[Federal Register Volume 73, Number 53 (Tuesday, March 18, 2008)]
[Notices]
[Pages 14443-14453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5431]



[[Page 14443]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG36


Small Takes of Marine Mammals Incidental to Specified Activities; 
Port of Anchorage Marine Terminal Redevelopment Project, Anchorage, 
Alaska

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

ACTION: Notice; proposed incidental harassment authorization; receipt 
of application for subsequent letters of authorization; request for 
comments.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), notification is hereby given that NMFS 
has received an application from the Port of Anchorage (herein after 
``Port'') to take small numbers of marine mammals, by Level B 
harassment, incidental to the 5-year Phase II portion of the Marine 
Terminal Redevelopment Project (herein after ``Project'') at the Port, 
Anchorage, Alaska. Species which could be potentially taken from Port 
construction include the beluga whale (Delphinapterus leucas), harbor 
seal (Phoca vitulina), harbor porpoise (Phocoena phocoena), and killer 
whale (Orcinus orca). NMFS is requesting comments on its proposal to 
issue a 1-year incidental harassment authorization (IHA) for the 2008 
construction season (April-October) and its intent to promulgate 
regulations in 2009 governing the take of marine mammals over a 5-year 
period incidental to the activities described herein.

DATES: Comments and information must be received no later than April 
17, 2008.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225. The mailbox address for 
providing email comments is [email protected]. NMFS is not 
responsible for e-mail comments sent to addresses other than the one 
provided here. Comments sent via e-mail, including all attachments, 
must not exceed a 10-megabyte file size.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    Documents cited in this notice may be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly or Jolie Harrison, Office 
of Protected Resources, NMFS, (301) 713-2289.

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 (Secretary) 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) if certain findings are made and regulations are issued or, if 
the taking is limited to harassment, notice of a proposed authorization 
is provided to the public for review.
    Authorization for incidental takings may be granted for up to 5 
years 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 if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such taking 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as: an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Under 50 CFR 216.104(b) of NMFS' implementing regulations for the 
MMPA, NMFS must publish in the Federal Register a notice of a proposed 
IHA and a notice of receipt for a request for the implementation of 
regulations governing the incidental taking. Information gathered 
during the associated comment period is considered by NMFS in 
developing, if appropriate, regulations governing the issuance of 
Letters of Authorizations (LOAs) for the proposed activity.

Summary of Request

    The Project is divided into 2 phases. Phase I of the project did 
not involve any substantive in-water noise-producing activities, 
however, and on May 9, 2006, NMFS concurred with the Port that 
incidental take of marine mammals was not likely to occur and an IHA 
was not necessary if operations ceased if marine mammals were seen 
within 50 m of in-water fill activities. In contrast to phase I, phase 
II of the Port expansion project involves considerable in-water 
construction, including pile driving, which will introduce a sound into 
the marine environment and could harass marine mammals. Following 
several delays and design changes, on September 13, 2007, the Port re-
applied for an IHA for the 2008 construction season and a 5-year 
rulemaking and letters of authorization (LOAs) for the subsequent 2009-
2012 construction seasons. The Project is scheduled to be complete in 
2012.
    The Project is designed to upgrade and expand the Port by replacing 
aging and obsolete structures and provide additional dock and backland 
areas. Located on the east bank of Knik Arm in upper Cook Inlet (CI), 
the 129-acre Port is operating at or above sustainable practical 
capacity. The expansion of the Port is necessary to adequately support 
the economic growth of Anchorage and the state of Alaska through 2025. 
The Port currently serves 80 percent of Alaska's populated area, and it 
handles over 90 percent of consumer goods sold within the Alaskan 
Railroad distribution area (the Alaska Railroad runs from Seward 
through Anchorage, Denali, and Fairbanks to North Pole, with spurs to 
Whittier and Palmer (locally known as ``The Railbelt'').
    Construction activities that will alter the environmental baseline 
include pile driving, dredging, and backfilling and compaction of fill. 
These activities have the potential to affect marine mammals from 
sounds generated from construction, alteration of habitat, and 
increased vessel noise due to Port expansion. Of the activities listed 
above, pile driving has the potential to result in harassment to marine 
mammals due to source levels and nature of operations, and the Port has 
requested authorization for takes resulting from this activity. Because 
pile driving has the potential to result in behavioral harassment of 
marine mammals located in Knik Arm, an authorization under section 
101(a)(5)(A) or (D) of the MMPA is warranted.

Action Area

    Cook Inlet is a semi-enclosed tidal estuary, extending roughly 370 
km (200 nm.) southwest from Knik and Turnagain Arms, which almost 
surround the city of Anchorage, to Kamishak and Kachemak Bays. The 
inlet has marine connections with Shelikof Strait and the Gulf of 
Alaska

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(GOA), and freshwater input from many large rivers (Muench et al., 
1978). The shoreline of Cook Inlet is irregular, comprised of a series 
of channels, coves, flats, and marshes. The Port is located within the 
Municipality of Anchorage between Ship Creek and Elemendorf Air Force 
Base on the eastern shore of Knik Arm. Knik Arm, is a relatively 
shallow, 30 mile long waterway that is 2-6 miles in width. This estuary 
is extremely silty and exhibits some of the strongest currents (up to 8 
kts) and tidal variations (30+ft) in the world. Knik Arm contains many 
gyres created by predominant headlands that are important to beluga 
prey distribution.

Construction Process

    The Project calls for an open cell sheet pile (OCSP) design. Pile 
driving of steel 36-inch (91.4 cm) and H-piles, along with open cell 
sheet piles, will occur in Phase II of the Project from April to 
October, annually, and is proposed to be completed in 2012. Pile 
driving is necessary to construct the waterfront bulkhead structure 
that will facilitate increased dock space and the fendering system. The 
bulkhead will be comprised of conjoining face and tail sheet-pile 
cells, forming a row of U-shaped, open cell sheet pile structures. The 
cells will serve to retain the fill material and provide the vertical 
bulkhead docking structure for berthing barges and ships. Approximately 
17 face sheets and one tail wall per 27.5 linear ft (8.4 m) of dock 
face will be used. Each tail wall will extend up to 183 ft (55.8 m) 
landward from the dock face and include up to 110 tail sheets. 
Approximately 30 linear ft. of open cell sheet pile wall will be 
constructed in a 10 hour period. In 2008, it is estimated that 1,807 
open cell face sheets and 8,175 tail sheets will be erected at the 
Port. These conjoining sheets will equate to 2,923 ft. (891 m) (face 
length) of open cell sheet piles weighing approximately 13,412 tons. A 
pile-driving hammer will be used to install sheet piles to the desired 
tip elevation (i.e., how far the sheet pile extrudes from the 
substrate). Sheet piles will be driven with a vibratory hammer to the 
maximum extent possible (i.e., until desired depth is achieved and/or 
to refusal, prior to using an impact hammer). Standard tip elevation 
for a dredge depth of -35 ft (10.7 m) and -45 ft (13.7 m) mean low low 
water are -50 and -60 ft (15-18 m), respectively.
    Two methods of pile driving, impact and vibratory, will occur. 
Impact pile driving will only occur when vibratory driving is not 
sufficient. It is estimated that pile driving will be 40 percent 
vibratory and 60 percent impact for the first year of construction 
(2008) due to the dense clay substrate in the North Extension and Barge 
Berths areas. The percentage of impact pile driving will decrease in 
subsequent years. Work hours for pile driving are anticipated to be 6 
a.m. to 10 p.m., up to seven days a week; however, proposed mitigation 
will restrict impact pile driving on two hours either side of low tide 
due to high beluga use during this time (see Mitigation section).
    Backfilling and compaction of fill material will involve placing 
clean sand, gravel, or stone immediately behind the sheet-pile face up 
to an elevation of 30 ft (9.14 m). Upon completion, 135 acres of 
wetland would be filled, eliminating 9,000 linear ft (2.74 km) of 
intertidal habitat. To complete the 2008 Project tasks, approximately 
1,600,000 cubic yards (cy) of suitable engineered and common fill 
material will be placed behind vertical steel or rock retaining 
features at the North Extension area which will result in the fill of 
as much as 18.4 acres of tideland. A vibratory probe and pile driving 
hammer will be used at evenly spaced locations to consolidate the fill. 
NMFS does not anticipate that this activity (i.e., fill compaction) 
will acoustically harass marine mammals due to the absorption of sound 
by the fill which will appreciably reduce sound energy released into 
the water.
    Upon completion of Phase II of the Project, which will require 
additional take authorization such as subsequent LOAs, approximately 
7,900 linear ft. (2.41 km) of dock parallel to and approximately 400 ft 
(122 m) west of the face of the existing dock structure, along with 
backfilling, will have been added to the Port. The new dock face will 
include 7,430 ft (2.26 km) of vertical sheet-pile wharf and 470 ft (143 
m) for a dry barge berth. The completed marine terminal will include 
seven modern dedicated ship berths; two dedicated barge berths; rail 
access; modern shore-side facilities; equipment to accommodate cruise 
passengers; cement bulk, roll on/roll off and load on/load off cargo; 
containers; general cargo, military deployments, general cargo on 
barges, petroleum, oil, and lubricants; and additional land use area to 
support expanding military and commercial operations. More information 
on the Project design, phasing plan, and construction can be found at 
www.portofanchorage.org.

