[Federal Register Volume 72, Number 92 (Monday, May 14, 2007)]
[Notices]
[Pages 27077-27091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9216]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 041307A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Construction and Operation of an 
LNG Facility Off Massachusetts

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

ACTION: Notice of issuance of an incidental harassment authorization.

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

SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take marine mammals, by harassment, 
incidental to construction and operation of an offshore liquefied 
natural gas (LNG) facility in the Massachusetts Bay, has been issued to 
Northeast Gateway Energy Bridge\TM\ L.L.C. (Northeast Gateway) and 
Algonquin Gas Transmission, L.L.C. (Algonquin) for a period of 1 year.

DATES: This authorization is effective from May 8, 2007, until May 7, 
2008.

ADDRESSES: A copy of the application, IHA, and a list of references 
used in this document may be obtained by writing to P. Michael Payne, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 
East[dash]West Highway, Silver Spring, MD 20910[dash]3225. A copy of 
the application may be obtained by writing to this address or by 
telephoning the contact listed here and is also available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha. The Maritime 
Administration (MARAD) and U.S. Coast Guard (USCG) Final Environmental 
Impact Statement (Final EIS) on the Northeast Gateway Energy Bridge LNG 
Deepwater Port license application is available for viewing at http://dms.dot.gov under the docket number 22219.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of 
Protected Resources, NMFS, (301) 713[dash]2289, ext 128.

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 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.
    An authorization 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 certain subsistence uses, and that 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

[[Page 27078]]

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 United States can apply for an authorization 
to incidentally take small numbers of marine mammals by 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].
    Section 101(a)(5)(D) establishes a 45[dash]day time limit for NMFS 
review of an application followed by a 30[dash]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 issuance of the 
authorization.

Summary of Request

    On October 30, 2006, NMFS received an application from Northeast 
Gateway and Algonquin for an IHA to take small numbers of several 
species of marine mammals, by Level B (behavioral) harassment, for a 
period of 1 year, incidental to construction and operation of an 
offshore LNG facility.

Description of the Project

    Northeast Gateway is proposing to construct, own, and operate the 
Northeast Gateway Deepwater Port (Port or Northeast Port) to import LNG 
into the New England region. The Port, which will be located in 
Massachusetts Bay, will consist of a submerged buoy system to dock 
specifically designed LNG carriers approximately 13 mi (21 km) offshore 
of Massachusetts in federal waters approximately 270 to 290 ft (82 to 
88 m) in depth.
    This facility will deliver regasified LNG to onshore markets via 
new and existing pipeline facilities owned and operated by Algonquin. 
Algonquin will build and operate a new, 16.06-mile (25.8 km) long, 24-
in (61-cm) diameter natural gas pipeline (called the Northeast Gateway 
Pipeline Lateral or Pipeline Lateral) to connect the Port to 
Algonquin's existing offshore natural gas pipeline system in 
Massachusetts Bay, called the HubLine.
    The Port will consist of two subsea Submerged Turret Loading 
(STL\TM\) buoys, each with a flexible riser assembly and a manifold 
connecting the riser assembly, via a steel flowline, to the subsea 
Pipeline Lateral. Northeast Gateway will utilize vessels from its 
current fleet of specially designed Energy[dash]Bridge\TM\ 
Regasification Vessels (EBRVs), each capable of transporting 
approximately 2.9 billion ft\3\ (Bcf; 82 million m\3\) of natural gas 
condensed to 4.9 million ft\3\ (138,000 m\3\) of LNG. Northeast Gateway 
will add vessels to its fleet that will have a cargo capacity of 
approximately 151,000 m\3\. The proposed mooring system to be installed 
at the Port is designed to handle both the existing vessels and any of 
the larger capacity vessels that may come into service in the future. 
The EBRVs will dock to the STL\TM\ buoys which will serve as both the 
single-point mooring system for the vessels and the delivery conduit 
for natural gas. Each of the STL\TM\ buoys will be secured to the 
seafloor using a series of suction anchors and a combination of chain/
cable anchor lines.
    The Pipeline Lateral joins the existing HubLine pipeline in waters 
approximately 3 mi (4.8 km) to the east of Marblehead Neck in 
Marblehead, Massachusetts. From the HubLine connection, the Pipeline 
Lateral route extends towards the northeast, crossing the outer reaches 
of territorial waters of the Town of Marblehead, the City of Salem, the 
City of Beverly, and the Town of Manchester-by-the-Sea for 
approximately 6.3 mi (10.1 km). The Pipeline Lateral route curves to 
the east and southeast, exiting Manchester-by-the-Sea territorial 
waters and entering waters regulated by the Commonwealth of 
Massachusetts. The Pipeline Lateral route continues to the south/
southeast for approximately 6.2 mi (10 km), where it exits state waters 
and enters federal waters. The Pipeline Lateral route then extends to 
the south for another approximately 3.5 mi (5.7 km), terminating at the 
Port.
    On June 13, 2005, Northeast Gateway submitted an application to the 
USCG and MARAD seeking a federal license under the Deep[dash]Water Port 
Act to own, construct, and operate a deepwater port for the import and 
regasification of LNG in Massachusetts Bay, off of the coast of 
Massachusetts. Simultaneous with this filing, Algonquin filed a Natural 
Gas Act Section 7(c) application with the Federal Energy Regulatory 
Commission for a Certificate of Public Convenience and Necessity for 
the Pipeline Lateral that would connect the Northeast Gateway Port with 
the existing HubLine natural gas pipeline for transmission throughout 
New England. Because, as described later in this document, there is a 
potential for marine mammals to be taken, by harassment, incidental to 
construction of the facility and its pipeline and by the transport of 
LNG, Northeast Gateway/Algonquin have applied for a 1[dash]year IHA for 
activities commencing around May, 2007. Detailed information on these 
activities can be found in the MARAD/USCG Final EIS on the Northeast 
Gateway Project (see ADDRESSES for availability). Detailed information 
on the LNG facility's pipeline and port construction, operation, and 
maintenance activities; and noise generated from construction and 
operations was published in the Federal Register on March 13, 2007 (72 
FR 11328). No changes have been made to these proposed activities.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on March 13, 2007 
(72 FR 11328). During the 30[dash]day public comment period, NMFS 
received the following comments from the Marine Mammal Commission 
(Commission), the Provincetown Center for Coastal Studies (PCCS), the 
PCCS Aerial Survey Team, the Whale Center of New England (WCNE), the 
Humane Society of the United States (HSUS), and 18 private citizens.
    Comment 1: The Commission states that in general, the mitigation, 
monitoring, and reporting measures appear appropriate and prudent. The 
Commission recommends that NMFS condition the IHA to include all of 
them, including the installation of a near[dash]real[dash]time passive 
acoustic array.
    Response: NMFS agrees with the Commission's recommendation. The IHA 
requires the installation of a near[dash]real[dash]time passive 
acoustic array in the vicinity of the proposed project.
    Comment 2: The Commission recommends that the IHA explicitly 
identify which construction and operation activities (e.g., operation 
of vessel thrusters) would be suspended when whales are detected within 
specified distances. The Commission states that since the operators may 
not know which activities produce sounds that exceed certain specified 
levels (i.e., 120 dB re 1 microPa), there is a need to specify which 
construction and operation activities would need to be suspended in the 
event that a right whale is detected within 457 m (500 yd) or another 
protected species is detected within 91 m (100 yd).

[[Page 27079]]

