[Federal Register Volume 75, Number 244 (Tuesday, December 21, 2010)]
[Proposed Rules]
[Pages 80260-80286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31769]
[[Page 80259]]
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Part V
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to Operation and Maintenance of a Liquefied Natural Gas Facility Off
Massachusetts; Proposed Rule
Federal Register / Vol. 75 , No. 244 / Tuesday, December 21, 2010 /
Proposed Rules
[[Page 80260]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 0808041026-9015-01]
RIN 0648-AX09
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Operation and Maintenance of a Liquefied Natural Gas
Facility Off Massachusetts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS has received a request from Neptune LNG LLC (Neptune) for
authorization for the take of marine mammals, by harassment, incidental
to port commissioning and operations, including maintenance and repair
activities, at its Neptune Deepwater Port (the Port) in Massachusetts
Bay for the period of July 2011 through July 2016. Pursuant to the
Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to
govern that take and requests information, suggestions, and comments on
these proposed regulations.
DATES: Comments and information must be received no later than February
4, 2011.
ADDRESSES: You may submit comments, identified by 0648-AX09, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
Hand delivery or mailing of paper, disk, or CD-ROM
comments should be addressed to Michael Payne, Chief, Permits,
Conservation and Education Division, Office of Protected Resources,
National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910.
Comments regarding any aspect of the collection of information
requirement contained in this proposed rule should be sent to NMFS via
one of the means stated here and to the Office of Information and
Regulatory Affairs, NEOB-10202, Office of Management and Budget (OMB),
Attn: Desk Office, Washington, DC 20503, [email protected].
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov 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.
NMFS will accept anonymous comments (enter N/A in the required
fields if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected
Resources, NMFS, (301) 713-2289, ext 156.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Neptune's application may be obtained by writing to the
address specified above (see ADDRESSES), calling the contact listed
above (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. To help NMFS
process and review comments more efficiently, please use only one
method to submit comments.
The Final Environmental Impact Statement (Final EIS) on the Neptune
Deepwater Port License Application authored by the Maritime
Administration (MARAD) and U.S. Coast Guard (USCG) is available for
viewing at http://www.regulations.gov by entering the search words
``Neptune LNG.''
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as ``* * * an impact resulting from the specified activity that cannot
be reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.''
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as:
Any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [``Level A harassment'']; or (ii) has the potential to disturb
a marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[``Level B harassment''].
Summary of Request
On December 14, 2009, NMFS received an application from Neptune for
the taking, by harassment, of marine mammals incidental to port
commissioning and operations, including maintenance and repair
activities, at its Neptune Deepwater Port (Port) facility in
Massachusetts Bay. NMFS reviewed Neptune's application and identified a
number of issues requiring further clarification. After addressing
comments from NMFS, Neptune modified its application and submitted a
revised application on March 11, 2010. The March 11, 2010, application
is the one available for public comment (see ADDRESSES) and which was
considered by NMFS for these proposed regulations.
Neptune submitted its first complete application to NMFS on
December 27, 2007, for the take of small numbers of marine mammals, by
harassment, incidental to the construction phase of the Neptune LNG
Port Facility. In June 2008, NMFS issued a 1-year Incidental Harassment
Authorization (IHA) to Neptune for the construction of the Port (73 FR
33400, June 12, 2008). This authorization expired on June 30, 2009.
NMFS issued a second 1-year IHA to Neptune for the completion of
construction and beginning of Port operations on June 26, 2009 (74 FR
31926, July 6, 2009), which expired on June 30, 2010.
On July 12, 2010, NMFS issued a third IHA to Neptune based on the
request in its March 11, 2010, application (75 FR 41440, July 16,
2010). This latest IHA is effective through July 11, 2011. During the
period of this third IHA, Neptune intends to commission its second
shuttle and regasification vessel (SRV) and conduct limited port
operations. There is also a
[[Page 80261]]
chance that some maintenance and repairs may be conducted on the Port
facility.
During the period of these proposed regulations (July 2011-July
2016), Neptune intends to continue port operations and conduct
maintenance and repairs, as needed. The Neptune Port is located
approximately 22 mi (35 km) northeast of Boston, Massachusetts, in
Federal waters approximately 260 ft (79 m) in depth. The purpose of the
Port is to import liquefied natural gas (LNG) into the New England
region. Take of marine mammals may occur during port operations from
thruster use during maneuvering of the SRVs while docking and
undocking, occasional weathervaning (turning of a vessel at anchor from
one direction to another under the influence of wind or currents) at
the Port, and during thruster use of dynamic positioning (DP)
maintenance vessels should a major repair be necessary. Neptune has
requested an authorization to take 12 marine mammal species by Level B
harassment. The species are: North Atlantic right whale; humpback
whale; fin whale; sei whale; minke whale; long-finned pilot whale;
Atlantic white-sided dolphin; harbor porpoise; common dolphin; Risso's
dolphin; bottlenose dolphin; and harbor seal. In the 2009 and 2010
IHAs, NMFS also authorized take of killer whales and gray seals. NMFS
has preliminarily determined that it would be appropriate in this
proposed rule to authorize take, by Level B harassment only, incidental
to operations and maintenance activities of these two species as well.
Description of the Specified Activity
On March 23, 2007, Neptune received a license from MARAD to own,
construct, and operate a deepwater port. The Port, which is located in
Massachusetts Bay, consists of a submerged buoy system to dock
specifically designed LNG carriers approximately 22 mi (35 km)
northeast of Boston, Massachusetts, in Federal waters approximately 260
ft (79 m) in depth. The two buoys are separated from one another by a
distance of approximately 2.1 mi (3.4 km). The locations of the Neptune
Port and the associated pipeline are shown in Figure 2-1 in Neptune's
application (see ADDRESSES).
All construction of the Neptune Port was completed in November
2009. The first SRV was commissioned in February-March 2010.
Commissioning of the second SRV is scheduled to occur in early 2011 and
so would occur under the current IHA. Between July 2011 and July 2016,
(the requested time period for these proposed regulations), Neptune
plans to continue Port operations and also plans to conduct any
necessary maintenance and repairs of the Port facility.
Neptune will be capable of mooring LNG SRVs with a capacity of
approximately 183,113 cubic yards (yd\3\; 140,000 cubic meters (m\3\)).
Up to two SRVs will temporarily moor at the Port by means of a
submerged unloading buoy system. Two separate buoys will allow natural
gas to be delivered in a continuous flow, without interruption, by
having a brief overlap between arriving and departing SRVs. The annual
average throughput capacity will be around 500 million standard cubic
feet per day (mmscfd) with an initial throughput of 400 mmscfd and a
peak capacity of approximately 750 mmscfd.
The SRVs will be equipped to store, transport, and vaporize LNG and
to odorize, meter and send out natural gas by means of two 16-in (40.6-
cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers
and flowline will lead to a 24-in (61-cm) gas transmission pipeline
connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin
Hubline\SM\ (Hubline\SM\) located approximately 9 mi (14.5 km) west of
the Neptune deepwater port location. The Port will have an expected
operating life of approximately 25 years. Figure 1-1 of Neptune's
application shows an isometric view of the Port (see ADDRESSES). The
following subsections describe the operational activities for the Port.
Description of Port Operations
During Neptune Port operations, sound will be generated by the
regasification of the LNG aboard the SRVs and the use of thrusters by
vessels maneuvering and maintaining position at the port. Large
construction-type DP vessels used for major repairs of the subsea
pipeline or unloading facility may be another potential sound source,
although these types of repairs are unlikely to occur. Of these
potential operations and maintenance/repair sound sources, thruster use
for DP is the most significant. The following text describes the
activities that will occur at the port upon its commissioning.
(1) 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) and
will maintain 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 is committed to reducing speed
to 10 knots (18.5 km/hr) in the GSC SMA from April 1 to July 31 each
year.
To supply a continuous flow of natural gas into the pipeline, an
average of about 50 roundtrip SRV transits will take place annually
(one transit every 3.65 days). 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 operational in up to 36 ft (11 m) significant wave heights,
providing high operational availability.
The vessel's aft/forward thrusters will be used intermittently.
Neptune SRVs will use both bow and stern thrusters when approaching the
unloading buoy and when docking the buoy inside the Submerged Turret
Loading (STL) compartment, as well as when releasing the buoy after the
regasifying process is finished. The thrusters will be energized for up
to 2 hours during the docking process and up to 1 hour during the
undocking/release process. When energized, the thrusters will rotate at
a constant RPM with the blades set at zero pitch. There will be little
cavitation when the thruster propellers idle in this mode. The sound
levels in this operating mode are expected to be approximately 8
decibels (dB) less than at 100 percent load, based on measured data
from other vessels.
When the thrusters are engaged, the pitch of the blades will be
adjusted in short bursts for the amount of thrust needed. These short
bursts will cause cavitation and elevated sound levels. The maximum
sound level with two thrusters operating at 100 percent load will be
180 dB re 1 [mu]Pa at 1m. This is not the normal operating mode, but a
worst-case scenario. Typically, thrusters are operated for only seconds
at a time and not at continuous full loading. These thrusters will be
engaged for no
[[Page 80262]]
more than 20 minutes, in total, when docking at the buoy. The same
applies for the undocking scenario.
During normal conditions, the vessel will be allowed to weathervane
on the single-point mooring system. However, aft thrusters may be used
under certain conditions to maintain the vessel's heading into the wind
when competing tides operate to push the vessel broadside to the wind.
Neptune has assumed a total of 200 hr/yr operating under these
conditions. In these circumstances, the ambient sound will already be
high because of the wind and associated wave sound.
(2) 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 simultaneously.
The third vaporization unit will be on standby mode, although all three
units could operate simultaneously.
(3) Maintenance and Repairs
Routine maintenance activities typically are short in duration
(several days or less) and require small vessels (less than 300 gross
tons) to perform. Activities include attaching and detaching and/or
cleaning the buoy pick up line to the STL buoy, performing surveys and
inspections with a remotely operated vehicle, and cleaning or replacing
parts (e.g., bulbs, batteries, etc.) on the floating navigation buoys.
Every 7-10 years, Neptune will run an intelligent pig (a gauging/
cleaning device) down the pipeline to assess its condition. This
particular activity will require several larger, construction-type
vessels and several weeks to complete.
Unplanned repairs can be either relatively minor, or in some cases,
major, requiring several large, construction-type vessels and a
mitigation program similar to that employed during the construction
phase of the project. Minor repairs are typically shorter in duration
and could include fixing flange or valve leaks, replacing faulty
pressure transducers, or repairing a stuck valve. These kinds of
repairs require one diver support vessel with three or four anchors to
hold its position. Minor repairs could take from a few days to 1-2
weeks depending on the nature of the problem.
Major repairs are longer in duration and typically require large
construction vessels similar to those used to install the pipeline and
set the buoy and anchoring system. These vessels will typically
mobilize from local ports or the Gulf of Mexico. Major repairs require
upfront planning, equipment procurement, and mobilization of vessels
and saturation divers. Examples of major repairs--although unlikely to
occur--include damage to a riser or umbilical and their possible
replacement, damage to the pipeline and manifolds, or anchor chain
replacement. These types of repairs could take 1-4 weeks and possibly
longer.
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. The one-third (\1/3\)-octave
band source levels for the thrusters ranged from 148.5 dB re 1 [mu]Pa
at 1 m at 2,000 Hertz (Hz) to 174.5 dB re 1 [micro]Pa at 1 m at 10 Hz.
Figures 1-2 through 1-5 in Neptune's application show the received
sound level at 164-ft (50-m) depth at the south unloading buoy during
each of the four seasons.
The acoustic effects of operating the regasification system at the
unloading buoys were also modeled by JASCO Research Limited (2005). In
addition, supplemental analysis was performed to assess the potential
underwater acoustic impacts of using the two aft thrusters after
mooring for maintaining the heading of the vessel in situations when
competing tides operate to push the vessel broadside to the wind.
