[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Notices]
[Pages 21648-21659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10681]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XO84


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

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

ACTION:  Notice; proposed incidental harassment authorization; request 
for comments and information.

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SUMMARY: NMFS received an application from Neptune LNG, L.L.C. 
(Neptune) for take of marine mammals, by Level B harassment, incidental 
to construction and operation of an offshore liquefied natural gas 
(LNG) facility in Massachusetts Bay. Under the Marine Mammal Protection 
Act (MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to Neptune to incidentally 
take, by harassment, small numbers of several species of marine mammals 
during construction and operations of the LNG facility for a period of 
1 year.

DATES: Comments and information must be received no later than June 8, 
2009.

ADDRESSES: Written comments on the application should be addressed 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. The mailbox address 
for providing email comments is [email protected]. Comments sent 
via email, including all attachments, must not exceed a 10-megabyte 
file size. 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 below (see FOR FURTHER INFORMATION 
CONTACT) or online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents cited in this notice may be 
viewed, by appointment, during regular business hours, at the 
aforementioned address.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) 
Final Environmental Impact Statement (Final EIS) on the Neptune LNG 
Deepwater Port License Application is available for viewing at http://www.regulations.gov by entering the search words ``Neptune LNG.''

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289 ext. 156.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, 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,

[[Page 21649]]

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 MMPA authorization to take small numbers of several 
species of marine mammals, by Level B (behavioral) harassment, 
incidental to construction and operation of an offshore LNG facility. 
NMFS has already issued a 1-year IHA to Neptune for construction 
activities pursuant to section 101(a)(5)(D) of the MMPA (73 FR 33400, 
June 12, 2008), which is effective through June 30, 2009. This proposed 
IHA would cover the completion of construction activities and 
operations for a 1-year period. Since operation and maintenance of the 
Neptune LNG Port facility will be ongoing into the foreseeable future, 
NMFS plans to propose regulations, pursuant to section 101(a)(5)(A) of 
the MMPA, to govern these incidental takes under a Letter of 
Authorization for up to 5 years. Under section 101(a)(5)(A), NMFS also 
must prescribe mitigation, monitoring, and reporting requirements in 
its regulations. NMFS announced notice of receipt of the application 
for regulations and requested comments on February 19, 2008 (73 FR 
9092) and plans to publish proposed regulations later this year.

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 
(m3). 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\SM\ (Hubline\SM\) 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 harassment, incidental to 
construction of the facility and its pipeline and by the transport and 
regasification of LNG, Neptune has applied for an MMPA authorization. 
The following sections briefly describe the activities that might 
harass marine mammals. Detailed information on these activities can be 
found in the MARAD/USCG Final EIS on the Neptune Project (see ADDRESSES 
for availability).

Construction Activities

    The sequence for the offshore installation effort for Neptune is as 
follows: mobilize an anchored lay barge and support vessels (i.e., 
anchor handling tugs, oceangoing tugs, and survey/diver support vessel) 
for the Proposed Pipeline Route; install the flowline between the riser 
mainfolds locations; install the new gas transmission pipeline from the 
northern riser manifold location to the transition manifold location at 
the Hubline\SM\; conduct pipeline hydrostatic testing; install the hot 
tap at the Hubline\SM\; install the two riser manifolds and the 
transition manifold; install the anchor piles and the lower portion of 
the mooring lines; connect the mooring lines to the unloading buoys and 
properly tension the mooring lines; and connect the two risers and 
control umbilicals between the unloading buoys and the riser manifolds. 
Construction began in July 2008 and is expected to be completed in 
September 2009. Construction activities in 2008 ceased on October 13. 
Activities are expected to resume on May 1, 2009, under the current 
IHA. See Figure 1-2 of Neptune's application for a full construction 
schedule.

Description of Construction Activities Completed in 2008

Flowline

    A pipelaying vessel installed the flowline between the two riser 
manifold locations. The flowline is a 24-in-diameter (61-cm) line pipe 
with concrete weight coating and has a length of approximately 2.5 mi 
(4 km). The flowline is buried to the top of the pipe. Trenching began 
approximately 300 ft (91.4 ft) from the southern riser manifold 
location and ended approximately 300 ft (91.4 ft) from the northern 
manifold location. Transition sections used hand jetting machines, as 
required, to lower the pipe in the trench. Transition sections were 
covered with concrete mats. A post-trenching survey was performed to 
verify that the proper depth was achieved. Subsequent survey runs will 
be performed in spring 2009 and after all construction is complete to 
ensure burial depth requirements are achieved.

