[Federal Register Volume 73, Number 114 (Thursday, June 12, 2008)]
[Notices]
[Pages 33400-33411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13264]



[[Page 33400]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI16


Small Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Construction of a Liquefied Natural 
Gas Facility off Massachusetts

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

ACTION:  Notice; issuance of incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
incidental harassment authorization (IHA) to Neptune LNG, L.L.C. 
(Neptune) to take, by harassment, small numbers of several species of 
marine mammals incidental to construction of an offshore liquefied 
natural gas (LNG) facility in Massachusetts Bay for a period of 1 year.

DATES: Effective July 1, 2008, through June 30, 2009.

ADDRESSES: A copy of the IHA and application are available by writing 
to P. 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 or by 
telephoning the contact listed here. A copy of the application 
containing a list of references used in this document may be obtained 
by writing to this address, by telephoning the contact listed here (FOR 
FURTHER INFORMATION CONTACT) or online 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.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Neptune LNG 
Deepwater Port License Application is available for viewing at http://dms.dot.gov under the docket number 22611.

FOR FURTHER INFORMATION CONTACT: Candace Nachman or Ken Hollingshead, 
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 to allow, upon request, the 
incidental, but not intentional taking of \TM\all numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings may be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses, 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.
    Section 101(a)(5)(D) of the MMPA establishes an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. Except 
for certain categories of 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-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On December 27, 2007, NMFS received an application from Neptune 
requesting 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 of an offshore LNG facility in Massachusetts 
Bay.

Description of the Project

    On March 23, 2007, Neptune received a license to own, construct, 
and operate a deepwater port (Port or Neptune Port) from MARAD. The 
Port, which will be located in Massachusetts Bay, will consist of a 
submerged buoy system to dock specifically designed LNG carriers 
approximately 22 mi (35 km) northeast of Boston, Massachusetts, in 
Federal waters approximately 260 ft (79 m) in depth. The two buoys will 
be separated by a distance of approximately 2.1 mi (3.4 km).
    Neptune will be capable of mooring LNG shuttle and regasification 
vessels (SRVs) with a capacity of approximately 140,000 cubic meters 
(m\3\). Up to two SRVs will temporarily moor at the proposed deepwater 
port by means of a submerged unloading buoy system. Two separate buoys 
will allow natural gas to be delivered in a continuous flow, without 
interruption, by having a brief overlap between arriving and departing 
SRVs. The annual average throughput capacity will be around 500 million 
standard cubic feet per day (mmscfd) with an initial throughput of 400 
mmscfd, and a peak capacity of approximately 750 mmscfd.
    The SRVs will be equipped to store, transport, and vaporize LNG, 
and to odorize, meter and send out natural gas by means of two 16-in 
(40.6-cm) flexible risers and one 24-in (61-cm) subsea flowline. These 
risers and flowline will lead to a proposed 24-in (61-cm) gas 
transmission pipeline connecting the deepwater port to the existing 30-
in (76.2-cm) Algonquin Hubline\TM\ (Hubline\TM\) located approximately 
9 mi (14.5 km) west of the proposed deepwater port location. The Port 
will have an expected operating life of approximately 20 years. Figure 
1-1 of Neptune's application shows an isometric view of the Port.
    On February 15, 2005, Neptune submitted an application to the USCG 
and MARAD under the Deepwater Port Act for all Federal authorizations 
required for a license to own, construct, and operate a deepwater port 
for the import and regasification of LNG off the coast of 
Massachusetts. Because, as described later in this document, there is a 
potential for marine mammals to be taken by haras\TM\ent, incidental to 
construction of the facility and its pipeline, Neptune has applied for 
a 1-year IHA for activities commencing in July 2008. Detailed 
information on these activities can be found in the MARAD/USCG Final 
EIS on the Neptune Project (see ADDRESSES for availability).

[[Page 33401]]