Marine Mammals Affected by the Project

    Cook Inlet is utilized by several species of marine mammals; 
however, most of these are confined to the Lower Inlet and would not be 
affected by the Project. In Knik Arm, the CI beluga whale is the most 
abundant marine mammal. Harbor seals, harbor porpoise, and killer 
whales are also found in the Inlet but they do not display a regular 
presence in Knik Arm. There have been no published sightings of Steller 
sea lions (Eumetopias jubatus) in Knik Arm, only a single adult male in 
the Susitna Flats area; therefore, Steller sea lions are not 
anticipated to be affected by the Project and will not be considered 
further. If, by chance, a marine mammal not authorized to be taken is 
seen around the construction area, shut down will be required so as to 
avoid unlawful take.
    NMFS is proposing to allow 34 beluga whale takes, 20 harbor seals 
takes, 20 harbor porpoise takes, and 5 killer whales takes, by Level B 
harassment only, incidental to the activities occurring in the 2008 
construction year. Beluga take numbers for future LOAs, if issued, will 
be calculated upon gathering further information from monitoring and 
acoustic data as pile driving hours will change as well as percentage 
of impact and vibratory driving. Take numbers for other marine mammals 
are expected to remain the same throughout the construction phase of 
the Project. Further information on the status and distribution of 
Alaskan marine mammals can be found in the 2006 NMFS' Alaskan Stock 
Assessment Report (http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2006.pdf) 
and http://www.fakr.noaa.gov/protectedresources.

Beluga Whales

Status and Abundance
    In the U.S. waters, beluga whales comprise five distinct stocks: 
Beaufort Sea, Eastern Chukchi Sea, Eastern Bering Sea, Bristol Bay, and 
Cook Inlet (Angliss and Outlaw, 2006). The only stock likely to be 
affected by the proposed construction activities at the Port is the CI 
stock. This population is genetically isolated from other populations 
by the geographic barrier of the Alaska peninsula and by their year- 
round residency in the Inlet (Hobbs et al., 2006).
    The CI beluga population has declined significantly over the years. 
Historical data suggest this population once numbered around 1,300 
(Calkins, 1988). NMFS systematic aerial surveys documented a decline in 
abundance of nearly 50 percent between 1994 and 1998, from an estimate 
of 653 whales to 347 whales (Hobbs et al., 2000). Aerial annual 
abundance surveys conducted each June/July from 1999 to 2005 have 
resulted in abundance estimates of 367,

[[Page 14445]]

435, 386, 313, 357, 366, and 278 whales for each year, respectively 
(Rugh et al., 2005, NMFS unpublished data). According to NMFS 2006 
stock assessment report, the population estimate for CI belugas is 278 
with a minimum population estimate of 238; however, more recent surveys 
estimate the current population as of 2006 to be 302 belugas (Rugh et 
al., 2006). This stock is listed as depleted under the MMPA and was 
proposed for listing under the ESA on April 20, 2007 (72 FR 19854).
    Subsistence harvest is believed to have been the major contributor 
to the population decline (NMFS 2006). NMFS estimated that the average 
annual take for subsistence harvest, including whales that were struck 
and lost, was 67 whales per year from 1994 through 1998. Annual harvest 
estimates for 1994 thru 1998 are 21 whales (1994), 70 whales (1995), 98 
whales (1996), 70 whales (1997) and 50 whales (1998). The harvest, 
which was as high as 20 percent of the stock in 1996, was sufficiently 
high to account for the 14 percent annual rate of decline in the stock 
during the period from 1994 through 1998 (Hobbs et al. 2000). The last 
year in which unregulated subsistence harvests occurred was 1998. In 
1999 and 2000, Public Laws 106-31 and 106-553 established a moratorium 
on CI beluga whale harvests except for subsistence hunts by Alaska 
Natives and conducted under cooperative management agreements between 
NMFS and affected Alaska Native Organizations. This moratorium was made 
permanent in December 2000. In 2003 and 2004, respectively, a Final 
Environmental Impact Statement (EIS) (68 FR 55604, September 26, 2003) 
and Final Interim Regulations Governing the Taking of Cook Inlet Beluga 
Whale by Alaska Natives for Subsistence Purposes (69 FR 17973, April 6, 
2004) were completed to address prior beluga whale harvests. In keeping 
with sections 101(b) and 103(d) of the MMPA, NMFS Alaska Region 
convened a formal administrative hearing on the proposed harvest 
regulations before an Administrative Law Judge and seven interested 
parties in December 2000, in Anchorage, Alaska. That administrative 
hearing process culminated in 2005 with the Administrative Law Judge's 
final decision recommending a long-term plan for managing the 
subsistence harvests of CI belugas by Alaska Natives. NMFS has since 
then completed a Draft Supplemental EIS (72 FR 73798, December 28, 
2007) proposing long-term harvest regulations through recovery. Despite 
strict harvest limits since 1999, the population has not recovered. 
Factors inhibiting recovery include vessel traffic, small stock size, 
restricted summer range, habitat alteration, and natural mortality 
(NMFS, 2006).
Distribution
    The CI beluga's range is believed to be largely confined to CI with 
a high occurrence of animals in the upper Inlet and Knik Arm during the 
spring, summer, and fall seasons. These whales demonstrate site 
fidelity to regular summer concentration areas (Seaman et al., 1985), 
typically near river mouths and associated shallow, warm and low 
salinity waters (Moore et al., 2000). In the winter, beluga whales 
concentrate in deeper waters in mid- Inlet down to Kalgin Island with 
occasional forays into the upper Inlet, even to the upper ends of Knik 
and Turnagain Arms.
    In Knik Arm, beluga whales generally are observed arriving in May 
and often use the area all summer, feeding on the various salmon runs 
and moving with the tides. There may be more intensive use of Knik Arm 
in August and through the fall, coinciding with the coho run. Whales 
will gather in Eagle Bay and elsewhere on the east side of Knik Arm and 
sometimes in Goose Bay on the west side of Knik Arm. During high tides, 
belugas are generally concentrated around prime feeding habitats in the 
upper reaches of the Arm, an area unaffected by the Project. They often 
retreat to the lower portion of Knik Arm during low tides.
    Fourteen belugas were satellite-tagged in upper CI in Knik Arm 
between late July and early September 2000-2002. These tags provided 
location and movement data through the fall and winter and into May. 
During summer and autumn, whales were concentrated in river and bays in 
Upper CI with whales traveling back and forth between Knik Arm (e.g., 
Eagle River), Chichaloon Bay, and upper Turnagain Arm, although some 
whales also spent time offshore. When in these areas, whales made rapid 
movements between distinct bays or river mouths (moving either to the 
east or to the west of Fire Island, past Pt. Woronzof and the Port of 
Anchorage) and often remained stationary in one area for many weeks 
followed by a rapid movement to another area (within a day). One whale 
tracked in 2001 moved back and forth between the three bodies of water 
listed above seven times in three months. Area use in August was the 
most limited of all months (approximately 50-75 percent of the recorded 
locations in August were in Knik Arm, concentrated near Eagle River. In 
September they continued to use Knik Arm and increased use of the 
Susitna delta, Turnagain Arm and Chickaloon Bay, and also extended use 
along the west coast of the upper Inlet to the Beluga River. In 
October, beluga whales ranged widely down the Inlet in coastal areas, 
reaching Chinitna Bay, and Tuxedni Bay and continued to use Knik Arm, 
Turnagain Arm, Chickaloon Bay, and Trading Bay (MacArthur River). 
November use was similar to September. In December, beluga whales moved 
offshore with locations distributed throughout the upper to mid-Inlet 
and in January, February, and March, they used the central offshore 
waters moving as far south as Kalgin Island and slightly beyond. 
Belugas also ranged widely during February and March with excursions to 
Knik and Turnagain Arms, in spite of greater than 90 percent ice 
coverage. Average daily travel distance ranged from 11-30 km per day. 
No satellite tags were on animals from April-mid July.
Social Dynamics
    Beluga whales are extremely social animals that typically migrate, 
hunt, and interact together. Nowak (1991) reports the average pod size 
as 10 animals, although beluga whales may occasionally form larger 
groups, often during migrations. Groups of 10 to several hundred beluga 
whales have often been observed during summers in CI; however solitary 
animals and smaller groups are not uncommon around the Port (LGL 2005, 
2006, 2007). Native hunters have stated that beluga whale form family 
groups and suggest that there are four types of beluga whales in CI, 
distinguished by their size and habits (Huntington 2000); however, this 
has not been confirmed.
Feeding
    Beluga whales are opportunistic feeders known to prey on a wide 
variety of animals. They eat octopus, squid, crabs, shrimp, clams, 
mussels, snails, sandworms, and fish such as capelin, cod, herring, 
smelt, flounder, sole, sculpin, lamprey, lingcod and salmon (Perez, 
1990; Haley, 1986; Klinkhart, 1966). Natives also report that CI beluga 
whale feed on freshwater fish: trout, whitefish, northern pike, and 
grayling (Huntington, 2000), and on tomcod during the spring (Fay et 
al., 1984).
    Salmon and eulachon species are high quality prey that have high 
lipid (fat) content, up to 21 percent (Payne et al., 1999). Calkins 
(1989) recovered 13 salmon tags from the stomach of an adult beluga 
whale found dead in Turnagain Arm. These salmon had been tagged in 
upper Susitna River. Beluga