Gas Transmission Pipeline to the Hubline\SM\

    The gas transmission pipeline begins at the existing Hubline\SM\ 
pipeline approximately 3 mi (4.8 km) east of Marblehead Neck, 
Massachusetts. From this point, the pipeline extends toward the 
northeast crossing of the territorial waters of the town of Marblehead, 
the city of Salem, the city of Beverly, and the town of Manchester-by-
the-Sea for approximately 6.4 mi (10.3 km). The transmission line route 
continues to the southeast for approximately 4.5 mi (7.2 km) crossing 
state and Federal waters. The location of the pipeline is shown in 
Figure 2-1 of Neptune's application.
    The transmission pipe (with concrete weight coating) was 
transported from the temporary shore base to the operating site. The 
construction sequence for the transmission line began with plowing of 
the pipeline trench. A pipelaying vessel installed the 24-in-diameter 
(61-cm) pipeline (target burial depth of 3 ft (0.9 m) to the top of the 
pipe) from the northern riser manifold location to the location of the 
transition manifold near the connection point to the Hubline\SM\. The 
gas transmission

[[Page 21650]]

line was buried from the transition manifold location to the northern 
riser manifold location. Trenching began approximately 300 ft (91.4 m) 
from the northern riser manifold location and ended approximately 300 
ft (91.4 m) from the transition manifold location. A post-trenching 
survey was performed to verify that the proper depth was achieved. 
Subsequent survey runs will be performed in spring 2009 and after all 
construction is complete to ensure burial depth requirements are 
achieved.

Hydrostatic Pipeline Integrity Testing

    There was one combined gas transmission line and flowline 
hydrotest, following pipelay, trenching, and burial. The whole system 
is in-line and piggable, meaning that the pipeline can accept pigs, 
which are gauging/cleaning devices that are driven by pressure from one 
end of the pipe segment to the other without obstruction. The gas 
transmission line and flowline were flooded with approximately 1.5 
million gallons of filtered seawater, including environmentally-
friendly fluorescent dye and corrosion inhibitor. This volume assumes 
that no water will bypass the pigs and will include approximately 1,700 
gallons (6,435 liters) of water in front of the flooding pig and 
approximately 1,700 gallons (6,435 liters) of water between other pigs. 
Flooding took place from the southern riser manifold location to the 
Hubline\SM\ transition manifold location. All hydro-test water will be 
discharged in Federal waters, near the unloading buoys in summer 2009. 
The total pipeline system will then be swab-dried using a pig train 
with slugs of glycol or similar fluid. The water content of the 
successive slugs will be sampled to verify that the total pipeline has 
been properly dried.

Description of Construction Activities to be Completed in 2009

Pipeline Hot Tap Installation

    The hot tap fitting, which will not require welding, will provide 
full structural reinforcement where the hole will be cut in the 
Hubline\SM\. The tapping tool and actual hot tap procedure will be 
supplied and supervised by a specialist from the manufacturer. Prior to 
construction of the hot tap, divers will excavate the Hubline\SM\ tie-
in location using suction pumps. The concrete weight coating will be 
removed from the Hubline\SM\ and inspected for suitability of the hot 
tap. The hinged hot tap fitting will then be lowered and opened to fit 
over the 30-in (76.2-cm) Hubline\SM\. The hot tap fitting will then be 
closed around the pipeline, the clam studs and packing flanges will be 
tightened, and the fitting will be leak tested. The Hubline\SM\ then 
will be tapped, and the valves will be closed. The hot tap and exposed 
sections of the Hubline\SM\ will be protected with concrete mats until 
the tie-in to the transition manifold occurs.

Anchor Installation

    The prefabricated anchor piles will be installed offshore with a 
dynamic positioning derrick barge. The anchor points will be within a 
radius of 1,600 to 3,600 ft (487.7 to 1,097.3 m) of the center of each 
unloading buoy. The anchor system will be installed using suction pile 
anchors.

Unloading Buoys

    The unloading buoys will be offloaded near the designated site. The 
derrick barge will connect the mooring lines from the anchor points to 
each unloading buoy and then adjust the mooring line tensions to the 
desired levels.

Risers

    The anchor-handling vessel or small derrick barge also will connect 
the riser and the control umbilical between each unloading buoy and the 
associated riser manifold, complete the hydrostatic testing and 
dewatering of the risers, and test the control umbilicals.

Demobilization

    Upon completion of the offshore construction effort, sidescan sonar 
will be used to check the area. Divers will remove construction debris 
from the ocean floor. All construction equipment will leave the site.

Construction Vessels

    The pipeline lay barge, anchor-handling vessels, and survey/diver 
support vessel each made two trips (one round trip) to and from the 
area of origin (Gulf of Mexico) and remained on station for the 
majority of the construction period. The supply vessels (or oceangoing 
tugs with cargo barges) and crew/survey vessel made regular trips 
between the construction sites and mainly the port of Gloucester 
(approximately 8 mi (12.9 km)) and Quincy Shipyard (approximately 20 mi 
(12.4 km)). During the entire project installation period in 2008 and 
2009, the supply vessel will make approximately 102 trips (51 round 
trips), and the crew/survey vessel will make approximately 720 trips 
(360 round trips) for a combined total of 822 construction-support-
related transits (411 round trips).
    All of the construction and support vessels transit Massachusetts 
Bay en route to the Port. While transiting to and from the construction 
sites, the supply and crew/survey vessels travel at approximately 10 
knots (18.5 km/hr). While transiting to and from the Gulf of Mexico, 
the derrick/lay barge and anchor handling vessels travel up to 12 and 
14 knots (22.2 and 25.9 km/hr), respectively, but operate either in 
place or at very slow speeds during construction. The survey/diver 
support vessel travels at speeds up to 10 knots (18.5 km/hr) transiting 
to and from the construction area and between dive sites.
    Materials, including unloading buoys, mooring lines, risers, and 
control umbilicals, will be transported from the shore-based storage 
area in New Brunswick, Canada, to the operating site on the vessel's 
deck. Cargo barges pulled by tugs transport the concrete-coated pipe 
sections and manifolds to the operating site.
    Approved construction procedures are delivered to each construction 
vessel, and a kick-off meeting to review construction procedures, 
health and safety procedures, and environmental limitations are held 
with key personnel prior to starting each construction activity.