Detailed information on the LNG facility's pipeline and port 
construction and noise generated from these activities was included in 
NMFS' Notice of Proposed IHA, which published in the Federal Register 
on February 19, 2008 (73 FR 9092). 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 February 19, 
2008 (73 FR 9092). During the 30-day public comment period, NMFS 
received the following comments from the Marine Mammal Commission 
(MMC), the Whale Center of New England (WCNE), Nahant Safer Waters in 
Massachusetts, Inc. (SWIM), and one private citizen.
    Comment 1: The MMC recommends issuance of the IHA provided that all 
mitigation, monitoring, and reporting measures identified in the 
proposed IHA Federal Register notice (73 FR 9092, February 19, 2008) 
are included in the authorization.
    Response: NMFS agrees with the MMC's recommendation. All measures 
proposed in the initial Federal Register notice are included in the 
authorization.
    Comment 2: The MMC recommends that the beginning of construction 
activities in 2009 be postponed until June 1 instead of beginning on 
May 1. The MMC notes that NMFS' proposed vessel speed limits in the 
area from January 1 to May 15, to reduce the likelihood of vessel 
collisions with the North Atlantic right whale, indicate that right 
whales may be present into the middle of May. Delaying construction 
until June 1 will allow a two-week buffer to increase the likelihood 
that all right whales have left the area.
    Response: The authorization requires Neptune to employ both a 
visual monitoring program and a passive acoustic monitoring (PAM) 
program for detection of North Atlantic right whales and other marine 
mammals in the vicinity of construction activities. Both of these 
programs were developed in accordance with recommendations made by the 
NMFS Northeast Region during its section 7 consultation under the 
Endangered Species Act (ESA) and by the Stellwagen Bank National Marine 
Sanctuary (SBNMS). All construction activities will be conducted under 
a level of heightened awareness if a North Atlantic right whale is 
acoustically detected by the PAM devices. Construction will cease if a 
whale is detected either visually within 500 yards (457 m) of 
construction activities or acoustically and will not resume until the 
animal is known to have left the area. Therefore, NMFS believes that 
the use of this dual monitoring program will reduce the potential for 
impacts to the North Atlantic right whale to the lowest level 
practicable, even with construction activities resuming on May 1, 2009.
    Comment 3: The MMC notes that construction activities producing 
loud noises could occur at night and under poor sighting conditions 
when visual detections of animals would be impaired. Even under good 
sighting conditions, observers are unlikely to see all whales or 
protected species in the immediate vicinity of the construction site. 
The MMC states that the use of PAM provides additional, but limited, 
means of detection of vocalizing marine mammals in the vicinity. The 
MMC recommends that a real-time passive acoustic array be used at all 
times during the construction period as a supplement to visual 
monitoring efforts.
    Response: NFMS agrees with the MMC that PAM should 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 
Prevention, Monitoring, and Mitigation Plan for the Construction Phase: 
Neptune Project, Massachusetts Bay (Neptune, 2008). The PAM primarily 
serves as an early warning and supplemental measure for marine mammal 
visual monitoring provided by two marine mammal observers (MMOs) on 
each construction vessel. The PAM will be a near real-time system. 
Neptune will equip MMOs with night vision devices for marine mammal 
monitoring during low-light hours.
    Comment 4: The MMC and WCNE both concur with NMFS' finding in the 
proposed IHA Federal Register notice that the take numbers requested in 
Neptune's application seem a bit low (73 FR 9092, February 19, 2008). 
Therefore, the MMC recommends that NMFS reanalyze marine mammal density 
in the area, the area to be ensonified to 160 dB, and the number of 
days that construction activities will occur to derive more accurate 
estimates of the numbers of marine mammals likely to be taken 
incidental to construction.
    Response: NMFS recalculated the cetacean density data and estimated 
take number based on the compilation of a large number of databases 
published by the National Centers for Coastal Ocean Science (NCCOS, 
2006). The recalculated density numbers were then multiplied by the 
area to be ensonified to 120 dB, which is used as the threshold for 
estimating the onset of Level B (behavioral) haras\TM\ent for 
continuous sounds. The number of days that construction activities will 
occur were also included. Please refer to the ``Estimates of Take by 
Harassment'' section found later in this document for a detailed 
description of how the new take numbers were calculated.
    Comment 5: The WCNE questions why only acoustic models were used to 
determine the zone of influence (ZOI) created by construction 
activities for this project. Referring to the Northeast Gateway LNG 
Port (NEG or NEG Port), the WCNE states that there was a significant 
amount of data gathered on the sounds created by, and the zone of 
impact from that project, through the use of required passive acoustic 
arrays. The WCNE suggests that these data should be analyzed and made 
available to test whether the ZOI suggested by Neptune's acoustic 
models are supported. Until such actual results are available and 
analyzed, the WCNE suggests that no action should take place on the 
current permit application.
    Response: The acoustic array in place in Massachusetts Bay near the 
NEG Port and the site of construction for Neptune has not been used for 
sound source verification of vessel noise and other acoustic activities 
that occurred last year during construction of the NEG Port. Similarly, 
they were not used to validate the ZOI around the NEG Port construction 
site. NMFS has determined that in the absence of any in-water 
measurements, acoustic models must be used to determine the ZOI. The 
modeling conducted very early in the planning stages for the project, 
before a company had been contracted to perform the Neptune Port 
construction, most likely overestimates the 120-dB ZOI. In a letter 
submitted by Neptune to NMFS on May 28, 2008, Neptune indicated that 
certain vessels were used in the modeling as worst case examples. The 
pipeline construction company now under contract to construct the 
Neptune Port will not be using a vessel such as the Britoil 51, which 
was used in the modeling and shown to have a broadband source level of 
199.7 dB re 1 microPa at 1m. Construction will involve vessels closer 
in characteristics to other vessels that were modeled, creating an area 
of 120-dB ensonification of approximately 52 km\2\ (15 nm\2\), not the 
maximum of approximately 161 km\2\ (47 nm\2\) predicted in the original 
modeling.
    Comment 6: The WCNE states that in their research efforts on 
northern Stellwagen Bank in 2006, they identified over 250 individual 
humpback whales, including 33 mother-calf pairs using standard photo-
identification techniques, and even that number is considered an 
underestimate by the WCNE. Similar numbers, with

[[Page 33402]]

similar effort, were identified by the WCNE in 2007. 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 or to other related activities which could 
disturb them.
    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 has been recalculated to be 52 
km\2\ (15 nm\2\) with a vessel's dynamic positioning thrusters being 
operated at the surface. This maximum ZOI would only occur inside the 
SBNMS' western boundary, in an area that is still northwest of 
Stellwagen Bank. In addition, between the proposed project are and 
Stellwagen Bank, there is a steep drop off from the 50-m isobath where 
construction noise would not propagate as far when compared to at the 
surface, where the maximum ZOI could occur. Therefore, the 
identification of 250 individual humpback whales in the northern 
Stellwagen Bank by the WCNE does not mean that individuals on the Bank 
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 
Sanctuary's boundaries.
    Comment 7: 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 more likely to be up to 
400 individuals each of humpback, fin, and minke whales, each of which 
may be taken multiple times on multiple days (no calculation provided).
    Response: NMFS cannot evaluate whether the WCNE's estimated take 
numbers are scientifically supported because the WCNE did not provide 
any valid calculation indicating how these numbers were assessed. The 
photo-identification of 250 humpback whales (including 33 mother-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, 
1980-1987,'' was published in the Fishery Bulletin in 1990. While the 
study described the use of photo-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 847 whales (Waring et al., 2007). The WCNE's 
estimated annual take of 400 humpback whales (47 percent of the 
population) within a maximum 120 dB re 1 microPa ZOI of 52 km\2\ (15 
nm\2\) is not scientifically supportable. Likewise, the WCNE's 
estimated annual take numbers of 400 fin whales, which accounts for 18 
percent of the Western North Atlantic population of 2,269 whales 
(Waring et al., 2007); and 400 minke whales, which is 12 percent of the 
Canadian East Coast population of 3,312 whales (which are mostly 
sighted off Nova Scotia and New Brunswick, Canada; Waring et al., 
2007); are not good estimates because no valid calculations were 
provided on how these numbers were derived.
    Comment 8: Although the data on the number of right whales that use 
the area, especially during the winter and early spring, are limited, 
the WCNE indicates that the data they do have suggests the project site 
is one of the more frequently used sites within their study area, and 
acoustic detections of whales in the past two years have been numerous. 
The WCNE believes it is likely that whales which use Jeffreys Ledge in 
the fall and Cape Cod Bay (CCB) in the spring transit through the 
project site. In fall 2007, the WCNE identified over 70 right whales on 
Jeffreys Ledge in October through December; over 100 individuals were 
seen in CCB in spring 2007. Hence, the WCNE states that an appropriate 
estimate of North Atlantic right whales to be harassed by the proposed 
project would be 100 individuals annually; although if managing 
conservatively, the actual number might be somewhat higher (no 
references provided).
    Response: Data sets 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, indicate that right whales spend most of their time across the 
southern Gulf of Maine in CCB 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-m (328-ft) isobath of northern 
Georges Bank and Georges Basin. The data collected by the WCNE focused 
on CCB, which is 30 40 mi (48 64 km) southeast of the proposed project 
area, and Jeffreys Ledge, which is approximately 12-14 mi (19-22.5 km) 
northeast of the proposed project area at its southwestern most point. 
Both areas have different oceanographic features and ecological 
characteristics and are more important habitat for right whales than 
the project area. In addition, Weinrich et al. (2006), in their report 
on the distribution of baleen whales in the Neptune proposed LNG 
project area, state:
    North Atlantic right whales are sporadic visitors to the study 
area [Neptune project area] during the April to November period. 
Right whales typically aggregate in [CCB] 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). Recent work on Jeffreys Ledge, immediately to the north of 
Cape Ann, has indicated that significant numbers of right whales may 
use the area as a feeding habitat from October through at least 
December (Weinrich et al., 2000; Weinrich and Sardi, 2004; 
Unpublished data).
    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, especially during the months for which 
construction activities are planned. Weekly construction reports 
submitted by NEG indicated only one visual sighting of a North Atlantic 
right whale in the NEG project area (which is just south of the Neptune 
Port) in the month of December. The authorization issued to Neptune 
does not allow for any construction activities from December 1 through 
April 30. An acoustic array near the NEG Port construction site 
detected 11 North Atlantic right whale calls in September, two in 
October, and two in December. Barring weather delays, construction 
activities at the Neptune Port in 2008 should be completed in early 
October. Therefore, NMFS does not believe that the WCNE's estimated 
annual take of 100 North Atlantic right whales by the proposed project 
is reasonable, especially given that the WCNE did not provide the 
calculation