    Response: NMFS does not agree with the Commission's recommendation 
of setting specified shut down criteria for each construction and 
operation activity for a specified received level. Due to the 
complexity of oceanographical and ocean bottom topographical features, 
as well as a wide range of construction and operation equipment being 
used for the proposed project, it is virtually impossible to set 
specified shut down criteria for each construction and operation 
activity. For example, the ensonified area where intermittent noise 
received levels reach 120 dB re 1 microPa or above from the same bow 
thruster use associated with dynamic positioning of vessels during 
either construction or operation (docking) could range between 15 km\2\ 
(5.8 mi\2\) and 34 km\2\ (13.1 mi\2\), or 2.18 km (1.35 mi) and 3.31 km 
(2.06 mi) radii, respectively, depending on water depth between 120 m 
(394 ft) or deeper and 40 m (131 ft) or shallower.
    Nonetheless, the Northeast Gateway proposed to adopt the most 
conservative estimates of ``take'' by using the largest zone of 
influence (ZOI; 34 km\2\, or 13.1 mi\2\) for 120 dB re 1 microPa in 
shallow water (40 m, or 131 ft) in their calculation, regardless of the 
type of construction and operation activities. The type of construction 
activity that would produce the highest noise level would be from the 
construction vessel movements, with source levels reaching up to 180 
dBL re 1 microPa at 1 m for vessel thrusters used for dynamic 
positioning. In addition, as detailed in the Federal Register notice 
(72 FR 11328, March 13, 2007), during construction and operations, a 
0.8 km (0.5 mi) radius zone will be monitored by marine mammal 
observers (MMOs). If any marine mammals are visually detected within 
the 0.8 km (0.5 mi) radius zone, the vessel supervisor would be 
notified immediately. The vessel's crew would be put on a heightened 
state of alert. The marine mammal would be monitored constantly to 
determine if it is moving toward the construction or operation area. 
Construction or operational vessel(s) in the vicinity would be directed 
to cease any movement and/or stop noise emitting activities that exceed 
a received level of 120 dB re 1 microPa at 100 yd (91 m) (approximately 
139 dB re 1 microPa at the source) if a marine mammal other than a 
right whale comes to within such a range. For right whales, the 
cut[dash]off distance would be established at 500 yd (457 m) when the 
received level reaches 120 dB re 1 microPa at 100 yd (91). NMFS 
considers this measure conservative.
    Comment 3: The Commission, the PCCS, and the HSUS note that 
construction and operation activities producing loud noise would occur 
at night and under poor sighting conditions (e.g., foggy weather) when 
visual detection of animals would not be possible. The Commission 
recommends that NMFS require the use of passive acoustic monitoring 
(PAM) at all times during the construction period and develop criteria 
and procedures for suspending and resuming activities that generate 
sounds above specified levels when protected species are detected near 
the construction site. The HSUS recommends that during low[dash]light 
hours, Northeast Gateway should cease all construction activities until 
adequate sighting conditions prevail.
    Response: NFMS agrees with the Commission that PAM will be used at 
all times during the construction period. A detailed description of how 
PAM will be used to assist visual monitoring is provided in the draft 
Marine Mammal Detection, Monitoring, and Response Plan for the 
Construction and Operation of the Northeast Gateway Energy Bridge\TM\ 
Deepwater Port and Pipeline Lateral (NEG, 2007). The PAM primarily 
serves as an early warning and supplemental measure for marine mammal 
visual monitoring provided by two MMOs on each construction vessel. The 
Northeast Gateway will equip MMOs with night vision devices for marine 
mammal monitoring during low[dash]light hours.
    Comment 4: The Commission and the HSUS note that the Federal 
Register notice (72 FR 11328, March 13, 2007) identifies several 
measures intended to mitigate collision risks, including commitments by 
the port operator to require that vessels using the port:
     use the Boston Traffic Separation Scheme (TSS);
     travel at 10 knots or slower when outside those lanes 
approaching or leaving the port;
     travel at 10 to 12 knots when in the vicinity of the port; 
and
     reduce their transit speeds to 10 to 14 knots between 
March 1 and April 30, or if required by NMFS, throughout the entire 
year in the proposed Race Point ship strike management area.
    The Commission and the HSUS request NMFS to describe specifically 
what is ``in the vicinity of the port,'' and provide an explanation as 
to why speeds of up to 12 knots would be allowed under this condition 
when, appropriately, the speeds of vessels approaching from or 
departing for the traffic lanes would be limited to 10 knots. In 
addition, the Commission and the HSUS believe that 14 knots is too fast 
and requests NMFS to set an upper speed limit. The Commission and the 
HSUS are concerned that a high proportion of vessel strikes causing 
serious or lethal injuries to whales occurred at 14 knots, as supported 
by ship collision data compiled by the Commission and NMFS. The 
Commission recommends that, consistent with navigational safety, 10 
knots be required as a maximum speed for all vessels at all times of 
year within the Stellwagen Bank National Marine Sanctuary (SBNMS), and 
between March 1 and April 30 outside the SBNMS but still within the 
Race Point ship strike management area. The HSUS recommends that NMFS 
impose a speed limit of 10 knots to be consistent with what NMFS 
currently advises on its notices to mariners on the Ship Advisory 
System (SAS) in the Northeast.
    Response: NMFS agrees with the Commission's comments and requires 
in the IHA a maximum speed of 10 knots for all vessels at all times of 
year within the SBNMS, and between March 1 and April 30 outside the 
SBNMS but still within the Race Point ship strike management area. To 
be consistent with NMFS Biological Opinion, the IHA requires that for 
construction activities, all construction vessels 300 gross tons or 
greater maintain a speed of 10 knots or less, and vessels transiting 
through the Cape Cod Canal and Cape Cod Bay between January 1 and May 
15 reduce speed to 10 knots or less, follow the recommended routes 
charted by NOAA to reduce interactions between right whales and 
shipping traffic and avoid identified aggregations of right whales in 
the eastern portion of Cape Cod Bay.
    In response to active right whale sightings (detected acoustically 
or reported through other means such as the MSR (Mandatory Ship 
Reporting) or SAS), and taking into account safety and weather 
conditions, EBRVs will take appropriate actions to minimize the risk of 
striking whales, including reducing speed to 10 knots or less and 
alerting personnel responsible for navigation and lookout duties to 
concentrate their efforts.
    For operational activities, IHA requires that the Energy Bridge 
Regasification Vessels (EBRVs) maintain speeds of 12 knots or less 
while in the Boston TSS until reaching the vicinity of the buoys 
(except during the seasons and areas defined below, when speed will be 
limited to 10 knots or less). At 3 km (1.86 mi) from the Northeast 
Gateway Port, speed will be reduced to 3 knots, and to less than 1 knot 
at 500 m (1,640 ft) from the Port.

[[Page 27080]]

    EBRVs will reduce transit speed to 10 knots or less (unless 
hydrographic, meteorological, or traffic conditions dictate an 
alternative speed to maintain the safety or maneuverability of the 
vessel) from March 1 [dash] April 30 in all waters Off Race Point 
Seasonal Management Area (SMA). Please refer to the Monitoring, 
Mitigation, and Reporting section below for a detailed description.
    Comment 5: The Commission recommends that vessels of less than 300 
gross tons carrying supplies or crew between the shore and the 
construction site contact the appropriate authority before leaving 
shore or the construction site for reports of recent right whale 
sightings and, consistent with navigational safety, restrict speeds to 
10 knots or less within five miles of any recent sighting locations. 
The Commission states that vessels smaller than 300 gross tons pose a 
risk of ship strikes to right whales and other large cetaceans.
    Response: NMFS agrees with the Commission recommendation that 
vessels of less than 300 gross tons carrying supplies or crew between 
the shore and the construction site contact the appropriate authority 
before leaving shore or the construction site for reports of recent 
right whale sightings and, consistent with navigational safety, 
restrict speeds to 10 knots or less within five miles of any recent 
sighting locations. NMFS has adopted this recommendation and made it a 
requirement in the IHA issued to the Northeast Gateway.
    Comment 6: The HSUS points out that in the Federal Register notice 
(72 FR 11328, March 13, 2007), it states that ``Northeast Gateway has 
voluntarily agreed to follow any speed restrictions that may become 
mandatory for all vessel traffic.'' The HSUS requests NMFS to clarify 
the statement.
    Response: The Northeast Gateway voluntarily agreed to keep its 
EBGVs maximum speed at 12 knots within the Boston TSS (except during 
specified seasons and areas when speed will be limited to 10 knots or 
less, please refer to Monitoring, Mitigation, and Reporting section 
below for a detailed description), which is not a mandatory maximum 
speed for all vessel traffic.
    Comment 7: The HSUS requests that the applicant be required to halt 
activities in the event of the death or serious injury of an endangered 
species (e.g., right, fin or humpback whale) in or around the project 
area.
    Response: NMFS agrees with the HSUS' comment. The applicant is 
required to suspend all 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 activity.
    Comment 8: The WCNE, the PCCS, and the HSUS point out that the 
numbers of marine mammals that would be harassed incidentally from May 
through November were grossly underestimated by NMFS in the Federal 
Register notice (72 FR 11328, March 13, 2007). The WCNE states that the 
use of large whale survey data provided by the PCCS in Cape Cod Bay to 
extrapolate the number of animals that would be exposed to sound levels 
of over 120 dB re 1 microPa is flawed. The WCNE, the PCCS, the PCCS 
Aerial Survey Team, and the HSUS state that the PCCS surveys were 
conducted to asses the use of the Cape Cod Bay habitat for North 
Atlantic right whales, however, other species such as humpback, fin, 
and minke whales which are likely to occur in the proposed project area 
are seasonal migrants known to spend most of the survey months outside 
of the study area. The PCCS and the HSUS point out that the applicant 
should use better data, such as data published from a recent NOAA 
report (NCCOS, 2006), research conducted by Weinrich and Sardi (2005), 
and even non[dash]systematic cetacean data, such as long[dash]term 
photo[dash]identification data sets held by PCCS.
    Response: NMFS recognizes that baleen whale species other than 
North Atlantic right whales have been sighted in the proposed project 
area from May to November. However, the occurrence and abundance of fin 
(Balaenoptera physalus), humpback (Megaptera novaeangliae), and minke 
(B. acutorostrata) is not well documented within the project area. 
Nonetheless, NMFS agrees with the PCCS that better data on cetacean 
distribution within Massachusetts Bay, such as those published by the 
National Centers for Coastal Ocean Science (NCCOS, 2006) should be used 
to estimate takes of marine mammals in the vicinity of project area. 
Based on the revised calculation, the updated estimated annual take 
numbers for North Atlantic right, fin, humpback, minke, and pilot 
whales, and Atlantic white[dash]sided dolphins are 3, 13, 24, 2, 15, 
and 49, respectively. Please refer to the Estimate Takes by Harassment 
section below for a detailed description on the calculation of these 
numbers.
    NMFS also reviewed Weinrich and Sardi's (2005) report on baleen 
whale distribution in the proposed project area. While NMFS considers 
it an excellent report in describing large whale distribution in the 
Massachusetts Bay and the SBNMS, with sighting data covering 1995 to 
2004, NMFS could not use it to come up with take estimates because it 
did not provide density estimate in a quantitative analysis, which 
would be based on survey efforts, trackline, and strip width. Many of 
the non[dash]systematic cetacean survey data, such as long[dash]term 
photo[dash]identification data sets held by the PCCS, are included in 
the NCCOS report.
    Comment 9: The WCNE states that in their research efforts on 
northern Stellwagen Bank in 2006, they identified over 250 individual 
humpback whales, including 33 mother[dash]calf pairs using standard 
photo[dash]identification techniques, and even that number is 
considered an underestimate by the WCNE. Given the proximity of the 
project to Stellwagen Bank, the WCNE states that it is possible for any 
of these animals on any given day to be exposed to project noise of 
over 120 dB.
    Response: NMFS believes a small number of humpback whales might be 
incidentally taken by Level B harassment if they happen to occur in the 
ZOI where noise from construction activities reach over 120 dB. 
However, the maximum size of the ZOI is calculated to be 34 km\2\ (13 
mi\2\) with a vessel's dynamic positioning thrusters being operated in 
waters less than 40 m (131 ft) deep. As indicated in the Northeast 
Gateway's application, even this maximum ZOI would occur outside the 
SBNMS boundary, and there would be at least 5 nm (9.3 km) from the 
outer boundary of the maximum ZOI to the edge of Stellwagen Bank, where 
humpback whales and other large whale species are likely to occur 
(NCCOS, 2006). In addition, between the proposed project and the 
Stellwagen Bank, there is a deep drop off from the 50[dash]m isobath 
where construction noise would not propagate as far when compared to 
areas of water depth less than 40 m (131 ft), where the maximum ZOI 
could occur. Therefore, the identification of 250 individual humpback 
whales in the northern Stellwagen Bank does not mean that those whales 
in that vicinity would be harassed. To the contrary, the fact that the 
majority of whales occur within the SBNMS, especially gathering around 
the Stellwagen Bank, means that fewer whales would be taken by Level B 
harassment in the vicinity of the project area, which is outside the 
SBNMS.
    Comment 10: Citing the WCNE's own research on humpback whales in 
the SBNMS and other studies (cited as Seipt et al., 1989), the WCNE 
states that a more realistic upper bound of the number of animals that 
may be taken during any given year by the project is