Construction Sound

    Underwater acoustic analyses were completed for activities related 
to all aspects of Neptune construction. Activities considered to be 
potential sound sources during construction include: installation 
(plowing) of flowline and main transmission pipeline routes; lowering 
of materials (pipe, anchors, and chains); and installation of the 
suction pile anchors.
    Construction-related activities for the Port and the pipeline will 
generate sound exceeding 120-dB re 1 microPa (rms). The loudest source 
of underwater noise during construction of the Neptune Port will be the 
use of thrusters for dynamic positioning.

Port Operations

    During Neptune Port operations, sound will be generated by the 
regasification of the LNG aboard the SRVs and as a result of the use of 
thrusters by vessels maneuvering and maintaining position at the Port. 
Of these potential sound sources, thruster use for dynamic positioning 
has the potential to have the greatest impact. Operations are not 
expected to begin until spring 2010 at the earliest. The following text 
describes the activities that will occur at the Port upon its 
commissioning.

[[Page 21651]]

Description of Port Operations

Vessel Activity

    The SRVs will approach the Port using the Boston Harbor Traffic 
Separation Scheme (TSS), entering the TSS within the Great South 
Channel (GSC) and remaining in the TSS until they reach the Boston 
Harbor Precautionary Area. At the Boston Lighted Horn Buoy B (at the 
center of the Boston Harbor Precautionary Area), the SRV will be met by 
a pilot vessel and a support vessel. A pilot will board the SRV, and 
the support vessel will accompany the SRV to the Port. SRVs carrying 
LNG typically travel at speeds up to 19.5 knots (36 km/hr). However, 
Neptune SRVs will reduce speed to 10 knots (18.5 km/hr) within the TSS 
year-round in the Off Race Point Seasonal Management Area (SMA; 
described later in this document) and to a maximum of 10 knots (18.5 
km/hr) when traveling to and from the buoys once exiting the shipping 
lanes at the Boston Harbor Precautionary Area. In addition, Neptune 
will reduce speeds to 10 knots (18.5 km/hr) in the GSC SMA (described 
later in this document) from April 1 to July 31.
    To supply a continuous flow of natural gas into the pipeline, about 
50 roundtrip SRV transits will take place each year on average (one 
transit every 3.65 days). However, in the early stages of operation, it 
is expected that far fewer transits will occur each year. As an SRV 
approaches the Port, vessel speed will gradually be reduced. Upon 
arrival at the Port, one of the submerged unloading buoys will be 
located and retrieved from its submerged position by means of a winch 
and recovery line. The SRV is designed for operation in harsh 
environments and can connect to the unloading buoy in up to 11.5 ft 
(3.5 m) significant wave heights and remain operation in up to 36 ft 
(11 m) significant wave heights, providing high operational 
availability. The vessel's aft/forward thrusters will be used, only as 
necessary, for between 10 and 30 min during the docking procedure. 
During normal conditions, the vessel will be allowed to ``weathervane'' 
on the single-point mooring system. However, there will be certain 
conditions when aft thrusters may be used to maintain the heading of 
the vessel into the wind when competing tides operate to push the 
vessel broadside to the wind. In these circumstances, the ambient sound 
will already be high because of the wind and associated wave sound.

Regasification System

    Once an SRV is connected to a buoy, the vaporization of LNG and 
send-out of natural gas can begin. Each SRV will be equipped with three 
vaporization units, each with the capacity to vaporize 250 mmscfd. 
Under normal operation, two units will be in service. The third 
vaporization unit will be on standby mode, though all three units could 
operate simultaneously.

Operations Sound

    The acoustic effects of using the thrusters for maneuvering at the 
unloading buoys were modeled by JASCO Research Limited (2005). The 
analysis assumed the use of four thrusters (two bow, two stern) at 100 
percent power during all four seasons. Additional details of the 
modeling analyses can be found in Appendices B and C of Neptune's 
application (see ADDRESSES). During operations of the Port, the only 
sound that will exceed 120-dB is associated with the maneuvering of the 
SRVs during final docking at the Port. The loudest source of underwater 
sound during both construction or operation of the Neptune Port will be 
the use of thrusters for dynamic positioning.

