[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Notices]
[Pages 41440-41449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17434]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XW09
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Operation and Maintenance of a
Liquefied Natural Gas Facility off Massachusetts
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 Marine Mammal Protection Act (MMPA)
regulations, notification is hereby given that NMFS has issued an
Incidental Harassment Authorization (IHA) to Neptune LNG LLC (Neptune)
to take marine mammals, by harassment, incidental to port commissioning
and operations, including maintenance and repair activities, at its
Neptune Deepwater Port.
DATES: Effective July 12, 2010, through July 11, 2011.
ADDRESSES: A copy of the authorization and application may be obtained
by writing to Michael Payne, Chief, Permits, Conservation and Education
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East West Highway, Silver Spring, MD 20910, telephoning
the contact listed below (see FOR FURTHER INFORMATION CONTACT), or
visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also be viewed, by
appointment, during regular business hours, at the aforementioned
address.
The Maritime Administration (MARAD) and U.S. Coast Guard (USCG)
Final Environmental Impact Statement (Final EIS) on the Neptune LNG
Deepwater Port License Application is available for viewing at http://www.regulations.gov by entering the search words ``Neptune LNG.''
FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected
Resources, NMFS, (301) 713 2289, ext 156.
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.
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.''
Section 101(a)(5)(D) of the MMPA established an expedited process
by which citizens of the U.S. can apply for an authorization to
incidentally take small numbers of marine mammals by harassment.
Section 101(a)(5)(D) establishes a 45 day time limit for NMFS review of
an application followed by a 30 day public notice and comment period on
any proposed authorizations for the incidental harassment of marine
mammals. Within 45 days of the close of the comment period, NMFS must
either issue or deny the authorization.
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
NMFS received an application on December 14, 2009, from Neptune for
the taking, by harassment, of marine mammals incidental to port
commissioning and operations, including maintenance and repair
activities, at its Neptune Deepwater Port (Port) facility in
Massachusetts Bay. NMFS reviewed Neptune's application and identified a
number of issues requiring further clarification. After addressing
comments from NMFS, Neptune modified its application and submitted a
revised application on March 11, 2010.
NMFS issued a 1-year IHA to Neptune in June 2008 for the
construction of the Port (73 FR 33400, June 12, 2008), which expired on
June 30, 2009. NMFS issued a second 1-year IHA to Neptune for the
completion of construction and beginning of Port operations on June 26,
2009 (74 FR 31926, July 6, 2009). This IHA expired on June 30, 2010.
During the period of this third IHA, Neptune intends to commission
its second shuttle and regasification vessel (SRV) and conduct limited
port operations. There is also a chance that some maintenance and
repairs may need to be conducted on the Port facility. The Neptune Port
is located approximately 22 mi (35 km) northeast of Boston,
Massachusetts, in Federal waters approximately 260 ft (79 m) in depth.
The purpose of the Port is the importation of liquefied natural gas
(LNG) into the New England region. Take of marine mammals may occur
during port operations from thruster use during maneuvering of the SRVs
while docking and undocking, occasional weathervaning (turning of a
vessel at anchor from one direction to another under the influence of
wind or currents) at the Port, and during thruster use of dynamic
positioning (DP) maintenance vessels should a major repair be
necessary. Neptune has requested an authorization to take 12 marine
mammal species by Level B harassment. They are: North Atlantic right
whale; humpback whale; fin whale; sei whale; minke whale; long-finned
pilot whale; Atlantic white-sided dolphin; harbor porpoise; common
dolphin; Risso's dolphin; bottlenose dolphin; and harbor seal. In the
2009 IHA, NMFS also authorized take of killer whales and gray seals.
NMFS has determined that it would be appropriate to authorize take, by
Level B harassment only, of these
[[Page 41441]]
two species as well for port operations and maintenance.
Description of the Specified Activity
On March 23, 2007, Neptune received a license to own, construct,
and operate a deepwater port from MARAD. The Port, which is located in
Massachusetts Bay, consists of a submerged buoy system to dock
specifically designed LNG carriers approximately 22 mi (35 km)
northeast of Boston, Massachusetts, in Federal waters approximately 260
ft (79 m) in depth. The two buoys are separated by a distance of
approximately 2.1 mi (3.4 km). The locations of the Neptune Port and
the associated pipeline are shown in Figure 2-1 in Neptune's
application (see ADDRESSES). During the time period of this IHA,
Neptune plans to commission its second SRV and begin limited operations
of the Port.
Neptune will be capable of mooring LNG SRVs with a capacity of
approximately 140,000 cubic meters (m3). Up to two SRVs will
temporarily moor at the Port by means of a submerged unloading buoy
system. Two separate buoys will allow natural gas to be delivered in a
continuous flow, without interruption, by having a brief overlap
between arriving and departing SRVs. The annual average throughput
capacity will be around 500 million standard cubic feet per day
(mmscfd) with an initial throughput of 400 mmscfd, and a peak capacity
of approximately 750 mmscfd.
The SRVs will be equipped to store, transport, and vaporize LNG and
to odorize, meter and send out natural gas by means of two 16-in (40.6-
cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers
and flowline will lead to a 24-in (61-cm) gas transmission pipeline
connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin
Hubline\TM\ (Hubline\TM\) located approximately 9 mi (14.5 km) west of
the Neptune deepwater port location. The Port will have an expected
operating life of approximately 25 years. Figure 1-1 of Neptune's
application shows an isometric view of the Port (see ADDRESSES). A
detailed overview of Port operations and maintenance and repair
activities, as well as the types of sounds those activities produce,
was provided in the Notice of Proposed IHA (75 FR 24906, May 6, 2010).
No changes have been made to the proposed operations or maintenance and
repair activities.
Comments and Responses
A notice of receipt of Neptune's application and NMFS' proposal to
issue an IHA to Neptune published in the Federal Register on May 6,
2010 (75 FR 24906). During the 30-day public comment period, NMFS did
not receive any comment letters. The Marine Mammal Commission (MMC)
submitted comments after the close of the 30-day comment period. Those
comments and responses are addressed here.
Comment 1: The MMC concurs with the need for the monitoring and
mitigation measures proposed by NMFS and the applicant and recommends
that NMFS include all of them in any IHA, especially to mitigate the
risk of ship collisions with North Atlantic right whales and other
cetacean species.
Response: All measures proposed in the Notice of Proposed IHA are
included in the IHA.