Additionally, Samsung performed an underwater noise study on the newly
constructed SRV, and an evaluation of these data was performed by JASCO
Applied Sciences. Additional details of all the modeling analyses can
be found in Appendices B and C of Neptune's application (see
ADDRESSES). The loudest source of sound during operations at the port
will be the use of thrusters for dynamic positioning.
Maintenance/Repair Sound
Acoustic modeling originally performed to predict received levels
of underwater sound that could result from the construction of Neptune
also could be applicable to major maintenance/repair during operations
(see Appendices B and C in Neptune's application for a discussion of
the acoustic modeling methodology employed). Activities considered to
be potential sound sources during major maintenance/repair activities
include excavation (jetting) of the flowline or main transmission
pipeline routes and lowering of materials (pipe, anchors, and chains)
to the sea floor. These analyses evaluated the potential impacts of
construction of the flowline and pipeline using surrogate source levels
for vessels that could be employed during Neptune's construction. One
surrogate vessel used for modeling purposes was the Castoro II (and
four accompanying vessels). Figures 1-6 and 1-7 in Neptune's
application illustrate the worst-case received sound levels that would
be associated with major maintenance/repair activities along the
flowline between the two unloading buoys and along the pipeline route
at the 164-ft (50-m) depth during the spring season if a vessel similar
to the Castoro II were used.
Comments and Responses
On May 6, 2010, NMFS published a notice of a proposed IHA and a
notice of receipt of an application for a Letter of Authorization (LOA)
in the Federal Register (75 FR 24906) and requested comments and
information from the public for 30 days. NMFS received only one comment
letter from the Marine Mammal Commission (MMC). The MMC's comments
noted the need for monitoring and mitigation and for the reinitiation
of section 7 consultation under the Endangered Species Act (ESA). NMFS
included the proposed monitoring and mitigation measures in the 2010
IHA and completed the required ESA section 7 consultation prior to
issuance of the 2010 IHA. To see the full comments and responses,
please refer to the IHA Federal Register notice of issuance (75 FR
41440, July 16, 2010).
Description of Marine Mammals in the Area of the Specified Activity
Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a
diverse assemblage of marine mammals, including the: North Atlantic
right whale; blue whale; fin whale; sei whale; minke whale; humpback
whale; killer whale; long-finned pilot whale; sperm whale; Atlantic
white-beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin;
common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray
seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's
application outlines the marine mammal species that occur in
Massachusetts Bay and the likelihood of occurrence of each species. Of
the species listed here, the North Atlantic right, blue, fin, sei,
humpback, and sperm whales are all listed as endangered under the ESA
and as depleted under the MMPA. The northern coastal stock of
bottlenose dolphins is considered depleted under
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the MMPA. Certain stocks or populations of killer whales are listed as
endangered under the ESA or depleted under the MMPA; however, none of
those stocks or populations occurs in the proposed activity area.
Of these species, 14 are expected to occur in the area of Neptune's
proposed operations. These species include: The North Atlantic right,
humpback, fin, sei, minke, killer, and long-finned pilot whales;
Atlantic white-sided, common, Risso's, and bottlenose dolphins; harbor
porpoise; and harbor and gray seals. Neptune used information from the
Cetacean and Turtle Assessment Program (CETAP; 1982) and the U.S.
Navy's Marine Resource Assessment (MRA) for the Northeast Operating
Areas (DoN, 2005; available on the Internet at: https://portal.navfac.navy.mil/portal/page/portal/navfac/navfac_ww_pp/navfac_hq_pp/navfac_environmental/mra) to estimate densities of the
species in the area. Nonetheless, NMFS used the data on cetacean
distribution within Massachusetts Bay, such as those published by
NOAA's National Centers for Coastal Ocean Science (NCCOS; 2006), to
determine density estimates of several species of marine mammals in the
vicinity of the project area. The explanation for those derivations and
the actual density estimates are described later in this document (see
the ``Estimated Take by Incidental Harassment'' section).
Blue and sperm whales are not commonly found in Massachusetts Bay.
The sperm whale is generally a deepwater animal, and its distribution
off the northeastern U.S. is concentrated around the 13,280-ft (4,048-
m) depth contour, with sightings extending offshore beyond the 6,560-ft
(2,000-m) depth contour. Sperm whales also can be seen in shallow water
south of Cape Cod from May to November (CETAP, 1982). In the North
Atlantic, blue whales are most commonly sighted in the waters off
eastern Canada. Although they are rare in the shelf waters of the
eastern U.S., occasional sightings of blue whales have been made off
Cape Cod. Harp and hooded seals are seasonal visitors from much further
north, seen mostly in the winter and early spring. Prior to 1990, harp
and hooded seals were sighted only very occasionally in the Gulf of
Maine, but recent sightings suggest increasing numbers of these species
now visit these waters (Harris et al., 2001, 2002). However, these harp
seal sightings are considered extralimital (Waring et al., 2009). While
there have been some increased sightings of hooded seals off the east
coast of the U.S., the southernmost portion of their spring migration
is considered the Gulf of St. Lawrence (Waring et al., 2009).
Therefore, their sightings in U.S. east coast waters are considered
extralimital. Juveniles of a third seal species, the ringed seal, are
seen on occasion as far south as Cape Cod in the winter, but this
species is considered to be quite rare in these waters (Provincetown
Center for Coastal Studies, 2005). Due to the rarity of these species
in the proposed project area and the remote chance they would be
affected by Neptune's proposed port operations, these species are not
considered further in these proposed regulations.
In addition to the 16 cetacean species listed in Table 3-1 in
Neptune's application, 10 other cetacean species have been recorded for
Massachusetts as rare vagrants or from strandings (Cardoza et al.,
1999). The following six species of beaked whale are all pelagic and
recorded mostly as strandings: the northern bottlenose whale; Cuvier's
beaked whale; Sowerby's beaked whale; Blainville's beaked whale;
Gervais' beaked whale; and True's beaked whale. Vagrants include the
beluga whale, a northern species with rare vagrants reported as far
south as Long Island (Katona et al., 1993); the pantropical spotted
dolphin and false killer whale, which are primarily tropical species
with rare sightings in Massachusetts waters (Cardoza et al., 1999); and
the pygmy sperm whale, which is generally an offshore species that
occasionally wanders inshore. There have been occasional sightings of
striped dolphins in the waters of the northeastern U.S. However, the
majority of these sightings occurred in waters deeper than those of the
Neptune Port project area (Waring et al., 2009). While some Atlantic
white-beaked dolphins have been sighted in the western Gulf of Maine
and off Cape Cod, their distribution in the area has been considered
limited, mostly a factor of opportunistic feeding (Waring et al.,
2009). Due to the rarity of these species in the proposed project area
and the remote chance they would be affected by Neptune's proposed port
operations, these species are not considered further in these proposed
regulations.
Information on those species that may be impacted by this activity
is provided in Neptune's application and sections 3.2.3 and 3.2.5 in
the MARAD/USCG Final EIS on the Neptune LNG proposal (see ADDRESSES).
Please refer to those documents for more information on these species.
In addition, general information on these marine mammal species can
also be found in the 2009 NMFS U.S. Atlantic and Gulf of Mexico Marine
Mammal Stock Assessment Report (SAR; Waring et al., 2009) and the 2010
Draft NMFS Atlantic and Gulf of Mexico Marine Mammal SAR (Waring et
al., in prep.), which are available on the Internet at: http://www.nefsc.noaa.gov/publications/tm/tm213/ and http://www.nmfs.noaa.gov/pr/sars/draft.htm, respectively. A brief summary on several commonly
sighted marine mammal species distribution and abundance in the
vicinity of the action area is provided next.
Humpback Whale
The highest abundance for humpback whales is distributed primarily
along a relatively narrow corridor following the 328-ft (100-m) 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 131- and 459-ft, 40- and 140-m, isobaths) off Cape
Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between the
164- and 656-ft (50- and 200-m) 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 (< 164 ft, or < 50 m) of Stellwagen Bank, the waters
(328-656 ft, 100-200 m) between Platts Bank and Jeffreys Ledge, the
steep slopes (between the 98- and 525-ft isobaths, 30- and 160-m
isobaths) of Phelps and Davis Bank north of the GSC towards Cape Cod,
and between the 164- and 328-ft (50- and 100-m) 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. The best
estimate of abundance for Gulf of Maine, formerly western North
Atlantic, humpback whales is 847 animals (Waring et al., 2009). Current
data suggest that the Gulf of Maine humpback whale stock is steadily
increasing in size, which is consistent with an estimated average trend
of 3.1 percent in the North Atlantic population overall for the period
1979-1993 (Stevick et al., 2003, cited in Waring et al., 2009).
Fin Whale
Spatial patterns of habitat utilization by fin whales are very
similar to those of humpback whales. Spring and
[[Page 80264]]
summer high-use areas follow the 328-ft (100-m) isobath along the
northern edge of Georges Bank (between the 164- and 656-ft, 50- and
200-m, isobaths), and northward from the GSC (between the 164- and 525-
ft, 50- and 160-m, 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 (328- to 525-ft, isobaths), as
well as Georges Basin and northern Georges Bank. The best estimate of
abundance for the western North Atlantic stock of fin whales is 3,985,
which is the sum of the estimate derived from an August 2006 Gulf of
Maine survey and the sum of the estimate derived from a July-August
2007 northern Labrador to Scotian Shelf survey (Waring et al., in
prep.). Currently, there are insufficient data to determine population
trends for this species.
Minke Whale
Like other piscivorus baleen whales, the highest abundance for
minke whale is strongly associated with regions between the 164- and
328-ft (50- and 100-m) 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 131 ft, 40 m) 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. The best estimate of abundance for the Canadian East Coast
stock of minke whales, which occurs from the western half of the Davis
Strait to the Gulf of Mexico, is 8,987 animals, which is the sum of the
estimate derived from an August 2006 Gulf of Maine survey and the sum
of the estimate derived from a July-August 2007 northern Labrador to
Scotian Shelf survey (Waring et al., in prep.). A population trend
analysis for this species has not been conducted (Waring et al., in
prep.).
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 (328- to 525-ft, 100- to 160-m, isobaths) on the
northern edge of the GSC and deep waters (328-984 ft 100-300 m)
parallel to the 328-ft (100-m) isobath of northern Georges Bank and
Georges Basin. High abundance was also found in the shallowest waters
(< 98 ft, <30 m) 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 525- and 656-ft, 160- and
200-m, isobaths) and north of Georges Bank (Rogers, Crowell, and
Georges Basins). Highest abundance is found north of the 328-ft (100-m
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 are 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. The highest rate of sighting within SBNMS occurs
along the southern edge of the Bank.
The western North Atlantic population size was estimated to be at
least 361 individuals in 2005 based on a census of individual whales
identified using photo-identification techniques (Waring et al., in
prep.). This value is a minimum and does not include animals that were
alive prior to 2005 but not recorded in the individual sightings
database as seen from December 1, 2004, to June 24, 2009. It also does
not include some calves known to be born during 2005 or any other
individual whale seen during 2005 but not yet entered into the catalog
(Waring et al., in prep.). Examination of the minimum number alive
population index calculated from the individual sightings database, as
it existed on June 24, 2009, for the years 1990-2005 suggests a
positive trend in population size. These data reveal a significant
increase in the number of catalogued whales alive during this period
but with significant variation due to apparent losses exceeding gains
during 1998-1999. Mean growth rate for the period 1990-2005 was 2.1
percent (Waring et al., in prep.).
Long-finned Pilot Whale
The long-finned pilot whale is more generally found along the edge
of the continental shelf (a depth of 328 to 3,280 ft, or 100 to 1,000
m), 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
Northern subspecies, which could be encountered during 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). The
best population estimate for the western North Atlantic stock of long-
finned pilot whale is 12,619 individuals (Waring et al., in prep.).
Currently, there are insufficient data to determine population trends
for the long-finned pilot whale.