[[Page 27081]]

more likely to be up to 500 individuals each of humpback, fin, and 
minke whales, each of which may be taken multiple times on multiple 
days (no calculation provided).
    Response: NMFS does not believe the WCNE's estimated take numbers 
are scientifically supported, especially given that the WCNE did not 
provide any valid calculation indicating how these numbers were 
assessed. The photo[dash]identification of 250 humpback whales 
(including 33 mother[dash]calf pairs) in the northern Stellwagen Bank, 
as mentioned in the previous Comment, does not support the WCNE's take 
estimate. The research conducted by Seipt et al. (1990), titled 
``Population Characteristics of Individual Fin Whales, Balaenoptera 
physalus, in Massachusetts Bay, 1980[dash]1987,'' was actually 
published in the Fishery Bulletin in 1990, not 1989 as cited by the 
WCNE. While the study described the use of photo[dash]identification 
technology on fin whale population studies in Massachusetts Bay and 
presented fin whale sighting and resighting data between 1980 and 1987, 
it did not provide any population estimate or density assessment of the 
species in the study area. Therefore, NMFS does not believe these data 
can be used for fin whale take estimates in the proposed project area.
    In addition, NMFS' own population assessment of the Gulf of Maine 
humpback stock is 902 whales (Warring et al., 2005). The WCNE's 
estimated annual take of 500 humpback whales (55 percent of the 
population) within an maximum 120 dB re 1 microPa ZOI of 34 km\2\ (13 
mi\2\) outside their normal habitat is not scientifically supportable. 
Likewise, the WCNE's estimated annual take numbers of 500 fin whales, 
which accounts for 18 percent of the Western North Atlantic population 
of 2,814 whales; and 500 minke whales, which is 14 percent of the 
Canadian East Coast population of 3,618 whales (which are most sighted 
off Nova Scotia and New Brunswick, Canada); are not good estimates.
    Comment 11: The WCNE points out that right whales are not evenly 
distributed along a trackline, but clump in areas where a prey 
resource, usually copepods, is aggregated in high densities (Mayo and 
Marx, 1990; Baumgartner et al., 2003), and citing its work on right 
whales, the WCNE states that the right whale use of the proposed 
project area may be similar to that of Cape Cod Bay where up to 100 
individual whales are seen per year (Hamilton and Mayo, 1990; Brown et 
al., 2004; Mayo et al., 2005; Jaquet et al., 2006). Hence, the WCNE 
states that an appropriate estimate of North Atlantic right whales to 
be harassed by the proposed project would be approximately 100 
individuals annually, each of which may be taken multiple times on 
multiple days.
    Response: NMFS agrees that right whales clump in areas where prey 
species are most abundant. However, a good survey design would 
compensate for such a bias by adequate and repeated sampling of the 
study area. This is certainly the case for datasets used by the NCCOS 
(2006) which include survey efforts and sightings data from ship and 
aerial surveys and opportunistic sources between 1970 and 2005 from a 
wide range of sources. These studies clearly show that right whales 
spend most of their time across the southern Gulf of Maine in Cape Cod 
Bay in spring, with highest abundance located over the deeper waters on 
the northern edge of the Great South Channel and deep waters parallel 
to the 100[dash]m (328[dash]ft) isobath of northern Georges Bank and 
Georges Basin. The references the WCNE cited focused most of the survey 
efforts in Cape Cod Bay, which is 30 [dash] 40 mi (48 [dash] 64 km) 
southeast of the proposed project area and has different oceanographic 
features and ecological characteristics, and a more important habitat 
for right whales. In addition, Weinrich and Sardi (2005) in their 
report on the distribution of baleen whales in the Northeast Gateway 
proposed LNG project area states:
    North Atlantic right whales are sporadic visitors to the study 
area [Northeast Gateway project area] during the April to November 
period. Right whales typically aggregate in Cape Cod Bay during the 
late winter and early spring (Mayo and Marx 1990), then move east to 
the Great South Channel during the spring (Kenney and Wishner 1995). 
They then move east along the northern edge of Georges Bank, and 
into the Bay of Fundy and Nova Scotian shelf during the summer and 
early fall (Kraus et al. 1988; Winn et al. 1986; Baumgartner et al. 
2003). Once they leave the Bay of Fundy, pregnant females migrate to 
the coastal waters of the southern U.S. to calve, while the 
distribution of much of the rest of the population remains unknown 
(Winn et al. 1986).
    Right whale sighting plots presented in this report support this 
statement, and it is consistent with the survey data published in the 
NCCOS (2006) report, which indicates that right whales do not use the 
proposed project area regularly. Therefore, NMFS does not believe that 
the WCNE's estimated annual take of 100 North Atlantic right whales by 
the proposed project is scientifically supported, especially given that 
the WCNE did not provide the calculation regarding how this take number 
was assessed.
    Comment 12: The WCNE states that although it has no way of 
addressing the numbers of other species [marine mammal species other 
than large whales] requested to be taken by harassment, in most cases 
the numbers requested seem to be unrealistic to the WCNE (no references 
provided).
    Response: Given that the WCNE has no way of addressing the numbers 
of other species requested, the WCNE's opinion that the numbers are 
unrealistic has no scientific basis.
    Comment 13: The WCNE points out that the deepwater port 
installation during the months of August through November is a 
particularly sensitive time for endangered humpback and fin whales 
within the proposed project area, as supported by the studies conducted 
by Weinrich and Sardi (2005). The WCNE states that heavy industrial 
activity during these months would result in either take levels of 
these species at far greater levels than during any other month or in 
habitat displacement altogether.
    Response: While NMFS reviewed the Weinrich and Sardi (2005) report 
on the distribution of baleen whales in the waters surrounding the 
Northeast Gateway's proposed LNG project, NMFS did not find the report 
contains any quantitative analysis of the cetacean density data showing 
that there is a statistical significance of baleen whales' use of the 
proposed project area on a seasonal or monthly basis. The cetacean 
sighting data, plotted in an area that includes most of the SBNMS, part 
of the Massachusetts Bay, the west terminal portion of the Boston TSS, 
and the proposed project area, clearly show that most humpback, fin, 
and minke whales were sighted within the SBNMS (Weinrich and Sardi, 
2005). NMFS recognizes that there would be potential take of a small 
number of marine mammals by Level B harassment as a result of this 
project, however, NMFS does not agree with the WCNE that there would be 
takes at far greater levels during the months of August and November 
for humpback and fin whales as strict monitoring and mitigation 
measures, described in the Monitoring, Mitigation, and Reporting 
section, would be implemented to keep the impact levels as low as 
practicable.
    Comment 14: The WCNE points out that the permit application never 
refers to any of the project's vessel operations except that of the 
thrusters. The WCNE states that staff at the SBNMS have shown that LNG 
tankers under operation produce acoustic sources that can radiate well 
over 0.25 mi (400 m) from the ship (no reference provided). The WCNE 
further points out that many

[[Page 27082]]

of the ships are large, relatively un[dash]maneuverable vessels that 
would not be able to maintain legal approach distances, including the 
500[dash]yd minimum approach distance to right whales.
    Response: Staff at the SBNMS has not had the opportunity to do 
acoustic testing of the EBRVs that will be using the Port. However, 
acoustic testing of the EBRVs has been conducted and was referenced in 
the proposed project as published in the Federal Register (72 FR 11328, 
March 13, 2007). While ``acoustic sources'' may ``radiate,'' at 0.25 mi 
(400 m) the received level would be below 120 dB re 1 microPa, which is 
the threshold for Level B behavioral harassment for marine mammals.
    The Northeast Gateway states that the maneuverability of the EBRVs 
at this low speed (maximum 12 knots within the Boston TSS and maximum 
10 knots within the SBNMS, please refer to Monitoring, Mitigation, and 
Reporting section below for a detailed description) would enable the 
vessels to maintain legal approach distance, including the 500[dash]yd 
(457[dash]m) minimum approach distance to right whales.
    Comment 15: The WCNE points out that the applicant plans to use a 
remote acoustic detection system for whale monitoring. However, the 
WCNE states, that PAM can only be effective if a whale vocalizes while 
it is within detectable range of the array. Citing Park et al. (2006, 
unpublished data), the WCNE states that whales are often silent for 
prolonged periods in the WCNE's study area. The PCCS also points out 
that marine mammals may not vocalize continuously and work is still 
underway to estimate the probability of detecting a whale that is 
present by passive acoustic techniques.
    Response: NMFS acknowledges these limitations. The requirement of 
PAM for marine mammal detection is intended to provide additional 
monitoring to the standard visual monitoring by qualified marine mammal 
observers (MMOs). PAM is not to be solely used for marine mammal 
monitoring and detection for the proposed project and certainly will 
not replace visual monitoring. However, passive acoustic buoys provide 
an early warning to contractor managers and vessel operators when a 
vocalizing whale is detected within 3 [dash] 5 mi (4.8 [dash] 8.0 km) 
from the project, which triggers the MMOs to heighten visual 
observation in the direction of a vocalizing whale (NEG, 2007).
    While NMFS agrees that at times whales do not vocalize 
continuously, nonetheless, acoustic detection has been demonstrated to 
augment visual detection of marine mammal in population estimates and 
habitat selection selection indices in a number of studies (e.g., Moore 
et al., 1999; Swartz et al., 2002).
    Comment 16: The PCCS is concerned that PAM would be entirely 
ineffective for monitoring marine turtles which also are least likely 
to be detected by visual techniques.
    Response: NMFS agrees with the PCCS' comment that PAM is not an 
effective way to monitor marine turtles. As stated in the Federal 
Register notice (72 FR 11328, March 13, 2007), the PAM would be used as 
a supplemental monitoring measure for detecting marine mammals.
    Comment 17: The WCNE and the PCCS Aerial Survey Team are concerned 
that vessel strikes have not been identified as a potential type of 
take, and that the applicants have made no commitments to take any 
actions to avoid disturbance or collision even though they know a whale 
is present in their path or in the disturbance ``swath.''
    Response: NMFS does not agree with the WCNE and PCCS' comment. In 
assessing the potential impact from vessel strikes, NMFS proposed 
strict vessel speed limits in the vicinity of the project area, 
including within the SBNMS, the Boston TSS, and right whale seasonal 
management areas.
    The IHA issued to the Northeast Gateway provides detailed 
monitoring and mitigation measures to avoid any disturbance or 
collision, including passive acoustic monitoring, reducing vessel speed 
to 12 knots within the Boston TSS, and further reducing vessel speed to 
10 knots within the SBNMS and within seasonal management areas during 
certain months. These mandatory monitoring and mitigation measures are 
detailed in the Monitoring, Mitigation, and Reporting section of this 
document.
    Comment 18: The WCNE states that whales would be harassed not just 
by exposure to sound sources of over 120 dB re 1 microPa, they may also 
be disturbed by multiple boats in a limited area. The WCNE cites that 
studies conducted by Borgaard et al. (1999) and Stone and Tasker (2006) 
on whales affected by continuous activity from dredging coupled with 
vessel traffic and seismic activities. The WCNE recommends that if in 
the first year [of the project] abundance of any of the key species are 
notably lower than that of previous years, the IHA should stipulate 
that project operations should cease until it can be determined if that 
change was related to project activities or other ecological factors.
    Response: It is true that marine mammals maybe disturbed by 
multiple boats in a limited area, especially within the Boston TSS. 
However, this concern is not related to the issuance of this IHA since 
the operation of a deepwater LNG facility would only increase vessel 
traffic by a very small amount, about 1.5 percent (NMFS, 2007). The 
study by Borgaard et al. (1999) cited by the WCNE was focused on the 
effects of large scale industrial activity, which involved dredging and 
blasting, on large cetaceans in Bull Arm, Trinity Bay, Newfoundland 
from 1992 through 1995. The research indicates that humpback whales 
were more affected by continuous activity from dredging, coupled with 
vessel traffic, but appeared tolerant of transient blasting and 
frequent vessel traffic. Individually[dash]identified minke whales were 
resighted in the industrialized area, and appeared tolerant of vessel 
traffic. Stone and Tasker (2006) in their research analyzed the effects 
of airgun seismic surveys on marine mammals in UK waters. The airgun 
used in seismic surveys produces impulse sounds, which is fundamentally 
different sound in acoustic characteristics from the intermittent 
noises produced during the proposed deepwater LNG port construction.
    The IHA is issued for a duration of one year. NMFS will evaluate 
any new scientific information that may surface during the project 
period and assess any impacts that may result due to the deepwater port 
construction and operation. Based on the new information and monitoring 
reports, NMFS will determine whether any additional monitoring or 
mitigation measures are warranted for future IHAs.
    Comment 19: The WCNE states that the range over which individual 
marine mammals would be considered harassed by exposure to vessel noise 
of over 120 dB re 1 microPa is also underestimated in the permit 
application. The WCNE points out that the Northeast Gateway FEIS 
provides relatively little concrete data on how far the sounds of 
various project activities are likely to propagate, except for a small 
number of studies conducted on stationary vessels in the Gulf of Mexico 
(GOM). The WCNE points out that the differences in the acoustic 
properties between the GOM and the Massachusetts Bay project site are 
so great that data from the former are of little relevance (no 
reference provided). Citing the Neptune LNG project, the WCNE states 
that the area around the ship that would reach areas of 120 dB re 1 
microPa would be within approximately 1 nm in any direction when it is 
transiting at 10 knots at