[[Page 33403]]

regarding how this take number was assessed.
    Comment 9: The WCNE points out that special attention should be 
given to project activities occurring in the fall. This is a 
particularly sensitive time for endangered humpback and fin whales, 
which have been exploiting a new prey source annually since 2000, 
within the proposed project area, as supported by the studies conducted 
by Weinrich and Sardi (2005) and as noted in the Neptune LNG Final EIS 
(USCG and MARAD, 2006). 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. The WCNE notes that while they did see both 
species feeding in the NEG construction area in fall 2007, there were 
fewer whales, and those whales were resident for shorter periods, than 
in the previous three years. Since the WCNE does not have annual 
measurements of prey biomass, they state that it is possible that this 
is merely related to annual fluctuations in food availability.
    Response: NMFS reviewed the Weinrich and Sardi (2005) report on the 
distribution of baleen whales in the waters surrounding the Neptune LNG 
project, but we did not find that the report contained 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 
Massachusetts Bay, the west terminal portion of the Boston Traffic 
Separation Scheme (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 is a potential 
for take of small numbers 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 fall months for 
humpback and fin whales, as strict monitoring and mitigation measures, 
described in the ``Marine Mammal Mitigation, Monitoring, and 
Reporting'' section later in this document, will be implemented to keep 
the impacts to the lowest level practicable.
    Comment 10: The WCNE states that whales would be harassed not just 
by exposure to sound sources of over 120 dB re 1 microPa, but they may 
also be disturbed by multiple boats in a limited area. The WCNE cites 
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 states that in its 
comments regarding the NEG IHA application in 2007, they recommended 
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. The WCNE notes that abundance was lower, and they 
believe that the full impact of the project cannot be assessed until 
the underlying reasons for the lower whale use can be determined.
    Response: It is true that marine mammals may be 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 construction of a deepwater LNG facility would only increase vessel 
traffic in the vicinity 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-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. No blasting will occur during Port construction.
    The weekly construction reports submitted by NEG to NMFS during its 
construction phase do not indicate any large or long-term reactions of 
marine mammals to the presence of the construction or support vessels. 
When animals were detected within the ZOI, mitigation measures to 
reduce the ZOI were implemented immediately. The IHA is issued for a 
duration of 1 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 authorizations.
    Comment 11: The WCNE notes that Neptune's application falsely 
states, ``Pinnipeds are unlikely to be present during summer and will 
not be affected.'' The WCNE states that they have many sighting records 
of harbor seals at sea in the project area during the summer months. 
Hence, they need to be included in any IHA request for the area during 
summer.
    Response: NMFS concurs with the WCNE's assertion that harbor seals 
should be included in the take authorization. Harbor seals have been 
added to the IHA (see the ``Marine Mammals Affected by the Activity'' 
and ``Estimates of Take by Harassment'' sections later in the 
document).
    Comment 12: The WCNE requests that Neptune withdraw the IHA 
application and resubmit it with more realistic numbers, such as those 
posed by the WCNE above (i.e., 400 humpback, 400 fin, 400 minke, and 
100 North Atlantic right whales, all of which may be taken multiple 
times over multiple days). They also suggest that Neptune be required 
to obtain a Letter of Authorization (LOA), rather than an IHA. The WCNE 
feels that the take levels they posed are more realistic, and coupled 
with the possibility of displacing animals from preferred food sources, 
seem to them to be ``well above'' the levels of ``incidental 
harassment'' for which the permit category is intended.
    Response: NMFS has revised the incidental harassment take estimates 
for project construction. The development of these numbers is explained 
in the ``Estimates of Take by Harassment'' section found later in this 
document. Also, as stated in responses above, NMFS does not believe the 
WCNE's estimated take numbers are scientifically supported, especially 
given that the WCNE did not provide any valid calculations indicating 
how these numbers were assessed. NMFS has defined ``incidental 
harassment'' in 50 CFR 216.103 as ''...an accidental taking. This does 
not mean that the taking is unexpected, but rather it includes those 
takings that are infrequent, unavoidable, or accidental.'' NMFS 
believes that incidental harassment of marine mammals near the Neptune 
Port construction site will be infrequent.
    Comment 13: The WCNE states that they would also be amenable to 
NMFS issuing the IHA as requested by Neptune in their application to 
allow

[[Page 33404]]