Description of Marine Mammals Affected by the Activity

    Marine mammal species that potentially occur within the Neptune 
facility impact area include several species of cetaceans and 
pinnipeds: North Atlantic right whale, blue whale, fin whale, sei 
whale, minke whale, humpback whale, killer whale, long-finned pilot 
whale, sperm whale, Atlantic white-beaked dolphin, Atlantic white-sided 
dolphin, bottlenose dolphin, common dolphin, harbor porpoise, Risso's 
dolphin, striped dolphin, gray seal, harbor seal, harp seal, and hooded 
seal. Table 3-1 in 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 and operation 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., 2009), which are available at: http://www.nefsc.noaa.gov/publications/tm/tm210/. A 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 is 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 GSC, and northward alongside Cape Cod to 
Stellwagen Bank and Jeffreys Ledge. The relative abundance of whales 
increases 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 increases 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 GSC 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 persists in all seasons except winter 
when humpbacks remain 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 GSC.

Fin Whale

    Spatial patterns of habitat utilization by fin whales are very 
similar to those of humpback whales. Spring and summer high-use areas 
follow the 100-m (328 ft) isobath along the northern edge of Georges 
Bank (between the 50- and 200-m, 164- and 656-ft, isobaths), and 
northward from the GSC (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 is 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 Stellwagen Bank National Marine Sanctuary 
(SBNMS) is used more frequently than the northern portion in all months 
except winter, when high abundance is recorded over the northern tip of 
Stellwagen Bank. In addition to Stellwagen Bank, high abundance in 
winter is estimated for Jeffreys Ledge and the adjacent Porpoise Basin 
(100- to

[[Page 21652]]

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 is 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, GSC, 
and Georges Shoals on Georges Bank. Minke whales are 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 support high 
relative abundance. Very low densities of minke whales remain 
throughout most of the southern Gulf of Maine in winter.

North Atlantic Right Whale

    North Atlantic right whales are generally distributed widely across 
the southern Gulf of Maine in spring with highest abundance located 
over the deeper waters (100- to 160-m, or 328- to 525-ft, isobaths) on 
the northern edge of the GSC 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 Cape Cod Bay (CCB), over Platts Bank and around 
Cashes Ledge. Lower relative abundance is estimated over deep-water 
basins including Wilkinson Basin, Rodgers Basin, and Franklin Basin. In 
the summer months, right whales move 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 is found north of the 100-m (328-ft) 
isobath at the GSC and over the deep slope waters and basins along the 
northern edge of Georges Bank. The waters between Fippennies Ledge and 
Cashes Ledge are also estimated as high-use areas. In the fall months, 
right whales are 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 occurs along the 
southern edge of the Bank.

Long-finned Pilot Whale

    The long-finned pilot whale is more generally found along the edge 
of the continental shelf (a depth of 100 to 1,000 m, or 328 to 3,280 
ft), choosing areas of high relief or submerged banks in cold or 
temperate shoreline waters. This species is split into two subspecies: 
the Northern and Southern subspecies. The Southern subspecies is 
circumpolar with northern limits of Brazil and South Africa. The 
Norther subspecies, which could be encountered during construction and/
or operation of the Neptune Port facility, ranges from North Carolina 
to Greenland (Reeves et al., 2002; Wilson and Ruff, 1999). In the 
western North Atlantic, long-finned pilot whales are pelagic, occurring 
in especially high densities in winter and spring over the continental 
slope, then moving inshore and onto the shelf in summer and autumn 
following squid and mackerel populations (Reeves et al., 2002). They 
frequently travel into the central and northern Georges Bank, GSC, and 
Gulf of Maine areas during the summer and early fall (May and October; 
NOAA, 1993). According to the SAR, the best population estimate for the 
western North Atlantic stock of long-finned pilot whale is 31,139 
individuals (Waring et al., 2009).

Atlantic White-sided Dolphin

    In spring, summer and fall, Atlantic white-sided dolphins are 
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 GSC to Stellwagen 
Bank, Jeffreys Ledge, Platts Bank, and Cashes Ledge. In spring, high-
use areas exist in the GSC, northern Georges Bank, the steeply sloping 
edge of Davis Bank, and Cape Cod, southern Stellwagen Bank, and the 
waters between Jeffreys Ledge and Platts Bank. In summer, there is a 
shift and expansion of habitat toward the east and northeast. High-use 
areas occur along most of the northern edge of Georges Bank between the 
50- and 200-m (164- and 656-ft) isobaths and northward from the GSC 
along the slopes of Davis Bank and Cape Cod. High sightings are also 
recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the 
bathymetrically complex area northeast of Platts Bank. High sightings 
of white-sided dolphin are 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, are more 
concentrated than the dolphins and porpoises. They utilize a corridor 
that extends 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 support a high abundance of 
baleen whales throughout the year. Species richness maps indicate 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 GSC. The southern edge of Stellwagen Bank and the 
waters around the northern tip of Cape Cod are 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 are 
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; Neptune Marine Mammal Monitoring 
Weekly Reports, 2008).