Sei Whale
The sei whale is the least likely of all the baleen whale species
to occur near the Neptune Port. However, there were a couple of
sightings in the general vicinity of the port facility during the
construction phase (Neptune Marine Mammal Monitoring Weekly Reports,
2008). The Nova Scotia stock of sei whales ranges from the continental
shelf waters of the northeastern U.S. and extends northeastward to
south of Newfoundland. The southern portion of the species range during
spring and summer includes the northern portions of the U.S. Atlantic
Exclusive Economic Zone (i.e., the Gulf of Maine and Georges Bank). Sei
whales are most abundant in U.S. waters during the spring, with
sightings concentrated along the eastern margin of Georges Bank and
into the Northeast Channel area and along the southwestern edge of
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Georges Bank in the area of Hydrographer Canyon (CETAP, 1982). The best
estimate of abundance for this stock is 386 animals (Waring et al.,
2009). A population trend analysis has not been done for this species.
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 328-ft (100-m) 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, 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 164-
and 656-ft (50- and 200-m) 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 numbers of
sightings of white-sided dolphin are recorded within SBNMS in all
seasons, with highest density in summer, and the most widespread
distribution in spring is 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
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 328-ft (100-m) 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 328-ft (100-m) 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. The best estimate of abundance for the western North
Atlantic stock of white-sided dolphins is 63,368 (Waring et al., 2009).
A trend analysis has not been conducted for this species.
Killer Whale, Common Dolphin, Bottlenose Dolphin, Risso's Dolphin, and
Harbor Porpoise
Although these five 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). The total number of killer whales off the
eastern U.S. coast is unknown, and present data are insufficient to
calculate a minimum population estimate or to determine the population
trends for this stock (Blaylock et al., 1995). The best estimate of
abundance for the western North Atlantic stock of common dolphins is
120,743 animals, and a trend analysis has not been conducted for this
species (Waring et al., 2007). There are several stocks of bottlenose
dolphins found along the eastern U.S. from Maine to Florida. The stock
that may occur in the area of the Neptune Port is the western North
Atlantic coastal northern migratory stock of bottlenose dolphins. The
best estimate of abundance for this stock is 9,604 animals (Waring et
al., in prep.). There are insufficient data to determine the population
trend for this stock. The best estimate of abundance for the western
North Atlantic stock of Risso's dolphins is 20,479 animals (Waring et
al., 2009). There are insufficient data to determine the population
trend for this stock. The best estimate of abundance for the Gulf of
Maine/Bay of Fundy stock of harbor porpoise is 89,054 animals (Waring
et al., 2009). A trend analysis has not been conducted for this
species.
Harbor and Gray Seals
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 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). Between 1981 and 2001, the uncorrected
counts of seals increased from 10,543 to 38,014, an annual rate of 6.6
percent (Gilbert et al., 2005, cited in Waring et al., 2009). However,
present data are insufficient to calculate a minimum population
estimate for this stock or to determine a population trend for this
stock (Waring et al., in prep.).
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). Depending on the model used, the
minimum estimate for the Canadian gray seal population ranged between
125,541 and 169,064 animals (Trzcinski et al., 2005, cited in Waring et
al., 2009); however, present data are insufficient to calculate the
minimum population estimate for U.S. waters. Waring et al. (2009) note
that gray seal abundance in the U.S. Atlantic is likely increasing, but
the rate of increase is unknown.
Brief Background on Marine Mammal Hearing
When considering the influence of various kinds of sound on the
marine environment, it is necessary to understand that different kinds
of marine life are sensitive to different frequencies of sound. Based
on available behavioral data, audiograms derived using auditory evoked
potential techniques, anatomical modeling, and other data, Southall et
al. (2007) designate ``functional hearing groups'' for marine mammals
and estimate the lower and upper frequencies of functional hearing of
the groups. The functional groups and the associated frequencies are
indicated below (though animals are less sensitive to sounds at the
outer edge of their functional range and most sensitive to sounds of
frequencies within a smaller range somewhere in the middle of their
functional hearing range):
Low frequency cetaceans (13 species of mysticetes):
functional
[[Page 80266]]
hearing is estimated to occur between approximately 7 Hz and 22 kHz;
Mid-frequency cetaceans (32 species of dolphins, six
species of larger toothed whales, and 19 species of beaked and
bottlenose whales): functional hearing is estimated to occur between
approximately 150 Hz and 160 kHz;
High frequency cetaceans (eight species of true porpoises,
six species of river dolphins, Kogia, the franciscana, and four species
of cephalorhynchids): functional hearing is estimated to occur between
approximately 200 Hz and 180 kHz; and
Pinnipeds in Water: functional hearing is estimated to
occur between approximately 75 Hz and 75 kHz, with the greatest
sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 14 marine mammal species
(12 cetacean and two pinniped species) are likely to occur in the
Neptune Port area. Of the 12 cetacean species likely to occur in
Neptune's project area, five are classified as low frequency cetaceans
(i.e., North Atlantic right, humpback, fin, minke, and sei whales), six
are classified as mid-frequency cetaceans (i.e., killer and pilot
whales and bottlenose, common, Risso's, and Atlantic white-sided
dolphins), and one is classified as a high-frequency cetacean (i.e.,
harbor porpoise) (Southall et al., 2007).
Potential Effects of the Specified Activity on Marine Mammals
Potential effects of Neptune's proposed port operations and
maintenance/repair activities would most likely be acoustic in nature.
LNG port operations and maintenance/repair activities introduce sound
into the marine environment. Potential acoustic effects on marine
mammals relate to sound produced by thrusters during maneuvering of the
SRVs while docking and undocking, occasional weathervaning at the port,
and during thruster use of DP maintenance vessels should a major repair
be necessary. The potential effects of sound from the proposed
activities associated with the Neptune Port might include one or more
of the following: Tolerance; masking of natural sounds; behavioral
disturbance; non-auditory physical effects; and, at least in theory,
temporary or permanent hearing impairment (Richardson et al., 1995).
However, for reasons discussed later in this document, it is unlikely
that there would be any cases of temporary, or especially permanent,
hearing impairment resulting from these activities. As outlined in
previous NMFS documents, the effects of noise on marine mammals are
highly variable, and can be categorized as follows (based on Richardson
et al., 1995):
(1) The noise may be too weak to be heard at the location of the
animal (i.e., lower than the prevailing ambient noise level, the
hearing threshold of the animal at relevant frequencies, or both);
(2) The noise may be audible but not strong enough to elicit any
overt behavioral response;
(3) The noise may elicit reactions of variable conspicuousness and
variable relevance to the well being of the marine mammal; these can
range from temporary alert responses to active avoidance reactions such
as vacating an area at least until the noise event ceases but
potentially for longer periods of time;
(4) Upon repeated exposure, a marine mammal may exhibit diminishing
responsiveness (habituation), or disturbance effects may persist; the
latter is most likely with sounds that are highly variable in
characteristics, infrequent, and unpredictable in occurrence, and
associated with situations that a marine mammal perceives as a threat;
(5) Any anthropogenic noise that is strong enough to be heard has
the potential to reduce (mask) the ability of a marine mammal to hear
natural sounds at similar frequencies, including calls from
conspecifics, and underwater environmental sounds such as surf noise;
(6) If mammals remain in an area because it is important for
feeding, breeding, or some other biologically important purpose even
though there is chronic exposure to noise, it is possible that there
could be noise-induced physiological stress; this might in turn have
negative effects on the well-being or reproduction of the animals
involved; and
(7) Very strong sounds have the potential to cause a temporary or
permanent reduction in hearing sensitivity. In terrestrial mammals, and
presumably marine mammals, received sound levels must far exceed the
animal's hearing threshold for there to be any temporary threshold
shift (TTS) in its hearing ability. For transient sounds, the sound
level necessary to cause TTS is inversely related to the duration of
the sound. Received sound levels must be even higher for there to be
risk of permanent hearing impairment. In addition, intense acoustic or
explosive events may cause trauma to tissues associated with organs
vital for hearing, sound production, respiration and other functions.
This trauma may include minor to severe hemorrhage.
Tolerance
Numerous studies have shown that underwater sounds from industry
activities are often readily detectable by marine mammals in the water
at distances of many kilometers. Numerous studies have also shown that
marine mammals at distances more than a few kilometers away often show
no apparent response to industry activities of various types (Miller et
al., 2005). This is often true even in cases when the sounds must be
readily audible to the animals based on measured received levels and
the hearing sensitivity of that mammal group. Although various baleen
whales, toothed whales, and (less frequently) pinnipeds have been shown
to react behaviorally to underwater sound such as airgun pulses or
vessels under some conditions, at other times, mammals of all three
types have shown no overt reactions (e.g., Malme et al., 1986;
Richardson et al., 1995; Madsen and Mohl, 2000; Croll et al., 2001;
Jacobs and Terhune, 2002; Madsen et al., 2002; Miller et al., 2005). In
general, pinnipeds and small odontocetes seem to be more tolerant of
exposure to some types of underwater sound than are baleen whales.
Richardson et al. (1995) found that vessel noise does not seem to
strongly affect pinnipeds that are already in the water. Richardson et
al. (1995) went on to explain that seals on haul-outs sometimes respond
strongly to the presence of vessels and at other times appear to show
considerable tolerance of vessels, and Brueggeman et al. (1992; cited
in Richardson et al., 1995) observed ringed seals hauled out on ice
pans displaying short-term escape reactions when a ship approached
within 0.16-0.31 mi (0.25-0.5 km).
Masking
Masking is the obscuring of sounds of interest by other sounds,
often at similar frequencies. Marine mammals are highly dependent on
sound, and their ability to recognize sound signals amid other noise is
important in communication, predator and prey detection, and, in the
case of toothed whales, echolocation. Even in the absence of manmade
sounds, the sea is usually noisy. Background ambient noise often
interferes with or masks the ability of an animal to detect a sound
signal even when that signal is above its absolute hearing threshold.
Natural ambient noise includes contributions from wind, waves,
precipitation, other animals, and (at frequencies above 30 kHz) thermal
noise resulting from molecular agitation (Richardson et al., 1995).
Background noise also can
[[Page 80267]]
include sounds from human activities. Masking of natural sounds can
result when human activities produce high levels of background noise.
Conversely, if the background level of underwater noise is high (e.g.,
on a day with strong wind and high waves), an anthropogenic noise
source will not be detectable as far away as would be possible under
quieter conditions and will itself be masked. Ambient noise is highly
variable on continental shelves (Thompson, 1965; Myrberg, 1978; Chapman
et al., 1998; Desharnais et al., 1999). This inevitably results in a
high degree of variability in the range at which marine mammals can
detect anthropogenic sounds.
Although masking is a natural phenomenon to which marine mammals
must adapt, the introduction of strong sounds into the sea at
frequencies important to marine mammals increases the severity and
frequency of occurrence of masking. For example, if a baleen whale is
exposed to continuous low-frequency noise from an industrial source,
this will reduce the size of the area around that whale within which it
can hear the calls of another whale. In general, little is known about
the importance to marine mammals of detecting sounds from conspecifics,
predators, prey, or other natural sources. In the absence of much
information about the importance of detecting these natural sounds, it
is not possible to predict the impacts if marine mammals are unable to
hear these sounds as often, or from as far away, because of masking by
industrial noise (Richardson et al., 1995). In general, masking effects
are expected to be less severe when sounds are transient than when they
are continuous.
Although some degree of masking is inevitable when high levels of
manmade broadband sounds are introduced into the sea, marine mammals
have evolved systems and behavior that function to reduce the impacts
of masking. Structured signals, such as the echolocation click
sequences of small toothed whales, may be readily detected even in the
presence of strong background noise because their frequency content and
temporal features usually differ strongly from those of the background
noise (Au and Moore, 1988, 1990). The components of background noise
that are similar in frequency to the sound signal in question primarily
determine the degree of masking of that signal. Low-frequency
industrial noise, such as shipping, has little or no masking effect on
high frequency echolocation sounds.