[[Page 27083]]

depths of both 50 m and at the bottom (less at the surface, where the 
sound is masked by the Lloyd mirror effect), and to approximately 3 nm 
in any direction when thrusters are used.
    Response: NMFS does not agree with the WCNE comment. The 
propagation of sound underwater follows basic geometric spreading 
models that are generally predictable (Urick, 1983). Therefore, studies 
on acoustic energy propagation conducted in the GOM are directly 
relevant to operations of identical vessels in the Massachusetts Bay 
unless substantial data are provided that would indicate otherwise. 
Regarding the size of the 120 dB re 1 microPa isopleth cited by the 
WCNE for the Neptune LNG project, there are a number of reasons why the 
isopleth areas differ from the one for this project. One reason is that 
the source level may be higher.
    Comment 20: The WCNE points out that there is no mention in the 
applicant's application about harassment from blasting during the 
construction phase of the project, however, the proponents continue to 
include in many of their documents the possibility that it may occur. 
The WCNE states that baleen whales, including those species in the 
project area, have been shown to be very sensitive to blasting; in some 
cases, it has been known to be fatal to humpback whales (Todd et al., 
1996).
    Response: Northeast Gateway stated that the pipeline route was 
intensively studied, and those studies were submitted to the USCG/MARAD 
and made part of their application. When the shortest, least expensive 
pipeline route was studied and it became clear that it would cross 
rocky substrate, another route, longer and more expensive was 
designated, selected in large part because it entirely avoids rocky 
substrate and the need for blasting or extensive alteration of the 
substrate. Northeast Gateway stated in its IHA application that no 
blasting would be required for the construction of the LNG deepwater 
port. Therefore, the IHA does not authorize blasting to be used for 
port construction. If, during the course of the construction, an 
unexpected need for blasting arises, the blasting cannot take place 
until a blasting plan is submission to the Federal Energy Regulatory 
Commission (FERC) and a Blasting Mitigation Plan prepared in 
consultation with NOAA for submittal to, and approval by, the FERC, 
which would certainly include a reconsideration of an amendment of the 
IHA.
    Comment 21: The WCNE states that unless otherwise specifically 
granted an authorization by the NMFS permit office, Northeast Gateway 
must also move away from a right whale until they have once again 
established the 500 yd buffer. The application does not contain a 
request for an authorization to approach right whales within 500 yd. 
This contradicts their statement that, regarding the DSV (which 
maintains its position with thrusters, and is therefore well above 120 
dB re 1 microPa to several miles) ``the importance of maintaining the 
position of the vessel is a demand which cannot be compromised'' (in 
other words, regardless of where any marine mammal appears).
    Response: The mitigation measures for approach regulate the 
approach distance of a vessel to a marine mammal. They do not apply to 
stationary vessels. The construction vessels in question include 
anchored construction barges and Diver Support Vessels (DSV).
    The DSV uses dynamic positioning to hold position over one or more 
divers deployed on the bottom with lifelines into the vessel. It is, 
for all intents and purposes, stationary at the time. It is extremely 
unlikely that a marine mammal would approach such a noise source and 
swim within the specified ``harassment'' distance of the vessel. 
However, if that occurred, the vessel would not be able to abandon its 
position; if the vessel did so, the safety and even the survival of the 
divers below would be in jeopardy. This is made clear in the proposed 
IHA Federal Register notice (72 FR 11328, March 13, 2007). Since the 
maximum noise level produced by deploying the dynamic positioning 
thrusters is under 180 dB re microPa, which is below the sound level 
that may cause permanent or temporary hearing threshold shift, NMFS 
does not believe that any Level A harassment (including injury) or 
mortality would occur to any marine mammals in the project vicinity.
    Comment 22: The PCCS questions the 500[dash]yd rule to determine 
when activities might become disruptive for right whales, and 
100[dash]yd rule for other marine mammals. The 500[dash]yd rule for 
right whales was not formulated to prevent disruption from construction 
activities and it is unclear what the 100[dash]yd threshold is based 
on. Both distances appear to be smaller than the anticipated ZOI for 
120 dB re 1 microPa sound. The smallest anticipated ZOI radius 
according to the application is 2.18[dash]km or 2,384[dash]yd, far 
greater than both sighting distance thresholds. Finally, it is not 
clear why 120 dB re 1 microPa activities should cease at different 
distances for right whales compared to other species.
    Response: Those distances are based on applicant's proposed action 
as described in their IHA application, as well as the EIS and 
Biological Opinion. Given the status of right whales, it is appropriate 
to have a more conservative shut[dash]down zone for right whales.
    The 2.18[dash]km (2,384[dash]yd) 120[dash]dB isopleth is based on 
the conservative calculation using the high[dash]intensity source level 
of 180 dB from the dynamic positioning thrusters. These levels of 
high[dash]intensity sounds are rarely emitted, therefore, the chance of 
a marine mammal being exposed to received levels above 120 dB outside 
the 100[dash]yd safety zone (500[dash]yd safety zone for a right whale) 
is very low.
    Please also note that the MMOs are able to monitor a much larger 
area (0.8 km, or 0.5 mi, radius) in any direction from the construction 
site, which is way beyond 500[dash]yard limit. In the Arctic, mammal 
observers routinely report whales at 1 to 3 mi (1.6 to 4.8 km) distance 
from the ship from observation platforms that are 12 to 15 m (40 to 50 
ft) above the surface of the sea, as would be the case for the DSVs or 
the construction barges.
    Comment 23: The PCCS Aerial Survey Team points out that there may 
be other species found in the Massachusetts Bay in addition to those 
observed in Cape Cod Bay by the PCCS. Therefore, more marine mammal 
studies should be conducted in the Massachusetts Bay.
    Response: NMFS agrees with the PCCS there may be other species of 
marine mammals present in the Massachusetts Bay that were not included 
in the estimated take, such as sei whales (B. borealis). However, these 
species are rarely sighted in the vicinity of the project area. 
Therefore, NMFS considers it unlikely that there would be a take of sei 
whales as a result of the proposed activity. NMFS agrees with the PCCS 
that more marine mammal studies should be conducted in the 
Massachusetts Bay. However, this is irrelevant to the issuance of this 
IHA since NMFS already has the necessary information to assess the 
level of potential impacts on marine mammals in the project area and to 
make the determination on the issuance of the IHA.
    Comment 24: The PCCS Aerial Survey Team states that their PCCS line 
transect data area specifically designed to maximize right whale 
sightings, and other marine mammals are recorded secondarily. The PCCS 
points out that different survey methods are appropriate for different 
species and that density estimates for small

[[Page 27084]]