Harbor Seal and Gray Seal

    In the U.S. western North Atlantic, both harbor and gray seals are 
usually found from the coast of Maine south to southern New England and 
New York (Waring et al., 2007).
    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 has increased (deHart, 2002). In U.S. 
waters, harbor seal breeding and pupping normally occur in

[[Page 21653]]

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 are often seen off the coast from New England 
to Labrador, within U.S. waters, only small 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 of Noise 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.
    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).
    The only anticipated impact to marine mammals during construction 
and operation would be the short-term displacement of marine mammals 
from areas ensonified by sound generated by equipment operation and 
vessel movement (thruster use). The sound sources of potential concern 
are continuous and intermittent sound sources, including underwater 
noise generated during pipeline/flowline construction and operational 
underwater sound generated by regasification/offloading (continuous) 
and dynamic positioning of vessels using thrusters (intermittent). 
Neither the construction nor operation of the Port will cause pulsive 
sound activities, including pile driving, seismic activities, or 
blasting. Both continuous and intermittent sound sources are subject to 
NMFS' 120 dB re 1 microPa threshold for determining Level B harassment 
take levels from continuous underwater noise that may result in the 
disturbance of marine mammals.

Potential Impacts of Construction Activities

    Construction and operation of the Neptune Port will occur 
consecutively, with no overlap in activities. Sound from Port and 
pipeline construction will cause some possible disturbance to small 
numbers of both baleen and toothed whales. Additionally, harbor and 
gray seals may occur in the area and may experience some disturbance.
    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. Pipe-laying activities will generate continuous but transient 
sound and will likely result in variable sound levels during the 
construction period. Modeling conducted by JASCO Research Limited 
indicates that, depending on water depth, the 120-dB contour during 
pipe-laying activities would extend 3.9 km (2.1 nm) from the source and 
cover an area of 52 km\2\ (15 nm\2\). Additionally, the use of 
thrusters during maneuvering or under certain wind and tidal conditions 
will generate sound levels above the 120-dB threshold. The temporary 
elevation in the underwater 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 
underwater sound generated by the use of the thrusters during 
maneuvering or under certain wind and tidal conditions is expected to 
have only minimal effects to individual marine mammals and is not 
expected to have a population-level effect to local marine mammal 
species or stocks because of the short-term and temporary nature of the 
activity.
    The likelihood of a vessel strike of a marine mammal during 
construction is low since construction vessels travel at very slow 
speeds. 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. No injury or mortality of 
marine mammals is expected as a result of construction of the Neptune 
Port facility.

Potential Impacts of Operational Activities

    During the operational life of the project, marine mammals will be 
exposed to intermittent sound from the use of thrusters positioning the 
carriers at the unloading buoys and the sounds associated with the 
regasification process. Under certain wind and tidal conditions, the 
two aft thrusters will be continuously operated to maintain the heading 
of the vessel into the wind when competing tides operate to push the 
vessel broadside to the wind. These activities will occur at each of 
the two fixed-location unloading buoys. The sound from the 
regasification process is low and will not reach levels of 120 dB

[[Page 21654]]

re 1 microPa. However, the brief bursts (10-30 min) of sound associated 
with the use of four thrusters to position the ships would have the 
potential to disturb marine mammals near the Port. The underwater sound 
generated by the use of the thrusters during maneuvering or under 
certain wind and tidal conditions is expected to have only minimal 
effects to individual marine mammals and is not expected to have a 
population-level effect to local marine mammal species or stocks. One 
reason is the relatively short duration and infrequency of the use of 
thrusters (every 4-8 days and 10-30 min each episode for maneuvering or 
intermittently to maintain heading during certain weather conditions 
when operations reach their peak. However, between July 2009 and June 
2010, the period for this proposed IHA, it is expected that only one to 
two shipments would occur, and they may be spaced even farther apart 
than every 4-8 days).
    The use of thrusters during dynamic positioning and the sounds 
produced during the regasification process may cause some behavioral 
harassment to marine mammals present in the project area. However, this 
harassment is expected to be short-term and minimal in nature. Any 
displacement from the Port location and surrounding areas is expected 
to be temporary. Additionally, the distribution of odontocetes in the 
area is patchy, the presence of baleen whales, especially North 
Atlantic right whales, is seasonal, and harbor and gray seals have been 
observed to habituate to human activities, including sound. No injury 
or mortality is expected as a result of operations at the Port.
    Using conservative estimates of both marine mammal densities in the 
Project area and the size of the 120-dB zone of influence (ZOI), the 
calculated number of individual marine mammals for each species that 
could potentially be harassed annually is small. Please see the 
``Estimates of Take by Harassment'' section for the calculation of 
these numbers.