Comment 2: The MMC concurs with the need to reinitiate section 7
consultation and recommends that NMFS complete the consultation and
issue the IHA only if the resulting Biological Opinion concludes that
the cumulative effects of the proposed action, in combination with
other activities in the action area, are not likely to jeopardize the
continued existence of the North Atlantic right, humpback, fin, sperm,
sei, or blue whales.
Response: Section 7 consultation under the Endangered Species Act
(ESA) was reinitiated in March 2010. That consultation is now complete
and makes the following conclusion. After reviewing the best available
information on the status of endangered and threatened species under
NMFS jurisdiction, the environmental baseline for the action area, the
effects of the action, and the cumulative effects in the action area,
it is NMFS' biological opinion that the operation of the Neptune LNG
deepwater port, including required maintenance and repair work, is
likely to adversely affect, but is not likely to jeopardize the
continued existence of the North Atlantic right, humpback, fin, and sei
whale.
NMFS' January 2007 Biological Opinion considered impacts from port
and pipeline construction and operation on sperm and blue whales in
addition to the other cetacean species cited in the MMC's comment. The
2007 opinion concluded that those activities were not likely to
adversely affect sperm and blue whales. Because no additional effects
to these two species are anticipated from the repair and maintenance
activities and no effects beyond those analyzed in 2007 for operations
are likely, sperm and blue whales were not further analyzed in the 2010
Biological Opinion.
Description of Marine Mammals in the Area of the Specified Activity
Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a
diverse assemblage of marine mammals, including: North Atlantic right
whale; blue whale; fin whale; sei whale; minke whale; humpback whale;
killer whale; long-finned pilot whale; sperm whale; Atlantic white-
beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin;
common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray
seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's
application outlines the marine mammal species that occur in
Massachusetts Bay and the likelihood of occurrence of each species. Of
the species listed here, the North Atlantic right, blue, fin, sei,
humpback, and sperm whales are all listed as endangered under the ESA
and as depleted under the MMPA. The northern coastal stock of
bottlenose dolphins is considered depleted under the MMPA. Certain
stocks or populations of killer whales are listed as endangered under
the ESA or depleted under the MMPA; however, none of those stocks or
populations occurs in the proposed activity area.
Of these species, 14 are expected to occur in the area of Neptune's
proposed operations. These species include: the North Atlantic right,
humpback, fin, sei, minke, killer, and long-finned pilot whale;
Atlantic white-sided, common, Risso's, and bottlenose dolphins; harbor
porpoise; and harbor and gray seals. The Notice of Proposed IHA (75 FR
24906, May 6, 2010) provided a description of certain marine mammal
species that are considered rare in the project area.
Information on those species that may be impacted by this activity
is provided in Neptune's application and sections 3.2.3 and 3.2.5 in
the MARAD/USCG Final EIS on the Neptune LNG proposal (see ADDRESSES).
Please refer to those documents for more information on these species.
In addition, general information on these marine mammal species can
also be found in the NMFS U.S. Atlantic and Gulf of Mexico Marine
Mammal Stock Report (Waring et al., 2009), which is available at:
http://www.nefsc.noaa.gov/publications/tm/tm213/. A brief summary on
several commonly sighted marine mammal species distribution and
abundance in the vicinity of the action area was provided in the Notice
of Proposed IHA (75 FR 24906, May 6, 2010).
[[Page 41442]]
Brief Background on Marine Mammal Hearing
When considering the influence of various kinds of sound on the
marine environment, it is necessary to understand that different kinds
of marine life are sensitive to different frequencies of sound. Based
on available behavioral data, audiograms derived using auditory evoked
potential techniques, anatomical modeling, and other data, Southall et
al. (2007) designate ``functional hearing groups'' for marine mammals
and estimate the lower and upper frequencies of functional hearing of
the groups. The functional groups and the associated frequencies are
indicated below (though animals are less sensitive to sounds at the
outer edge of their functional range and most sensitive to sounds of
frequencies within a smaller range somewhere in the middle of their
functional hearing range):
Low-frequency cetaceans (13 species of mysticetes):
functional hearing is estimated to occur between approximately 7 Hz and
22 kHz;
Mid-frequency cetaceans (32 species of dolphins, six
species of larger toothed whales, and 19 species of beaked and
bottlenose whales): functional hearing is estimated to occur between
approximately 150 Hz and 160 kHz;
High-frequency cetaceans (eight species of true porpoises,
six species of river dolphins, Kogia, the franciscana, and four species
of cephalorhynchids): functional hearing is estimated to occur between
approximately 200 Hz and 180 kHz; and
Pinnipeds in Water: functional hearing is estimated to
occur between approximately 75 Hz and 75 kHz, with the greatest
sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 14 marine mammal species
(12 cetacean and two pinniped species) are likely to occur in the
Neptune Port area. Of the 12 cetacean species likely to occur in
Neptune's project area, five are classified as low-frequency cetaceans
(i.e., North Atlantic right, humpback, fin, minke, and sei whales), six
are classified as mid-frequency cetaceans (i.e., killer and pilot
whales and bottlenose, common, Risso's, and Atlantic white-sided
dolphins), and one is classified as a high-frequency cetacean (i.e.,
harbor porpoise) (Southall et al., 2007).
Potential Effects of the Specified Activity on Marine Mammals
Potential effects of Neptune's proposed port operations and
maintenance/repair activities would most likely be acoustic in nature.
LNG port operations and maintenance/repair activities introduce sound
into the marine environment. Potential acoustic effects on marine
mammals relate to sound produced by thrusters during maneuvering of the
SRVs while docking and undocking, occasional weathervaning at the port,
and during thruster use of DP maintenance vessels should a major repair
be necessary. The potential effects of sound from the proposed
activities associated with the Neptune Port might include one or more
of the following: tolerance; masking of natural sounds; behavioral
disturbance; non-auditory physical effects; and, at least in theory,
temporary or permanent hearing impairment (Richardson et al., 1995).