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whales in captivity may consume 2.5-3 percent of their body weight 
daily, or approximately 40-60 pounds (18.2- 27.3 kg). Wild beluga whale 
populations, faced with an irregular supply of food or with increased 
metabolic needs, may easily exceed these amounts while feeding on 
concentrations of eulachon and salmon. Beluga whale hunters in CI 
reported one whale having 19 adult king salmon in its stomach 
(Huntington 2000) and an adult male beluga whale had 12 adult coho 
salmon in its stomach at a weight of 27.8 kg (61.5 lbs).
    Herring may be another important forage fish for beluga whales as 
identified by a 1993 smolt survey of the upper Inlet which found 
juvenile herring to be the second-most abundant fish species collected. 
These herring were primarily caught along the northwest shore, 
including the Susitna delta (Moulton, 1994).
    Beluga whales capture and swallow their prey whole, using their 
blunt teeth only to grab. These whales often feed cooperatively. At the 
Port, beluga whales have been observed positioning one whale along a 
rip rap dock, while a second whale herds salmon along the structure 
toward the stationary beluga whale. The concentrations of CI beluga 
whales offshore of several important salmon streams in the upper Inlet 
is assumed to be a feeding strategy which takes advantage of the 
bathymetry of the area. The fish are funneled into the channels formed 
by the river mouths and the shallow waters act as a gauntlet for salmon 
as they move past waiting beluga whales. Dense concentrations of prey 
appear essential to beluga whale feeding behavior. Hazard (1988) 
hypothesized that beluga whales were more successful feeding in rivers 
where prey were concentrated than in bays where prey were dispersed.
Habitat
    Since their rapid population decline, CI beluga distribution has 
also decreased (Rugh et al., 2000); however, there is obvious and 
repeated use of certain habitats. From April through November whales 
concentrate at river mouths and tidal flat areas, moving in and out 
with the tides. The timing and location of eulachon and salmon runs 
affect beluga whale feeding behavior and have a strong influence on 
their summer movements. Beluga and prey distribution is heavily 
dependent upon tides in Knik Arm with approximately 70 percent of 
sightings at the Port from monitoring data in 2006 being around low 
tide. The range of tides at Anchorage is extreme at about 29 feet and 
the observed extreme low water is 6.4 feet below mean low low water. 
Tidal energy is the most dominant force driving water circulation in 
Knik Arm. Because of predominantly shallow depths, tides within Knik 
Arm have a much larger range than in the main body of Cook Inlet 
(KABATA, 2006). Maximum current speeds in Knik Arm, observed during 
spring ebb tide, exceed 7 knots (12 feet/second).
    Beluga whale concentration areas correspond with prey availability. 
Beluga whales frequently move in and out of deeper water and between 
feeding, calving, and nursery areas throughout the mid and upper Inlet. 
Access to these areas and corridors in between these areas is 
important. Knik Arm, Turnagain Arm, Chickaloon River and the Susitna 
River delta areas are used extensively. It is possible these sites 
provide for other biological needs, such as calving or molting. Such 
habitat sites and use have been reported elsewhere in Alaska, although 
there is not adequate information to identify these calving and molting 
habitat attributes in Knik Arm.
    NMFS has characterized the relative value of four habitats as part 
of the management and recovery strategy in its ``Draft Conservation 
Plan for the CI Beluga Whale (Delphinapterus leucas)'' (NMFS, 2006). 
These are sites where beluga whales are most consistently observed, 
where feeding behavior has been documented, and where dense numbers of 
whales occur within a relatively confined area of the Inlet. Type 1 
habitat is termed ``High Value/High Sensitivity'' and includes what 
NMFS believes to be the most important and sensitive areas of the Inlet 
for beluga whales. Type 2 is termed ``High Value,'' and includes summer 
feeding areas and winter habitats in waters where whales typically 
occur in lesser densities or in deeper waters. Type 3 habitat occurs in 
the offshore areas of the mid and upper Inlet and also includes 
wintering habitat. Type 4 habitat describes the remaining portions of 
the range of these whales within Cook Inlet. The habitat within the 
Project footprint that will be directly impacted from construction is 
considered Type 2 habitat while just north of the Port is classified as 
Type 1.
Beluga Hearing Sensitivity
    Beluga whales are characterized as mid-frequency odontocetes but 
have an excellent range of hearing. Hearing of belugas is believed to 
be in the frequency range of 40 Hz-150kHz with keen hearing at 10-
100kHz. Above 100 kHz their sensitivity drops off very fast (Au, 1993) 
and below 8 kHz the decrease in sensitivity is more gradual at 
approximately 11 dB per octave (Awbrey et al., 1988). While their peak 
sensitivity range is outside of most industrial sounds, studies have 
shown that belugas can hear and react to such low frequency noise, 
dependent upon intensity (i.e., decibels). Awbrey et al. (1988) 
conducted a study on captive, trained belugas to discern low frequency 
threshold levels. Belugas reacted, on average, to 125 Hz, 25 Hz, and 
500Hz at 121dB, 118dB, and 108 dB, respectively. Therefore, as 
frequency increases, sensitivity also increases.

Harbor Seals

    Harbor seals are important upper-trophic marine predators that 
occupy a broad range in Alaska from approximately 130[deg] W to 
172[deg] E (over 3,500 km east to west) and from 61[deg] N to 51[deg] N 
(over 1,000 km north to south). Currently, harbor seals in Alaska are 
divided into three stocks: Bearing Sea, Gulf of Alaska (GOA), and 
Southeast Alaska. While new genetic information has lead to a 
reassessment of this delineation, it has not yet been finalized. Harbor 
seals which could be affected by the Project belong to the Gulf of 
Alaska stock. Based on aerial GOA and Aleutian Islands surveys, in 1996 
and 1999 respectively, the current abundance estimate for this stock is 
45,975 (CV = 0.04) with a minimum population estimate of 44,453 (NMFS, 
2006). Sources of anthropogenic caused mortality for this stock include 
interactions with fishing gear (mean annual mortality is approximately 
24 animals), subsistence hunting (mean annual harvest equals 795), and, 
to a lesser degree, illegal intentional killing.
    Harbor seals haul out on rocks, reefs, beaches, and drifting 
glacial ice, and feed in marine, estuaries, and occasionally fresh 
waters. They are generally non-migratory, with local movements 
associated with such factors as tides, weather, season, food 
availability, and reproduction; however, some long-distance movements 
have been recorded from tagged animals (mostly juveniles). The major 
haul-out sites for harbor seals are located in Lower CI with the 
closest identified harbor seal haul-out site to the Port approximately 
25 miles south along Chickaloon Bay in the southern portion of 
Turnagain Arm. However, harbor seals have been observed around the 
Port. In 2004-2005, 22 harbor seal sightings were reported over a 13-
month period comprising of 14,000 survey hours. From these surveys, it 
is estimated that harbor seals occur in a density of approximately 1.7 
animals per month in Knik Arm (LGL unpubl. data).