the annual take of two North Atlantic right whales, one minke whale, 
two fin whales, three humpback whales, and the other take levels 
requested in the application. The WCNE states, ``If this option is 
taken, we would strongly urge that the permit include an explicit 
statement of the maximum number of annual violations that can take 
place before ALL port construction or operations must cease ANY 
activity which is likely to harass a marine mammal, either by exposing 
to sounds above 120 dB or by resulting in a behavioral disturbance, 
including displacement.'' In order to determine when such a violation 
occurs, the WCNE requests that Neptune produce real-time, daily plots 
of sound levels as detected by the acoustic arrays, which can be 
plotted against independent sightings of marine mammals, as well as all 
of the acoustic detections of marine mammals by Neptune's array.
    Response: The numbers cited by the WCNE from the Neptune 
application were requests for Port operations, not construction. The 
requested take numbers for construction in Neptune's application are 
slightly higher (but only by a few individuals for each species). In 
its proposed IHA Federal Register notice (73 FR 9092, February 19, 
2008), NMFS indicated that the take levels requested by Neptune in its 
application for construction were too low. NMFS reevaluated species 
density, the area to be ensonified to 120 dB, and number of days of 
construction to develop more realistic take levels (see the ``Estimates 
of Take by Harassm>ent'' section found later in this document).
    The taking of marine mammals in a manner not described in the IHA 
is strictly prohibited. Any violation of the IHA is subject to 
prosecution; therefore, NMFS does not include ``a maximum number'' of 
violations that may be committed before enforcement action is taken 
against the holder. To this end, the IHA issued to Neptune contains the 
following conditions:
    The taking, by incidental Level B harassment only, is limited to 
the species listed [in the IHA]. The taking by Level A harassment, 
injury, or death of these species, or the taking of any other 
species of marine mammal is prohibited and may result in the 
modification, suspension, or revocation of this Authorization; and
    Any person who violates any provision of this IHA is subject to 
civil and criminal penalties, permit sanctions, and forfeiture as 
authorized under the MMPA.
    Comment 14: The WCNE urges that there be an explicit stipulation 
that blasting activities are specifically not covered by the IHA, and 
such activities would require applying for a new permit and a new 
public review process.
    Response: NMFS concurs with the WCNE. The IHA does not authorize 
blasting to be used for port construction at the Neptune site. If, 
during the course of the construction, an unexpected need for blasting 
arises, the blasting cannot take place until a blasting plan is 
submitted to the Federal Energy Regulatory Commission (FERC) and a 
Blasting Mitigation Plan prepared in consultation with NOAA for 
submittal to, and approval by, FERC. A new application would need to be 
submitted to NMFS and reviewed in the same manner as the original IHA 
application.
    Comment 15: SWIM notes that the endangered whales that frequent the 
waters of Massachusetts Bay are utterly dependent upon their hearing 
and their acoustic ``sonar'' for navigation, finding food, and 
survival, and that these animals do not remain wholly in the bounds of 
the SBNMS. SWIM endorses the comments made by the WCNE.
    Response: NMFS analyzed the distribution of endangered whales in 
Massachusetts Bay and determined that \TM\all numbers of these 
populations may be impacted by port construction activities but also 
determined that the activities would have a negligible impact. Several 
mitigation and monitoring measures are required by the IHA to reduce 
the impact to the lowest level practicable (see the ``Marine Mammal 
Mitigation, Monitoring, and Reporting'' section later in this 
document). Responses to the comments submitted by the WCNE have been 
provided previously.
    Comment 16: One commenter opposed the issuance of permits that 
allows the killing of marine mammals.
    Response: NMFS does not believe that the authorized activities will 
result in the death (or injury) of any marine mammals, nor does this 
IHA authorize any marine mammal mortality (or injury).

Marine Mammals Affected by the Activity

    Marine mammal species that could occur within the Neptune facility 
impact area include several species of cetaceans and pinnipeds: North 
Atlantic right, blue, fin, sei, minke, humpback, killer, long-finned 
pilot, and sperm whales, Atlantic white-beaked, Atlantic white-sided, 
bottlenose, common, Risso's, and striped dolphins, harbor porpoise, and 
gray, harbor, harp, and hooded seals. Table 3-1 in the IHA application 
outlines the marine mammal species that occur in Massachusetts Bay and 
the likelihood of occurrence of each species. Information on those 
species that may be impacted by this activity are discussed in detail 
in the MARAD/USCG Final EIS on the Neptune LNG proposal. Please refer 
to that document for more information on these species and potential 
impacts from construction of this LNG facility. In addition, general 
information on these marine mammal species can also be found in the 
NMFS U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments 
(Waring et al., 2007), which is available at: http://www.nefsc.noaa.gov/nefsc/publications/tm/tm205/. An updated summary on 
several commonly sighted marine mammal species distribution and 
abundance in the vicinity of the action area is provided below.

Humpback Whale

    The highest abundance for humpback whales was distributed primarily 
along a relatively narrow corridor following the 100-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 occurrence along the 
slope waters (between the 40- and 140-m, 131- and 459-ft, isobaths) off 
Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between 
the 50- and 200-m (164- and 656-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 
(100-200 m, 328-656 ft) between Platts Bank and Jeffreys Ledge, the 
steep slopes (between the 30- and 160-m isobaths, 98- and 525-ft 
isobaths) of Phelps and Davis Bank north of the Great South Channel 
towards Cape Cod, and between the 50- and 100-m (164- and 328-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-use areas 
followed the 100-m (328 ft) isobath along the northern edge of Georges 
Bank (between the 50- and 200-m, 164- and 656-ft,

[[Page 33405]]

isobaths), and northward from the Great South Channel (between the 50- 
and 160-m, 164- and 525-ft, isobaths). Waters around Cashes Ledge, 
Platts Bank, and Jeffreys Ledge are all high-use areas in the summer 
months. Stellwagen Bank was a high-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 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- to 160-m, 328- to 525-ft, isobaths), as well as Georges Basin and 
northern Georges Bank.

Minke Whale

    Like other piscivorus baleen whales, highest abundance for minke 
whale was strongly associated with regions between the 50- and 100-m 
(164- and 328-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 SBNMS in all seasons, with highest abundance estimated for 
the shallow waters (approximately 40 m, 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 were generally distributed widely 
across the southern Gulf of Maine in spring with highest abundance 
located over the deeper waters (100- to 160-m, or 328- to 525-ft, 
isobaths) on the northern edge of the Great South Channel and deep 
waters (100-300 m, 328-984 ft) parallel to the 100-m (328-ft) isobath 
of northern Georges Bank and Georges Basin. High abundance was also 
found in the shallowest waters (< 30 m, <98 ft) of CCB, over Platts 
Bank and around Cashes Ledge. Lower relative abundance was estimated 
over deep-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- and 200-
m, 525- and 656-ft, isobaths) and north of Georges Bank (Rogers, 
Crowell, and Georges Basins). Highest abundance was found north of the 
100-m (328-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-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, CCB, Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the 
main high-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 occurred along the southern edge of the Bank.

Pilot Whale

    Pilot whales arrived in the southern Gulf of Maine in spring, with 
highest abundance in the region occurring in summer and fall. Summer 
high-use areas included the slopes of northern Georges Bank along the 
100-m (328-ft) isobath and pilot whales made extensive use of the 
shoals of Georges Bank (<60 m, <97 ft, depth). Similarly, fall 
distributions were also primarily along the slopes of northern Georges 
Bank, but with high-use areas also occurring in the deep-water basins 
and ledges of the south-central Gulf of Maine. Within SBNMS, pilot 
whales were sighted infrequently and were most often estimated at low 
density. CCB and southern SBNMS were the only locations with pilot 
whale sightings for winter.