cetaceans in particular are largely influenced by sea state (Palka, 
1996). The PCCS further points out that in calculating the estimated 
take of marine mammals, Northeast Gateway used 1.5 km as strip width, 
in fact, the strip width should be 1.5 nm, and that the 1.5[dash]km 
strip width would not be appropriate for many of the smaller marine 
mammals (for example, a strip width of a few hundred meters would be 
more appropriate for harbor porpoises).
    Response: NMFS recalculated the cetacean density data and estimated 
take number based on the compilation of a large number of databases 
published by the NCCOS (2006). Please refer to Estimated Take by 
Harassment section below for a detailed description. In their density 
estimate, the NCCOS eliminated all survey data collected for small 
marine mammals when sea state is 3 or above.
    In making its final determination, NMFS revised its calculation for 
estimated take of marine mammals due to the proposed project, and a 
more conservative hypothetical ``strip width'' of 0.4 km (0.25 mi) was 
used to calculate the estimated take number from the NCCOS report. 
Please refer to Estimated Take by Harassment section below for a 
detailed analysis of the calculation.
    Comment 25: The PCCS Aerial Survey Team points out that a 
correction factor of 30 percent in calculating marine mammal take 
numbers cannot be applied to all species.
    Response: While the length of the dive varies widely among marine 
mammal species, correction factors have not been developed for all 
species. Nonetheless, NMFS has used a more conservative 50 percent 
correction factor to compensate for marine mammals that were underwater 
and thus not sighted. Therefore, NMFS believes that this correction 
factor, while general, provides a conservative estimate of possible 
take.
    Comment 26: The PCCS Aerial Survey Team points out that human error 
(often known as perception error) should also be factored into the 
equation, but has not been included in calculations by the applicant.
    Response: Since such a factor has not been calculated in any 
datasets the NCCOS used for its density estimate, there is no way of 
knowing whether a meaningful correcting factor for perception error 
exists, and if so, the magnitude of the factor. Nonetheless, in 
selecting data for cetacean density estimate, only records from 
dedicated aerial and platform[dash]of[dash]opportunity surveys that met 
certain selection criteria were used by the NCCOS in their calculation. 
Please refer to the NCCOS (2006) report for a detailed description.
    Comment 27: The PCCS Aerial Survey Team points out that any 
harassment contributing to the stress of a right whale could 
potentially affect this vulnerable population.
    Response: NMFS agrees with the PCCS Aerial Survey Team's 
assessment. NMFS endangered species scientists in the Northeast Region 
have conducted a thorough review of 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 proposed project and cumulative effects in the action 
area. A Biological Opinion on the proposed action was published on 
February 5, 2007 (NMFS, 2007), which stated that the construction and 
operation of the Northeast Gateway LNG deepwater port is likely to 
adversely affect, but is not likely to jeopardize the continued 
existence of Northern right whales.
    In addition, NMFS has reviewed and adopted the FEIS prepared by the 
USCG and the MARAD, and has made its determination that the issuance of 
the IHA to the Northeast Gateway for taking up to 3 North Atlantic 
right whales by Level B harassment incidental to an LNG deepwater 
construction would have a negligible impact on the species.
    Comment 28: The Commission assumes that NMFS chose 120[dash]dB re 1 
microPa source level, rather than the received level, as a cut[dash]off 
threshold to avoid the need for a small[dash]take authorization, and 
that the source level was used rather than the received level simply to 
avoid uncertainty pertaining to estimation of the received level. The 
Commission requests a clarification if its assumption is incorrect.
    Response: The Northeast Gateway in its Marine Mammal and Turtle 
Monitoring and Mitigation Plan of the IHA application (Appendix C) 
stated:
    Construction vessel(s) in the vicinity of the sighting will be 
directed to cease any movement and/or stop noise emitting activities 
that exceed 120 decibels (dB) in the event that a right whale comes 
to within 500 yards of any operating construction vessel. For other 
whales and sea turtles this distance will be established at 100 
yards. Vessels transiting the construction area such as pipe haul 
barge tugs will also be required to maintain these separation 
distances.
    This proposed mitigation measure was later published in the Federal 
Register notice (72 FR 11328, March 13, 2007). However, after 
consulting experts on ocean acoustics, NMFS realized that setting the 
120 dB source level as a cut[dash]off is unrealistic and untenable. 
Given the fact that almost anything occurring on a vessel or barge 
would have to be stopped--including generators for basis functions, 
flushing toilets, and tug boats in neutral, etc.--if 120 dB source 
level was set as a cut[dash]off threshold, NMFS has amended the 
cut[dash]off threshold to be 120 dB re 1 microPa received level at 100 
yd (91 m) for all marine mammals except right whales when they approach 
to this distance. The cut[dash]off threshold for right whales would 
also be 120 dB re 1 microPa at 100 yd (91 m), however, the source 
shut[dash]down distance would be 500 yd (457 m) from the source. The 
back calculated cut[dash]off source level based on the most 
conservative model for underwater acoustic propagation (i.e., 
cylindrical spreading in shallow water) is 139 dB re 1 microPa. Please 
see Monitoring, Mitigation, and Reporting section below for a detailed 
description.
    Comment 29: Fourteen private citizens request a public hearing to 
consider the IHA application submitted by the Northeast Gateway to take 
marine mammals off the Massachusetts coastline. These citizens also 
state that the dangers to marine mammals are grossly understated and 
misrepresented in the permit application.
    Response: In view of the number of public meetings and hearings 
held by the USCG and others on this matter and the expedited statutory 
timeline for issuing this IHA, NMFS does not believe that a public 
hearing is warranted.
    A thorough analysis of the potential impact to marine mammals as a 
result of the proposed project is presented in the Federal Register 
notice (72 FR 11328) published on March 13, 2007, and in the NMFS 
Biological Opinion on this action, the USCG and MARAD Final EIS, as 
well as in this document. Please refer to these documents for the 
issue.
    Comment 30: Fourteen private citizens point out that the proposed 
LNG terminal would be almost on top of an old toxic, chemical, and 
radioactive dump site that is surrounded by three marine sanctuaries, 
including the SBNMS, the South Essex Ocean Sanctuary, and the North 
Shore Ocean Sanctuary. These citizens also expressed concerns that LNG 
tankers would constantly scour the bottom, dredging up and breaking up 
many of the thousands of waste drums documented to have been dumped in 
the vicinity that would pollute the ocean ecosystem, endanger 6 species 
of ESA[dash]listed whales and 4 species of ESA[dash]listed sea turtles, 
contaminate fish and lobsters, and threaten the livelihood and safety 
of fishermen who may pull

[[Page 27085]]

up toxic materials in their nets and traps.
    Response: Algonquin has used the coordinates listed in the permits 
authorizing the dumping of radioactive waste to map the locations of 
the dump areas. The project does not involve any work in the 
radioactive dump locations, and therefore there will be no sediment/
bottom disturbing activities resulting from the project construction or 
operation that would necessitate the need to clean up the wastes. One 
dump location is located about 6 mi (9.7 km) almost due east of 
Scituate and approximately 8 mi (12.9) south of the Northeast Gateway 
deepwater port. The second dump site is located just east of the 
eastern edge of the pipeline anchor corridor, approximately between 
Mileposts 14 and 15. While this area is more proximate to the proposed 
project area, geophysical surveys were performed, using sidescan sonar, 
subbottom profiling and magnetometer methodologies. These survey 
methodologies have a high probability of identifying items such as 
30[dash] or 50[dash]gallon (113.6[dash] or 189.3[dash]l) steel drums, 
either because they create a surface image on the sidescan sonar, such 
as a 3[dash] or 4[dash]ft (0.9[dash] or 1.2[dash]m) diameter rock 
might, or because the magnetometer registers the presence of ferrous 
metal objects, potentially as small as a cannonball, and even if 
encased in concrete. Benthic community and sediment characterization 
surveys were also conducted using grab samplers; therefore results 
reflect the near[dash]surface conditions. Benthic samples were 
collected throughout the area that was examined during the siting 
process, while sediment collections were made only in the areas finally 
selected for the buoys and flowlines. Because of the historical reports 
of radioactive wastes being disposed in eastern Massachusetts Bay, 
field technicians tested each benthic and sediment sample from that 
area with a Geiger counter. No ``hot'' samples were found. Sediment 
samples were tested for the chemical contaminants required for 
assessing dredged material proposed for disposal at the Massachusetts 
Bay Disposal Site (MBDS). All constituents tested fell within the 
Category 1 (``cleanest'') criteria, considered acceptable for disposal 
at the MBDS.
    In addition, this is an area of intense ground fishing activity, 
and it is possible that disposed drums of radioactive waste that were 
short dumped would have already been struck by groundfishing gear, 
would have been picked up in groundfishing gear, or are adequately 
buried, such that the anchor cables will not disturb them.
    Comment 31: Five private citizens point out that when Algonquin 
built the Hubline it ignored its permit and the Order of Conditions set 
by the Nahant Conservation Commission not to build during lobster 
migration seasons. These citizens are concerned that, given this 
history, Algonquin may not suspend construction activities when whales 
are in the vicinity.
    Response: Algonquin states that during the construction of the 
HubLine Pipeline, the company worked closely with Federal, state and 
local regulatory agencies to ensure that the intent of the permit 
conditions were complied with. Weekly construction status reports were 
prepared and submitted to agency personnel. Algonquin states that the 
HubLine Project was complex and construction during the winter posed 
some significant unforeseen challenges. Throughout the construction 
phase, Algonquin states that it worked closely with agency personnel at 
the Federal and state level to overcome these challenges. Algonquin 
further states that it takes very seriously environmental compliance at 
all levels and will continue to do so during the construction of the 
Pipeline Lateral.
    Comment 32: One private citizen states that it would be 
unreasonable to expect construction crews to halt construction during 
whale sighting and stop what amounts to noise pollution emitted at a 
dangerous level to whales. This citizen further states that it is 
irresponsible to endanger the whales, turtles, fish and lobster in this 
area, and that it is unacceptable to disrupt a sanctuary.
    Response: The IHA issued to the Northeast Gateway and Algonquin, 
under section 101(a)(5)(D) of the MMPA, to take marine mammals by Level 
B harassment incidental to the construction and operation of an LNG 
facility in the Massachusetts Bay provides mitigation and monitoring 
requirements that will protect these animals from any injury or 
mortality. The IHA holders are required to comply with the IHA's 
requirements.
    The proposed project would occur outside the SBNMS, and a thorough 
analysis has been conducted based on 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 proposed project and cumulative effects in the action 
area. These reviews have led NMFS to conclude that the proposed LNG 
project would have a negligible impact on the affected species or 
stocks of marine mammals and is not likely to jeopardize the continued 
existence of any ESA[dash]listed species. Please refer to the Federal 
Register notice (72 FR 11328) published on March 13, 2007, NMFS 
Biological Opinion on Northeast Gateway's action, the USCG and MARAD 
Final EIS, as well as this document for additional information. The 
analyses of the potential impacts on the environment and other marine 
species can be found in the Final EIS prepared by the USCG and MARAD.
    Comment 33: One private citizen states it makes more sense to back 
hydrogen production from purified water with a system like the Hopewell 
Project in New Jersey. This citizen asks NMFS to take a look into the 
Hopewell Project and help America become energy independent.
    Response: Comment noted. However, this request is irrelevant to 
this action.

Marine Mammals Affected by the Activity

    Marine mammal species that potentially occur within the NE Gateway 
facility impact area include several species of cetaceans and 
pinnipeds: Atlantic white-sided dolphin, bottlenose dolphin, short-
beaked common dolphin, harbor porpoise, killer whale, long-finned pilot 
whale, Risso's dolphin, striped dolphin, white-beaked dolphin, sperm 
whale, minke whale, blue whale, humpback whale, North Atlantic right 
whale, sei whale, gray seal, harbor seal, hooded seal, and harp seal. 
Information on those species that may be impacted by this activity are 
discussed in detail in the USCG Final EIS on the Northeast Gateway LNG 
proposal. Please refer to that document for more information on these 
species and potential impacts from construction and operation of this 
LNG facility. In addition, general information on these marine mammal 
species can also be found in Wursig et al. (2000) and in the NMFS Stock 
Assessment Reports (Waring, 2006). This latter document is available 
at: http://www.nefsc.noaa.gov/nefsc/publications/tm/tm194/. An updated 
summary on several cetacean species distribution and abundance in the 
proposed action area is provided below.