[[Page 14447]]

    Pinniped hearing is measured for 2 mediums, air and water. In water 
hearing ranges from 1-180 kHz with peak sensitivity around 32kHz. In 
air, hearing capabilities are greatly reduced to 1-22kHz with 
sensitivity at 12kHz. This range is comparable to human hearing (0.02 
to 20 kHz). Harbor seals have the potential to be affected by in-air 
and in-water noise associated with construction activities.

Harbor Porpoise

    Harbor porpoise are found within Cook Inlet but in low abundance, 
especially in Knik Arm. Currently, the population estimate for the Gulf 
of Alaska harbor porpoise stock is 41,854 with a minimum population 
estimate of 34,740 (NMFS 2006). Estimated density of harbor porpoise in 
Cook Inlet is only 7.2 per 1000 square kilometers (Dahlheim et al. 
2000). The highest monthly count recorded in upper Cook Inlet between 
April and October is 18 (LGL 2006).
    Harbor porpoise have a wide hearing range and the highest upper-
frequency limit of all odontocetes studied. They have a hearing range 
of 250 Hz-180kHz with maximum sensitivity between 16-140 kHz.

Killer Whales

    Killer whales in the Gulf of Alaska are divided into two ecotypes: 
resident and transient. Killer whales are relatively common in lower 
Cook Inlet (at least 100 sightings from 1975 to 2002), but in the upper 
Inlet, north of Kalgin Island, sightings are infrequent (11 in 25 yrs). 
Transient killer whales are known to feed on the Cook Inlet stock of 
beluga whales and all recorded predation events have occurred in the 
upper Inlet. Transient killer whales seen in Cook Inlet belong to the 
Gulf of Alaska, Aleutian Islands, and Bering Sea Transient Stock or the 
small AT1 Stock. Based on the 2006 NMFS stock assessment reports, the 
minimum population estimate for the Gulf of Alaska, Aleutian Islands, 
and Bering Sea transient stock of killer whales is 314 animals based on 
the count of individuals using photo-identification. As of 2004, the 
AT1 population size is eight animals, a 64-percent decrease from 22 
whales in 1989.
    The hearing of killer whales is well developed. They have hearing 
ranges of 0.05 to 100 kHz which is lower than many other odontocetes. 
Peak sensitivity is around 15 kHz.

Impacts to Marine Mammals

    Sound is a physical phenomenon consisting of minute vibrations that 
travel through a medium, such as air or water. Sound levels are 
compared to a reference sound pressure to identify the medium. For air 
and water, these reference pressures are ``re 20 microPa'' and ``re 1 
microPa'', respectively (unless otherwise noted, sound levels should be 
considered as measured in water, i.e., re 1 microPa). Sound is 
generally characterized by several variables, including frequency and 
sound level. Frequency describes the sound's pitch and is measured in 
hertz (Hz) or kilohertz (kHz), while sound level describes the sound's 
loudness and is measured in decibels (dB). Sound level increases or 
decreases exponentially with each dB of change. For example, 10-dB 
yields a sound level 10 times more intense than 1 dB, while a 20 dB 
level equates to 100 times more intense, and a 30 dB level is 1,000 
times more intense. However, it should be noted that humans perceive a 
10 dB increase in sound level as only a doubling of sound loudness, and 
a 10 dB decrease in sound level as a halving of sound loudness. More 
information on sound can be found at www.dosits.org.
    As stated, noise from pile driving is expected to harass marine 
mammals present in the exposure area. Marine mammals use sound for 
vital life functions, and introducing sound into their environment 
could be disrupting to those behaviors. Sound (hearing and 
vocalization/echolocation) serves 4 main functions for odontocetes 
(toothed whales and dolphins). These functions include (1) providing 
information about their environment; (2) communication; (3) enabling 
remote detection of prey; and (4) enabling detection of predators. 
Sounds and non-acoustic stimuli will be generated and emitted into the 
aquatic environment by vehicle traffic, vessel operations, roadbed 
construction, and vibratory and impact pile driving. The distances to 
which these sounds are audible depend on source levels, ambient noise 
levels, and sensitivity of the receptor (Richardson et al. 1995). As 
stated, pile driving will affect marine mammals at a level which could 
cause behavioral harassment. Mitigation measures (see Mitigation 
section) are expected to prevent injurious exposure.
    In an acoustic study conducted at the Port in October 2007, 
hydrophones were used to measure sound propagation during both impact 
and vibratory pile-driving. For impact pile-driving, the most 
conservative measurement showed that at 19m the received level was 177 
dB re 1 microPa (root mean square (rms) ranging from 100-15,000 Hz. For 
vibratory pile-driving, the most conservative measurement showed that 
at 20m the received level was 162 dB ranging from 400-2,500 Hz. These 
measurements were used to estimate the distances at which animals might 
be exposed to received levels that could lead to injury or behavioral 
harassment. Impact pile driving requires much more energy (i.e., 
louder) than vibratory pile-driving due to the nature of the 
operations. However, low frequency sound travels poorly in shallow 
water, so transmission of these sounds in Knik Arm is expected to be 
confined to relatively short ranges.
    Sounds generated from pile driving, dredging, and other 
construction activities will be detectable underwater and/or in air 
some distance away from the area of activity. Audible distance, or 
received levels (RLs) will depend on the nature of the sound source, 
ambient noise conditions, and the sensitivity of the receptor to the 
sound (Richardson et al., 1995). Type and significance of marine mammal 
behavioral reactions are likely to be dependent upon, among other 
parameters, the behavioral state (e.g., feeding, traveling, etc.) of 
the animal at the time it receives the stimulus, as well as the 
distance from the sound source and the level of the sound relative to 
ambient conditions (Southall et al., 2007).

Hearing Impairment and Other Physical Effects

    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very loud sounds, but no studies have 
been conducted that examine impacts to marine mammal from pile driving 
noise. Current NMFS practice regarding exposure of marine mammals to 
high-level sounds is that cetaceans and pinnipeds exposed to impulsive 
sounds of 180 and 190 dB rms or above, respectively, are considered to 
have been taken by Level A (i.e., injurious) harassment. Behavioral 
harassment (Level B) is considered to have occurred when marine mammals 
are exposed to sounds at or above 160dB rms for impulse sounds (e.g., 
impact pile driving) and 120dB rms for continuous noise (e.g., 
vibratory pile driving), but below injurious thresholds. These levels 
are considered precautionary.
    Several aspects of the planned monitoring and mitigation measures 
for this project are designed to detect marine mammals occurring near 
pile driving, and to avoid exposing them to sound that could 
potentially cause hearing impairment (e.g., mandatory shut down zones). 
In addition, marine mammals will be given a chance to leave the area 
during ``soft start'' and ``ramp-up'' procedures to avoid exposure to 
full energy pile driving. In those cases, the avoidance responses of 
the animals themselves will reduce or

[[Page 14448]]

eliminate any possibility of hearing impairment. Hearing impairment is 
measured in two forms: temporary threshold shift and permanent 
threshold shift.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). Southall et al. (2007) 
considers a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) 
sufficient to be recognized as an unequivocal deviation and thus a 
sufficient definition of TTS-onset. Auditory fatigue (i.e., TTS) in 
mid-frequency cetaceans has been measured after exposure to tones, 
impulsive sounds, and octave-band noise. Because it is non-injurious, 
NMFS considers TTS as Level B harassment that is mediated by 
physiological effects on the auditory system; however, NMFS does not 
consider onset TTS to be the lowest level at which Level B Harassment 
may occur.
    While experiencing TTS, the hearing threshold rises and a sound 
must be louder in order to be heard. TTS can last from minutes or hours 
to (in cases of strong TTS) days. For sound exposures at or somewhat 
above the TTS-onset threshold, hearing sensitivity recovers rapidly 
after exposure to the noise ends. Few data on sound levels and 
durations necessary to elicit mild TTS have been obtained for marine 
mammals. For toothed whales exposed to single short pulses, the TTS 
threshold appears to be, to a first approximation, a function of the 
energy content of the pulse (Finneran et al., 2002).
    Laboratory experiments investigating TTS onset for belugas have 
been conducted for both pulse and non-pulse sounds. Finneran et al. 
(2000) exposed a trained captive beluga whale to a single pulse from an 
explosion simulator. No TTS threshold shifts were observed at the 
highest received exposure levels (179dB re 1 microPa2-s [SEL]; 
approximately 199 dB rms). It should be noted in this study that 
amplitudes at frequencies below 1 kHz were not produced accurately to 
represent predictions for the explosions. Another study was done using 
seismic waterguns with a single acoustic pulse (Finneran et al. 2002). 
Measured TTS was 7 and 6 dB in the beluga at 0.4 and 30 kHz, 
respectively, after exposure to intense single pulses (186 dB SEL; ~ 
208 dB rms). Schludt et al., 2000 demonstrated temporary shifts in 
masked hearing thresholds for belugas occurring generally between 192 
and 201 dB rms (192-201 dB SEL) after exposure to intense, non-pulse, 
1-s tones at , 3, 10, and 20 kHz. TTS onset occurred at mean sound 
exposure level of 195 dB rms (195 dB SEL). To date, no studies relating 
TTS onset to pile driving sounds have been conducted for any cetacean 
species.