Redundancy and context can also facilitate detection of weak
signals. These phenomena may help marine mammals detect weak sounds in
the presence of natural or manmade noise. Most masking studies in
marine mammals present the test signal and the masking noise from the
same direction. The sound localization abilities of marine mammals
suggest that, if signal and noise come from different directions,
masking would not be as severe as the usual types of masking studies
might suggest (Richardson et al., 1995). The dominant background noise
may be highly directional if it comes from a particular anthropogenic
source such as a ship or industrial site. Directional hearing may
significantly reduce the masking effects of these noises by improving
the effective signal-to-noise ratio. In the cases of high-frequency
hearing by the bottlenose dolphin, beluga whale, and killer whale,
empirical evidence confirms that masking depends strongly on the
relative directions of arrival of sound signals and the masking noise
(Penner et al., 1986; Dubrovskiy, 1990; Bain et al., 1993; Bain and
Dahlheim, 1994). Toothed whales, and probably other marine mammals as
well, have additional capabilities besides directional hearing that can
facilitate detection of sounds in the presence of background noise.
There is evidence that some toothed whales can shift the dominant
frequencies of their echolocation signals from a frequency range with a
lot of ambient noise toward frequencies with less noise (Au et al.,
1974, 1985; Moore and Pawloski, 1990; Thomas and Turl, 1990; Romanenko
and Kitain, 1992; Lesage et al., 1999). A few marine mammal species are
known to increase the source levels of their calls in the presence of
elevated sound levels (Dahlheim, 1987; Au, 1993; Lesage et al., 1999;
Terhune, 1999).
These data demonstrating adaptations for reduced masking pertain
mainly to the very high frequency echolocation signals of toothed
whales. There is less information about the existence of corresponding
mechanisms at moderate or low frequencies or in other types of marine
mammals. For example, Zaitseva et al. (1980) found that, for the
bottlenose dolphin, the angular separation between a sound source and a
masking noise source had little effect on the degree of masking when
the sound frequency was 18 kHz, in contrast to the pronounced effect at
higher frequencies. Directional hearing has been demonstrated at
frequencies as low as 0.5-2 kHz in several marine mammals, including
killer whales (Richardson et al., 1995). This ability may be useful in
reducing masking at these frequencies. In summary, high levels of noise
generated by anthropogenic activities may act to mask the detection of
weaker biologically important sounds by some marine mammals. This
masking may be more prominent for lower frequencies. For higher
frequencies, such as that used in echolocation by toothed whales,
several mechanisms are available that may allow them to reduce the
effects of such masking.
Disturbance
Disturbance can induce a variety of effects, such as subtle changes
in behavior, more conspicuous dramatic changes in activities, and
displacement. Disturbance is one of the main concerns of the potential
impacts of manmade noise on marine mammals. For many species and
situations, there is no detailed information about reactions to noise.
While there are no specific studies available on the reactions of
marine mammals to sounds produced by a LNG facility, information from
studies of marine mammal reactions to other types of continuous and
transient anthropogenic sound (e.g., drillships) are described here as
a proxy.
Behavioral reactions of marine mammals to sound are difficult to
predict because they are dependent on numerous factors, including
species, state of maturity, experience, current activity, reproductive
state, time of day, and weather. If a marine mammal does react to an
underwater sound by changing its behavior or moving a small distance,
the impacts of that change may not be important to the individual, the
stock, or the species as a whole. However, if a sound source displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on the animals could be important. Based on
the literature reviewed in Richardson et al. (1995), it is apparent
that most small and medium-sized toothed whales exposed to prolonged or
repeated underwater sounds are unlikely to be displaced unless the
overall received level is at least 140 dB re 1 [micro]Pa (rms). The
limited available data indicate that the sperm whale is sometimes,
though not always, more responsive to underwater sounds than other
toothed whales. Baleen whales probably have better hearing
sensitivities at lower sound frequencies, and in several studies have
been shown to react to continuous sounds at received sound levels of
approximately 120 dB re 1 [micro]Pa (rms). Toothed whales appear to
exhibit a greater variety of reactions to manmade underwater noise than
do baleen whales. Toothed whale reactions can vary from approaching
[[Page 80268]]
vessels (e.g., to bow ride) to strong avoidance, while baleen whale
reactions range from neutral (little or no change in behavior) to
strong avoidance. In general, pinnipeds seem more tolerant of, or at
least habituate more quickly to, potentially disturbing underwater
noise than do cetaceans.
Baleen Whales--Baleen whales sometimes show behavioral changes in
response to received broadband drillship noises of 120 dB (rms) or
greater. On their summer range in the Beaufort Sea, bowhead whales (a
species closely related to the right whale) were observed reacting to
drillship noises within 2.5-5 mi (4-8 km) of the drillship at received
levels 20 dB above ambient, or about 118 dB (Richardson et al., 1990).
Reactions were stronger at the onset of the sound (Richardson et al.,
1995). Migrating bowhead whales avoided an area with a radius of 6.2-
12.4 mi (10-20 km around drillships and their associated support
vessels, corresponding to a received noise level around 115 dB (Greene,
1987; Koski and Johnson, 1987; Hall et al., 1994; Davies, 1997; Schick
and Urban, 2000). For gray whales off California, the predicted
reaction zone around a semi-submersible drill rig was less than 0.62 mi
(1 km), at received levels of approximately 120 dB (Malme et al., 1983,
1984). Humpback whales showed no obvious avoidance response to
broadband drillship noises at a received level of 116 dB (Malme et al.,
1985).
Reactions of baleen whales to boat noises include changes in
swimming direction and speed, blow rate, and the frequency and kinds of
vocalizations (Richardson et al., 1995). Baleen whales, especially
minke whales, occasionally approach stationary or slow-moving boats,
but more commonly avoid boats. Avoidance is strongest when boats
approach directly or when vessel noise changes abruptly (Watkins, 1986;
Beach and Weinrich, 1989). Humpback whales responded to boats at
distances of at least 0.31-0.62 mi (0.5-1 km), and avoidance and other
reactions have been noted in several areas at distances of several
kilometers (Jurasz and Jurasz, 1979; Dean et al., 1985; Bauer, 1986;
Bauer and Herman, 1986).
During some activities and at some locations, humpbacks exhibit
little or no reaction to boats (Watkins, 1986). Some baleen whales seem
to show habituation to frequent boat traffic. Over 25 years of
observations in Cape Cod waters, minke whales' reactions to boats
changed from frequent positive interactions (i.e., reactions of
apparent curiosity or reactions that appeared to provide some reward to
the animal) to a general lack of interest (i.e., ignored the stimuli),
while humpback whales' reactions changed from being often negative to
being often positive, and fin whales' reactions changed from being
mostly negative (i.e., sudden changes from activity to inactivity or a
display of agonistic responses) to being mostly uninterested (Watkins,
1986).
North Atlantic right whales also display variable responses to
boats. There may be an initial orientation away from a boat, followed
by a lack of observable reaction (Atkins and Swartz, 1989). A slowly
moving boat can approach a right whale, but an abrupt change in course
or engine speed usually elicits a reaction (Goodyear, 1989; Mayo and
Marx, 1990; Gaskin, 1991). When approached by a boat, right whale
mothers will interpose themselves between the vessel and calf and will
maintain a low profile (Richardson et al., 1995). In a long-term study
of baleen whale reactions to boats, while other baleen whale species
appeared to habituate to boat presence over the 25-year period, right
whales continued to show either uninterested or negative reactions to
boats with no change over time (Watkins, 1986).
Biassoni et al. (2000) and Miller et al. (2000) reported behavioral
observations for humpback whales exposed to a low-frequency sonar
stimulus (160- to 330-Hz frequency band; 42-s tonal signal repeated
every 6 min; source levels 170 to 200 dB) during playback experiments.
Exposure to measured received levels ranging from 120 to 150 dB
resulted in variability in humpback singing behavior. Croll et al.
(2001) investigated responses of foraging fin and blue whales to the
same low frequency active sonar stimulus off southern California.
Playbacks and control intervals with no transmission were used to
investigate behavior and distribution on time scales of several weeks
and spatial scales of tens of kilometers. The general conclusion was
that whales remained feeding within a region for which 12 to 30 percent
of exposures exceeded 140 dB.
Frankel and Clark (1998) conducted playback experiments with
wintering humpback whales using a single speaker producing a low-
frequency ``M-sequence'' (sine wave with multiple-phase reversals)
signal in the 60 to 90 Hz band with output of 172 dB at 1 m. For 11
playbacks, exposures were between 120 and 130 dB re 1 [mu]Pa (rms) and
included sufficient information regarding individual responses. During
eight of the trials, there were no measurable differences in tracks or
bearings relative to control conditions, whereas on three occasions,
whales either moved slightly away from (n = 1) or towards (n = 2) the
playback speaker during exposure. The presence of the source vessel
itself had a greater effect than did the M-sequence playback.
Finally, Nowacek et al. (2004) used controlled exposures to
demonstrate behavioral reactions of North Atlantic right whales to
various non-pulse sounds. Playback stimuli included ship noise, social
sounds of conspecifics, and a complex, 18-min ``alert'' sound
consisting of repetitions of three different artificial signals. Ten
whales were tagged with calibrated instruments that measured received
sound characteristics and concurrent animal movements in three
dimensions. Five out of six exposed whales reacted strongly to alert
signals at measured received levels between 130 and 150 dB (i.e.,
ceased foraging and swam rapidly to the surface). Two of these
individuals were not exposed to ship noise, and the other four were
exposed to both stimuli. These whales reacted mildly to conspecific
signals. Seven whales, including the four exposed to the alert
stimulus, had no measurable response to either ship sounds or actual
vessel noise.
Odontocetes--In reviewing responses of cetaceans with best hearing
(lowest auditory thresholds) in mid-frequency ranges, which includes
toothed whales, Southall et al. (2007) reported that combined field and
laboratory data for mid-frequency cetaceans exposed to non-pulse sounds
did not lead to a clear conclusion about received levels coincident
with various behavioral responses. In some settings, individuals in the
field showed profound (significant) behavioral responses to exposures
from 90 to 120 dB, while others failed to exhibit such responses for
exposure to received levels from 120 to 150 dB. Contextual variables
other than exposure received level, and probable species differences,
are the likely reasons for this variability. Context, including the
fact that captive subjects were often directly reinforced with food for
tolerating noise exposure, may also explain why there was great
disparity in results from field and laboratory conditions--exposures in
captive settings generally exceeded 170 dB before inducing behavioral
responses.
Dolphins and other toothed whales may show considerable tolerance
of floating and bottom-founded drill rigs and their support vessels.
Kapel (1979) reported many pilot whales within visual range of
drillships and their support vessels off West Greenland. Beluga whales
have been observed swimming within 328-492 ft (100-150
[[Page 80269]]
m) of an artificial island while drilling was underway (Fraker and
Fraker, 1979, 1981) and within 1 mi (1.6 km) of the drillship Explorer
I while the vessel was engaged in active drilling (Fraker and Fraker,
1981). Some belugas in Bristol Bay and Beaufort Sea, Alaska, when
exposed to playbacks of drilling sounds, altered course to swim around
the source, increased swimming speed, or reversed direction of travel
(Stewart et al., 1982; Richardson et al., 1995). Reactions of beluga
whales to semi-submersible drillship noise were less pronounced than
were their reactions to motorboats with outboard engines. Captive
belugas exposed to playbacks of recorded semi-submersible noise seemed
quite tolerant of that sound (Thomas et al., 1990).
Morton and Symonds (2002) used census data on killer whales in
British Columbia to evaluate avoidance of non-pulse acoustic harassment
devices (AHDs). Avoidance ranges around the AHDs were about 2.5 mi (4
km). Also, there was a dramatic reduction in the number of days
``resident'' killer whales were sighted during AHD-active periods
compared to pre- and post-exposure periods and a nearby control site.
Harbor porpoises off Vancouver Island, British Columbia, were found
to be sensitive to the simulated sound of a 2-megawatt offshore wind
turbine (Koschinski et al., 2003). The porpoises remained significantly
further away from the sound source when it was active, and this effect
was seen out to a distance of 197 ft (60 m). The device used in that
study produced sounds in the frequency range of 30 to 800 Hz, with peak
source levels of 128 dB re 1 [mu]Pa at 1 m at the 80- and 160-Hz
frequencies.