Humpback Whale

    The highest abundance for humpback whales was distributed primarily 
along a relatively narrow corridor following the 100[dash]m (328 ft) 
isobath across the southern Gulf of Maine from the northwestern slope 
of Georges Bank, south to the Great South Channel, and northward 
alongside Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative 
abundance of whales increased in the spring with the highest

[[Page 27086]]

occurrence along the slope waters (between the 40[dash] and 140[dash]m, 
or 131[dash] and 459[dash]ft, isobaths) off Cape Cod and Davis Bank, 
Stellwagen Basin and Tillies Basin and between the 50[dash] and 
200[dash]m (164[dash] and 656[dash]ft) isobaths along the inner slope 
of Georges Bank. High abundance was also estimated for the waters 
around Platts Bank. In the summer months, abundance increased markedly 
over the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the 
waters (100 [dash] 200 m, or 328 [dash] 656 ft) between Platts Bank and 
Jeffreys Ledge, the steep slopes (between the 30[dash] and 160[dash]m 
isobaths) of Phelps and Davis Bank north of the Great South Channel 
towards Cape Cod, and between the 50[dash] and 100[dash]m (164[dash] 
and 328[dash]ft) isobath for almost the entire length of the steeply 
sloping northern edge of Georges Bank. This general distribution 
pattern persisted in all seasons except winter, when humpbacks remained 
at high abundance in only a few locations including Porpoise and 
Neddick Basins adjacent to Jeffreys Ledge, northern Stellwagen Bank and 
Tillies Basin, and the Great South Channel.

Fin Whale

    Spatial patterns of habitat utilization by fin whales were very 
similar to those of humpback whales. Spring and summer high[dash]use 
areas followed the 100[dash]m (328 ft) isobath along the northern edge 
of Georges Bank (between the 50[dash] and 200[dash]m (164[dash] and 
656[dash]ft) isobaths), and northward from the Great South Channel 
(between the 50[dash] and 160[dash]m, or 164[dash] and 525[dash]ft, 
isobaths). Waters around Cashes Ledge, Platts Bank, and Jeffreys Ledge 
are all high[dash]use areas in the summer months. Stellwagen Bank was a 
high[dash]use area for fin whales in all seasons, with highest 
abundance occurring over the southern Stellwagen Bank in the summer 
months. In fact, the southern portion of the SBNMS was used more 
frequently than the northern portion in all months except winter, when 
high abundance was recorded over the northern tip of Stellwagen Bank. 
In addition to Stellwagen Bank, high abundance in winter was estimated 
for Jeffreys Ledge and the adjacent Porpoise Basin (100[dash] to 
160[dash]m, 328[dash] to 656[dash]ft, isobaths), as well as Georges 
Basin and northern Georges Bank.

Minke Whale

    Like other piscivorous baleen whales, highest abundance for minke 
hale was strongly associated with regions between the 50[dash] and 
100[dash]m, 164[dash] and 328[dash]ft, isobaths, but with a slightly 
stronger preference for the shallower waters along the slopes of Davis 
Bank, Phelps Bank, Great South Channel and Georges Shoals on Georges 
Bank. Minke whales were sighted in the SBNMS in all seasons, with 
highest abundance estimated for the shallow waters (approximately 40 m, 
or 131 ft) over southern Stellwagen Bank in the summer and fall months. 
Platts Bank, Cashes Ledge, Jeffreys Ledge, and the adjacent basins 
(Neddick, Porpoise and Scantium) also supported high relative 
abundance. Very low densities of minke whales remained throughout most 
of the southern Gulf of Maine in winter.

North Atlantic Right Whale

    North Atlantic right whales are generally distributed widely across 
the southern Gulf of Maine in spring with highest abundance located 
over the deeper waters (100[dash] to 160[dash]m, 328[dash] to 
525[dash]ft, isobaths) on the northern edge of the Great South Channel 
and deep waters (100 [dash] 300 m, 328 [dash] 984 ft) parallel to the 
100[dash]m (328[dash]ft) isobath of northern Georges Bank and Georges 
Basin. High abundance was also found in the shallowest waters (< 30 m, 
<98 ft) of Cape Cod Bay, over Platts Bank and around Cashes Ledge. 
Lower relative abundance was estimated over deep[dash]water basins 
including Wilkinson Basin, Rodgers Basin and Franklin Basin. In the 
summer months, right whales moved almost entirely away from the coast 
to deep waters over basins in the central Gulf of Maine (Wilkinson 
Basin, Cashes Basin between the 160[dash] and 200[dash]m, 525[dash] and 
656[dash]ft, isobaths) and north of Georges Bank (Rogers, Crowell and 
Georges Basins). Highest abundance was found north of the 100[dash]m 
(328[dash]ft) isobath at the Great South Channel and over the deep 
slope waters and basins along the northern edge of Georges Bank. The 
waters between Fippennies Ledge and Cashes Ledge were also estimated as 
high[dash]use areas. In the fall months, right whales were sighted 
infrequently in the Gulf of Maine, with highest densities over Jeffreys 
Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In 
winter, Cape Cod Bay, Scantum Basin, Jeffreys Ledge, and Cashes Ledge 
were the main high[dash]use areas. Although SBNMS does not appear to 
support the highest abundance of right whales, sightings within SBNMS 
are reported for all four seasons, albeit at low relative abundance. 
Highest sighting within SBNMS occured along the southern edge of the 
Bank.

Pilot whale

    Pilot whales arrive in the southern Gulf of Maine in spring, with 
highest abundance in the region occurring in summer and fall. Summer 
high[dash]use areas included the slopes of northern Georges Bank along 
the 100[dash]m (328[dash]ft) isobath and pilot whales made extensive 
use of the shoals of Georges Bank (<60 m, or <197 ft, depth). 
Similarly, fall distributions were also primarily along the slopes of 
northern Georges Bank, but with high[dash]use areas also occurring 
amongst the deep[dash]water basins and ledges of the south[dash]central 
Gulf of Maine. Within SBNMS, pilot whales were sighted infrequently and 
were most often estimated at low density. Cape Cod Bay and southern 
SBNMS were the only locations with pilot whale sightings for winter.

Atlantic White[dash]Sided Dolphin

    In spring, summer and fall, Atlantic white[dash]sided dolphins were 
widespread throughout the southern Gulf of Maine, with the 
high[dash]use areas widely located either side of the 100[dash]m 
(328[dash]ft) isobath along the northern edge of Georges Bank, and 
north from the Great South Channel to Stellwagen Bank, Jeffreys Ledge, 
Platts Bank and Cashes Ledge. In spring, high[dash]use areas exist in 
the Great South Channel, northern Georges Bank, the steeply sloping 
edge of Davis Bank and Cape Cod, southern Stellwagen Bank and the 
waters between Jeffreys Ledge and Platts Bank. In summer, there is a 
shift and expansion of habitat toward the east and northeast. 
High[dash]use areas were identified along most of the northern edge of 
Georges Bank between the 50[dash] and 200[dash]m (164[dash] and 
656[dash]ft) isobaths and northward from the Great South Channel along 
the slopes of Davis Bank and Cape Cod. High sightings were also 
recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the 
bathymetrically complex area northeast of Platts Bank. High sightings 
of white[dash]sided dolphin were recorded within SBNMS in all seasons, 
with highest density in summer and most widespread distributions in 
spring located mainly over the southern end of Stellwagen Bank. In 
winter, high sightings were recorded at the northern tip of Stellwagen 
Bank and Tillies Basin.
    A comparison of spatial distribution patterns for all baleen whales 
(Mysticeti) and all porpoises and dolphins combined showed that both 
groups have very similar spatial patterns of high[dash] and 
low[dash]use areas. The baleen whales, whether piscivorous or 
planktivorous, were more concentrated than the dolphins and porpoise. 
They utilized a corridor that extended broadly along the most linear 
and steeply sloping edges in the southern Gulf of Maine indicated 
broadly by the 100 m (328 ft) isobath. Stellwagen Bank and Jeffreys 
Ledge supported a high abundance of baleen whales throughout

[[Page 27087]]

the year. Species richness maps indicated that high[dash]use areas for 
individual whales and dolphin species co[dash]occurred, resulting in 
similar patterns of species richness primarily along the southern 
portion of the 100[dash]m (328[dash]ft) isobath extending northeast and 
northwest from the Great South Channel. The southern edge of Stellwagen 
Bank and the waters around the northern tip of Cape Cod were also 
highlighted as supporting high cetacean species richness. Intermediate 
to high numbers of species are also calculated for the waters 
surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts Bank, 
Fippennies Ledge and Cashes Ledge.

Potential Effects on Marine Mammals

    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; (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 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.
    Northeast Gateway states that the potential impacts to marine 
mammals associated with sound propagation from vessel movements, pipe 
laying and installation of the Port, anchors, chains and PLEMs could be 
the temporary and short-term displacement of seals and whales from 
within the 120[dash]dB zones ensonified by these noise sources. From 
the most precautionarily conservative estimates of both marine mammal 
densities in the Project area and the size of the 120-dB zone of 
(noise) influence (ZOI), the calculated number of individual marine 
mammals for each species that could potentially be harassed annually is 
small. Taking these two factors together, we conclude that there will 
be no biologically significant effects on the survival and reproduction 
of these species or stocks. Please see Estimate of Take by Harassment 
section below for the calculation of these take numbers.