However, for reasons discussed in the Notice of Proposed IHA (75 FR
24906, May 6, 2010) and later in this document, it is unlikely that
there would be any cases of temporary, or especially permanent, hearing
impairment resulting from these activities. As outlined in previous
NMFS documents, the effects of noise on marine mammals are highly
variable, and can be categorized as follows (based on Richardson et
al., 1995):
(1) The noise may be too weak to be heard at the location of the
animal (i.e., lower than the prevailing ambient noise level, the
hearing threshold of the animal at relevant frequencies, or both);
(2) The noise may be audible but not strong enough to elicit any
overt behavioral response;
(3) The noise may elicit reactions of variable conspicuousness and
variable relevance to the well being of the marine mammal; these can
range from temporary alert responses to active avoidance reactions such
as vacating an area at least until the noise event ceases but
potentially for longer periods of time;
(4) Upon repeated exposure, a marine mammal may exhibit diminishing
responsiveness (habituation), or disturbance effects may persist; the
latter is most likely with sounds that are highly variable in
characteristics, infrequent, and unpredictable in occurrence, and
associated with situations that a marine mammal perceives as a threat;
(5) Any anthropogenic noise that is strong enough to be heard has
the potential to reduce (mask) the ability of a marine mammal to hear
natural sounds at similar frequencies, including calls from
conspecifics, and underwater environmental sounds such as surf noise;
(6) If mammals remain in an area because it is important for
feeding, breeding, or some other biologically important purpose even
though there is chronic exposure to noise, it is possible that there
could be noise-induced physiological stress; this might in turn have
negative effects on the well-being or reproduction of the animals
involved; and
(7) Very strong sounds have the potential to cause a temporary or
permanent reduction in hearing sensitivity. In terrestrial mammals, and
presumably marine mammals, received sound levels must far exceed the
animal's hearing threshold for there to be any temporary threshold
shift (TTS) in its hearing ability. For transient sounds, the sound
level necessary to cause TTS is inversely related to the duration of
the sound. Received sound levels must be even higher for there to be
risk of permanent hearing impairment. In addition, intense acoustic or
explosive events may cause trauma to tissues associated with organs
vital for hearing, sound production, respiration and other functions.
This trauma may include minor to severe hemorrhage.
The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included a
discussion of the effects of anthropogenic sound on mysticetes,
odontocetes, and pinnipeds, including tolerance, masking, disturbance,
and hearing impairment and other physiological effects. That discussion
did not take into consideration the monitoring and mitigation measures
proposed by Neptune and NMFS. Based on the discussion contained in the
proposed IHA notice, it is highly unlikely that marine mammals could
receive sounds strong enough (and over a sufficient duration) to cause
permanent threshold shift (or even TTS) during port operations and
maintenance/repair activities. The modeled broadband source level for
100 percent thruster use during port operations is 180 dB re 1 microPa
at 1 m (rms). This does not reach the threshold of 190 dB currently
used for pinnipeds. The threshold for cetaceans is 180 dB; therefore,
cetaceans would have to be immediately adjacent to the vessel for even
the possibility of hearing impairment to occur. Based on this and
mitigation measures included in the IHA (described later in this
document in the ``Mitigation'' section), only Level B behavioral
harassment is anticipated occur, and it is highly unlikely that any
type of hearing impairment would occur as a result of Neptune's
activities.
Anticipated Effects on Habitat
The primary potential impacts to marine mammals and other marine
[[Page 41443]]
species are associated with elevated sound levels produced by the Port
operations and maintenance/repair activities. However, other potential
impacts from physical disturbance are also possible. Major repairs to
the Neptune port and pipeline may affect marine mammal habitat in
several ways: cause disturbance of the seafloor; increase turbidity
slightly; and generate additional underwater sound in the area. These
underwater sound levels will cause some species to temporarily disperse
from or avoid repair areas, but they are expected to return shortly
after the repair is completed. Operation of the Port will result in
long-term, continued disturbance of the seafloor, regular withdrawal of
seawater, and generation of underwater sound. The Notice of Proposed
IHA (75 FR 24906, May 6, 2010) contained a full discussion of the
potential impacts to marine mammal habitat and prey species in the
project area.
NMFS determined that repair activities would not create long-term
habitat changes, and marine mammals displaced by the disturbance to the
seafloor are expected to return soon after repair activities cease.
Marine mammals also could be indirectly affected if benthic prey
species were displaced or destroyed by repair activities. However,
affected species are expected to recover soon after the completion of
repairs and will represent only a small portion of food available to
marine mammals in the area. In conclusion, NMFS has determined that
Neptune's port operations and maintenance/repair activities are not
expected to have any habitat-related effects that could cause
significant or long-term consequences for individual marine mammals or
on the food sources that they utilize.
Mitigation
In order to issue an incidental take authorization (ITA) under
Sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable,
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).
Mitigation Measures in Neptune's IHA Application
Neptune submitted a ``Marine Mammal Detection, Monitoring, and
Response Plan for the Operations Phase'' (the Plan) as part of its MMPA
application (Appendix D of the application; see ADDRESSES). The
measures, which include safety zones and vessel speed reductions, are
fully described in the Plan and summarized here. Any maintenance and/or
repairs needed will be scheduled in advance during the May 1 to
November 30 seasonal window, whenever possible, so that disturbance to
North Atlantic right whales will be largely avoided. If the repair
cannot be scheduled during this time frame, additional mitigation
measures are required.
(1) Mitigation Measures for Major Repairs (May 1 to November 30)
(A) During repairs, if a marine mammal is detected within 0.5 mi
(0.8 km) of the repair vessel, the vessel superintendent or on-deck
supervisor will be notified immediately. The vessel's crew will be put
on a heightened state of alert. The marine mammal will be monitored
constantly to determine if it is moving toward the repair area.
(B) Repair vessels will cease any movement in the area if a marine
mammal other than a right whale is sighted within or approaching to a
distance of 100 yd (91 m) from the operating repair vessel. Repair
vessels will cease any movement in the construction area if a right
whale is sighted within or approaching to a distance of 500 yd (457 m)
from the operating vessel. Vessels transiting the repair area, such as
pipe haul barge tugs, will also be required to maintain these
separation distances.
(C) Repair vessels will cease all sound emitting activities if a
marine mammal other than a right whale is sighted within or approaching
to a distance of 100 yd (91 m) or if a right whale is sighted within or
approaching to a distance of 500 yd (457 m), from the operating repair
vessel. The back-calculated source level, based on the most
conservative cylindrical model of acoustic energy spreading, is
estimated to be 139 dB re 1 microPa.
(D) Repair activities may resume after the marine mammal is
positively reconfirmed outside the established zones (either 500 yd
(457 m) or 100 yd (91 m), depending upon species).
(E) While under way, all repair vessels will remain 500 yd (457 m)
away from right whales and 100 yd (91 m) away from all other marine
mammals to the extent physically feasible given navigational
constraints.
(F) All repair vessels 300 gross tons or greater will maintain a
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross
tons carrying supplies or crew between the shore and the repair site
will contact the Mandatory Ship Reporting System (MSRS), the USCG, or
the marine mammal observers (MMOs) at the repair site before leaving
shore for reports of recent right whale sightings or active Dynamic
Management Areas (DMAs) and, consistent with navigation safety,
restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of
any recent sighting location and within any existing DMA.