Atlantic White-sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins were 
widespread throughout the southern Gulf of Maine, with the high-use 
areas widely located on either side of the 100-m (328-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-use areas existed 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 was a shift and expansion of habitat 
toward the east and northeast. High-use areas were identified along 
most of the northern edge of Georges Bank between the 50- and 200-m 
(164- and 656-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-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- and low-use areas. 
The baleen whales, whether piscivorus or planktivorous, were more 
concentrated than the dolphins and porpoises. 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 the year. Species richness maps indicated 
that high-use areas for individual whales and dolphin species co-
occurred, resulting in similar patterns of species richness primarily 
along the southern portion of the 100-m (328-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.

Killer Whale, Common Dolphin, Bottlenose Dolphin, and Harbor Porpoise

    Although these four species are some of the most widely distributed 
small cetacean species in the world (Jefferson et al., 1993), they were 
not commonly seen in the vicinity of the project area in Massachusetts 
Bay (Wiley et al., 1994; NCCOS, 2006; Northeast Gateway Marine Mammal 
Monitoring Weekly Reports, 2007).

Harbor Seal and Gray Seal

    In the U.S. western North Atlantic, both harbor and gray seals were 
usually found from the coast of Maine south to southern New England and 
New York (Waring et al., 2007).

[[Page 33406]]

    Along the southern New England and New York coasts, harbor seals 
occur seasonally from September through late May (Schneider and Payne, 
1983). In recent years, their seasonal interval along the southern New 
England to New Jersey coasts had increased (deHart, 2002). In U.S. 
waters, harbor seal breeding and pupping normally occur in waters north 
of the New Hampshire/Maine border, although breeding has occurred as 
far south as Cape Cod in the early part of the 20th century (Temte et 
al., 1991; Katona et al., 1993).
    Although gray seals were often seen off the coast from New England 
to Labrador, within U.S. waters, only \TM\all numbers of gray seals 
have been observed pupping on several isolated islands along the Maine 
coast and in Nantucket-Vineyard Sound, Massachusetts (Katona et al., 
1993; Rough, 1995). In the late 1990s, a year-round breeding population 
of approximately 400 gray seals was documented on outer Cape Cod and 
Muskeget Island (Waring et al., 2007).

Potential Effects on Marine Mammals

    The effects of sound on marine mammals are highly variable and can 
be categorized as follows (based on Richardson et al., 1995): (1) The 
sound 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 sound may be 
audible but not strong enough to elicit any overt behavioral response; 
(3) the sound 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 sound 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 sound 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 sound, it is possible that there could be 
sound-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 tissue associated with organs 
vital for hearing, sound production, respiration, and other functions. 
This trauma may include minor to severe hemorrhage.
    Sound from Port and pipeline construction will cause some possible 
disturbance to small numbers of cetaceans and pinnipeds. The 
installation of the suction piles will produce only low levels of sound 
during the construction period and will not increase the numbers of 
animals affected. Modeling results indicate that noise levels would be 
below 90 dB re 1 microPa within 0.2 mi (0.3 km) of the source.
    During construction of the Port and pipeline, underwater sound 
levels will be temporarily elevated. These elevated sound levels may 
cause some species to temporarily disperse from or avoid construction 
areas, but they are expected to return shortly after construction is 
completed.
    The likelihood of a vessel strike of a marine mammal during pipe 
laying and trenching operations is low since equipment will be towed at 
very slow speeds (approximately 5 ft/min, 1.5 m/min). Any whales 
foraging near the bottom would be able to avoid collision or 
interaction with the equipment, and displacement would be temporary for 
the duration of the plow pass.
    Using conservative estimates of both marine mammal densities in the 
Project area and the size of the 120-dB ZOI, the calculated number of 
individual marine mammals for each species that could potentially be 
harassed annually is small. NMFS concluded that there would be no 
biologically significant effects on the survival and reproduction of 
these species or stocks. Please see the ``Estimates of Take by 
Harassment'' section for the calculation of these numbers.

Estimates of Take by Harassment

    There are three general types of sounds recognized by NMFS: 
continuous, intermittent (or transient), and pulsive. Sounds of short 
duration that are produced intermittently or at regular intervals, such 
as sounds from pile driving, are classified as ``pulsed.'' Sounds 
produced for extended periods, such as sound from generators, are 
classified as ``continuous.'' Sounds from moving sources, such as 
ships, can be continuous, but for an animal at a given location, these 
sounds are ``transient'' (i.e., increasing in level as the ship 
approaches and then diminishing as it moves away). Construction of the 
Port will not cause pulsive sounds.
    The sound sources of potential concern are continuous and 
intermittent sound sources, including underwater noise generated during 
pipeline/flowline construction. Both continuous and intermittent noise 
sources are subject to NMFS' 120 dB re 1 microPa threshold for 
determining levels of continuous underwater noise that may result in 
the disturbance of marine mammals.
    Pipe-laying activities will generate continuous but transient sound 
and will likely result in variable sound levels during the construction 
period. Depending on water depth, the 120-dB contour during pipe-laying 
activities will extend from the source (the Port) out to 3.9 km (2.1 
nm) and cover an area of 52 km\2\ (15 nm\2\), and, for the flowline at 
the Port, the 120-dB contour will extend from the pipeline route out to 
4.2 km (2.3 nm) and cover an area of 49 km\2\ (14.3 nm\2\). (This 
information is different from what is contained in the March 23, 2007, 
application submitted by Neptune to NMFS. Neptune conducted its 
acoustic modeling in the very early planning stages of the project, 
when little information was available on the types of vessels that 
could potentially be used during construction. Since that time, a 
contractor has been hired to construct the Port. The vessels to be used 
during Neptune Port construction are estimated to generate broadband 
underwater source levels in the range of 180 dB re 1 microPa at 1m, 
similar to several of the vessels modeled by JASCO for Neptune and not 
in the range of 200 dB re 1 microPa at 1m, which was also included in 
the original modeling as a worst case scenario. For more information on 
the modeling conducted by JASCO, please refer to Appendix B of 
Neptune's application.) Installation of the suction pile anchors at the 
Port will produce only low levels of underwater sound, with no source