Permanent Threshold Shift (PTS)

    When permanent threshold shift (PTS) occurs, there is physical 
damage to the sound receptors in the ear. In some cases, there can be 
total or partial deafness, whereas in other cases, the animal has an 
impaired ability to hear sounds in specific frequency ranges. PTS 
consists of non-recoverable physical damage to the sound receptors in 
the ear and is therefore classified as Level A harassment under the 
MMPA. Level A harassment of marine mammals is not expected due to 
proposed mitigation measures and source levels, nor will it be 
authorized under this IHA.
    There is no empirical data for onset of PTS in any marine mammal, 
and therefore, PTS- onset must be estimated from TTS-onset measurements 
and from the rate of TTS growth with increasing exposure levels above 
the level eliciting TTS-onset. PTS is presumed to be likely if the 
threshold is reduced by [gteqt] 40 dB (i.e., 40 dB of TTS).
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals, but are assumed to be similar to those in humans and 
other terrestrial mammals. PTS might occur at a received sound level 20 
dB or more above that of inducing mild TTS if the animal were exposed 
to the strong sound for an extended period, or to a strong sound with 
rather rapid rise time. Due to proposed mitigation measures and source 
levels for the Project, NMFS does not expect that marine mammals will 
be exposed to levels that could elicit PTS.

Non-auditory Physiological Effects

    Non-auditory physiological effects or injuries that theoretically 
might occur in marine mammals exposed to strong underwater sound 
include stress, neurological effects, bubble formation, resonance 
effects, and other types of organ or tissue damage. Due to proposed 
mitigation measures (e.g., mandatory shut downs) marine mammals would 
not be exposed to sound at or above 180dB; therefore, it is not 
expected that severe physiological effects from exposure to sound would 
be expected; however, a hormonal stress response is possible. Romano et 
al. (2004) demonstrated that belugas exposed to seismic water gun and 
(or) single pure tones (up to 201 dB rms) resembling sonar pings showed 
increased stress hormone levels of norepinephrine, epinephrine, and 
dopamine. While RLs would not be as strong as the ones in that study, a 
stress response would not be unexpected. Studies have also demonstrated 
that reactions of animals to sounds could result in physical injury. 
For example, it has recently been reported that stranded deep diving 
marine mammals displayed physical attributes similar to the bends 
(e.g., in vivo gas bubble formation) (Ferndandez et al., 2005, 2006). 
Marine mammals may experience these symptoms if surfacing rapidly from 
deep dives in response to loud sounds. Because Knik Arm is a shallow 
water estuary, marine mammals found there are not considered deep 
divers, and due to proposed mitigation measures, non-auditory 
physiological impacts, other than stress, are not expected.

Impacts to Beluga Whales

    The marine mammal species or stock that could be most affected from 
the Project is the beluga whale. Observation and tagging data both 
indicate that the northernmost parts of upper Cook Inlet, including 
Knik Arm, are the focus of the stock's distribution in both summer 
(Rugh et al., 2000) and winter (Hobbs et al., 2005). Because of the 
very restricted range of this stock, CI belugas can be assumed to be 
sensitive to human-induced or natural perturbations. Contaminants from 
a variety of sources, sound, onshore or offshore development, and 
construction have the potential to impact this stock or its habitat.
    There are no consistent observed threshold levels at which belugas, 
and marine mammals in general, respond to an introduced sound. Beluga 
responses to sound stimuli have been noted to be highly dependent upon 
behavioral state and motivation to remain or leave an area. Few field 
studies involving industrial sounds have been conducted on beluga 
whales. Reactions of belugas in those studies varied. For example, in 
Awbrey and Stewart (1983) (as summarized in Southall et al., 2007), 
recordings of noise from SEDCO 708 drilling platform (non-pulse) were 
projected underwater at a source level of 163 dB rms. Beluga whales 
less than 1.5 km from the source usually reacted to onset of the noise 
by swimming away (RLs approximately 115.4 dB rms). In two instances 
groups of whales that were at least 3.5 km from the noise source when 
playback started continued to approach (RLs approximately 109.8 dB 
rms). One group approached within 300 m (RLs approximately 125.8 dB 
rms) before all or part turned back. The other group submerged and 
passed within 15m of the projector (RL

[[Page 14449]]

approximately 145.3 dB). Richardson et al. (1990), as summarized in 
Southall et al., 2007, played back drilling platform sounds (source 
level: 163 dB) while approximately 100 belugas were in the area of 
several hundred to meters to several hundred kilometers. No obvious 
reactions were noted; however, moderate changes in behavior for three 
groups swimming within 200m of the sound projector were observed. In 
other studies, belugas exposed to seismic airguns (multiple pulse) at 
RLs of 100 to 120 dB rms were determined to have had no observable 
reaction; however, RLs between 120 and 150 dB rms were determined to 
have induced temporary avoidance behavior, based on vessel-based and 
aerial observations (Miller et al., 2005).
    TTS experiments have also documented behavioral responses by 
trained belugas. These responses included reluctance to return to 
experimental stations when exposed to watergun pulse sounds at 
approximately 185.3 dB rms (171dB SEL) (Finneran et al., 2002) and 
behavioral changes when exposed to sounds from the explosion simulator 
at approximately 200 dB rms (177 dB SEL) (Finneran et al., 2000). In a 
non-pulse exposure experiment (i.e., 1 s tones), belugas displayed 
altered behavior when exposed to 180 196 dB rms (180-196 dB SEL) 
(Schlundt et al., 2000).
    While no studies have been conducted for belugas in response to 
pile driving, bottlenose dolphin and humpback dolphin behavior has been 
observed in relation to this activity. These species are also 
considered mid frequency odontocetes and have hearing capabilities 
similar to that of beluga whales. McIwen (2006) observed a temporary 
displacement of bottlenose dolphins during pile driving activities, 
although it could not be determined if this was a result of the pile 
driving noise itself or displacement of prey. Mhenni (1993) reported 
bottlenose dolphins appeared to be repelled by noise pulses obtained by 
striking an iron pipe held in the water. Furthermore, Wursig et al. 
(2000) reported Indo-Pacific humpback dolphins increased speeds of 
travel during pile driving and were found in lower abundance 
immediately after pile driving; however, no overt changes in behavior 
were observed.
    Masking of whale calls or other sounds potentially relevant to 
whale vital functions may occur. Masking occurs when the background 
noise is elevated to a level which reduces an animal's ability to 
detect relevant sounds. The impacts of masking are expected to be 
limited by the intermittent nature of the impact pile driver noise, the 
whales' directional hearing, and their ability to adjust vocalization 
amplitude, frequency, and the structured content of their signals 
(McIwem, 2006). Belugas have been known to increase their levels of 
vocalization as a function of background noise by increasing call 
repetition and shifting to higher frequencies (Lesage et al., 1999; 
Scheifele et al., 2005). Another adaptive method to combat masking was 
demonstrated in a beluga whale which reflected its sonar signal off the 
water surface to ensonify to an object on which it was trained to 
echolocate (Au et al., 1987). Due to the low frequencies of 
construction noise and the ability of belugas to adapt vocally to 
increased background noise, it is anticipated that masking, and 
therefore interruption of behaviors such as feeding and communication, 
will be minimized.
    Many marine mammals, including beluga whales, perform vital 
functions (e.g., feeding, resting, traveling, socializing) on a diel 
(i.e., 24 hr) cycle. Repeated or sustained disruption of these 
functions is more likely to have a demonstrable impact than a single 
exposure (Southall et al., 2007). However, it is possible that marine 
mammals exposed to repetitious construction sounds from the proposed 
construction activities will become habituated and tolerant after 
initial exposure to these sounds, as demonstrated by beluga vessel 
tolerance (Richardson et al., 1995, Blackwell and Green, 2002). 
Habituation is found to be common in marine mammals faced with 
introduced sounds into their environment. For example, bowhead whales 
(Balaena mysticetus) have continued to use pathways where drilling 
ships are working (RLs: 131 dB) so that they can continue their 
eastward migration (Richardson et al., 1991). In addition, harbor 
porpoise, dolphins, and seals have become habituated to acoustic 
harassment deterrent devices such as pingers and ``seal bombs'' after 
repeated exposure (Mate and Harvey, 1987; Cox et al., 2001).
    Although the Port is a highly industrialized area supporting a 
large amount of ship trafic, belugas are present almost year round. It 
is anticipated that belugas will become increasingly habituated to the 
Project sounds. CI belugas have demonstrated a tolerance to ship 
traffic around the Port, as documented in numerous surveys conducted by 
LGL in this area. Animals will be exposed to greater than background 
noise levels from pile driving; however background sound levels in Knik 
Arm are already higher than most other marine and estuarine systems due 
to strong currents and eddies, recreational vessel traffic, and 
commercial shipping traffic entering and leaving the Port. During the 
acoustic study for this Project, carried out by URS, ambient sound 
levels (in absence of any vessels) were recorded between 105 and 120dB. 
A tug pushing a barge raised those measurements to about 135dB when it 
was 200m from the recording vessel. Based on the already elevated 
background noise around the Port and beluga's ability to compensate for 
masking, it can be reasonably expected that belugas will become 
habituated to the daily pile driving, as they have for vessel traffic. 
It is expected that frequency and intensity of behavioral reactions 
will decrease when habituation occurs.
    Lack of behavioral reaction indicating habituation does not 
necessarily mean that the animals are not being harassed or injured. 
For example, in Newfoundland, seafloor blasting occurred in an area 
utilized by foraging humpback whales (Megaptera novaeangliae), yet the 
whales did not show any behavioral reaction to the blasting in terms of 
movement or residency times. Despite a lack of behavioral reaction, two 
humpbacks entangled in fishing gear were found in that area to have had 
experienced significant blast trauma to the temporal bones, although 
the seafloor blasting could not be determined to be causal (Ketten et 
al., 1993). However, pile driving activities do not release the same 
type of, or as much energy as seafloor blasting and, due to proposed 
mitigation measures, marine mammals will not be exposed to such intense 
sounds at the Port. Therefore, injury or other physical effects will 
not likely occur.
    NMFS believes responses of beluga whales to pile driving activities 
would be behavioral in nature and could likely include altered 
headings, fast swimming, changes in dive, surfacing, respiration, and 
feeding patterns, and changes in vocalizations. However, NMFS 
anticipates that belugas would not alter their behavior in a way that 
prevents them from entering and/or transiting throughout Knik Arm. 
Belugas are currently known to associate with vessels emitting loud low 
frequency sounds around the Port. Belugas, and other marine mammals, 
may undergo a hormonal stress response when exposed to pile driving 
sounds; however, NMFS believes this stress response would be short term 
and not lead to any long-term effects Furthermore, NMFS does not 
anticipate that more serious effects (e.g., neurological effects, 
organ/tissue

