to occur as a result of ME
DOT's proposed action in Eastport, and none are proposed to be
authorized. In addition, as described above, marine mammals in the area
would not be exposed to activities or sound levels which would result
in hearing impairment (TTS or PTS) or non-auditory physiological
effects. The small number of takes that are anticipated to occur would
be limited to short-term Level B harassment.
In-water construction activities would occur in relatively shallow
coastal waters of Cobscook Bay. The proposed project area is not
considered significant habitat for marine mammals. Marine mammals
approaching the action area would likely be traveling or
opportunistically foraging. There are no rookeries or major haul-out
sites nearby, foraging hotspots, or other ocean bottom structure of
significant biological importance to marine mammals that may be present
in the marine waters in the vicinity of the project area. The closest
significant pinniped haul out is more than 6 nm away (ME DOT, pers.
comm.), which is well outside the project area's largest harassment
zone. The proposed project area is not a prime habitat for marine
mammals, nor is it considered an area frequented by marine mammals.
Therefore, behavioral disturbances that could result from anthropogenic
noise associated with breakwater replacement activities are expected to
affect only a small number of marine mammals on an infrequent basis.
Although it is possible that some individual marine mammals may be
exposed to sounds from in-water construction activities more than once,
the duration of these multi-exposures is expected to be low since
animals would be constantly moving in and out of the area and in-water
construction activities would not occur continuously throughout the
day.
Marine mammals may be temporarily impacted by noise from pile
driving activities and the operation of an underwater saw. These low
intensity, localized, and short-term noise exposures may cause brief
startle reactions or short-term behavioral modifications by the
animals. These reactions and behavioral changes are expected to subside
quickly when the exposures cease. Moreover, marine mammals are expected
to avoid the area during in-water construction because animals
generally move away from active sound sources, thereby reducing
exposure and impacts. In addition, through mitigation measures
including soft start, marine mammals are expected to move away from a
sound source that is annoying prior to its becoming potentially
injurious, and detection of marine mammals by observers would enable
the implementation of shutdowns to avoid injury, serious injury, or
mortality. In-water construction activities involving pile driving and
underwater sawing are expected to occur for about 12 days total each
month. Repeated exposures of individuals to levels of sound that may
cause Level B harassment are unlikely to result in hearing impairment
or to significantly disrupt foraging behavior. Thus, even repeated
Level B harassment of some small subset of an overall stock is unlikely
to result in any significant realized decrease in fitness to those
individuals, and thus would not result in any adverse impact to the
stock as a whole. Level B harassment will be reduced to the level of
least practicable impact through use of mitigation measures described
herein and, if sound produced by project activities is sufficiently
disturbing, animals are likely to simply avoid the project area while
the activity is occurring.
Based on the application and subsequent analysis, the impact of the
described in-water construction activities may result in, at most,
short-term modification of behavior by small numbers of marine mammals
within the action area. No injury, serious injury, or mortality is
expected to occur and due to the nature, degree, and context of the
Level B harassment anticipated, the activity is not expected to impact
rates of recruitment or survival.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the Eastport breakwater replacement activity will have a negligible
impact on the affected marine mammal species or stocks.
Small Numbers
The amount of take NMFS proposes to authorize is considered small
(less than one percent) relative to the estimated populations of 70,142
harbor seals, 250,000 gray seals, 79,883 harbor porpoises, and 48,819
Atlantic white-sided dolphins. Based on the analysis contained herein
of the likely effects of the specified activity on marine mammals and
their habitat, and taking into consideration the implementation of the
mitigation and monitoring measures, NMFS finds that small numbers of
marine mammals will be taken relative to the populations of the
affected species or stocks.
Impact on Availability of Affected Species for Taking for Subsistence
Uses
There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, NMFS has determined that the total taking of
affected species or stocks would not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.
Endangered Species Act (ESA)
No species listed under the ESA are expected to be affected by
these activities. Therefore, NMFS has determined that a section 7
consultation under the ESA is not required.
National Environmental Policy Act (NEPA)
In compliance with the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), as implemented by the regulations published
by the Council on Environmental Quality (40 CFR parts 1500-1508), and
NOAA Administrative Order 216-6, NMFS prepared an Environmental
Assessment (EA) to consider the environmental impacts of issuance of a
one-year IHA. A Finding of No Significant Impact was signed on
September 24, 2014.
Authorization
NMFS has issued an IHA to ME DOT for the potential harassment of
small numbers of marine mammal species incidental to its Eastport
breakwater replacement project Eastport, Maine, provided the previously
mentioned mitigation, monitoring, and reporting requirements are
incorporated.
Dated: September 26, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2014-23340 Filed 9-30-14; 8:45 am]
BILLING CODE 3510-22-P