[[Page 33407]]

levels above 120-dB for continuous sound.
    The basis for Neptune's ``take'' estimate is the number of marine 
mammals that potentially could be exposed to sound levels in excess of 
120 dB. Typically, this is determined by applying the modeled ZOI 
(e.g., the area ensonified by the 120-dB contour) to the seasonal use 
(density) of the area by marine mammals and correcting for seasonal 
duration of sound-generating activities and estimated duration of 
individual activities when the maximum sound-generating activities are 
intermittent to occasional. Nearly all of the required information is 
readily available in the MARAD/USCG Final EIS, with the exception of 
marine mammal density estimates for the project area. In the case of 
data gaps, a conservative approach was used to ensure that the 
potential number of takes is not underestimated, as described next.
    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the project area from May to 
November. However, the occurrence and abundance of fin, humpback, and 
minke whales is not well documented within the project area. 
Nonetheless, NMFS used the data on cetacean distribution within 
Massachusetts Bay, such as those published by the NCCOS (2006), to 
determine potential takes of marine mammals in the vicinity of the 
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, 2001); and (2) the Manomet 
Bird Observatory (MBO) database, held at the NMFS 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: the 
Cetacean and Turtles Assessment Program, the Canadian Department of 
Fisheries and Oceans, the Provincetown Center for Coastal Studies, 
International Fund for Animal Welfare, NEFSC, New England Aquarium, 
Woods Hole Oceanographic Institution, and the University of Rhode 
Island. A total of 406,293 mi (653,725 km) 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-per-unit-effort (SPUE) was 
calculated for all cetacean species by month covering the southern Gulf 
of Maine study area, which also includes the project area (NCCOS, 
2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NEFSC to provide an assessment of the 
relative abundance and distribution of cetaceans, seabirds, and marine 
turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The 
CSAP program was designed to be completely compatible with 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 8,383 mi (5,210 km) 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 913,840 mi (567,955 km) of survey track for small 
cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) 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.
    Based on the comprehensiveness and total coverage of the NCCOS 
cetacean distribution and abundance study, NMFS calculated 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 project area is provided previously 
in this document, in the ``Marine Mammals Affected by the Activity'' 
section. For a detailed description and calculation of the cetacean 
abundance data and SPUE, refer to the NCCOS study (NCCOS, 2006). SPUE 
for the spring, summer, and fall seasons were analyzed, and the highest 
value SPUE for the season with the highest abundance of each species 
was used to determine relative abundance. Based on the data, the 
relative abundance of North Atlantic right, fin, humpback, minke, and 
pilot whales and Atlantic white-sided dolphins, as calculated by SPUE 
in number of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 
0.0059, 0.0407, and 0.1314 n/km, respectively.
    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 later in this document), as a 
conservative hypothetical strip width (W). Thus the area density (D) of 
these species in the project area can be obtained by the following 
formula:
    D = SPUE/2W
    Based on the calculation, the estimated take numbers by Level B 
haras\TM\ent for the 1-year IHA period for North Atlantic right, fin, 
humpback, minke, and pilot whales and Atlantic white-sided dolphins, 
within the 120-dB ZOI of the LNG Port facility area of approximately 52 
km\2\ (15 nm\2\) maximum ZOI, corrected for 50 percent underwater, are 
48, 57, 155, 35, 238, and 770, respectively. This estimate is based on 
an estimated 60 days of construction activities that will produce 
sounds of 120 dB or greater. These numbers represent approximately 15, 
2.5, 18, 1, 0.95, and 1.5 percent of the populations for these species 
in the western North Atlantic, respectively. There is no danger of 
injury, death, or hearing impairment from the exposure to these noise 
levels.
    In addition, harbor porpoises and harbor seals could also be taken 
by Level B harassment as a result of the deepwater LNG port project. 
The numbers of estimated take of these species are not available 
because they are rare in the project area. The minimum population 
estimates for the Gulf of Maine/Bay of Fundy stock of harbor porpoise 
and the western North Atlantic stock of harbor seal are 60,970 and 
91,546, respectively (Waring et al., 2007). Since Massachusetts Bay 
represents only a small fraction of the western North Atlantic basin 
where these animals occur, and these animals do not regularly 
congregate in the vicinity of the project area, NMFS believes that only 
relatively small numbers (less than two percent) of these marine mammal 
species would be potentially affected by the Neptune LNG deepwater 
project. From the most conservative estimates of both marine mammal 
densities in the project area and the size of the 120-dB ZOI, the 
maximum calculated number of individual marine mammals for each species 
that could potentially be harassed annually is small relative to the 
overall population sizes (18 percent for humpback whales and 15 percent 
for North Atlantic right whales and no more than 2.5 percent of any 
other species).

Potential Impacts on Habitat

    Construction of the Neptune Port and pipeline could affect marine 
mammal habitat in several ways: seafloor disturbance, increased 
turbidity, and generation of additional underwater sound in the area. 
Construction

[[Page 33408]]

activities will temporarily disturb 418 acres (1.7 km\2\) of seafloor 
(11 acres, 0.04 km\2\, at the Port, 85 acres, 0.3 km\2\, along the 
pipeline route, and an estimated 322 acres, 1.3 km\2\, due to anchoring 
of construction and installation vessels). Pipeline installation, 
including trenching, plowing, jetting, and backfill, is expected to 
generate the most disturbance of bottom sediments. Sediment transport 
modeling conducted by Neptune indicates that initial turbidity from 
pipeline installation could reach 100 milligrams per liter (mg/L) but 
will subside to 20 mg/L after 4 hours. Turbidity associated with the 
flowline and hot-tap will be considerably less and also will settle 
within hours of the work being completed. Resettled sediments also will 
constitute to seafloor disturbance. When re-suspended sediments 
resettle, they reduce growth, reproduction, and survival rates of 
benthic organisms, and in extreme cases, smother benthic flora and 
fauna. Plankton will not be affected by resettled sediment. The project 
area is largely devoid of vegetation and consists of sand, silt, clay, 
or mixtures of the three.
    Recovery of soft-bottom benthic communities impacted by project 
installation is expected to be similar to the recovery of the soft 
habitat associated with the construction of the HubLine\TM\ (Algonquin 
Gas Transmission L.L.C., 2004). Post-construction monitoring of the 
HubLine\TM\ indicates that areas that were bucket-dredged showed the 
least disturbance. Displaced organisms will return shortly after 
construction ceases, and disrupted communities will easily re-colonize 
from surrounding communities of similar organisms. Similarly, 
disturbance to hard-bottom pebble/cobble and piled boulder habitat is 
not expected to be significant. Some organisms could be temporarily 
displaced from existing shelter, thereby exposing them to increased 
predation, but the overall structural integrity of these areas will not 
be reduced (Auster and Langton, 1998).
    Short-term impacts on phytoplankton, zooplankton (holoplankton), 
and planktonic fish and shellfish eggs and larvae (meroplankton) will 
occur as a result of the project. Turbidity associated with Port and 
pipeline installation will result in temporary direct impacts on 
productivity, growth, and development. Phytoplankton and zooplankton 
abundance will be greatest during the summer construction schedule. 
Fish eggs and larvae are present in the project area throughout the 
year. Different species of fish and invertebrate eggs and larvae will 
be affected by the different construction schedules.
    The temporary disturbance of benthic habitat from trenching for and 
burial of the transmission pipeline will result in direct, minor, 
adverse impacts from the dispersion of fish from the area and the 
burying or crushing of shellfish. In the short-term, there will be a 
temporary, indirect, and beneficial impact from exposing benthic food 
sources. Seafloor disturbance could also occur as a result of 
resettling of suspended sediments during installation and construction 
of the Port and pipeline. Redeposited sediments will potentially reduce 
viability of demersal fish eggs and growth, reproduction, and survival 
rates of benthic shellfish. In extreme cases, resettled sediments could 
smother benthic shellfish, although many will be able to burrow 
vertically through resettled sediments.
    Construction activities will not create long-term habitat changes, 
and marine mammals displaced by the disturbance to the seafloor are 
expected to return soon after construction ceases. Marine mammals also 
could be indirectly affected to the extent benthic prey species are 
displaced or destroyed by construction activities. Affected species are 
expected to recover soon after construction ceases and will represent 
only a small fraction of food available to marine mammals in the area.