Some species of small toothed cetaceans avoid boats when they are
approached to within 0.31-0.93 mi (0.5-1.5 km), with occasional reports
of avoidance at greater distances (Richardson et al., 1995). Some
toothed whale species appear to be more responsive than others. Beaked
whales and beluga whales seem especially responsive to boats. Dolphins
may tolerate boats of all sizes, often approaching and riding the bow
and stern waves (Shane et al., 1986). At other times, dolphin species
that are known to be attracted to boats will avoid them. Such avoidance
is often linked to previous boat-based harassment of the animals
(Richardson et al., 1995). Coastal bottlenose dolphins that are the
object of whale-watching activities have been observed to swim
erratically (Acevedo, 1991), remain submerged for longer periods of
time (Janik and Thompson, 1996; Nowacek et al., 2001), display less
cohesiveness among group members (Cope et al., 1999), whistle more
frequently (Scarpaci et al., 2000), and rest less often (Constantine et
al., 2004) when boats were nearby. Pantropical spotted dolphins and
spinner dolphins in the eastern Tropical Pacific, where they have been
targeted by the tuna fishing industry because of their association with
these fish, display avoidance of survey vessels up to 11.1 km (6.9 mi;
Au and Perryman, 1982; Hewitt, 1985), whereas spinner dolphins in the
Gulf of Mexico were observed bow riding the survey vessel in all 14
sightings of this species during one survey (Wursig et al., 1998).
Harbor porpoises tend to avoid boats. In the Bay of Fundy,
Polacheck and Thorpe (1990) found harbor porpoises to be more likely to
swim away from the transect line of their survey vessel than to swim
toward it and more likely to head away from the vessel when they were
within 1,312 ft (400 m). Similarly, off the west coast of North
America, Barlow (1988) observed harbor porpoises avoiding a survey
vessel by moving rapidly out of its path within 0.62 mi (1 km) of that
vessel. Beluga whales are generally quite responsive to vessels.
Belugas in Lancaster Sound in the Canadian Arctic showed dramatic
reactions in response to icebreaking ships, with received levels of
sound ranging from 101 dB to 136 dB re 1 [mu]Pa in the 20 to 1,000-Hz
band at a depth of 66ft (20 m; Finley et al., 1990). Responses included
emitting distinctive pulsive calls that were suggestive of excitement
or alarm and rapid movement in what seemed to be a flight response.
Reactions occurred out to 50 mi (80 km) from the ship. Another study
found belugas to use higher-frequency calls, a greater redundancy in
their calls (more calls emitted in a series), and a lower calling rate
in the presence of vessels (Lesage et al., 1999). The level of response
of belugas to vessels is thought to be partly a function of
habituation. Sperm whales generally show no overt reactions to vessels
unless approached within several hundred meters (Watkins and Schevill,
1975; Wursig et al., 1998; Magalhaes et al., 2002). Observed reactions
include spending more (Richter et al., 2003) or less (Watkins and
Schevill, 1975) time at the surface, increasing swimming speed, or
changing heading (Papastavrou et al., 1989; Richter et al., 2003) and
diving abruptly (Wursig et al., 1998).
Pinnipeds--Pinnipeds generally seem to be less responsive to
exposure to industrial sound than most cetaceans. Pinniped responses to
underwater sound from some types of industrial activities such as
seismic exploration appear to be temporary and localized (Harris et
al., 2001; Reiser et al., 2009).
Responses of pinnipeds to drilling noise have not been well
studied. Richardson et al. (1995) summarizes the few available studies,
which show ringed and bearded seals in the Arctic to be rather tolerant
of drilling noise. Seals were often seen near active drillships and
approached, to within 164 ft (50 m), a sound projector broadcasting
low-frequency drilling sound.
Southall et al. (2007) reviewed literature describing responses of
pinnipeds to non-pulsed sound and reported that the limited data
suggest exposures between approximately 90 and 140 dB generally do not
appear to induce strong behavioral responses in pinnipeds exposed to
non-pulse sounds in water; no data exist regarding exposures at higher
levels. It is important to note that among these studies, there are
some apparent differences in responses between field and laboratory
conditions. In contrast to the mid-frequency odontocetes, captive
pinnipeds responded more strongly at lower levels than did animals in
the field. Again, contextual issues are the likely cause of this
difference.
Jacobs and Terhune (2002) observed harbor seal reactions to AHDs
(source level in this study was 172 dB) deployed around aquaculture
sites. Seals were generally unresponsive to sounds from the AHDs.
During two specific events, individuals came within 141 and 144 ft (43
and 44 m) of active AHDs and failed to demonstrate any measurable
behavioral response; estimated received levels based on the measures
given were approximately 120 to 130 dB.
Costa et al. (2003) measured received noise levels from an Acoustic
Thermometry of Ocean Climate (ATOC) program sound source off northern
California using acoustic data loggers placed on translocated elephant
seals. Subjects were captured on land, transported to sea, instrumented
with archival acoustic tags, and released such that their transit would
lead them near an active ATOC source (at 0.6 mi depth [939 m]; 75-Hz
signal with 37.5-Hz bandwidth; 195 dB maximum source level, ramped up
from 165 dB over 20 min) on their return to a haul-out site. Received
exposure levels of the ATOC source for experimental subjects averaged
128 dB (range 118 to 137) in the 60- to 90-Hz band. None of the
instrumented animals terminated dives or radically altered behavior
upon exposure, but some statistically significant changes in diving
parameters
[[Page 80270]]
were documented in nine individuals. Translocated northern elephant
seals exposed to this particular non-pulse source began to demonstrate
subtle behavioral changes at exposure to received levels of
approximately 120 to 140 dB.
Kastelein et al. (2006) exposed nine captive harbor seals in an
approximately 82 x 98 ft (25 x 30 m) enclosure to non-pulse sounds used
in underwater data communication systems (similar to acoustic modems).
Test signals were frequency modulated tones, sweeps, and bands of noise
with fundamental frequencies between 8 and 16 kHz; 128 to 130 [ 3] dB source levels; 1- to 2-s duration [60-80 percent duty
cycle]; or 100 percent duty cycle. They recorded seal positions and the
mean number of individual surfacing behaviors during control periods
(no exposure), before exposure, and in 15-min experimental sessions (n
= 7 exposures for each sound type). Seals generally swam away from each
source at received levels of approximately 107 dB, avoiding it by
approximately 16 ft (5 m), although they did not haul out of the water
or change surfacing behavior. Seal reactions did not appear to wane
over repeated exposure (i.e., there was no obvious habituation), and
the colony of seals generally returned to baseline conditions following
exposure. The seals were not reinforced with food for remaining in the
sound field.
Reactions of harbor seals to the simulated noise of a 2-megawatt
wind power generator were measured by Koschinski et al. (2003). Harbor
seals surfaced significantly further away from the sound source when it
was active and did not approach the sound source as closely. The device
used in that study produced sounds in the frequency range of 30 to 800
Hz, with peak source levels of 128 dB re 1 [mu]Pa at 1 m at the 80- and
160-Hz frequencies.
Ship and boat noise do not seem to have strong effects on seals in
the water, but the data are limited. When in the water, seals appear to
be much less apprehensive about approaching vessels. Some will approach
a vessel out of apparent curiosity, including noisy vessels such as
those operating seismic airgun arrays (Moulton and Lawson, 2002). Gray
seals have been known to approach and follow fishing vessels in an
effort to steal catch or the bait from traps. In contrast, seals hauled
out on land often are quite responsive to nearby vessels. Terhune
(1985) reported that northwest Atlantic harbor seals were extremely
vigilant when hauled out and were wary of approaching (but less so
passing) boats. Suryan and Harvey (1999) reported that Pacific harbor
seals commonly left the shore when powerboat operators approached to
observe the seals. Those seals detected a powerboat at a mean distance
of 866 ft (264 m), and seals left the haul-out site when boats
approached to within 472 ft (144 m).
Hearing Impairment and Other Physiological Effects
Temporary or permanent hearing impairment is a possibility when
marine mammals are exposed to very strong sounds. Non-auditory
physiological effects might also occur in marine mammals exposed to
strong underwater sound. Possible types of non-auditory physiological
effects or injuries that theoretically might occur in mammals close to
a strong sound source include stress, neurological effects, bubble
formation, and other types of organ or tissue damage. It is possible
that some marine mammal species (i.e., beaked whales) may be especially
susceptible to injury and/or stranding when exposed to strong pulsed
sounds, particularly at higher frequencies. Non-auditory physiological
effects are not anticipated to occur as a result of Port operations or
maintenance, as none of the activities associated with the Neptune Port
will generate sounds loud enough to cause such effects. The following
subsections discuss in somewhat more detail the possibilities of TTS
and permanent threshold shift (PTS).
TTS--TTS is the mildest form of hearing impairment that can occur
during exposure to a strong sound (Kryter, 1985). While experiencing
TTS, the hearing threshold rises and a sound must be stronger in order
to be heard. At least in terrestrial mammals, TTS can last from minutes
or hours to (in cases of strong TTS) days. For sound exposures at or
somewhat above the TTS threshold, hearing sensitivity in both
terrestrial and marine mammals recovers rapidly after exposure to the
noise ends. Few data on sound levels and durations necessary to elicit
mild TTS have been obtained for marine mammals, and none of the
published data concern TTS elicited by exposure to multiple pulses of
sound.
Human non-impulsive noise exposure guidelines are based on
exposures of equal energy (the same sound exposure level [SEL])
producing equal amounts of hearing impairment regardless of how the
sound energy is distributed in time (NIOSH, 1998). Until recently,
previous marine mammal TTS studies have also generally supported this
equal energy relationship (Southall et al., 2007). Three newer studies,
two by Mooney et al. (2009a, b) on a single bottlenose dolphin either
exposed to playbacks of U.S. Navy mid-frequency active sonar or octave-
band noise (4-8 kHz) and one by Kastak et al. (2007) on a single
California sea lion exposed to airborne octave-band noise (centered at
2.5 kHz), concluded that for all noise exposure situations, the equal
energy relationship may not be the best indicator to predict TTS onset
levels. Generally, with sound exposures of equal energy, those that
were quieter (lower sound pressure level [SPL]) with longer duration
were found to induce TTS onset more than those of louder (higher SPL)
and shorter duration. Given the available data, the received level of a
single seismic pulse (with no frequency weighting) might need to be
approximately 186 dB re 1 [mu]Pa\2\[middot]s (i.e., 186 dB SEL) in
order to produce brief, mild TTS. NMFS considers TTS to be a form of
Level B harassment, which temporarily causes a shift in an animal's
hearing, and the animal is able to recover. Data on TTS from continuous
sound (such as that produced by Neptune's proposed Port activities) are
limited, so the available data from seismic activities are used as a
proxy. Exposure to several strong seismic pulses that each have
received levels near 175-180 dB SEL might result in slight TTS in a
small odontocete, assuming the TTS threshold is (to a first
approximation) a function of the total received pulse energy. Given
that the SPL is approximately 10-15 dB higher than the SEL value for
the same pulse, an odontocete would need to be exposed to a sound level
of 190 dB re 1 [mu]Pa (rms) in order to incur TTS.
TTS was measured in a single, captive bottlenose dolphin after
exposure to a continuous tone with maximum SPLs at frequencies ranging
from 4 to 11 kHz that were gradually increased in intensity to 179 dB
re 1 [mu]Pa and in duration to 55 minutes (Nachtigall et al., 2003). No
threshold shifts were measured at SPLs of 165 or 171 dB re 1 [mu]Pa.
However, at 179 dB re 1 [mu]Pa, TTSs greater than 10 dB were measured
during different trials with exposures ranging from 47 to 54 minutes.
Hearing sensitivity apparently recovered within 45 minutes after noise
exposure.