Estimates of Take by Harassment

    There are three general kinds of sounds recognized by NMFS: 
continuous (such as shipping sounds), intermittent (such as vibratory 
pile driving sounds), and impulse. No impulse noise activities, such as 
blasting or standard pile driving, are associated with this project, 
thus NMFS' 160[dash]dB threshold criterion for estimating Level B 
harassment from impulse sounds is not applicable for this activity. The 
noise sources of potential concern are regasification/offloading (which 
is a continuous sound) and dynamic positioning of vessels using 
thrusters (an intermittent sound). Based on research by Malme et al. 
(1983, 1984), for both continuous and intermittent sound sources, Level 
B harassment is presumed to begin at received levels of 120[dash]dB.
    None of the continuous sound sources associated with construction 
or operation of the Northeast Gateway Project is expected to exceed the 
120[dash]dB threshold for Level B harassment. However, the intermittent 
noises from thruster use associated with dynamic positioning of vessels 
during either construction or operation (docking) may occasionally 
exceed this 120[dash]dB threshold. Consequently, thruster use has the 
potential for a ``take'' by Level B harassment of any marine mammal 
occurring with a zone of ensonification (greater than 120 dB) emanating 
from the sound source. This area, known as the ZOI, has a variable 
maximum radius dependent on water depth and associated differences in 
transmission loss (see Sections 1.1.3 and 1.2.1 in the IHA application 
for more detail):
     For shallow[dash]water depths (40 m (131 ft)) 
representative of the northern segment of the Pipeline Lateral 
construction, the 120[dash]dB radius is 3.31 km (2 mi) and associated 
ZOI is 34 km\2\.
     For moderate depths (80 m (262 ft)) representative of the 
Deepwater Port location and Pipeline Lateral segment nearest SBNMS, the 
120[dash]dB radius is 2.56 km (1.6 mi) and associated ZOI is 21 km\2\.
     For deeper depths (120 m (394 ft)) representative of the 
deepest waters of the Project analysis area, the radius is 2.18 km (1.4 
mi) and associated ZOI is 15 km\2\.
    The basis for Northeast Gateway's ``take'' estimate is the number 
of marine mammals that would be exposed to sound levels in excess of 
120 dB. Typically this is determined by multiplying the ZOI by local 
marine mammal density estimates, and then correcting for seasonal use 
by marine mammals, seasonal duration of noise-generating activities, 
and estimated duration of individual activities when the maximum noise-
generating activities are intermittent or occasional. In the case of 
data gaps, a conservative approach was to ensure the potential number 
of takes is not underestimated, as described next.
    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the proposed project area from May to 
November. However, the occurrence and abundance of fin, humpback, and 
minke is not well documented within the project area. Nonetheless, NMFS 
agrees with the PCCS that better data on cetacean distribution within 
Massachusetts Bay, such as those published by the National Centers for 
Coastal Ocean Science (NCCOS, 2006) should be used to determine 
potential takes of marine mammals in the vicinity of project area.
    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,

[[Page 27088]]

2001); and (2) the Manomet Bird Observatory (MBO) database, held at 
NOAA Northeast Fisheries Science Center (NEFSC). The NARWC data 
contained survey efforts and sightings data from ship and aerial 
surveys and opportunistic sources between 1970 and 2005. The main data 
contributors included: Cetacean and Turtles Assessment Program (CETAP), 
Canadian Department of Fisheries and Oceans, PCCS, International Fund 
for Animal Welfare, NOAA's NEFSC, New England Aquarium, Woods Hole 
Oceanographic Institution, and the University of Rhode Island. A total 
of 653,725 km (406,293 mi) of survey track and 34,589 cetacean 
observations were provisionally selected for the NCCOS study in order 
to minimize bias from uneven allocation of survey effort in both time 
and space. The sightings[dash]per[dash]unit[dash]effort (SPUE) was 
calculated for all cetacean species by month covering the southern Gulf 
of Maine study area, which also includes the proposed project area 
(NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of 
the relative abundance and distribution of cetaceans, seabirds, and 
marine turtles in the shelf waters of the northeastern United States 
(MBO, 1987). The CSAP program was designed to be completely compatible 
with NMFS NEFSC databases so that marine mammal data could be compared 
directly with fisheries data throughout the time series during which 
both types of information were gathered. A total of 5,210 km (8,383 mi) 
of survey distance and 636 cetacean observations from the MBO data were 
included in the NCCOS analysis. Combined valid survey effort for the 
NCCOS studies included 567,955 km (913,840 mi) of survey track for 
small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi) 
for large cetaceans (whales) in the southern Gulf of Maine. 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.
    Owning to the comprehensiveness and total coverage of the NCCOS 
cetacean distribution and abundance study, consequently, NMFS 
recalculated the estimated take number of marine mammals based on the 
most recent NCCOS report published in December 2006. A summary of 
seasonal cetacean distribution and abundance in the proposed project 
area is provided below, in the Marine Mammals Affected by the Activity 
section. For a detailed description and calculation of the cetacean 
abundance data and SPUE, please refer to the NCCOS study (NCCOS, 2006). 
These data show that the upper limit of the relative abundance of North 
Atlantic right, fin, humpback, minke, and pilot whales, and Atlantic 
white[dash]sided dolphins for all seasons, as calculated by SPUE in 
number of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 
0.0059, 0.0407, and 0.1314 n/km, respectively.
    Although sound transmission loss, and therefore the ZOI, varies 
with water depth, the potential take numbers are calculated by using 
the radius of the largest ZOI, which is 3.31 km (2 mi).
    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 (see Monitoring, 
Mitigation, and Reporting section below), as a conservative 
hypothetical strip width (W). Thus the area density (D) of these 
species in the proposed project area can be obtained by the following 
formula:
    D = SPUE/2W,
    Based on the calculation, the estimated annual take numbers for 
North Atlantic right, fin, humpback, minke, and pilot whales 
(Globicephala spp.), and Atlantic white[dash]sided dolphins 
(Lagenorhynchus acutus), within the proposed project area of 
approximately 200 km\2\ (77.3 mi\2\) maximum ZOI, corrected for 50 
percent underwater, are 3, 13, 24, 2, 15, and 49, respectively.
    In addition, common dolphins (Delphinus delphis), harbor porpoises 
(Phocoena phocoena), harbor seals (Phoca vitulina), and gray seals 
(Halichoerus grypus) could also be taken by Level B harassment as a 
result of the proposed deepwater LNG port project. The numbers of 
estimated take of these species are not available as NMFS does not have 
abundance data of these species within the proposed project area. The 
population estimates of these marine mammal species and stock in the 
west North Atlantic basin are 120,743, 89,700, 99,340, and 195,000 for 
common dolphins, harbor porpoises, harbor seals, and gray seals, 
respectively. Since the Massachusetts Bay represents only a small 
fraction of the west North Atlantic basin where these animals occur, 
and that these animals do not congregate in the vicinity of the 
proposed project area, NMFS believes that only a relatively small 
number numbers of these marine mammal species would be potentially 
affected by the proposed Northeast Gateway LNG deepwater project.

Potential Impact on Habitat

Construction

    Construction of the Port and Pipeline Lateral will alter marine 
mammal habitat in several ways: disturbance of the seafloor, removal of 
sea water for hydrostatic testing, and generation of additional 
underwater noise. Although approximately 1,042 acres of seafloor (43 
acres for the Port; 999 acres for the Pipeline Lateral) will be 
disturbed during construction, the majority of this impact will be 
temporary. Seafloor disturbance will include plowing to construct a 
trench for the pipeline. The pipelay and plow vessels will be 
maneuvered using a multi-point anchor system. Although the anchor 
system will include mid-line buoys to minimize cable sweep of the 
seafloor, approximately 814 acres may be temporarily affected. Crossing 
of two existing cables will require armoring, a change in substrate 
conditions in an area about 0.14 acres in size.
    Once the lateral and flowlines are installed, about 3,100,000 
gallons of sea water will be withdrawn to be used for hydrostatic 
testing. This volume is small compared to the volume of Massachusetts 
Bay. Although the sea water will be returned to the environment, the 
associated plankton will be unlikely to survive. However, because 
circulation patterns in the Bay ensure that plankton will be 
transported into the Project area continuously, this hydrostatic test 
will not affect the sustainability of the plankton communities in the 
Bay.
    Construction of the Port and Pipeline Lateral will result in a 
reduction of benthic productivity in the Project footprint. Once the 
disturbance ceases, the substrate will be available for recruitment of 
benthic organisms. Because some of the substrate will be converted from 
soft to artificial hard substrate, the soft-bottom benthic community 
may be replaced with organisms associated with naturally occurring hard 
substrate, such as sponges, hydroids, bryozoans, and associated 
species. In other areas, re-establishment of a benthic community 
similar to that in adjacent areas is expected to take a period of weeks 
to several years.

Operations

    Operation of the Port and Pipeline Lateral will result in long-term 
effects on the marine environment, including alteration of seafloor 
conditions, continued disturbance of the seafloor,

[[Page 27089]]

regular withdrawal of sea water, and regular generation of underwater 
noise. A small area (0.14 acre) along the Pipeline Lateral will be 
permanently altered (armored) at two cable crossings. In addition, the 
structures associated with the Port (flowlines, mooring wire rope and 
chain, suction anchors, and PLEMs) will occupy 4.8 acres of seafloor. 
An additional area of the seafloor of up to 38 acres will be subject to 
disturbance due to chain sweep while the buoys are occupied. The 
benthic community in the up-to 38 acres of soft bottom that may be 
swept by the anchor chains while EBRVs are docked will have limited 
opportunity to recover, so this area will experience a long-term 
reduction in benthic productivity.
    Each EBRV will require the withdrawal of an average of 4.97 million 
gallons per day of sea water for general ship operations during its 8-
day stay at the Port. As with hydrostatic testing, plankton associated 
with the sea water will not likely survive this activity. Based on 
densities of plankton in Massachusetts Bay, it is estimated that sea 
water use during operations will consume, on a daily basis, about 3 200 
x 1,010 phytoplankton cells (about several hundred grams of biomass), 
6.5 x 108 zooplankters (equivalent to about 1.2 kg of copepods), and on 
the order of 30,000 fish eggs and 5,000 fish larvae. Also, the daily 
removal of sea water will reduce the food resources available for 
planktivorous organisms. However, the removal of these species is minor 
and unlikely to measurably affect the food sources available to marine 
mammals.