Marine Mammal Mitigation, Monitoring, and Reporting

Port Construction Minimization Measures

General
    Construction activities will be limited to a May through November 
time frame so that acoustic disturbance to the endangered North 
Atlantic right whale can largely be avoided.
    Construction activities must be suspended immediately and NMFS 
contacted if a dead or injured marine mammal is found in the vicinity 
of the project area, and the death or injury of the animal could be 
attributable to the LNG facility construction. Activities will not 
resume until review and approval is given by NMFS.
Visual Monitoring Program
    The Neptune Project will employ two MMOs on each lay barge, bury 
barge, and diving support vessel for visual shipboard surveys during 
construction activities. Qualifications for these individuals will 
include direct field experience on a marine mammal/sea turtle 
observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of 
Mexico. The observers (one primary, 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-approved MMO training and be 
approved in advance by NMFS after review of their qualifications.
    The MMOs will be on duty at all times when any vessel is moving and 
at selected periods when construction vessels are idle, including when 
other vessels move around the construction lay barge. The MMOs 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 mi (0.8 km) during clear weather 
conditions for the shipboard observers. The MMO will scan the ocean 
surface by eye for a minimum of 40 minutes every hour. All sightings 
will be recorded in marine mammal field sighting logs. Observations of 
marine mammals will be identified to species or the lowest taxonomic 
level possible and their relative position in relation to the vessel 
will be recorded. Night vision devices will be standard equipment for 
monitoring during low-light hours and at night.
    During all phases of construction, MMOs will be required to scan 
for and report all marine mammal sightings to the vessel captain. The 
captain will then alert the environmental coordinator that a marine 
mammal is near the construction area. The MMO will have the authority 
to bring the vessel to idle or to temporarily suspend operations if a 
baleen whale is seen within 0.6 mi (1 km) of the moving pipelay vessel 
or construction area. The MMO or environmental coordinator will 
determine whether there is a potential for harm to an individual animal 
and will be charged with responsibility for determining when it is safe 
to resume activity. A vessel will not increase power again until the 
marine mammal(s) leave(s) the area or has/have not been sighted for 30 
minutes. The vessel will then power up slowly.
    Construction and support vessels will be required to display lights 
when operating at night, and deck lights will be required to illuminate 
work areas. However, use of lights will be limited to areas where work 
is actually occurring, and all other lights will be extinguished.

[[Page 33409]]

Lights will be downshielded to illuminate the deck and will not 
intentionally illuminate surrounding waters, so as not to attract 
whales or their prey to the area.
Distance and Noise Level for Cut-Off
    (1) During construction, if a marine mammal is detected within 0.5 
mi (0.8 km) of a construction vessel, the vessel superintendent or on-
deck supervisor will be notified immediately. The vessel's crew will be 
put on a heightened state of alert. The marine mammal will be monitored 
constantly to determine if it is moving toward the construction area. 
The observer is required to report all North Atlantic right whale 
sightings to NMFS as soon as possible.
    (2) Construction vessels will cease any movement in the 
construction area if a marine mammal other than a right whale is 
sighted within or approaching to a distance of 100 yd (91 m) from the 
operating construction vessel. Construction vessels will cease any 
movement in the construction area if a right whale is sighted within or 
approaching to a distance of 500 yd (457 m) from the operating 
construction vessel. Vessels transiting the construction area such as 
pipe haul barge tugs will also be required to maintain these separation 
distances
    (3) Construction vessels will 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-calculated source level, based on the 
most conservative cylindrical model of acoustic energy spreading, is 
estimated to be 139 dB re 1 microPa.
    (4) 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 moving, all construction vessels will remain 0.6 mi (1 
km) away from right whales and all other whales to the extent possible 
and 100 yd (91 m) away from all other marine mammals to the extent 
physically feasible given navigational constraints as required by NMFS.
    (2) MMOs will direct a moving vessel to slow to idle if a baleen 
whale is seen within 0.6 mi (1 km) of the vessel.
    (3) All construction vessels 300 gross tons or greater will 
maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 
300 gross tons carrying supplies or crew between the shore and the 
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 (18.5 km/hr) or less within 5 mi (8 km) of any recent 
sighting location.
    (4) All vessels transiting through the Cape Cod Canal and CCB 
between January 1 and May 15 will reduce speeds to 10 knots (18.5 km/
hr) or less, follow the recommended routes charted by NOAA to reduce 
interactions between right whales and shipping traffic, and avoid 
aggregations of right whales in the eastern portion of CCB. 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 Boston TSS and all measures for the SRVs when transiting 
to the Port.
    (5) Construction and support vessels will transit at 10 knots or 
less in the following seasons and areas, which correspond to times and 
areas in NMFS' proposed rule (71 FR 36299, June 26,2006) to implement 
speed restrictions to reduce the likelihood and severity of ship 
strikes of right whales:
     Southeast U.S. Seasonal Management Area (SMA) from 
November 15 through April 15, which is bounded by the shoreline, 
31[deg] 27' N. (i.e., the northern edge of the Mandatory Ship Reporting 
System (MSRS) boundary) to the north, 29[deg] 45' N. to the south, and 
80[deg] 51.6' W. (i.e., the eastern edge of the MSRS boundary);
     Mid-Atlantic SMAs from November 1 through April 30, which 
encompass the waters within a 30 nm (55.6 km) area with an epicenter at 
the midpoint of the COLREG demarcation line crossing the entry into the 
following designated ports or bays: (a) Ports of New York/New Jersey; 
(b) Delaware Bay (Ports of Philadelphia and Wilmington); (c) Entrance 
to the Chesapeake Bay (Ports of Hampton Roads and Baltimore) (d) Ports 
of Morehead City and Beaufort, North Carolina; (e) Port of Wilmington, 
North Carolina; (f) Port of Georgetown, South Carolina; (g) Port of 
Charleston, South Carolina; and (h) Port of Savannah, Georgia;
     CCB SMA from January 1 through May 15, which includes all 
waters in CCB, extending to all shorelines of the Bay, with a northern 
boundary of 42[deg] 12' N.;
     Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated:
    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.; and
     Great South Channel SMA from April 1 through July 31, 
which is bounded by straight lines connecting the following coordinates 
in the order stated:
    42[deg] 30' N. 69[deg] 45' W.
    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.
PAM Program
    In addition to visual monitoring, Neptune will utilize a PAM system 
to aid in the monitoring and detection of vocalizing marine mammals in 
the project area. Neptune has engaged personnel from NMFS and the SBNMS 
regarding available passive acoustic technology that could be used to 
enhance the PAM program.
    The PAM system will be capable of detecting, localizing (range and 
bearing), and classifying marine mammals in near real-time. When 
combined with an action and communication plan, Neptune will have the 
capability to make timely decisions and undertake steps to minimize the 
potential for collisions between marine mammals and construction 
vessels. The PAM system for the Neptune project involves the 
installation of an array of auto-detection monitoring buoys moored at 
regular intervals in a circle surrounding the site of the terminal and 
associated pipeline construction. Buoys will be arranged to maximize 
auto detection and provide localization capability. With the existing 
technology, this would require six buoys moored every 5 nm (9.3 km) to 
provide some overlap in coverage. The buoys are designed to monitor the 
sound output from construction activities to ensure predicted levels 
are not exceeded and to detect the presence of vocally active marine 
mammals. Passive acoustic devices will be actively monitored for 
detections by a NMFS-approved bioacoustic technician.
Other Measures
    Mesh grates will be used during flooding and hydrostatic testing of 
the pipeline and flowlines to minimize impingement and entrainment of 
marine mammals. Operations involving