(G) Vessels transiting through the Cape Cod Canal and Cape Cod Bay
(CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5
km/hr) or less, follow the recommended routes charted by NOAA to reduce
interactions between right whales and shipping traffic, and avoid
aggregations of right whales in the eastern portion of CCB.
(2) Additional Port and Pipeline Major Repair Measures (December 1 to
April 30)
If unplanned/emergency repair activities cannot be conducted
between May 1 and November 30, Neptune is required to implement the
following additional mitigation measures:
(A) If on-board MMOs do not have at least 0.5-mi (0.8-km)
visibility, they shall call for a shutdown of repair activities. If
dive operations are in progress, then they shall be halted and brought
on board until visibility is adequate to see a 0.5-mi (0.8-km) range.
At the time of shutdown, the use of thrusters must be minimized. If
there are potential safety problems due to the shutdown, the captain
will decide what operations can safely be shut down and will document
such activities.
(B) Prior to leaving the dock to begin transit, the barge will
contact one of the MMOs on watch to receive an update of sightings
within the visual observation area. If the MMO has observed a North
Atlantic right whale within 30 minutes of the transit start, the vessel
will hold for 30 minutes and again get a clearance to leave from the
MMOs on board. MMOs will assess whale activity and visual observation
ability at the time of the transit request to clear the barge for
release.
(C) A half-day training course will be provided to designated crew
members assigned to the transit barges and other support vessels. These
designated crew members will be required to keep watch on the bridge
and immediately notify the navigator of any whale sightings. All watch
crew will sign into a bridge log book upon start and end of watch.
Transit route, destination, sea conditions, and any protected species
sightings/mitigation actions during
[[Page 41444]]
watch will be recorded in the log book. Any whale sightings within
3,281 ft (1,000 m) of the vessel will result in a high alert and slow
speed of 4 knots (7.4 km/hr) or less. A sighting within 2,461 ft (750
m) will result in idle speed and/or ceasing all movement.
(D) The material barges and tugs used for repair work shall transit
from the operations dock to the work sites during daylight hours, when
possible, provided the safety of the vessels is not compromised. Should
transit at night be required, the maximum speed of the tug will be 5
knots (9.3 km/hr).
(E) Consistent with navigation safety, all repair vessels must
maintain a speed of 10 knots (18.5 km/hr) or less during daylight
hours. All vessels will operate at 5 knots or less at all times within
3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs)
Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or
less in the following seasons and areas, which either correspond to or
are more restrictive than the times and areas in NMFS' final rule (73
FR 60173, October 10, 2008) to implement speed restrictions to reduce
the likelihood and severity of ship strikes of right whales:
CCB SMA from January 1 through May 15, which includes all
waters in CCB, extending to all shorelines of the Bay, with a northern
boundary of 42[deg] 12' N. latitude;
Off Race Point SMA year round, which is bounded by
straight lines connecting the following coordinates in the order
stated: 42[deg] 30' N. 69[deg] 45' W.; thence to 42[deg] 30' N. 70[deg]
30' W.; thence to 42[deg] 12' N. 70[deg] 30' W.; thence to 42[deg] 12'
N. 70[deg] 12' W.; thence to 42[deg] 04' 56.5'' N. 70[deg] 12' W.;
thence along mean high water line and inshore limits of COLREGS limit
to a latitude of 41[deg] 40' N.; thence due east to 41[deg] 41' N.
69[deg] 45' W.; thence back to starting point; and
Great South Channel (GSC) SMA from April 1 through July
31, which is bounded by straight lines connecting the following
coordinates in the order stated:
42[deg] 30' N. 69[deg] 45' W.
41[deg] 40' N. 69[deg] 45' W.
41[deg] 00' N. 69[deg] 05' W.
42[deg] 09' N. 67[deg] 08' 24'' W.
42[deg] 30' N. 67[deg] 27' W.
42[deg] 30' N. 69[deg] 45' W.
(4) Additional Mitigation Measures
(A) In approaching and departing from the Neptune Port, SRVs shall
use the Boston Traffic Separation Scheme (TSS) starting and ending at
the entrance to the GSC. Upon entering the TSS, the SRV shall go into a
``heightened awareness'' mode of operation, which is outlined in detail
in the Plan (see Neptune's application).
(B) In the event that a whale is visually observed within 0.6 mi (1
km) of the Port or a confirmed acoustic detection is reported on either
of the two auto-detection buoys (ABs; more information on the acoustic
devices is contained in the ``Monitoring and Reporting'' section later
in this document) closest to the Port, departing SRVs shall delay their
departure from the Port, unless extraordinary circumstances, defined in
the Plan, require that the departure is not delayed. The departure
delay shall continue until either the observed whale has been visually
(during daylight hours) confirmed as more than 0.6 mi (1 km) from the
Port or 30 minutes have passed without another confirmed detection
either acoustically within the acoustic detection range of the two ABs
closest to the Port or visually within 0.6 mi (1 km) from Neptune.
(C) SRVs that are approaching or departing from the Port and are
within the Area to be Avoided (ATBA) surrounding Neptune shall remain
at least 0.6 mi (1 km) away from any visually detected right whales and
at least 100 yards (91 meters) away from all other visually detected
whales unless extraordinary circumstances, as defined in Section 1.2 of
the Plan in Neptune's application, require that the vessel stay its
course. The ATBA is defined in 33 CFR 150.940. It is the largest area
of the Port marked on nautical charts and it is enforceable by the USCG
in accordance with the 150.900 regulations. The Vessel Master shall
designate at least one lookout to be exclusively and continuously
monitoring for the presence of marine mammals at all times while the
SRV is approaching or departing Neptune.
(D) Neptune will ensure that other vessels providing support to
Neptune operations during regasification activities that are
approaching or departing from the Port and are within the ATBA shall be
operated so as to remain at least 0.6 mi (1 km) away from any visually
detected right whales and at least 100 yd (91 m) from all other
visually detected whales.
Additional Mitigation Measures Required by NMFS
In addition to the mitigation measures in Neptune's IHA
application, NMFS has included the following measures in the IHA in
order to ensure the least practicable impact on the affected species or
stocks:
(1) Neptune must immediately suspend any repair and maintenance or
operations activities if a dead or injured marine mammal is found in
the vicinity of the project area, and the death or injury of the animal
could be attributable to the LNG facility activities. Neptune must
contact NMFS and the Northeast Stranding and Disentanglement Program.
Activities will not resume until review and approval has been given by
NMFS.
(2) MMOs will direct a moving vessel to slow to idle if a baleen
whale is seen less than 0.6 mi (1 km) from the vessel.