For baleen whales, there are no data, direct or indirect, on levels
or properties of sound that are required to induce TTS. The frequencies
to which baleen whales are most sensitive are lower than those to which
odontocetes are most sensitive, and natural background noise levels at
those low frequencies tend to be higher. Marine mammals can hear sounds
at varying frequency levels. However, sounds that are produced in the
frequency range at which an animal hears the best do not need to be as
loud as sounds in less functional frequencies
[[Page 80271]]
to be detected by the animal. As a result, auditory thresholds of
baleen whales within their frequency band of best hearing are believed
to be higher (less sensitive) than are those of odontocetes at their
best frequencies (Clark and Ellison, 2004). Therefore, for a sound to
be audible, baleen whales require sounds to be louder (i.e., higher dB
levels) than odontocetes in the frequency ranges at which each group
hears the best. Based on this information, it is suspected that
received levels causing TTS onset may also be higher in baleen whales.
Since current NMFS practice assumes the same thresholds for the onset
of hearing impairment in both odontocetes and mysticetes, NMFS' onset
of TTS threshold is likely conservative for mysticetes.
In free-ranging pinnipeds, TTS thresholds associated with exposure
to brief pulses (single or multiple) of underwater sound have not been
measured. However, systematic TTS studies on captive pinnipeds have
been conducted (Bowles et al., 1999; Kastak et al., 1999, 2005, 2007;
Schusterman et al., 2000; Finneran et al., 2003; Southall et al.,
2007). Kastak et al. (1999) reported TTS of approximately 4-5 dB in
three species of pinnipeds (harbor seal, Californian sea lion, and
northern elephant seal) after underwater exposure for approximately 20
minutes to noise with frequencies ranging from 100-2,000 Hz at received
levels 60-75 dB above hearing threshold. This approach allowed similar
effective exposure conditions to each of the subjects, but resulted in
variable absolute exposure values depending on subject and test
frequency. Recovery to near baseline levels was reported within 24
hours of noise exposure (Kastak et al., 1999). Kastak et al. (2005)
followed up on their previous work using higher sensitivity levels and
longer exposure times (up to 50-min) and corroborated their previous
findings. The sound exposures necessary to cause slight threshold
shifts were also determined for two California sea lions and a juvenile
elephant seal exposed to underwater sound for similar duration. The
sound level necessary to cause TTS in pinnipeds depends on exposure
duration, as in other mammals; with longer exposure, the level
necessary to elicit TTS is reduced (Schusterman et al., 2000; Kastak et
al., 2005, 2007). For very short exposures (e.g., to a single sound
pulse), the level necessary to cause TTS is very high (Finneran et al.,
2003). For pinnipeds exposed to in-air sounds, auditory fatigue has
been measured in response to single pulses and to non-pulse noise
(Southall et al., 2007), although high exposure levels were required to
induce TTS-onset (SEL: 129 dB re: 20 [mu]Pa\2\[middot]s; Bowles et al.,
unpub. data).
NMFS (1995, 2000) concluded that cetaceans and pinnipeds should not
be exposed to pulsed underwater noise at received levels exceeding,
respectively, 180 and 190 dB re 1 [mu]Pa (rms). The established 180-
and 190-dB re 1 [mu]Pa (rms) criteria are not considered to be the
levels above which TTS might occur. Rather, they are the received
levels above which, in the view of a panel of bioacoustics specialists
convened by NMFS before TTS measurements for marine mammals started to
become available, one could not be certain that there would be no
injurious effects, auditory or otherwise, to marine mammals. Since the
modeled broadband source level for 100 percent thruster use during Port
operations is 180 dB re 1 [mu]Pa at 1 m (rms), it is highly unlikely
that marine mammals would be exposed to sound levels at the 180- or
190-dB thresholds, thereby reducing the risk of TTS to marine mammals
in the area.
PTS--When PTS occurs, there is physical damage to the sound
receptors in the ear. In some cases, there can be total or partial
deafness, whereas in other cases, the animal has an impaired ability to
hear sounds in specific frequency ranges.
There is no specific evidence that exposure to underwater
industrial sounds can cause PTS in any marine mammal (see Southall et
al., 2007). However, given the possibility that marine mammals might
incur TTS, there has been further speculation about the possibility
that some individuals occurring very close to industrial activities
might incur PTS. Richardson et al. (1995) hypothesized that PTS caused
by prolonged exposure to continuous anthropogenic sound is unlikely to
occur in marine mammals, at least for sounds with source levels up to
approximately 200 dB re 1 [mu]Pa at 1 m (rms). Single or occasional
occurrences of mild TTS are not indicative of permanent auditory damage
in terrestrial mammals. Relationships between TTS and PTS thresholds
have not been studied in marine mammals but are assumed to be similar
to those in humans and other terrestrial mammals. PTS might occur at a
received sound level at least several decibels above that inducing mild
TTS.
It is highly unlikely that marine mammals could receive sounds
strong enough (and over a sufficient duration) to cause PTS (or even
TTS) during the proposed Port operations and maintenance/repair
activities. The modeled broadband source level for 100 percent thruster
use during port operations is 180 dB re 1 [mu]Pa at 1 m (rms). This
does not reach the threshold of 190 dB currently used for pinnipeds.
The threshold for cetaceans is 180 dB; therefore, cetaceans would have
to be immediately adjacent to the vessel even possibly incur hearing
impairment. Based on this conclusion and the mitigation measures
proposed for inclusion in the regulations (described later in this
document in the ``Proposed Mitigation'' section), it is highly unlikely
that any type of hearing impairment would occur as a result of
Neptune's proposed activities.
Additionally, the potential effects to marine mammals described in
this section of the document do not take into consideration the
proposed monitoring and mitigation measures described later in this
document (see the ``Proposed Mitigation'' and ``Proposed Monitoring and
Reporting'' sections).
Anticipated Effects on Habitat
The primary potential impacts to marine mammals and other marine
species are associated with elevated sound levels produced by the Port
operations and maintenance/repair activities. However, other potential
impacts from physical disturbance are also possible.
Potential Impacts From Repairs
Major repairs to the Neptune Port and pipeline may affect marine
mammal habitat in several ways: Disturbing the seafloor; increasing
turbidity slightly; and generating additional underwater sound in the
area. Sediment transport modeling conducted by Neptune on construction
procedures indicated that initial turbidity from installation of the
pipeline 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. Therefore, any increase in turbidity from a
major repair during operations is anticipated to be insignificant.
Repair activities will not create long-term habitat changes, and marine
mammals displaced by the disturbance to the seafloor are expected to
return soon after the repair is completed.
During repair of the Neptune Port and pipeline, underwater sound
levels will be temporarily elevated. These underwater sound levels will
cause some marine species to temporarily disperse from or avoid repair
areas, but
[[Page 80272]]
they are expected to return shortly after the repair is completed.
Based on the foregoing, repair activities will not create long-term
habitat changes, and marine mammals displaced by the disturbance to the
seafloor are expected to return soon after repair activities cease.
Marine mammals also could be indirectly affected if benthic prey
species are displaced or destroyed by repair activities. However,
affected benthic species are expected to recover soon after the
completion of repairs and will represent only a small portion of food
available to marine mammals in the area.
Potential Impacts 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 [9 million liters] per day) could potentially entrain
zooplankton and ichthyoplankton that serve as prey for some 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.
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. The area
of disturbance 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 compared to the overall size of
Massachusetts Bay, 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 of the marine mammals in the area, 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.
Potential Impacts From Sound Generation
The groups of important fish, including those that constitute prey
for some of the marine mammals found in the project area, that occur in
the vicinity of the Neptune Port are comprised of species showing
considerable diversity in hearing sensitivity, anatomical features
related to sound detection (e.g., swim bladder, connections between
swim bladder and ear), habitat preference, and life history. Neptune's
application contains a discussion on sound production, sound detection,
and variability of fish hearing sensitivities. Please refer to the
application (see ADDRESSES) for the full discussion. A few summary
paragraphs are provided here for reference.
Fishes produce sounds that are associated with behaviors that
include territoriality, mate search, courtship, and aggression. It has
also been speculated that sound production may provide the means for
long distance communication and communication under poor underwater
visibility conditions (Zelick et al., 1999), although the fact that
fish communicate at low-frequency sound levels where the masking
effects of ambient noise are naturally highest suggests that very long
distance communication would rarely be possible. Fishes have evolved a
diversity of sound generating organs and acoustic signals of various
temporal and spectral contents. Fish sounds vary in structure,
depending on the mechanism used to produce them (Hawkins, 1993).
Generally, fish sounds are predominantly composed of low frequencies
(less than 3 kHz).
Since objects in the water scatter sound, fish are able to detect
these objects through monitoring the ambient noise. Therefore, fish are
probably able to detect prey, predators, conspecifics, and physical
features by listening to the environmental sounds (Hawkins, 1981).
There are two sensory systems that enable fish to monitor the
vibration-based information of their surroundings. The two sensory
systems, the inner ear and the lateral line, constitute the acoustico-
lateralis system.
Although the hearing sensitivities of very few fish species have
been studied to date, it is becoming obvious that the intra- and inter-
specific variability is considerable (Coombs, 1981). Nedwell et al.
(2004) compiled and published available fish audiogram information. A
noninvasive electrophysiological recording method known as auditory
brainstem response (ABR) is now commonly used in the production of fish
audiograms (Yan, 2004). Generally, most fish have their best hearing in
the low-frequency range (i.e., less than 1 kHz). Even though some fish
are able to detect sounds in the ultrasonic frequency range, the
thresholds at these higher frequencies tend to be considerably higher
than those at the lower end of the auditory frequency range. This
generalization applies to fish species occurring in the Neptune Port
area. Table 9-1 in Neptune's application (see ADDRESSES) outlines the
measured auditory sensitivities of fish that are most relevant to the
Neptune Port area.
Literature relating to the impacts of sound on marine fish species
can be divided into the following categories: (1) Pathological effects;
(2) physiological effects; and (3) behavioral effects. Pathological
effects include lethal and sub-lethal physical damage to fish;
physiological effects include primary and secondary stress responses;
and behavioral effects include changes in exhibited behaviors of fish.
Behavioral changes might be a direct reaction to a
[[Page 80273]]
detected sound or a result of the anthropogenic sound masking natural
sounds that the fish normally detect and to which they respond. The
three types of effects are often interrelated in complex ways. For
example, some physiological and behavioral effects could potentially
lead to the ultimate pathological effect of mortality. Hastings and
Popper (2005) reviewed what is known about the effects of sound on
fishes and identified studies needed to address areas of uncertainty
relative to measurement of sound and the responses of fishes. Popper et
al. (2003/2004) also published a paper that reviews the effects of
anthropogenic sound on the behavior and physiology of fishes.
The following discussions of the three primary types of potential
effects on fish from exposure to sound consider continuous sound
sources since, such sounds will be generated by the proposed activities
associated with the Neptune Port; however, most research reported in
the literature focuses on the effects of airguns, which produce pulsed
sounds. A full discussion is provided in Neptune's application (see
ADDRESSES), and a summary is provided here.
Potential effects of exposure to continuous sound on marine fish
include TTS, physical damage to the ear region, physiological stress
responses, and behavioral responses such as startle response, alarm
response, avoidance, and perhaps lack of response due to masking of
acoustic cues. Most of these effects appear to be either temporary or
intermittent and therefore probably do not significantly impact the
fish at a population level. The studies that resulted in physical
damage to the fish ears used noise exposure levels and durations that
were far more extreme than would be encountered under conditions
similar to those expected at the Neptune Port.
The known effects of underwater noise on fish have been reviewed.
Noise levels needed to cause temporary hearing loss and damage to
hearing are higher and last longer than noise that will be produced at
Neptune. The situation for disturbance responses is less clear. Fish do
react to underwater noise from vessels and move out of the way, move to
deeper depths, or change their schooling behavior. The received levels
at which fish react are not known and in fact are somewhat variable
depending upon circumstances and species. In order to assess the
possible effects of underwater project noise, it is best to examine
project noise in relation to continuous noises routinely produced by
other projects and activities such as shipping, fishing, etc.