[[Page 14450]]

damage) would occur. Due to proposed mitigation measures, marine 
mammals would not be exposed to high energy sounds, thereby minimizing 
physiological impairments. There is no evidence of injuries occurring 
in marine mammals exposed to sound from pile driving and there have 
been no direct studies of the potential for pile driving to elicit any 
of those effects.

Impacts to Other Marine Mammals

    Harbor seals, harbor porpoise, and killer whales could also 
potentially be impacted from the Project. Hauled out harbor seals may 
flush into the water from in-air noise, disturbing their resting and 
warming behaviors. Killer whales and harbor porpoise may be harassed by 
construction noise if they are in the area of the Port. Behavioral 
reactions by these species may be similar to belugas whales (e.g., 
change in direction, vocalizations, etc.). For example, while 
construction will emit low frequency sounds outside of harbor porpoise 
peak sensitivity rage, these animals have elicited behavioral responses 
to simulated wind turbine noise, also outside peak sensitivity range 
(max. Energy between 30-800 Hz; spectral density source levels of 128dB 
at 80 and 160Hz) (Koschinski et al., 2003). During this study, animals 
were sighted at greater ranges during playbacks of simulated wind 
turbine noise and observed animals more frequently used echolocation 
signals.
    It is likely that marine mammals will be temporarily displaced or 
disturbed by construction activities during the terminal expansion 
project. Takes will be by Level B harassment (behavioral disturbance) 
as defined in the 1994 amendments to the MMPA. No take by serious 
injury or death is likely, given the planned monitoring and mitigation 
procedures described in the application and summarized in this 
document.

Estimated Take

    Monitoring of beluga presence, behavior, and group composition 
specifically for the Project began in 2005 and continued through 2007. 
Theodolite tracking and grid cell mapping were used to determine the 
number of belugas present within the Project footprint and within a 1 x 
6 km\2\ area around the Port (i.e., nearshore). Belugas were sighted 
during all months the Project will be conducting activities (April-
October) but most frequently around low tide and the months of August 
and September, coinciding with salmon runs. These data augment those of 
the Hobbs et al. (2005) satellite tag study.
    During the 2006 monitoring year, 79 percent of all beluga groups 
sighted were within the project footprint, despite the average 4-km 
detection range. The high sighting rate of belugas within or near the 
Port is most likely attributed to eddy formation during the ebb tide 
which concentrates prey in this area. Beluga monitoring also occurred 
in 2004/05 for the Knik Arm Bridge Toll Authority bridge project. These 
data were considered when calculating take numbers; however, density of 
whales was less than that of nearshore areas as monitored specifically 
for the Port. Therefore, to be conservative, the applicant, in 
collaboration with NMFS, used the more conservative higher nearshore 
density to calculate take numbers.
    Based on 2005-2007 LGL monitoring data, it is calculated that, 
without tidally influenced mitigation, up to 21 takes of beluga whales 
by Level B behavioral harassment may occur (either 21 individuals 
harassed one time each or a lower number of individuals harassed a 
couple or few times each, but totaling 21) due to Port expansion for 
the 2008 construction year (April- October) (Table 1). These take 
numbers are based on the impact and vibratory pile driving isopleths of 
350m (1148ft,) and 800m (2625ft.), respectively. Monthly counts of 
whales per hour of effort were calculated in the nearshore area (1 x 6 
km2) and then divided by the area to equal a probable density of 
animals in any given 1 km2 per hour (rounded up). This number was then 
multiplied by the hours of each type of pile driving per month. Total 
take for the month was calculated by multiplying this number by the 
estimated area ensonified (around each pile-driver type) at or above 
the level NMFS believes will result in harassment. Because an average 
of 70 percent of beluga occurrences in the project footprint are 
estimated to occur within 2 hours of either side of low tide, takes are 
actually estimated to be lower due to the proposed requirement to 
prohibit impact pile-drivers within 2 hours on either side of low tide. 
However, to allow for the social dynamics of beluga whales (e.g., large 
group sizes), NMFS is proposing to authorize 34 beluga whale takes per 
year. This number is considered small when compared to the current 
population estimate of 302 individuals.

     Table 1.--Calculated Expected Take, Based on Nearshore Density, of Beluga Whales From Pile Driving Activities at the Port of Anchorage in 2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Port of Anchorage Take Table- 2008
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Impact     Vibratory     Avg. Whales/hr/    Area within 160dB   Expected Take   Area within 120dB   Expected Take
               Month                   Hours        Hours      km\2\ nearshore*      Impact (350m)       (impact)      Vibratory (800m)     (vibratory)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  April                      86           58               0.014               0.192           0.230              1.0048           0.809
                  May                        60           39               0.006               0.192           0.064              1.0048           0.218
                  June                       60           39               0.011               0.192           0.125              1.0048           0.423
                  July                       86           58               0.004               0.192           0.066              1.0048           0.231
                  August                     86           58               0.062               0.192           1.031              1.0048           3.633
                  September                  86           58               0.043               0.192           0.718              1.0048           2.529
                  October                    86           58               0.020               0.192           0.335              1.0048           1.179
                  Total*                    550          368  ..................  ..................               8  ..................              13
--------------------------------------------------------------------------------------------------------------------------------------------------------
*The total number of authorized take is calculated by rounding up each take per month (e.g., a take of 0.230 animals in April is equal to 1 take).

    Based on the sighting rates of other marine mammals around the 
Port, other marine mammals would not be expected to be harassed from 
Project activities mathematically. However, because these species have 
been sighted in the area, NMFS is proposing to authorize a small 
number, relevant to the population size, of takes for harbor seals 
(20), harbor porpoise (20), and killer whales (5).