(3) Use of lights during repair or maintenance activities shall be
limited to areas where work is actually occurring, and all other lights
must be extinguished. Lights must be downshielded to illuminate the
deck and shall not intentionally illuminate surrounding waters, so as
not to attract whales or their prey to the area.
Mitigation Conclusions
NMFS has carefully evaluated the applicant's 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; and
The practicability of the measure for applicant
implementation.
Based on our evaluation of the applicant's measures, as well as
other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means of effecting the least
practicable impact on marine mammal 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, where applicable, 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
[[Page 41445]]
and of the level of taking or impacts on populations of marine mammals
that are expected to be present in the proposed action area.
Neptune proposed both visual and acoustic monitoring programs in
the Plan contained in the IHA application. Summaries of those plans, as
well as the proposed reporting, are contained next. The monitoring and
reporting programs contained in the Plan are included in the IHA.
Passive Acoustic Monitoring
Neptune LNG will deploy and maintain a passive acoustic detection
network along a portion of the TSS and in the vicinity of Neptune. This
network will consisting of autonomous recording units (ARUs) and near-
real-time ABs. To develop, implement, collect, and analyze the acoustic
data obtained from deployment of the ARUs and ABs, as well as to
prepare reports and maintain the passive acoustic detection network,
Neptune LNG has engaged the Cornell University Bioacoustic Research
Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic
Institution (WHOI) in Woods Hole, Massachusetts.
During June 2008, an array of 19 passive seafloor ARUs was deployed
by BRP for Neptune. The layout of the array centered on the terminal
site and was used to monitor the noise environment in Massachusetts Bay
in the vicinity of Neptune during construction of the port and
associated pipeline lateral. The ARUs were not designed to provide
real-time or near-real-time information about vocalizing whales. Rather
archival noise data collected from the ARU array were used for the
purpose of understanding the seasonal occurrences and overall
distributions of whales (primarily North Atlantic right whales) within
approximately 10 nm (18.5 km) of the Neptune Port. Neptune LNG will
maintain these ARUs in the same configuration for a period of five
years during full operation of Neptune in order to monitor the actual
acoustic output of port operations and to alert NOAA to any
unanticipated adverse effects of port operations, such as large scale
abandonment by marine mammals of the area. To further assist in
evaluations of the Neptune's acoustic output, source levels associated
with DP of SRVs at the buoys will be estimated using empirical
measurements collected from the passive detection network.
In addition to the ARUs, Neptune LNG has deployed 10 ABs within the
Separation Zone of the TSS for the operational life of the Port. The
purpose of the AB array is to detect the presence of vocalizing North
Atlantic right whales. Each AB has an average detection range of 5 nm
(9.3 km) of the AB, although detection ranges will vary based on
ambient underwater conditions. The AB system will be the primary
detection mechanism that alerts the SRV Master to the occurrence of
right whales in the TSS and triggers heightened SRV awareness. The
configurations of the ARU array and AB network (see Figure 3 in the
Plan in Neptune's application) were based upon the configurations
developed and recommended by NOAA personnel.
Each AB deployed in the TSS will continuously screen the low-
frequency acoustic environment (less than 1,000 Hz) for right whale
contact calls occurring within an approximately
5-nm (9.3-km) radius from each buoy (the ABs' detection range) and
rank detections on a scale from 1 to 10. Each AB shall transmit all
detection data for detections of rank greater than or equal to 6 via
Iridium satellite link to the BRP server website every 20 minutes. This
20-minute transmission schedule was determined by consideration of a
combination of factors including the tendency of right whale calls to
occur in clusters (leading to a sampling logic of listening for other
calls rather than transmitting immediately upon detection of a possible
call) and the amount of battery power required to complete a satellite
transmission. Additional details on the protocol can be found in
Neptune's application.
Additionally, Neptune shall provide empirically measured source
level data for all sources of noise associated with LNG port
maintenance and repair activities. Measurements should be carefully
coordinated with noise-producing activities and should be collected
from the passive acoustic monitoring network.
Visual Monitoring
During maintenance- and repair-related activities, Neptune LNG
shall employ two qualified MMOs on each vessel that has a DP system.
All MMOs must receive training and be approved in advance by NOAA after
a review of their qualifications. Qualifications for these MMOs shall
include direct field experience on a marine mammal observation vessel
and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. The MMOs
(one primary and one secondary) are responsible for visually locating
marine mammals at the ocean's surface and, to the extent possible,
identifying the species. The primary MMO shall act as the
identification specialist, and the secondary MMO will serve as data
recorder and will assist with identification. Both MMOs shall have
responsibility for monitoring for the presence of marine mammals.
The MMOs shall monitor the area where maintenance and repair work
is conducted beginning at daybreak using the naked eye, hand-held
binoculars, and/or power binoculars (e.g, Big Eyes). The MMOs shall
scan the ocean surface by eye for a minimum of 40 minutes every hour.
All sightings must be recorded on marine mammal field sighting logs.
While an SRV is navigating within the designated TSS, three people
have lookout duties on or near the bridge of the ship including the SRV
Master, the Officer-of-the-Watch, and the Helmsman on watch. In
addition to standard watch procedures, while the SRV is within the ATBA
and/or while actively engaging in the use of thrusters an additional
lookout shall be designated to exclusively and continuously monitor for
marine mammals. Once the SRV is moored and regasification activities
have begun, the vessel is no longer considered in ``heightened
awareness'' status. However, when regasification activities conclude
and the SRV prepares to depart from Neptune, the Master shall once
again ensure that the responsibilities as defined in the Plan are
carried out. All sightings of marine mammals by the designated lookout,
individuals posted to navigational lookout duties, and/or any other
crew member while the SRV is within the TSS, in transit to the ATBA,
within the ATBA, and/or when actively engaging in the use of thrusters
shall be immediately reported to the Officer-of-the-Watch who shall
then alert the Master.
Reporting Measures
Since the Neptune Port is within the Mandatory Ship Reporting Area
(MSRA), all SRVs transiting to and from Neptune shall report their
activities to the mandatory reporting section of the USCG to remain
apprised of North Atlantic right whale movements within the area. All
vessels entering and exiting the MSRA shall report their activities to
WHALESNORTH. Vessel operators shall contact the USCG by standard
procedures promulgated through the Notice to Mariner system.