The two long-term sources of continuous noise associated with the
project are the ship transits between the Boston shipping lanes and the
unloading buoys and the regasification process at the carriers when
moored to the unloading buoys. Noise levels associated with these two
activities are relatively low and are unlikely to have any effect on
prey species in the area. One other activity expected to produce short
periods of continuous noise is the carrier maneuvering bouts at the
Port. Although this activity is louder, it is still less than the noise
levels associated with large ships at cruising speed. The carrier
maneuvering using the ship's thrusters would produce short periods of
louder noise for 10-30 minutes every 4-8 days. On average, these
thruster noises would be heard about 20 hr/yr. Even in the unlikely
event that these two activities caused disturbance to marine fish, the
short periods of time involved serve to minimize the effects.
In conclusion, NMFS has preliminarily determined that Neptune's
proposed port operations and maintenance/repair activities are not
expected to have any habitat-related effects that could cause
significant or long-term consequences for individual marine mammals or
on the food sources that they utilize.
Proposed Mitigation
In order to issue an incidental take authorization (ITA) under
section 101(a)(5)(A) of the MMPA, NMFS must, where applicable, set
forth the permissible methods of taking pursuant to such activity, and
other means of effecting the least practicable adverse impact on such
species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species or stock for taking for certain
subsistence uses (where relevant).
Neptune proposed several mitigation measures in the application
(see ADDRESSES). After a review of these measures, NMFS determined that
some additional measures should also be proposed in order to effect the
least practicable adverse impact on the species or stock and its
habitat. Both sets of measures are discussed next. These measures are
the same ones that were proposed in the 2010 IHA Federal Register
notice (75 FR 24906, May 6, 2010) and that are currently required to be
implemented by Neptune in the 2010 IHA (75 FR 41440, July 16, 2010).
Mitigation Measures Proposed in Neptune's Application
Neptune submitted a ``Marine Mammal Detection, Monitoring, and
Response Plan for the Operations Phase'' (the Plan) as part of its MMPA
application (Appendix D of the application; see ADDRESSES). The
measures, which include safety zones and vessel speed reductions, are
fully described in the Plan and summarized here. The 500 yd (457 m)
safety zone for North Atlantic right whales is based on the approach
regulation found at 50 CFR 224.103. The 100 yd (91 m) safety zone for
other marine mammal species was taken from measures included in the
2007 Biological Opinion completed by NMFS' Northeast Regional Office.
Any maintenance and/or repairs needed will be scheduled in advance
during the May 1 to November 30 seasonal window, whenever possible, so
that disturbance to North Atlantic right whales will be largely
avoided. If the repair cannot be scheduled during this time frame,
additional mitigation measures are proposed for inclusion in these
regulations and described in part (2) of this subsection.
(1) Mitigation Measures for Major Repairs (May 1 to November 30)
(A) During repairs, if a marine mammal is detected within 0.5 mi
(0.8 km) of the repair vessel, the vessel superintendent or on-deck
supervisor will be notified immediately. The vessel's crew will be put
on a heightened state of alert. The marine mammal will be monitored
constantly to determine if it is moving toward the repair area.
(B) Repair vessels will cease any movement in the area if a marine
mammal other than a right whale is sighted within or approaching to a
distance of 100 yd (91 m) from the operating repair vessel. Repair
vessels will cease any movement in the area if a right whale is sighted
within or approaching to a distance of 500 yd (457 m) from the
operating vessel. Vessels transiting the repair area, such as pipe haul
barge tugs, will also be required to maintain these separation
distances.
(C) Repair vessels will cease all sound emitting activities if a
marine mammal other than a right whale is sighted within or approaching
to a distance of 100 yd (91 m) or if a right whale is sighted within or
approaching to a distance of 500 yd (457 m), from the operating repair
vessel. The back-calculated source level, based on the most
conservative cylindrical model of acoustic energy spreading, is
estimated to be 139 dB re 1 [mu]Pa.
[[Page 80274]]
(D) Repair activities may resume after the marine mammal is
positively reconfirmed outside the established zones (either 500 yd
(457 m) or 100 yd (91 m), depending upon species).
(E) While under way, all repair vessels will remain 500 yd (457 m)
away from right whales and 100 yd (91 m) away from all other marine
mammals, unless constrained by human safety concerns or navigational
constraints.
(F) All repair vessels 300 gross tons or greater will maintain a
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross
tons carrying supplies or crew between the shore and the repair site
will contact the Mandatory Ship Reporting System, the USCG, or the
protected species observers (PSOs) at the repair site before leaving
shore for reports of recent right whale sightings or active Dynamic
Management Areas (DMAs) and, consistent with navigation safety,
restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of
any recent sighting location and within any existing DMA.
(G) Vessels transiting through the Cape Cod Canal and CCB between
January 1 and May 15 will reduce speeds to 10 knots (18.5 km/hr) or
less, follow the recommended routes charted by NOAA to reduce
interactions between right whales and shipping traffic, and avoid
aggregations of right whales in the eastern portion of CCB.
(2) Additional Port and Pipeline Major Repair Measures (December 1 to
April 30)
If unplanned/emergency repair activities cannot be conducted
between May 1 and November 30, Neptune has proposed to implement the
following additional mitigation measures:
(A) If on-board PSOs do not have at least 0.5-mi (0.8-km)
visibility, they shall call for a shutdown of repair activities. If
dive operations are in progress, then they shall be halted and divers
brought on board until visibility is adequate to see a 0.5-mi (0.8-km)
range. At the time of shutdown, the use of thrusters must be minimized
to the lowest level needed to maintain personnel safety. If there are
potential safety problems due to the shutdown, the captain will decide
what operations can safely be shut down and will document such
activities in the data log.
(B) Prior to leaving the dock to begin transit, the barge will
contact one of the PSOs on watch to receive an update of sightings
within the visual observation area (within 0.6 mi (1 km) of the Port).
If the PSO has observed a North Atlantic right whale within 30 minutes
of the transit start, the vessel will hold for 30 minutes and again
seek clearance to leave from the PSOs on board. PSOs will assess whale
activity and visual observation ability at the time of the transit
request to clear the barge for release and will grant clearance if no
North Atlantic right whales have been sighted in the last 30 minutes in
the visual observation area.
(C) Neptune or its contractor shall provide a half-day training
course to designated crew members assigned to the transit barges and
other support vessels who will have responsibilities for watching for
marine mammals. This course shall cover topics including, but not
limited to, descriptions of the marine mammals found in the area,
mitigation and monitoring requirements contained in the LOA, sighting
log requirements, and procedures for reporting injured or dead marine
mammals. These designated crew members will be required to keep watch
on the bridge and immediately notify the navigator of any whale
sightings. All watch crew members will sign into a bridge log book upon
start and end of watch. Transit route, destination, sea conditions, and
any protected species sightings/mitigation actions during watch will be
recorded in the log book. Any whale sightings within 3,281 ft (1,000 m)
of the vessel will result in a high alert and slow speed of 4 knots
(7.4 km/hr) or less. A sighting within 2,461 ft (750 m) will result in
idle speed and/or ceasing all movement.
(D) The material barges and tugs used for repair work shall transit
from the operations dock to the work sites during daylight hours, when
possible, provided the safety of the vessels is not compromised. Should
transit at night be required, the maximum speed of the tug will be 5
knots (9.3 km/hr).
(E) Consistent with navigation safety, all repair vessels must
maintain a speed of 10 knots (18.5 km/hr) or less during daylight
hours. All vessels will operate at 5 knots (9.3 km/hr) or less at all
times within 3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs)
Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or
less in the following seasons and areas, which either correspond to or
are more restrictive than the times and areas in NMFS' final rule (73
FR 60173, October 10, 2008) to implement speed restrictions to reduce
the likelihood and severity of ship strikes of right whales:
CCB SMA from January 1 through May 15, which includes all
waters in CCB, extending to all shorelines of the Bay, with a northern
boundary of 42[deg]12' N. latitude;
Off Race Point SMA year round, which is bounded by
straight lines connecting the following coordinates in the order
stated: 42[deg]30' N. 69[deg]45' W.; thence to 42[deg]30' N. 70[deg]30'
W.; thence to 42[deg]12' N. 70[deg]30' W.; thence to 42[deg]12' N.
70[deg]12' W.; thence to 42[deg]04'56.5''; N. 70[deg]12' W.; thence
along mean high water line and inshore limits of COLREGS limit to a
latitude of 41[deg]40' N.; thence due east to 41[deg]41' N. 69[deg]45'
W.; thence back to starting point; and
GSC SMA from April 1 through July 31, which is bounded by
straight lines connecting the following coordinates in the order
stated:
42[deg]30' N. 69[deg]45' W.
41[deg]40' N. 69[deg]45' W.
41[deg]00' N. 69[deg]05' W.
42[deg]09' N. 67[deg]08'24'' W.
42[deg]30' N. 67[deg]27' W.
42[deg]30' N. 69[deg]45' W.
(4) Additional Mitigation Measures
(A) In approaching and departing from the Neptune Port, SRVs shall
use the Boston TSS starting and ending at the entrance to the GSC. Upon
entering the TSS, the SRV shall go into a ``heightened awareness'' mode
of operation, which is outlined in great detail in the Plan (see
Neptune's application).
(B) In the event that a whale is visually observed within 0.6 mi (1
km) of the Port or a confirmed acoustic detection is reported on either
of the two auto-detection buoys (ABs; more information on the acoustic
devices is contained in the ``Proposed Monitoring and Reporting''
section later in this document) closest to the Port, departing SRVs
shall delay their departure from the Port, unless extraordinary
circumstances, defined in the Plan, require that the departure is not
delayed. The departure delay shall continue until either the observed
whale has been visually (during daylight hours) confirmed as more than
0.6 mi (1 km) from the Port or 30 minutes have passed without another
confirmed detection either acoustically within the acoustic detection
range of the two ABs closest to the Port or visually within 0.6 mi (1
km) from Neptune.
(C) SRVs that are approaching or departing from the Port and are
within the Area to be Avoided (ATBA) surrounding Neptune shall remain
at least 0.6 mi (1 km) away from any visually detected right whales and
at least 100 yd (91 m) away from all other visually detected whales
unless extraordinary circumstances, as defined in Section 1.2 of the
Plan in Neptune's application, require that the vessel stay its course.
The ATBA is defined in 33 CFR 150.940. It is the largest area of the
[[Page 80275]]
Port marked on nautical charts, and it is enforceable by the USCG in
accordance with the 150.900 regulations. The Vessel Master shall
designate at least one lookout to be exclusively and continuously
monitoring for the presence of marine mammals at all times while the
SRV is approaching or departing Neptune.
(D) Neptune will ensure that other vessels providing support to
Neptune operations during regasification activities that are
approaching or departing from the Port and are within the ATBA shall be
operated so as to remain at least 0.6 mi (1 km) away from any visually
detected right whales and at least 100 yd (91 m) from all other
visually detected whales.
Additional Mitigation Measures Proposed by NMFS
In addition to the mitigation measures proposed in Neptune's
application, NMFS proposes the following measures be included in these
proposed regulations in order to ensure the least practicable adverse
impact on the affected species or stocks:
(1) Neptune must immediately suspend any repair and maintenance or
operations activities if a dead or injured marine mammal is found in
the vicinity of the project area, and the death or injury of the animal
could be attributable to the LNG facility activities. Upon finding a
dead or injured marine mammal, Neptune must contact NMFS, the Northeast
Stranding and Disentanglement Program, and the USCG. NMFS will review
the documentation submitted by the PSO and attempt to attribute a cause
of death. Activities will not resume until review and approval has been
given by NMFS.
(2) PSOs will direct a moving vessel to slow to idle if a baleen
whale is seen less than 0.6 mi (1 km) from the vessel.