Monitoring, Mitigation, and Reporting

Port Construction Measures

General
    The construction activities will be limited between this May and 
November, 2007 time[dash]frame so that acoustic disturbance to the 
endangered North Atlantic right whale can largely be avoided.
Visual Monitoring Program
    The Northeast Gateway Project will employ two qualified, 
NMFS[dash]approved, MMOs on each lay barge, bury barge, and DSV for 
visual shipboard surveys during construction activities. Qualifications 
for these individuals will include direct field experience on a marine 
mammal observation vessel and/or aerial surveys in the Atlantic Ocean/
Gulf of Mexico. The observers (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 
observer will act as the identification specialist and the secondary 
observer will serve as data recorder and also assist with 
identification. Both observers will have responsibility for monitoring 
for the presence of marine mammals. All observers will receive 
NMFS[dash]approved marine mammal observer training and be approved in 
advance by NMFS after a review of their resume.
    The shipboard observers will monitor the construction area 
beginning at daybreak using 25x power binoculars and/or hand-held 
binoculars, resulting in a conservative effective search range of 0.5 
mile during clear weather conditions for the shipboard observers. The 
observer will scan the ocean surface by eye for a minimum of 40 minutes 
every hour. All sightings will be recorded on marine mammal field 
sighting logs. Observations of marine mammals will be identified to 
species or the lowest taxonomic level and their relative position will 
be recorded. Night vision devices will be standard equipment for 
monitoring during low[dash]light hours and at night.
Distance and Noise Level for Cut[dash]Off
    During construction, the following procedures will be followed upon 
detection of a marine mammal within 0.5 mi (0.8 km) of the construction 
vessels:
    (1) 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 construction area. The observer is 
required to report all North Atlantic right whale sightings to NMFS, as 
soon as possible.
    (2) Construction vessel(s) will cease any movement and cease all 
activities that emit sounds reaching a received level of 120 dB re 1 
microPa or higher at 100 yd (91 m) if a marine mammal other than a 
right whale is sighted within or approaching to this distance, or if a 
right whale is sighted within or approaching to a distance of 500 yd 
(457 m), from the operating construction vessel. The 
back[dash]calculated source level, based on the most conservative 
cylindrical model of acoustic energy spreading, is estimated to be 139 
dB re 1 microPa. Vessels transiting the construction area such as pipe 
haul barge tugs will also be required to maintain these separation 
distances.
    (3) Construction 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).
Vessel Strike Avoidance
    (1) While under way, all construction vessels will remain 500 yd 
(457 m) away from right whales, and 100 yd (91 m) away from all other 
whales to the extent physically feasible given navigational constraints 
as required by NMFS.
    (2) All construction vessels 300 gross tons or greater will 
maintain a speed of 10 knots or less. Vessels less than 300 gross tons 
carrying supplies or crew between the shore and the construction site 
must contact the appropriate authority or the construction site before 
leaving shore for reports of recent right whale sighting and, 
consistent with navigation safety, restrict speeds to 10 knots or less 
within 5 mi (8 km) of any recent sighting location.
    (3) Vessels transiting through the Cape Cod Canal and Cape Cod Bay 
between January 1 and May 15 will reduce speed to 10 knots or less, 
follow the recommended routes charted by NOAA to reduce interactions 
between right whales and shipping traffic, and avoidaggregations of 
right whales in the eastern portion of Cape Cod Bay. To the extent 
practicable, pipe deliveries will be avoided during the January to May 
time frame. In the unlikely event the Canal is closed during 
construction, the pipe haul barges will transit around Cape Cod 
following the TSS and all measures for the EBRVs when transiting to the 
Port (see Port Operation Measures).
Passive Acoustic Monitoring (PAM) Program
    In addition to visual monitoring, the Northeast Gateway and 
Algonquin will work with NMFS, the SBNMS, the Cornell University 
Bioacoustics Laboratory (Cornell), and the Woods Hole Oceanographic 
Institute (WHOI) to install several passive acoustic systems for 
monitoring construction noise and detecting marine mammals within the 
project area, and provide early warnings for potential occurrence of 
right whales and other marine mammals in the vicinity of the project 
area. The Northeast Gateway will also work with NMFS to utilize passive 
acoustic technology to conduct PAM to enhance their monitoring program. 
These passive acoustic systems include a set of near real[dash]time 
auto[dash]detection surface buoys (Abs) developed by WHOI with a 
special electronic notification package developed by Cornell, attached 
to the buoy. Some of these passive acoustic devices are already in 
place.

Port Operation Measures

    All individuals onboard the EBRVs responsible for the navigation 
and

[[Page 27090]]

lookout duties on the vessel must receive training prior to assuming 
navigation and lookout duties, a component of which will be training on 
marine mammal sighting/reporting and vessel strike avoidance measures. 
Crew training of EBRV personnel will stress individual responsibility 
for marine mammal awareness and reporting.
    If a marine mammal is sighted by a crew member, an immediate 
notification will be made to the Person-in-Charge on board the vessel 
and the Northeast Port Manager, who will ensure that the required 
reporting procedures are followed.
Vessel Strike Avoidance
    (1) All EBRVs approaching or departing the port will comply with 
the MSR system to keep apprised of right whale sightings in the 
vicinity. Vessel operators will also receive active detections from the 
passive acoustic array prior to and during transit through the northern 
leg of the Boston TSS where the buoys are installed.
    (2) In response to active right whale sightings (detected 
acoustically or reported through other means such as the MSR or SAS), 
and taking into account safety and weather conditions, EBRVs will take 
appropriate actions to minimize the risk of striking whales, including 
reducing speed to 10 knots or less and alerting personnel responsible 
for navigation and lookout duties to concentrate their efforts.
    (3) EBRVs will maintain speeds of 12 knots or less while in the TSS 
until reaching the vicinity of the buoys (except during the seasons and 
areas defined below, when speed will be limited to 10 knots or less). 
At 1.86 miles (3 km) from the NEG port, speed will be reduced to 3 
knots, and to less than 1 knot at 1,640 ft (500 m) from the buoy.
    (4) EBRVs will reduce transit speed to 10 knots or less (unless 
hydrographic, meteorological, or traffic conditions dictate an 
alternative speed to maintain the safety or maneuverability of the 
vessel) from March 1 [dash] April 30 in all waters bounded by straight 
lines connecting the following points in the order stated below. This 
area is also known as the Off Race Point Seasonal Management Area 
(SMA).
    42[deg]30'N 70[deg]30'W
    42[deg]30'N 69[deg]45'W
    41[deg]40'N 69[deg]45'W
    41[deg]40'N 69[deg]57'W
    42[deg]04.8'N 70[deg]10'W
    42[deg]12'N 70[deg]15'W
    42[deg]12'N 70[deg]30'W
    42[deg]30'N 70[deg]30'W
    (5) EBRVs will reduce transit speed to 10 knots or less (unless 
hydrographic, meteorological, or traffic conditions dictate an 
alternative speed to maintain the safety or maneuverability of the 
vessel) from April 1 [dash] July 31 in all waters bounded by straight 
lines connecting the following points in the order stated below. This 
area is also known as the Great South Channel SMA.
    42[deg]30'N 69[deg]45'W
    42[deg]30'N 67[deg]27'W
    42[deg]09'N 67[deg]08.4'W
    41[deg]00'N 69[deg]05'W
    41[deg]40'N 69[deg]45'W
    42[deg]30'N 69[deg]45'W
    (6) EBRVs are not expected to transit Cape Cod Bay. However, in the 
event transit through Cape Cod Bay is required, EBRVs will reduce 
transit speed to 10 knots or less (unless hydrographic, meteorological, 
or traffic conditions dictate an alternative speed to maintain the 
safety or maneuverability of the vessel) from January 1 [dash] May 15 
in all waters in Cape Cod Bay, extending to all shorelines of Cape Cod 
Bay, with a northern boundary of 42[deg]12'N latitude.
    (7) In such cases where speeds in excess of the ten knot speed 
maximums as described above are required, the reasons for the 
deviation, the speed at which the vessel is operated, the area, and the 
time and duration of such deviation will be documented in the logbook 
of the vessel and reported to the NMFS Northeast Region Ship Strike 
Coordinator.

PAM Program

    An array of ABs will be installed in the Boston TSS that meets the 
criteria specified in the recommendations developed by NOAA through 
consultation with the USCG under the National Marine Sanctuary Act 
(NMSA). The system will provide near real[dash]time information on the 
presence of vocalizing whales in the shipping lanes.
    An archival array of acoustic recording units (ARUs), or 
``pop[dash]ups,'' will be installed around the port site that meets the 
criteria specified in the program developed by NOAA in consultation 
with the USCG under the NMSA. The ARUs will be in place for 5 years 
following initiation of operations to monitor the actual acoustic 
output of port operations and alert NOAA to any unanticipated adverse 
effects of port operations, such as large[dash]scale abandonment of the 
area or greater acoustic impacts than predicted through modeling.

Reporting

    During construction, weekly status reports will be provided to NMFS 
utilizing standardized reporting forms. In addition, the Northeast Port 
Project area is within the Mandatory Ship Reporting Area (MSRA), so all 
construction and support vessels will 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 will report their activities to WHALESNORTH. 
During all phases of project construction and operation, sightings of 
any injured or dead marine mammals will be reported immediately to the 
USCG or NMFS, regardless of whether the injury or death is caused by 
project activities.
    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 construction and 
operation. 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 construction and 
operation activities shall also be included in the annual report.

Endangered Species Act (ESA)

    On February 5, 2007, NMFS concluded consultation with MARAD and the 
USCG, under section 7 of the ESA, on the proposed construction and 
operation of the Northeast Gateway LNG facility and issued a biological 
opinion. The finding of that consultation was that the construction and 
operation of the Northeast Gateway LNG terminal may adversely affect, 
but is not likely to jeopardize, the continued existence of northern 
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. NMFS' IHA will not have impacts beyond what 
was analyzed in the biological opinion. Therefore, additional 
consultation is not required.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A 
notice of availability was published by MARAD on October 26, 2006 (71 
FR 62657). The Final EIS/EIR provides detailed information on the 
proposed project facilities, construction methods

[[Page 27091]]

and analysis of potential impacts on marine mammal.
    NMFS was a cooperating agency (as defined by the Council on 
Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft 
and Final EISs. NMFS has reviewed the Final EIS and has adopted it. 
Therefore, the preparation of another EIS or EA is not warranted.

Determinations

    NMFS has determined that the impact of construction and operation 
of the Northeast Gateway Port Project may result, at worst, in a 
temporary modification in behavior of small numbers of certain species 
of marine mammals that may be in close proximity to the Northeast 
Gateway LNG facility and associated pipeline during its construction 
and subsequent operation. These activities are expected to result in 
some local short[dash]term displacement and will have no more than a 
negligible impact on the affected species or stocks of marine mammals.
    This determination is supported by measures described in this 
document under ``Marine Mammal Mitigation, Monitoring and Reporting'' 
and NMFS' Biological Opinion on this action.
    As a result of the described mitigation measures, no take by injury 
or death is requested, anticipated or authorized, and the potential for 
temporary or permanent hearing impairment is very unlikely due to the 
relatively low noise levels (and consequently small zone of impact) and 
would be avoided through the incorporation of the shut[dash]down 
mitigation measures described in this document.
    While the number of marine mammals that may be harassed will depend 
on the distribution and abundance of marine mammals in the vicinity of 
the port construction and operations, the estimated number of marine 
mammals to be harassed is small.

Authorization

    NMFS has issued an IHA to Northeast Gateway and Algonquin for the 
taking (by Level B harassment) during construction and operation of the 
Northeast Gateway Port, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: May 7, 2007.
James H. Lecky
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E7-9216 Filed 5-11-07; 8:45 am]
BILLING CODE 3510-22-S