Estimates of Take by Harassment

    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 now estimated to generate 
broadband underwater source levels in the range of 180 dB re 1 Pa at 
1m, similar to several of the vessels modeled by JASCO for Neptune and 
not in the range of 200 dB re 1 Pa 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 
levels above 120-dB for continuous sound.
    In order to estimate the level of takes for the operation phase of 
this activity, NMFS has used the same ensonified zone as that described 
above for construction activities (i.e., 52 km\2\ [15 nm\2\]).
    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

[[Page 21655]]

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 
harassment 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 remaining for the 
period July until September, 2009, that will produce sounds of 120 dB 
or greater.
    Based on the same calculation method described above for Port 
construction, the estimated take numbers by Level B harassment for 
North Atlantic right, fin, humpback, minke, and pilot whales and 
Atlantic white-sided dolphins for the 1-year IHA period incidental to 
Port operations (which is expected to happen no more than twice during 
the effectiveness of this proposed IHA), operating the vessel's 
thrusters for dynamic positioning before offloading natural gas, 
corrected for 50 percent underwater, are 2, 2, 5, 1, 8, and 26, 
respectively.
    The total estimated take of these species as a result of both 
construction and operation of the Neptune Port facility from July 1, 
2009, through June 30, 2010, is: 50 North Atlantic right whales, 59 fin 
whales, 160 humpback whales, 36 minke whales, 246 pilot whales, and 796 
Atlantic white-sided dolphins. These numbers represent a maximum of 
15.4, 2.6, 18.9, 1.1, 0.8, and 1.3 percent of the populations for these 
species in the western North Atlantic, respectively. Since it is highly 
likely that individual animals will be ``taken'' by harassment multiple 
times (since certain individuals may occur in the area more than once 
while other individuals of the population or stock may not enter the 
proposed project area) and the fact that the highest value SPUE for the 
season with the highest abundance of each species was used to determine 
relative abundance, these percentages are the upper boundary of the 
animal population that could be affected. Therefore, the actual number 
of individual animals being exposed or taken are expected to be far 
less.
    In addition, bottlenose dolphins, common dolphins, killer whales, 
harbor porpoises, harbor seals, and gray seals could also be taken by 
Level B harassment as a result of the deepwater LNG port project. The 
numbers of estimated take of these species are not available because 
they are rare in the project area. The population estimates of these 
marine mammal species and stocks in the western North Atlantic basin 
are 81,588; 120,743; 89,700; 99,340; and 195,000 for bottlenose 
dolphins, common dolphins, harbor porpoises, harbor seals, and gray 
seals, respectively (Waring et al., 2007). No population estimate is 
available for the North Atlantic stock of killer whales, however, their 
occurrence within the proposed project area is rare. 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 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 (18.9 percent for humpback whales and 15.4 percent for 
North Atlantic right whales and no more than 2.6 percent of any other 
species).

Potential Impact of the Activity on Habitat

Potential Impact on Habitat from Construction

    Construction of the Neptune Port and pipeline will affect marine 
mammal habitat in several ways: seafloor disturbance, increased 
turbidity, and generation of additional underwater sound in the area. 
Proposed construction 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). Of 
the proposed construction activities, 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\SM\ (Algonquin 
Gas Transmission L.L.C., 2004). Post-construction monitoring of the 
Hubline\SM\ 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

[[Page 21656]]

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 proposed 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.
    Based on the foregoing, 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 
if benthic prey species were displaced or destroyed by construction 
activities. However, affected species are expected to recover soon 
after construction ceases and will represent only a small portion of 
food available to marine mammals in the area.

Potential Impact on Habitat from Operation

    Operation of the Port will result in long-term, continued 
disturbance of the seafloor, regular withdrawal of seawater, and 
generation of underwater sound.
    Seafloor Disturbance: The structures associated with the Port 
(flowline and pipeline, unloading buoys and chains, suction anchors) 
will be permanent modifications to the seafloor. Up to 63.7 acres (0.25 
km\2\) of additional seafloor will be subject to disturbance due to 
chain and flexible riser sweep while the buoys are occupied by SRVs.
    Ballast and Cooling Water Withdrawal: Withdrawal of ballast and 
cooling water at the Port as the SRV unloads cargo (approximately 2.39 
million gallons per day) could potentially entrain zooplankton and 
ichthyoplankton that serve as prey for whale species. This estimate 
includes the combined seawater intake while two SRVs are moored at the 
Port (approximately 9 hr every 6 days). The estimated zooplankton 
abundance in the vicinity of the seawater intake ranges from 25.6-105 
individuals per gallon (Libby et al., 2004). This means that the daily 
intake will remove approximately 61.2-251 million individual 
zooplankton per day, the equivalent of approximately 7.65-31.4 lbs 
(3.47-14.2 kg). Since zooplankton are short-lived species (e.g., most 
copepods live from 1 wk to several months), these amounts will be 
indistinguishable from natural variability.
    Underwater Sound: During operation of the Port, underwater sound 
will principally be generated by use of thrusters when SRVs are mooring 
at the unloading buoy and at other times for maintaining position under 
certain wind and tidal conditions. Thruster use will be intermittent, 
equating to about 20 hr/yr when the Port is fully operational and 
should equate to less than 1 hr during the period of effectiveness for 
this proposed IHA.
    In the long-term, approximately 64.6 acres (0.26 km\2\) of seafloor 
will be permanently disturbed to accommodate the Port (including the 
associated pipeline). The area disturbed because of long-term chain and 
riser sweep includes 63.7 acres (0.25 km\2\) of soft sediment. This 
area will be similar in calm seas and in hurricane conditions. The 
chain weight will restrict the movement of the buoy or the vessel 
moored on the buoy. An additional 0.9 acre (0.004 km\2\) of soft 
sediments will be converted to hard substrate. The total affected area 
will be small compared to the soft sediments available in the proposed 
project area. Long-term disturbance from installation of the Port will 
comprise approximately 0.3 percent of the estimated 24,000 acres (97 
km\2\) of similar bottom habitat surrounding the project area 
(northeast sector of Massachusetts Bay).
    It is likely that displaced organisms will not return to the area 
of continual chain and riser sweep. A shift in benthic faunal community 
is expected in areas where soft sediment is converted to hard substrate 
(Algonquin Gas Transmission LLC, 2005). This impact will be beneficial 
for species that prefer hard-bottom structure and adverse for species 
that prefer soft sediment. Overall, because of the relatively small 
areas that will be affected, impacts on soft-bottom communities are 
expected to be minimal.
    Daily removal of seawater will reduce the food resources available 
for planktivorous organisms. The marine mammal species in the area have 
fairly broad diets and are not dependent on any single species for 
survival. Because of the relatively low biomass that will be entrained 
by the Port, the broad diet, and broad availability of organisms in the 
proposed project area, indirect impacts on the food web that result 
from entrainment of planktonic fish and shellfish eggs and larvae are 
expected to be minor and therefore should have minimal impact on 
affected marine mammal species or stocks.