For any repair work associated with the pipeline lateral or other
port components, Neptune LNG shall notify the appropriate NOAA
personnel as soon as practicable after it is determined that repair
work must be conducted. During maintenance and repair of the pipeline
lateral or other port components, weekly status reports must be
provided to NOAA. The weekly
[[Page 41446]]
report must include data collected for each distinct marine mammal
species observed in the project area during the period of the repair
activity. The weekly reports shall include the following:
The location, time, and nature of the pipeline lateral
repair activities;
Whether the DP system was operated and, if so, the number
of thrusters used and the time and duration of DP operation;
Marine mammals observed in the area (number, species, age
group, and initial behavior);
The distance of observed marine mammals from the repair
activities;
Observed marine mammal behaviors during the sighting;
Whether any mitigation measures were implemented;
Weather conditions (sea state, wind speed, wind direction,
ambient temperature, precipitation, and percent cloud cover, etc.);
Condition of the marine mammal observation (visibility and
glare); and
Details of passive acoustic detections and any action
taken in response to those detections.
For minor repairs and maintenance activities, the following
protocols will be followed:
All vessel crew members will be trained in marine mammal
identification and avoidance procedures;
Repair vessels will notify designated NOAA personnel when
and where the repair/maintenance work is to take place along with a
tentative schedule and description of the work;
Vessel crews will record/document any marine mammal
sightings during the work period; and
At the conclusion of the repair/maintenance work, a report
will be delivered to designated NOAA personnel describing any marine
mammal sightings, the type of work taking place when the sighting
occurred, and any avoidance actions taken during the repair/maintenance
work.
During all phases of project repair/maintenance activities and
operation, sightings of any injured or dead marine mammals will be
reported immediately to the USCG and NMFS, regardless of whether the
injury or death is caused by project activities. Sightings of injured
or dead marine mammals not associated with project activities can be
reported to the USCG on VHF Channel 16 or to NMFS Stranding and
Entanglement Hotline. In addition, if the injury or death was caused by
a project vessel (e.g., SRV, support vessel, or construction vessel),
USCG must be notified immediately, and a full report must be provided
to NMFS, Northeast Regional Office. The report must include the
following information: (1) the time, date, and location (latitude/
longitude) of the incident; (2) the name and type of vessel involved;
(3) the vessel's speed during the incident; (4) a description of the
incident; (5) water depth; (6) environmental conditions (e.g., wind
speed and direction, sea state, cloud cover, and visibility); (7) the
species identification or description of the animal; (8) the fate of
the animal; and (9) photographs or video footage of the animal (if
equipment is available).
An annual report on marine mammal monitoring and mitigation will be
submitted to NMFS Office of Protected Resources and NMFS Northeast
Regional Office within 90 days after the expiration of the IHA. The
weekly reports and the annual report should include data collected for
each distinct marine mammal species observed in the project area in the
Massachusetts Bay during the period of LNG facility operations and
repair/maintenance activities. Description of marine mammal behavior,
overall numbers of individuals observed, frequency of observation, and
any behavioral changes and the context of the changes relative to
operation and repair/maintenance activities shall also be included in
the annual report. Additional information that will be recorded during
operations and repair/maintenance activities and contained in the
reports include: date and time of marine mammal detections (visually or
acoustically), weather conditions, species identification, approximate
distance from the source, activity of the vessel when a marine mammal
is sighted, and whether thrusters were in use and, if so, how many at
the time of the sighting.
General Conclusions Drawn from Previous Monitoring Reports
Throughout the construction period, Neptune submitted weekly
reports on marine mammal sightings in the area. While it is difficult
to draw biological conclusions from these reports, NMFS can make some
general conclusions. Data gathered by MMOs is generally useful to
indicate the presence or absence of marine mammals (often to a species
level) within the safety zones (and sometimes without) and to document
the implementation of mitigation measures. Though it is by no means
conclusory, it is worth noting that no instances of obvious behavioral
disturbance as a result of Neptune's activities were observed by the
MMOs. Of course, these observations only cover the animals that were at
the surface and within the distance that the MMOs could see. Based on
the number of sightings contained in the weekly reports, it appears
that NMFS' estimated take levels are accurate. As operation of the Port
has not yet commenced, there are no reports describing the results of
the visual monitoring program for this phase of the project. However,
it is anticipated that visual observations will be able to continue as
they were during construction.
As described previously in this document, Neptune was required to
maintain an acoustic array to monitor calling North Atlantic right
whales (humpback and fin whale calls were also able to be detected).
Cornell BRP analyzed the data and submitted a report covering the
initial construction phase of the project, which occurred in 2008.
While acoustic data can only be collected if the animals are actively
calling, the report indicates that humpback and fin whales were heard
calling on at least some of the ARUs on all construction days, and
right whale calls were heard only 28 percent of the time during active
construction days. The passive acoustic arrays will remain deployed
during the time frame of this IHA in order to obtain information during
the operational phase of the Port facility.
Estimated Take by 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]. Only take by Level B harassment is
anticipated as a result of Neptune's operational and repair/maintenance
activities. Anticipated take of marine mammals is associated with
thruster sound during maneuvering of the SRVs while docking and
undocking, occasional weathervaning at the Port, and during thruster
use of DP maintenance vessels should a major repair be necessary. The
regasification process itself is an activity that does not rise to the
level of taking, as the modeled source level for this activity is 110
dB (rms). Certain species may have a behavioral reaction to the sound
emitted during the activities. Hearing impairment is not anticipated.
Additionally, vessel strikes are not anticipated, especially because of
the speed restriction measures that are
[[Page 41447]]
proposed that were described earlier in this document.
For continuous sounds, such as those produced by Neptune's proposed
activities, NMFS uses a received level of 120-dB (rms) to indicate the
onset of Level B harassment. The basis for Neptune's ``take'' estimate
is the number of marine mammals that potentially could be exposed to
sound levels in excess of 120 dB. This has been determined by applying
the modeled zone of influence (ZOI; e.g., the area ensonified by the
120-dB contour) to the seasonal use (density) of the area by marine
mammals and correcting for seasonal duration of sound-generating
activities and estimated duration of individual activities when the
maximum sound-generating activities are intermittent to occasional.
Nearly all of the required information is readily available in the
MARAD/USCG Final EIS, with the exception of marine mammal density
estimates for the project area. In the case of data gaps, a
conservative approach was used to ensure that the potential number of
takes is not underestimated.
The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included an
in-depth discussion of the methodology used by NMFS to estimate take by
harassment incidental to operation and repair/maintenance activities at
the Neptune Port facility. A summary is provided next.
Results of sound modeling tests indicate that the 120-dB radius
from thruster use by the SRV is estimated to be 1.6 nm (3 km), creating
a maximum ZOI of 8.5 nm\2\ (29 km\2\). This zone is smaller than the
one that was used to estimate the level of take in the previous IHA.