[[Page 33410]]

excessively noisy equipment will ``ramp-up'' sound sources, as long as 
this does not jeopardize the safety of vessels or construction workers, 
allowing whales a chance to leave the area before sounds reach maximum 
levels. Contractors will be required to utilize vessel-quieting 
technologies that minimize sound. Contractors will be required to 
maintain individual Spill Prevention, Control, and Containment Plans in 
place for construction vessels during construction.
    An environmental coordinator with experience coordinating projects 
to monitor and minimize impacts to marine mammals will be onsite to 
coordinate all issues concerning marine protected species, following 
all of the latest real-time marine mammal movements. The coordinator 
will work to ensure that environmental standards are adhered to and 
adverse interactions between project equipment and marine mammals do 
not occur.

Reporting

    During construction, weekly status reports will be provided to NMFS 
utilizing standardized reporting forms. In addition, the Neptune 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, sightings of any injured or 
dead marine mammals will be reported immediately to the USCG and NMFS, 
regardless of whether the injury or death is caused by project 
activities. Any right whale sightings will be reported to the NMFS 
Sighting Advisory System.
    Sightings of injured or dead marine mammals not associated with 
project activities can be reported to the USCG on VHF Channel 16 or to 
NMFS Stranding and Entanglement Hotline. In addition, if the injury or 
death was caused by a project vessel (e.g., SRV, support vessel, or 
construction vessel), USCG must be notified immediately, and a full 
report must be provided to NMFS, Northeast Regional Office. The report 
must include the following information: (1) the time, date, and 
location (latitude/longitude) of the incident; (2) the name and type of 
vessel involved; (3) the vessel's speed during the incident; (4) a 
description of the incident; (5) water depth; (6) environmental 
conditions (e.g., wind speed and direction, sea state, cloud cover, and 
visibility); (7) the species identification or description of the 
animal; and (8) the fate of the animal.
    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 must include data collected for 
each distinct marine mammal species observed in the project area in 
Massachusetts Bay during the period of Port construction. 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 activities shall also be included 
in the annual report. Additional information that will be recorded 
during construction and contained in the reports include: date and time 
of marine mammal detections (visually or acoustically), weather 
conditions, species identification, approximate distance from the 
source, activity of the vessel or at the construction site when a 
marine mammal is sighted, and whether or not thrusters were in use and 
how many at the time of the sighting.

ESA

    On January 12, 2007, NMFS concluded consultation with MARAD and the 
USCG under section 7 of the ESA on the proposed construction and 
operation of the Neptune LNG facility. The finding of that consultation 
was that the construction and operation of the Neptune LNG terminal 
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. Because the 
issuance of an IHA to Neptune under section 101(a)(5)(D) of the MMPA is 
a Federal action, NMFS also conducted a section 7 consultation, and it 
was determined that issuance of the IHA will not have effects on listed 
species beyond what was previously analyzed.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS for the proposed Neptune 
LNG Deepwater Port. A notice of availability was published by MARAD on 
November 2, 2006 (71 FR 64606). The Final EIS provides detailed 
information on the proposed project facilities, construction methods, 
and analysis of potential impacts on marine mammals. The Final EIS is 
incorporated as part of the MMPA record of decision (ROD) for this 
action.
    NMFS was a cooperating agency in the preparation of the Draft and 
Final EISs based on a Memorandum of Understanding related to the 
Licensing of Deepwater Ports entered into by the U.S. Department of 
Commerce along with 10 other government agencies. NMFS has adopted the 
USCG and MARAD FEIS and issued a separate ROD for issuance of the IHA.

Determinations

    NMFS has determined that the impact of construction of the Neptune 
Port Project may result, at worst, in a temporary modification in 
behavior of \TM\all numbers of certain species of marine mammals that 
may be in close proximity to the Neptune LNG facility and associated 
pipeline during its construction. These activities are expected to 
result in some local short-term displacement, resulting in no more than 
a negligible impact on the affected species or stocks of marine 
mammals. The provision requiring that the activity not have an 
unmitigable adverse impact on the availability of the affected species 
or stock for subsistence use does not apply for this action.
    These determinations are supported by measures described earlier in 
this document under ``Marine Mammal Mitigation, Monitoring, and 
Reporting'' and MARAD's ROD (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 
\TM\all ZOI). The likelihood of such effects will be avoided through 
the incorporation of the shut-down mitigation measures mentioned 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, the estimated number of marine 
mammals to be harassed is small relative to overall population sizes.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Neptune for the taking (by Level B harassment only) during construction 
of the Neptune Port provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.


[[Page 33411]]


    Dated: June 6, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-13264 Filed 6-11-08; 8:45 am]
BILLING CODE 3510-22-S