Effects to Marine Mammal Habitat

    Beluga whales primarily use the area around the Port for traveling 
and foraging (LGL 2005, 2006, 2007; Port Monitoring Data, unpubl.). The 
primary

[[Page 14451]]

aquatic habitat resource losses associated with the Project are the 
losses and degradation of intertidal and nearshore habitat, including 
essential fish habitat (EFH). Noise from pile driving would result in 
habitat degradation; however, based on the identified behavioral 
harassment isopleth distances, impact and vibratory pile driving sounds 
above marine mammal behavioral harassment levels are expected to 
propagate out to only 350m and 800m, respectively. Due to the already 
noisy characteristics of this habitat (e.g., currents, ships and 
recreational vessel presence), it is not expected that marine mammals, 
especially belugas, would be as greatly affected as if the ambient and 
background sound level was lower. It can be reasonably expected that 
marine mammals will continue to travel past the Port even when pile 
driving activities are occurring. However, it is possible they would do 
so further out towards the middle or west side of Knik Arm.
    Belugas whales' diet is primarily comprised of fish, specifically 
salmon. Fish habitats, including EFH, in upper Cook Inlet have not been 
studied comprehensively, but the studies completed to date indicate 
that the area immediately around the Port supports a wide diversity of 
marine and anadromous fish species, in particular providing migrating, 
rearing, and foraging habitat. The intertidal and nearshore subtidal 
waters of the Project area are used by juvenile and adult salmonids for 
refuge from the strong currents of Knik Arm, as a migration corridor 
for adult salmonids, and as rearing and migratory habitat for several 
streams that drain into Knik Arm, in upper Cook Inlet. Therefore, the 
elimination of this habitat and alteration of hydrology would adversely 
impact fish, especially juveniles and smolt taking refuge in the area 
to be filled; however, based on the following reasons, these changes 
are not likely to appreciably reduce prey availability to marine 
mammals, particularly belugas.
    The project area is located approximately 2000 feet (609.4 m) north 
of the mouth of Ship Creek, a stocked creek, and the proposed action 
would remove most of the remaining intertidal and shallow subtidal 
waters north of the mouth to Cairn Point. If a decrease in fish 
abundance occurs, this could result in decreased foraging opportunities 
for belugas and increased beluga energy expenditure to find prey. 
However, juvenile chinook salmon sampled between Cairn Point and Point 
Woronzof were primarily of Ship Creek hatchery origin. Juvenile 
salmonids are reared at the hatchery for two years prior to release at 
the smolt stage. Smolts released from the hatchery are ready for out 
migration and it is believed that the smolts reside in the Ship Creek 
area for a limited period before migrating elsewhere in the Knik Arm 
and/or Cook Inlet estuaries. Because this creek is stocked, fish would 
be replenished from the hatchery. Furthermore, the area directly 
surrounding the Port is not considered primary feeding habitat, unlike 
the upper reaches of Knik Arm.
    Design of the sheet pile wall may provide some refuge for fish 
which could enhance survival. The face of each sheet-pile cell is 
curved outward, creating a scalloped surface. Fender pile and fender-
system structural components would protrude from the face of the sheet 
pile approximately eight feet, which would provide some limited fish 
refuge. In addition, the Port is evaluating various methods for 
constructing joint systems between OCSP cells that would provide open 
water areas along the face of the dock by leaving a space between the 
construction joints in the sheet pile wall. These breaks in the sheet 
pile wall profile would create alcoves with armor rock slopes of 
varying sizes and shapes that would provide refuge opportunities for 
salmonids.
    To offset direct habitat loss and degradation, the Port is required 
to carry out certain mitigation procedures as condition in the Army 
Corps of Engineers' Permit No. POA-2003-502-N. For all construction 
seasons, including 2008, these include, but are not limited to: (1) no 
in water fill placement or pile driving activities shall occur within a 
one week period following smolt releases from the Ship Creek hatchery; 
(2) fill material shall consist of clean fill, free of unsuitable 
material (e.g., trash, debris, asphalt, etc.), and free of toxic 
pollutants; and (3) the Municipality of Anchorage, in collaboration 
with the Corps, would execute compensatory mitigation projects that 
will contribute toward offsetting the functional losses attributed to 
the Project. These projects would support salmon populations through 
restoration, enhancement, creation and/or preservation (listed in order 
of priority) of existing nearby estuarine and associated lower riparian 
habitats.
    NMFS has determined that fish and fish habitat, including EFH, 
would be adversely affected both short and long-term from the current 
Project design plan. Short term impacts are habitat destruction and 
damage to fish primarily related to filling intertidal and subtidal 
areas, as well as noise from pile driving. Long term impacts include 
permanent habitat alteration and destruction and the resulting negative 
impacts on fish. The degree of impact to fish populations is difficult 
to quantify; however, the Project will most likely decrease survival of 
juvenile fish emanating from Ship Creek, reducing the number of adult 
salmon returning to Ship Creek. However, as stated, this is a stocked 
creek and will be replenished. Therefore, beluga prey abundance is not 
expected to be significantly affected. In addition, NMFS has determined 
that habitat degradation from pile driving will result in only short 
term behavioral affects to marine mammals and not prevent belugas from 
transiting through the area.

Effects to Subsistence Hunting

    Subsistence hunting and fishing are economically and culturally 
important for many Alaskan families and communities. Marine mammals 
taken by subsistent hunts include pinnipeds, cetaceans, and polar 
bears. In Cook Inlet, Alaskan natives have traditionally relied on the 
CI beluga whale for subsistence purposes. For several decades prior to 
the 1980s, the Native Village of Tyonek residents were the primary 
hunters harvesting Cook Inlet beluga whales; however, other tribes have 
since been active in the hunt. In Knik Arm, Tyonek natives remain 
primary subsistence users in the Knik Arm and may harvest beluga whales 
that pass through the Project footprint; however, no hunting will take 
place in or near the Project area. As stated, subsistence hunting as 
been greatly reduced to 1-2 whales per year. No belugas are expected to 
be injured or killed as a result of the Project, nor is distribution 
expected to be altered dramatically in Knik Arm. The disturbance and 
potential displacement of beluga whales by noise from 2008 construction 
activities are the principal concerns related to subsistence use. 
However, since all anticipated takes from implementation of the Project 
would be takes by harassment involving temporary changes in behavior, 
construction activities associated with the Project would not have an 
unmitigable adverse impact the availability of a marine mammal species 
or stock for taking for subsistence uses.

Proposed Mitigation

    The Port, in working with NMFS, proposes the following mitigation 
measures for the entire Project construction (2008-2012). These 
measures are designed to eliminate potential for injury and reduce

[[Page 14452]]

harassment levels to beluga whales. Sound deterrent/minimization 
techniques such as bubble curtains were considered for mitigation; 
however, due to the strong current in Knik Arm (up to 11.2ft (3.4 m)/
sec) these techniques would be inefficient. The Port continues to work 
with contractors to develop sound attenuation minimization techniques.

(1) Scheduling of construction activities during low use period of 
belugas around the Port

    Tides have been shown to be an important physical characteristic in 
determining beluga movement within Knik Arm. During the 2004 and 2005 
monitoring years, beluga sightings varied significantly with tide 
height at two stations near the Port (West Crossing and Cairn Point). 
Whales were sighted most frequently (approximately 70%) during the 
period around low tide at these stations and as the tide flooded, 
belugas typically moved into the upper reaches of the Arm. 
Opportunistic sightings also support the highest beluga use near the 
point around low tide.
    Due to tidally influence habitat use around the Port, in-water 
impact pile driving will not occur during the 2 hours on either side of 
low tide (i.e., from two hours before low tide until two hours after 
low tide). Belugas are expected to be foraging well north of the Port 
during the flood and high tide. However, these northern areas are 
exposed during the ebb and low tide; therefore, animals move south 
toward Eagle Bay and the Knik Arm entrance to avoid being stranded and 
to feed on fish flowing out of creeks and rivers. Restricting impact 
pile driving during this time will reduce the number of beluga whales 
exposed to sounds where Level B harassment could result.

(2) Establishment of safety zones and shut down requirements

    In October, 2007, the Port contracted an outside company to 
determine reliable estimates of distances for 190 (pinniped injury 
threshold), 180 (cetacean injury threshold), 160 (impact pile driving 
behavioral harassment threshold) and 120 dB (vibratory pile driving 
behavioral harassment threshold) isopleths from impact and vibratory 
pile driving. From this study, it has been preliminarily determined 
that these isopleths are 10, 20, 350, and 800 m, respectively. All 
threshold isopleths will also be verified with future sound index 
profiling studies and adjusted if necessary. Although the 190 and 180dB 
isopleths are within 20m for both types of pile driving, NMFS is 
proposing a conservative 200m mandatory shut down safety zone which 
would require the Port to shut down anytime a marine mammal enters this 
isopleth. Furthermore, to reduce chance of the Port reaching or 
exceeding authorized take, if a group of 5 or more belugas are sighted 
within the Level B harassment isopleths, shut down is required. If 
maximum authorized take is reached or exceeded for the year, any beluga 
entering into the harassment isopleths will trigger mandatory shut 
down.