However, the vessels used in the 2009 tests more closely resemble the
vessels that will be used by Neptune for regasification by the SRV.
Other vessels would be required for use during maintenance and repair
activities at the port facility. Sounds generated during those
activities would be similar or less than those generated during
original construction of the facility. Therefore, NMFS has used the
120-dB contour estimated for construction in the previous IHAs for
repair and maintenance activities. Depending on water depth, the 120-dB
contour during repair and maintenance activities will extend from the
source (the Port) out to 3.9 km (2.1 nm) and cover an area of 52 km\2\
(15 nm\2\).
NMFS used the data on cetacean distribution within Massachusetts
Bay, such as those published by the National Centers for Coastal Ocean
Science (NCCOS, 2006), to determine potential takes of marine mammals
in the vicinity of the project area. Sighting data for the following
species are contained in the report: North Atlantic right, fin,
humpback, minke, pilot, and sei whales and Atlantic white-sided
dolphins. The NCCOS study used cetacean sightings from two sources: (1)
the North Atlantic Right Whale Consortium (NARWC) sightings database
held at the University of Rhode Island (Kenney, 2001); and (2) the
Manomet Bird Observatory (MBO) database, held at the NMFS Northeast
Fisheries Science Center (NEFSC). The NCCOS study then combined these
two data sets by extracting cetacean sighting records, updating
database field names to match the NARWC database, creating geometry to
represent survey tracklines and applying a set of data selection
criteria designed to minimize uncertainty and bias in the data used.
For a detailed description and calculation of the cetacean
abundance data and sightings-per-unit-effort (SPUE), refer to the NCCOS
study (NCCOS, 2006). SPUE for all four seasons were analyzed, and the
highest value SPUE for the season with the highest abundance of each
species was used to determine relative abundance. Based on the data,
the relative abundance of North Atlantic right, fin, humpback, minke,
sei, and pilot whales and Atlantic white-sided dolphins, as calculated
by SPUE in number of animals per square kilometer, is 0.0082, 0.0097,
0.0265, 0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively. Table 1
in this document outlines the density, abundance, take estimates, and
percent of population for the 14 species for which NMFS has authorized
Level B harassment.
In calculating the area density of these species from these linear
density data, NMFS used 0.4 km (0.25 mi), which is a quarter the
distance of the radius for visual monitoring, as a conservative
hypothetical strip width (W). Thus the area density (D) of these
species in the project area can be obtained by the following formula:
D = SPUE/2W.
Based on the calculation, the estimated take numbers by Level B
harassment for the 1-year IHA period during operation of the SRV for
North Atlantic right, fin, humpback, minke, sei, and pilot whales and
Atlantic white-sided dolphins, within the 120-dB ZOI of the LNG Port
facility area of approximately 8.5 nm\2\ (29 km\2\) maximum ZOI,
corrected for 50 percent underwater, are 23, 27, 72, 16, 6, 110, and
357, respectively. This estimate is based on an estimated 50 SRV trips
for the period July 12, 2010, through July 11, 2011, that will produce
sounds of 120 dB or greater.
Based on the same calculation method described above for Port
operations (but using the 120-dB ZOI of approximately 52 km\2\ (15
nm\2\), the estimated take numbers by Level B harassment for North
Atlantic right, fin, humpback, minke, sei, and pilot whales and
Atlantic white-sided dolphins for the 1-year IHA period incidental to
Port maintenance and repair activities, corrected for 50 percent
underwater, are 11, 13, 36, 8, 11, 56, and 179, respectively. These
numbers are based on 14 days of repair and maintenance activities
occurring between July 12, 2010, through July 11, 2011. It is unlikely
that this much repair and maintenance work would be required this soon
after completion of the construction phase of the facility.
The total estimated take of these species as a result of both
operations and repair and maintenance activities of the Neptune Port
facility between July 12, 2010, through July 11, 2011, is: 33 North
Atlantic right whales; 40 fin whales; 108 humpback whales; 24 minke
whales; 17 sei whales; 166 long-finned pilot whales; and 536 Atlantic
white-sided dolphins. These numbers represent a maximum of 9.6, 1.8,
12.8, 0.7, 4.4, 0.5, and 0.8 percent of the populations for these
species or stocks in the western North Atlantic, respectively. It is
likely that individual animals will be ``taken'' by harassment multiple
times (because certain individuals may occur in the area more than once
while other individuals of the population or stock may not enter the
proposed project area). Additionally, the highest value SPUE for the
season with the highest abundance of each species was used to determine
relative abundance. Moreover, it is not expected that Neptune will have
50 SRV transits and LNG deliveries in the first year of operations.
Therefore, these percentages are the upper boundary of the animal
population that could be affected. Thus, the actual number of
individual animals being exposed or taken is expected to be far less.
In addition, bottlenose dolphins, common dolphins, Risso's
dolphins, killer whales, harbor porpoises, harbor seals, and gray seals
could also be taken by Level B harassment as a result of the deepwater
LNG port project. Because these species are less likely to occur in the
area, and there are no density estimates specific to this particular
area, NMFS based the take estimates on typical group size. Therefore,
NMFS estimates (and has authorized) that up to approximately 10
bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 killer
whales, 5 harbor porpoises, 15 harbor seals, and
[[Page 41448]]
15 gray seals could be exposed to continuous noise at or above 120 dB
re 1 microPa rms incidental to operations and repair and maintenance
activities during the one year period of the IHA, respectively.
Because Massachusetts Bay represents only a small fraction of the
western North Atlantic basin where these animals occur NMFS has
determined that only small numbers of the affected marine mammal
species or stocks would be potentially affected by the Neptune LNG
deepwater project. The take estimates presented in this section of the
document do not take into consideration the mitigation and monitoring
measures required by the IHA.
Table 1. Density estimates, population abundance estimates, total authorized take (when combine takes from operation and maintenance/repair activities),
and percentage of population that may be taken for the potential affected species.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Authorized Take
Species Density (n/km\2\) Abundance\1\ (operation & Percentage of Stock or
maintenance) Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale 0.0082 345 33 9.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale 0.0097 2,269 40 1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale 0.0265 847 108 12.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale 0.0059 3,312 24 0.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sei whale 0.0084 386 17 4.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Long-finned pilot whale 0.0407 31,139 166 0.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic white-sided dolphin 0.1314 63,368 536 0.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin NA 7,489 10 0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Common dolphin NA 120,743 20 0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Risso's dolphin NA 20,479 20 0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale NA NA 20 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor porpoise NA 89,054 5 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal NA 99,340 15 0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal NA 125,541-169,064 15 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates taken from NMFS Atlantic and Gulf of Mexico SAR; NA=Not Available
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.'' In making a negligible impact determination, NMFS considers
a variety of factors, including but not limited to: (1) the number of
anticipated mortalities; (2) the number and nature of anticipated
injuries; (3) the number, nature, intensity, and duration of Level B
harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of
Neptune's port operation and maintenance and repair activities, and
none have been authorized by NMFS. Additionally, animals in the area
are not anticipated to incur any hearing impairment (i.e., TTS or PTS),
as the modeling results for the SRV indicate a source level of 180 dB
(rms).