Proposed Mitigation and Monitoring Measures

    For the proposed Neptune LNG Port construction and operation 
activities, NMFS proposes the following monitoring and mitigation 
measures.

Port Construction Minimization Measures

(1) 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.
(2) Proposed Visual Monitoring Program
    The Neptune Project will employ two marine mammal observers (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 and/or 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. 
Both observers will have responsibility for monitoring for the presence 
of marine mammals. The primary observer will act as the identification 
specialist, and the secondary observer will serve as data recorder and 
also assist with identification. All observers must 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 each 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

[[Page 21657]]

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 min/hr. 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 and 
their relative position 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 
min. 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. 
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.
(3) 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).
(4) Vessel Strike Avoidance
    (1) While under way, 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 less than 0.6 mi (1 km) from 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) 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 either correspond to or 
are more restrictive than the times and areas in NMFS' final rule (73 
FR 60173, October 10, 2008) to implement speed restrictions to reduce 
the likelihood and severity of ship strikes of right whales:
     Southeast U.S. 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. latitude;
     Off Race Point SMA year round, which is bounded by 
straight lines connecting the following coordinates in the order 
stated: 42[deg] 30' N. 69[deg] 45' W.; thence to 42[deg] 30' N. 70[deg] 
30' W.; thence to 42[deg] 12' N. 70[deg] 30' W.; thence to 42[deg] 12' 
N. 70[deg] 12' W.; thence to 42[deg] 04' 56.5'' N. 70[deg] 12' W.; 
thence along mean high water line and inshore limits of COLREGS limit 
to a latitude of 41[deg] 40' N.; thence due east to 41[deg] 41' N. 
69[deg] 45' W.; thence back to starting point; and
     GSC SMA from April 1 through July 31, which is bounded by 
straight lines connecting the following coordinates in the order 
stated:
    42[deg] 30' N. 69[deg] 45' W.
    41[deg] 40' N. 69[deg] 45' W.
    41[deg] 00' N. 69[deg] 05' W.
    42[deg] 09' N. 67[deg] 08' 24'' W.
    42[deg] 30' N. 67[deg] 27' W.
    42[deg] 30' N. 69[deg] 45' W.

[[Page 21658]]

(5) Passive Acoustic Monitoring (PAM) Program
    In addition to visual monitoring, Neptune will utilize a PAM system 
to aid in the monitoring and detection of North Atlantic right whales 
in the proposed project construction area. The PAM system will be 
capable of detecting and localizing (range and bearing) North Atlantic 
right whales in real-time with the use of six strategically placed 
acoustic bouys. When combined with the action and communication plan, 
Neptune has the capability to make timely decisions and undertake steps 
to minimize the potential for collisions between these marine mammals 
and construction vessels. An array of auto-detection monitoring buoys 
moored at regular intervals in a circle surrounding the site of the 
terminal and associated pipeline construction were installed in 2008 
and will be redeployed for the 2009 construction season. Passive 
acoustic devices are actively monitored for detections by a NMFS-
approved bioacoustic technician.
    Nineteen permanent archival acoustic recording units (ARUs) or pop-
ups have been arranged around the Port and pipeline to maximize auto 
detection and to provide localization capability. The buoys are 
designed to monitor the sound output from construction activities to 
assess construction impacts on marine mammals and to aid in the 
estimation of takes during the construction period.
(6) Other Measures
    Operations involving 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.