(3) Soft start to pile driving activities

    A ``soft start'' technique will be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before impact piling reaches full energy. The 
soft start requires contractors to initiate noise from vibratory 
hammers for 15 seconds at reduced energy followed by 1-minute waiting 
period. The procedure will be repeated two additional times. If an 
impact hammer is used, contractors will be required to provide an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a one minute waiting period, then two subsequent 3 
strike sets (NMFS, 2003). If any marine mammal is sighted within the 
safety zone (200m) prior to pile-driving, or during the soft start, the 
contractor (or other authorized individual) will delay pile-driving 
until the animal has moved outside the safety zone. Furthermore, if 
marine mammals are sighted within a harassment zone prior to pile 
driving, operations will be delayed until the animals move outside the 
zones in order to avoid take exceedence. Piling will resume only after 
the marine mammal is determined to have moved outside the safety or 
harassment zone by a qualified observer or after 15 minutes have 
elapsed since the last sighting of the marine mammal within the safety 
zone.

(4) For other in-water heavy machinery operations other than pile 
driving (e.g., dredging), operations will cease if a marine mammal 
comes within 50 m, to eliminate potential for injury from a working 
vessel.

Marine Mammal Monitoring

    Monitoring for marine mammals will take place concurrent with all 
pile driving activities. Two contractual observers will be placed at 
two localities at the Port and will implement shut down/delay 
procedures when applicable. These observers will be construction 
contractors but will have no other construction related tasks while 
conducting monitoring. Each observer will be properly trained in marine 
mammal species detection, identification and distance estimation, will 
be equipped with binoculars, and will be located at elevated platforms 
to increase sightability range. Reports will include all beluga 
sightings (e.g., group size, location, behavior, time of day, etc) and 
note if shut down/delay occurred.
    Prior to the start of seasonal pile driving activities, the Port 
will require construction supervisors and crews, the marine mammal 
monitoring team, the acoustical monitoring team, and all project 
managers to attend a briefing on responsibilities of each party, 
defining chains of command, discussing communication procedures, 
providing overview of monitoring purposes, and reviewing operational 
procedures regarding belugas.
    In addition to Port monitoring, but not required by NMFS, an 
independent beluga monitoring team from Alaska Pacific University or 
LGL will be surveying for marine mammals at locations outside of the 
Port, most likely around Cairn Point. These observers will be monitor 
for belugas 8 hours per day/ 4 days per week. This study is independent 
of the Project but will work in collaboration with the Port to 
communicate any presence of belugas or other marine mammals in the area 
during pile driving.

Acoustic Monitoring

    As mandated by the Army Corps of Engineers permit, a beluga 
monitoring team will report on the frequency at which beluga whales are 
present in the project footprint, characterize habitat use and behavior 
near the Port correlated with construction activities, sound levels and 
distance attenuation related to Port background noise and expansion 
activities, and characterize and assess the impacts of received noise 
on beluga behavior and movements. This will be accomplished from land 
based and/or vessel based, and passive acoustic monitoring. The Port 
will install hydrophones (or employ other effective methodologies) 
necessary to detect and localize passing whales and to determine the 
proportion of belugas missed from visual surveys. The Port will measure 
and evaluate construction and operationally generated noise introduced 
in Knik Arm from the Project. They will also develop a ``Sound Index'' 
to accurately represent noise levels associated with Port operations 
and construction activities, which must specifically include noise 
levels generated from pile driving, dockside activities, vessel traffic 
in the channel, dredging, and docking activities. The evaluation will 
characterize current baseline

[[Page 14453]]

operational noise levels at the Port and develop an engineering report 
that identifies structural and operational noise reduction measures, if 
necessary, to minimize the baseline operational noise levels at the 
expanded port to the maximum extent practicable. The Port Sound Index 
will be combined with the beluga whale monitoring program to correlate 
construction and operationally generated noise exposures with beluga 
whale presence, absence, and any altered behavior observed during 
construction and operations (i.e., a dose-response analysis). NMFS is 
considering requiring reports monthly the first year of construction 
(i.e., the IHA period) to more closely examine behavioral reactions. An 
annual review of beluga observations and noise exposure data will also 
be provided to NMFS no later than 1 Feb. The annual review will also 
identify relevant technological advances in sound attenuation. The Port 
will employ practicable noise minimization measures identified in the 
annual reports for subsequent Port construction activities.

Reporting for 2008

    For the 2008 IHA term, monthly reports will be required from the 
Port regarding mitigation implementation, acoustic propagation 
measurements, and beluga monitoring. The acoustic and beluga monitoring 
plans are available at www.nmfs.noaa.gov/pr. These plans may be refined 
by NMFS prior to issuance of the IHA. A final report will be submitted 
to NMFS no later than 90 days after construction activities cease for 
the season.

Endangered Species Act

    A Section 7 consultation under the ESA is not required as no 
endangered or threatened species are expected to be within the Project 
area and therefore will not be affected by the proposed action. 
However, Cook Inlet beluga whales are a proposed species for listing 
under the ESA (72 FR 19854, April 20, 2007). A final decision on this 
listing is pending. The ESA provides some protection for species which 
are proposed, but not yet listed, to be threatened or endangered. 
Section 7(a)(4) requires an action agency to ``confer'' with NMFS when 
its actions are likely to jeopardize the continued existence of a 
species proposed for listing. Conference may result in the preparation 
of a conference report and opinion. The Port and the Corps have 
determined that the Project is not likely to jeopardize the Cook Inlet 
beluga, and that conference with NMFS pursuant to the ESA, was not 
necessary. NMFS concurs with this decision and has not recommend 
conference on this action.

National Environmental Policy Act

    The Port and the Maritime Administration prepared an Environmental 
Assessment (EA) in 2004, which analyzed the anticipated social, 
economic, and environmental effects of the Project. In 2007, the Corps 
prepared a similar document for its issuance of Permit POA-2003-502-N 
which authorizes the Port expansion project. However, NMFS has 
determined that additional NEPA analysis is necessary to adequately 
determine whether significant environmental impacts could result from 
issuance of the proposed IHA; therefore an EA will be prepared. The EA 
will be available on the NMFS website upon completion.

Preliminary Determinations

    NMFS has preliminarily determined that the total taking by the 
proposed activity will have a negligible impact on the affected species 
and stocks of marine mammals and will not have an unmitigable adverse 
impact on availability of those species or stocks of marine mammals 
intended for subsistence uses. Proposed mitigation, monitoring, and 
reporting will ensure that Project related activities will result in 
the least practicable adverse impact on the affected species of marine 
mammals and their habitat. Furthermore, there will be no adverse impact 
on the availability of marine mammals for subsistence uses. The taking 
of marine mammals associated with Port construction is unlikely to 
cause injury (Level A harassment) or mortality due to proposed 
mitigation measures that will be in place such as the use of marine 
mammal observers, mandatory shut down zones, and tidally restricted 
pile driving. Takes are expected to be limited to Level B harassment. 
Expected reactions include behavioral changes such as decreased use of 
the action area, fleeing the area if present before construction 
activities begin, and altered diving, foraging, movement and 
vocalization patterns.

Request for Comments

    NMFS requests comments on its proposal to issue a one-year IHA to 
allow the taking of marine mammals, specifically beluga whales, 
incidental to Project related pile driving activities for the 2008 
construction season (April-October). NMFS also requests, in accordance 
with 50 CFR part 216 subpart I, interested persons to submit comments, 
suggestions, information, and suggestions concerning the request and 
the possible structure and content of the regulations to govern the 
taking for a 5-year period of Project operations. NMFS specifically 
solicits comments addressing (but not limited to) the following topics: 
details regarding the habitat use of belugas near the Port; additional 
or alternative proposed mitigation measures; information addressing the 
potential effect of repeated exposure to loud noises or other stressful 
stimuli on both population health and mother/calf interactions; 
information regarding cetacean habituation to acoustic stimuli, and 
information on potential habitat impacts as it relates to marine 
mammals. Prior to submitting comments, NMFS recommends reviewing the 
Port's application as that document contains information necessary to 
respond appropriately to this action. If NMFS proposes regulations to 
allow this take, the public will also be provided with a comment period 
within which to submit comments on the proposed rule.

    Dated: March 12, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-5431 Filed 3-17-08; 8:45 am]
BILLING CODE 3510-22-S