While some of the species occur in the project area year-round,
some species only occur in the area during certain seasons. Sei whales
are only anticipated in the area during the spring. Therefore, if
shipments and/or maintenance/repair activities occur in other seasons,
the likelihood of sei whales being affected is quite low. Additionally,
any repairs that can be scheduled in advance will be scheduled to avoid
the peak time that North Atlantic right whales occur in the area, which
usually is during the early spring. North Atlantic right, humpback, and
minke whales are not expected in the project area in the winter. During
the winter, a large portion of the North Atlantic right whale
population occurs in the southeastern U.S. calving grounds (i.e., South
Carolina, Georgia, and northern Florida). The fact that certain
activities will occur during times when certain species are not
commonly found in the area will help reduce the amount of Level B
harassment for these species.
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral
reactions to noise exposure (such as disruption of critical life
functions, displacement, or avoidance of important habitat) are more
likely to be significant if they last more than one diel cycle or recur
on subsequent days (Southall et al., 2007). Consequently, a behavioral
response lasting less than one day and not recurring on subsequent days
is not considered particularly severe unless it could directly affect
reproduction or survival (Southall et al., 2007). Operational
activities are not anticipated to occur at the Port on consecutive
days. Once Neptune is at full operations, SRV shipments would occur
every 4-8 days, with thruster use needed for a couple of hours.
Therefore, Neptune will not be creating increased sound levels in the
marine environment for several days at a time.
[[Page 41449]]
Of the 14 marine mammal species likely to occur in the area, four
are listed as endangered under the ESA: North Atlantic right, humpback,
fin, and sei whales. All of these species, as well as the northern
coastal stock of bottlenose dolphin, are also considered depleted under
the MMPA. The affected humpback and North Atlantic right whale
populations have been increasing in recent years. However, there is
insufficient data to determine population trends for the other depleted
species in the project area. There is currently no designated critical
habitat or known reproductive areas for any of these species in or near
the project area. However, there are several well known North Atlantic
right whale feeding grounds in the CCB and GSC. As mentioned
previously, to the greatest extent practicable, all maintenance/repair
work will be scheduled during the May 1 to November 30 time frame to
avoid peak right whale feeding in these areas, which occur close to the
Neptune Port. No mortality or injury 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.
The population estimates for the species that may be taken by
harassment from the most recent U.S. Atlantic SAR were provided earlier
in this document (see Table 1). From the most conservative estimates of
both marine mammal densities in the project area and the size of the
120-dB ZOI, the maximum calculated number of individual marine mammals
for each species that could potentially be harassed annually is small
relative to the overall population sizes (12.8 percent for humpback
whales and 9.6 percent for North Atlantic right whales and no more than
4.4 percent of any other species).
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 operation, including repair and maintenance
activities, of the Neptune Port will result in the incidental take of
small numbers of marine mammals, by Level B harassment only, and that
the total taking from Neptune's activities will have a negligible
impact on the affected species or stocks.
Impact on Availability of Affected Species or Stock for Taking for
Subsistence Uses
There are no relevant subsistence uses of marine mammals implicated
by this action.
Endangered Species Act (ESA)
On January 12, 2007, NMFS concluded consultation with MARAD and
USCG under section 7 of the ESA on the proposed construction and
operation of the Neptune LNG facility and issued a Biological Opinion.
The finding of that consultation was that the construction and
operation of the Neptune LNG terminal may adversely affect, but is not
likely to jeopardize, the continued existence of North Atlantic right,
humpback, and fin whales, and is not likely to adversely affect sperm,
sei, or blue whales and Kemp's ridley, loggerhead, green, or
leatherback sea turtles.
On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting
reinitiation of the section 7 consultation. MARAD and USCG determined
that certain routine planned operations and maintenance activities,
inspections, surveys, and unplanned repair work on the Neptune
Deepwater Port pipelines and flowlines, as well as any other Neptune
Deepwater Port component (including buoys, risers/umbilicals, mooring
systems, and sub-sea manifolds), may constitute a modification not
previously considered in the 2007 Biological Opinion. Construction of
the Port facility has been completed, and, therefore, is no longer part
of the proposed action. Consultation with NMFS' Northeast Regional
Office is now complete. The 2010 Biological Opinion contains the
following conclusion. After reviewing the best available information on
the status of endangered and threatened species under NMFS
jurisdiction, the environmental baseline for the action area, the
effects of the action, and the cumulative effects in the action area,
it is NMFS' biological opinion that the operation of the Neptune LNG
deepwater port, including required maintenance and repair work, is
likely to adversely affect, but is not likely to jeopardize the
continued existence of the North Atlantic right, humpback, fin, and sei
whale.
National Environmental Policy Act (NEPA)
MARAD and the USCG released a Final EIS/Environmental Impact Report
(EIR) for the proposed Neptune LNG Deepwater Port (see ADDRESSES). A
notice of availability was published by MARAD on November 2, 2006 (71
FR 64606). The Final EIS/EIR provides detailed information on the
proposed project facilities, construction methods, and analysis of
potential impacts on marine mammals.
NMFS was a cooperating agency in the preparation of the Draft and
Final EISs based on a Memorandum of Understanding related to the
Licensing of Deepwater Ports entered into by the U.S. Department of
Commerce along with 10 other government agencies. On June 3, 2008, NMFS
adopted the USCG and MARAD FEIS and issued a separate Record of
Decision for issuance of authorizations pursuant to sections
101(a)(5)(A) and (D) of the MMPA for the construction and operation of
the Neptune LNG Port facility.
Authorization
As a result of these determinations, NMFS has issued an IHA to
Neptune for the take of marine mammals incidental to port commissioning
and operations, including repair and maintenance activities at the
Neptune Deepwater Port, provided the previously mentioned mitigation,
monitoring, and reporting requirements are incorporated.
Dated: July 12, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2010-17434 Filed 7-15-10; 8:45 am]
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