Port Operation Minimization Measures

(1) Visual Monitoring and Vessel Strike Avoidance
    Prior to entering areas where right whales are known to occur, 
including the GSC and SBNMS, SRV operators will consult NAVTEX, NOAA 
Weather Radio, NOAA's Right Whale Sighting Advisory System (SAS), or 
other means to obtain the latest Dynamic Management Area (DMA) 
information. Vessel operators will also receive active detections from 
the passive acoustic array prior to and during transit through the 
northern leg of the Boston Harbor TSS where the buoys are installed.
    In response to active DMAs or acoustic detections, SRVs will take 
appropriate actions to minimize the risk of striking whales, including 
reducing speed to 10 knots (18.5 km/hr) maximum and posting additional 
observers. Designated crew members will undergo NMFS-approved training 
regarding marine mammal presence and collision avoidance procedures.
    Vessels approaching and departing the port from LNG supply 
locations will enter the Boston Harbor TSS as soon as practicable and 
remain in the TSS until the Boston Harbor Precautionary Area. SRVs and 
support vessels will travel at 10 knots (18.5 km/hr) maximum when 
transiting to/from the port outside of the TSS. SRVs will abide by the 
same restrictions as required in the ``Vessel Strike Avoidance'' 
subsection for ``Port Construction Minimization Measures'' in the Off 
Race Point and GSC SMAs for operations unless hydrographic, 
meteorological, or traffic conditions dictate an alternative speed to 
maintain the safety and maneuverability of the vessel. In such cases 
where speeds in excess of the 10-knot (18.5 km/hr) speed maximums are 
required, the reasons for the deviation, the speed at which the vessel 
is operated, the area, and the time and duration of such deviation will 
be documented in the logbook of the vessel and reported to NMFS' 
Northeast Region Ship Strike Coordinator.
    All vessels will comply with the year-round MSRS. If whales are 
seen within 0.6 mi (1 km) of the buoy, then the SRVs will wait until 
the whale(s) leave(s) the area before departing.
(2) PAM Program
    The array of auto-detection monitoring buoys described previously 
in the ``Passive Acoustic Monitoring (PAM) Program'' subsection of this 
document will be monitored during the LNG Port operations and will 
provide near real-time information on the presence of vocalizing whales 
in the shipping lanes. Additionally, the ARUs, discussed in that 
subsection, will be in place for 5 years following initiation of 
operations to monitor the actual acoustic output of port operations and 
to alert NOAA to any unanticipated adverse effects of port operations, 
such as large-scale abandonment of the area or greater acoustic impacts 
than predicted through modeling.

Proposed Reporting Requirements

    During construction, weekly status reports will be provided to NMFS 
utilizing standardized reporting forms. In addition, the Neptune Port 
Project area is within the 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. Any right whale sightings will be 
reported to the NMFS SAS.
    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. 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 should include data collected for 
each distinct marine mammal species observed in the project area in the 
Massachusetts Bay during the period of LNG facility construction. 
Description of marine mammal behavior, overall numbers of

[[Page 21659]]

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 
thrusters were in use and, if so, how many at the time of the sighting.

Endangered Species Act (ESA)

    On January 12, 2007, NMFS concluded consultation with MARAD and 
USCG under section 7 of the ESA on the proposed construction and 
operation of the Neptune LNG facility and issued a Biological Opinion. 
The finding of that consultation was that the construction and 
operation of the Neptune LNG terminal may adversely affect, but is not 
likely to jeopardize, the continued existence of 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. Issuance of this IHA will not have any impacts 
beyond those analyzed in that consultation.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) 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/EIR provides detailed information on the proposed project 
facilities, construction methods, and analysis of potential impacts on 
marine mammals. The Final EIS/EIR 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. On June 3, 2008, NMFS 
adopted the USCG and MARAD FEIS and issued a separate ROD for issuance 
of authorizations pursuant to sections 101(a)(5)(A) and (D) of the MMPA 
for the construction and operation of the Neptune LNG Port facility.

Preliminary Determinations

    NMFS has preliminarily determined that the impact of construction 
and operation of the Neptune Port Project may result, at worst, in a 
temporary modification in behavior of small numbers of certain species 
of marine mammals that may be in close proximity to the Neptune LNG 
facility and associated pipeline during its construction and operation. 
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 proposed action as there is no such uses of these 
species or stocks in the proposed project area.
    This preliminary determination is supported by measures described 
earlier in this document under ``Proposed Mitigation and Monitoring 
Measures,'' ``Reporting Requirements,'' 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 proposed to be authorized, and the potential for 
temporary or permanent hearing impairment is very unlikely due to the 
relatively low sound source levels (and consequently small zone of 
impact for hearing-related effects). The likelihood of such effects 
would be avoided through the incorporation of the proposed 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 facility during 
construction and operation, the estimated number of marine mammals to 
be harassed is small.

Proposed Authorization

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

    Dated: May 1, 2009.
Katy M. Vincent,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E9-10681 Filed 5-7-09; 8:45 am]
BILLING CODE 3510-22-S