(3) Use of lights during repair or maintenance activities shall be
limited to areas where work is actually occurring, and all other lights
must be extinguished. Lights must be downshielded to illuminate the
deck and shall not intentionally illuminate surrounding waters, so as
not to attract whales or their prey to the area.
Proposed Mitigation Conclusions
NMFS has carefully evaluated the applicant's proposed mitigation
measures and considered a range of other measures in the context of
ensuring that NMFS prescribes the means of effecting the least
practicable adverse impact on the affected marine mammal species and
stocks and their habitat. Our evaluation of potential measures included
consideration of the following factors in relation to one another:
The manner in which, and the degree to which, the
successful implementation of the measure is expected to minimize
adverse impacts to marine mammals;
The proven or likely efficacy of the specific measure to
minimize adverse impacts as planned; and
The practicability of the measure for applicant
implementation.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has preliminarily
determined that the mitigation measures proposed above from both NMFS
and Neptune (hereinafter the ``proposed mitigation measures'') provide
the means of effecting the least practicable adverse impact on marine
mammal species or stocks and their habitat, paying particular attention
to rookeries, mating grounds, and areas of similar significance.
The proposed rule comment period will afford the public an
opportunity to submit recommendations, views, and/or concerns regarding
this action and the proposed mitigation measures. While NMFS has
determined preliminarily that the proposed mitigation measures
presented in this document will effect the least practicable adverse
impact on the affected species or stocks and their habitat, NMFS will
consider all public comments to help inform our final decision.
Consequently, the proposed mitigation measures may be refined,
modified, removed, or added to prior to the issuance of the final rule
based on public comments received, and where appropriate, further
analysis of any additional mitigation measures.
Proposed Monitoring and Reporting
In order to issue an ITA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must, where applicable, set forth
``requirements pertaining to the monitoring and reporting of such
taking''. The MMPA implementing regulations at 50 CFR 216.104 (a)(13)
indicate that requests for ITAs must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the proposed action area.
Neptune proposed both visual and acoustic monitoring programs in
the Plan contained in the application. The Plan may be modified or
supplemented based on comments or new information received from the
public during the public comment period. Summaries of those plans, as
well as the proposed reporting, are contained next.
Passive Acoustic Monitoring
Neptune LNG will deploy and maintain a passive acoustic detection
network along a portion of the TSS and in the vicinity of Neptune. This
network will consist of autonomous recording units (ARUs) and near-
real-time ABs. To develop, implement, collect, and analyze the acoustic
data obtained from deployment of the ARUs and ABs, as well as to
prepare reports and maintain the passive acoustic detection network,
Neptune LNG has engaged the Cornell University Bioacoustic Research
Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic
Institution (WHOI) in Woods Hole, Massachusetts.
During June 2008, an array of 19 passive seafloor ARUs was deployed
by BRP for Neptune. The layout of the array centered on the terminal
site and was used to monitor the noise environment in Massachusetts Bay
in the vicinity of Neptune during construction of the Port and
associated pipeline lateral. The ARUs were not designed to provide
real-time or near-real-time information about vocalizing whales.
Rather, archival noise data collected from the ARU array were used for
the purpose of understanding the seasonal occurrences and overall
distributions of whales (primarily North Atlantic right whales) within
approximately 11.5 mi (18.5 km) of the Neptune Port. Neptune LNG will
maintain these ARUs in the same configuration for a period of five
years during full operation of the Neptune Port in order to monitor the
actual acoustic output of port operations and to alert NOAA to any
unanticipated effects of port operations, such as large scale
abandonment by marine mammals of the area. To further assist in
evaluations of Neptune's acoustic output, source levels associated with
DP of SRVs at the buoys will be estimated using empirical measurements
collected from the passive detection network.
In addition to the ARUs, Neptune LNG has deployed 10 ABs within the
Separation Zone of the TSS for the operational life of the Port. The
purpose of the AB array is to detect the presence of vocalizing North
Atlantic right whales. Each AB has an average detection range of 5.8 mi
(9.3 km) from the AB, although detection ranges will vary based on
ambient underwater conditions. The AB system will be the primary
detection mechanism that alerts the SRV Master to the occurrence of
[[Page 80276]]
right whales in the TSS and triggers heightened SRV awareness. The
configurations of the ARU array and AB network (see Figure 3 in the
Plan in Neptune's application) were based upon the configurations
developed and recommended by NOAA personnel.
Each AB deployed in the TSS will continuously screen the low-
frequency acoustic environment (less than 1,000 Hz) for right whale
contact calls occurring within an approximately 5.8-mi (9.3-km) radius
from each buoy (the ABs' detection range) and rank detections on a
scale from 1 to 10. Each AB shall transmit all detection data in near-
real-time for detections of rank greater than or equal to 6 via Iridium
satellite link to the BRP server website every 20 minutes. This 20-
minute transmission schedule was determined by consideration of a
combination of factors including the tendency of right whale calls to
occur in clusters (leading to a sampling logic of listening for other
calls rather than transmitting immediately upon detection of a possible
call) and the amount of battery power required to complete a satellite
transmission. Additional details on the protocol can be found in
Neptune's application.
Some additional passive acoustic monitoring is proposed for repair
activities that occur between May 1 and November 30 in any given year
in order to better detect right whales in the area of repair work and
to collect additional data on the noise levels produced during repair
and maintenance activities. Neptune shall work with NOAA (NMFS and
SBNMS) to install a passive acoustic system to detect and provide early
warnings for potential occurrence of right whales in the vicinity of
the repair area. The number of passive acoustic detection buoys
installed around the activity site will be commensurate with the type
and spatial extent of maintenance/repair work required, but must be
sufficient to detect vocalizing right whales within the 120-dB impact
zone. Neptune shall provide NMFS with empirically measured source level
data for all sources of noise associated with LNG port maintenance and
repair activities. Measurements should be carefully coordinated with
noise-producing activities and should be collected from platforms that
are as close as possible to noise producing activities.
Lastly, to further assist in evaluations of the Neptune Port's
operational acoustic output, source levels associated with dynamic
positioning of SRVs at the buoys will be estimated using empirical
measurements collected from a platform positioned as close as
practicable to thrusters while in use.
Visual Monitoring
(1) Maintenance and Repair Activities
During maintenance- and repair-related activities, Neptune LNG
shall employ two qualified PSOs on each vessel that has a DP system.
All PSOs must receive training and be approved in advance by NOAA after
a review of their qualifications. Qualifications for these PSOs shall
include direct field experience on a marine mammal observation vessel
and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. The PSOs
(one primary and one secondary) are responsible for visually locating
marine mammals at the ocean's surface and, to the extent possible,
identifying the species. The primary PSO shall act as the
identification specialist, and the secondary PSO will serve as data
recorder and will assist with identification. Both PSOs shall have
responsibility for monitoring for the presence of marine mammals.
The PSOs shall monitor the area where maintenance and repair work
is conducted beginning at daybreak using the naked eye, hand-held
binoculars, and/or power binoculars (e.g, Big Eyes). The PSOs shall
scan the ocean surface by eye for a minimum of 40 minutes every hour.
All sightings must be recorded on marine mammal field sighting logs.
(2) Operations
While an SRV is navigating within the designated TSS, three people
have lookout duties on or near the bridge of the ship including the SRV
Master, the Officer-of-the-Watch, and the Helmsman on watch. In
addition to standard watch procedures, while the SRV is within the ATBA
and/or while actively engaging in the use of thrusters, an additional
lookout shall be designated to exclusively and continuously monitor for
marine mammals. Once the SRV is moored and regasification activities
have begun, the vessel is no longer considered to be in ``heightened
awareness'' status. However, when regasification activities conclude
and the SRV prepares to depart from Neptune, the Master shall once
again ensure that the responsibilities as defined in the Plan are
carried out. All sightings of marine mammals by the designated lookout,
individuals posted to navigational lookout duties, and/or any other
crew member while the SRV is within the TSS, in transit to the ATBA,
within the ATBA, and/or when actively engaging in the use of thrusters
shall be immediately reported to the Officer-of-the-Watch who shall
then alert the Master.
Reporting Measures
Since the Neptune Port is within the Mandatory Ship Reporting Area
(MSRA), all SRVs transiting to and from Neptune shall report their
activities to the mandatory reporting section of the USCG to remain
apprised of North Atlantic right whale movements within the area. All
vessels entering and exiting the MSRA shall report their activities to
WHALESNORTH. Vessel operators shall contact the USCG by standard
procedures promulgated through the Notice to Mariner system.
For any repair work associated with the pipeline lateral or other
port components, Neptune LNG shall notify the appropriate NOAA
personnel as soon as practicable after it is determined that repair
work must be conducted. During maintenance and repair of the pipeline
lateral or other port components, weekly status reports must be
provided to NOAA. The weekly report must include data collected for
each distinct marine mammal species observed in the project area during
the period of the repair activity. The weekly reports shall include the
following:
The location, time, and nature of the pipeline lateral
repair activities;
Whether the DP system was operated and, if so, the number
of thrusters used and the time and duration of DP operation;
Marine mammals observed in the area (number, species, age
group, and initial behavior);
The distance of observed marine mammals from the repair
activities;
Observed marine mammal behaviors during the sighting;
Whether any mitigation measures were implemented;
Weather conditions (sea state, wind speed, wind direction,
ambient temperature, precipitation, and percent cloud cover, etc.);
Condition of the marine mammal observation (visibility and
glare); and
Details of passive acoustic detections and any action
taken in response to those detections.
For minor repairs and maintenance activities, the following
protocols will be followed:
All vessel crew members will be trained in marine mammal
identification and avoidance procedures;
Repair vessels will notify designated NOAA personnel when
and where the repair/maintenance work is to take place along with a
tentative schedule and description of the work;
[[Page 80277]]
Vessel crews will record/document any marine mammal
sighting(s) during the work period; and
At the conclusion of the repair/maintenance work, a report
will be delivered to designated NOAA personnel describing any marine
mammal sightings, the type of work taking place when the sighting
occurred, and any avoidance actions taken during the repair/maintenance
work.
During all phases of project repair/maintenance activities and
operation, sightings of any injured or dead marine mammals will be
reported immediately to the USCG, NMFS, and the Northeast Stranding and
Disentanglement Program, 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 repair/maintenance vessel), USCG must be
notified immediately, and a full report must be provided to NMFS,
Northeast Regional Office, and NMFS, Office of Protected Resources. The
report must include the following information: (1) The time, date, and
location (latitude/longitude) of the incident; (2) the name and type of
vessel involved; (3) the vessel's speed during the incident; (4) a
description of the incident; (5) water depth; (6) environmental
conditions (e.g., wind speed and direction, sea state, cloud cover, and
visibility); (7) the species identification or description of the
animal; (8) the fate of the animal; and (9) photographs or video
footage of the animal (if equipment is available). Activities will not
resume until review and approval has been given by NMFS.
An annual report on marine mammal monitoring and mitigation will be
submitted to NMFS, Office of Protected Resources, and NMFS, Northeast
Regional Office, on August 1 of each year. The annual report shall
cover the time period of July 1 through June 30 of each year of
activity. The weekly and annual reports should include data collected
for each distinct marine mammal species observed in the project area in
Massachusetts Bay during the period of LNG facility operations and
repair/maintenance activities. Description of marine mammal behavior,
overall numbers of individuals observed, frequency of observation, and
any behavioral changes and the context of the changes relative to
operation and repair/maintenance activities shall also be included in
the annual reports. Additional information that will be recorded during
operation and repair/maintenance activities and contained in the
reports include: date and time of marine mammal detections (visually or
acoustically), weather conditions, species identification, approximate
distance from the source, activity of the vessel 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.
In addition to annual reports, NMFS proposes to require Neptune to
submit a draft comprehensive final report to NMFS, Office of Protected
Resources, and NMFS, Northeast Regional Office, 180 days prior to the
expiration of the regulations. This comprehensive technical report will
provide full documentation of methods, results, and interpretation of
all monitoring during the first 4\1/2\ years of the LOA. A revised
final comprehensive technical report, including all monitoring results
during the entire period of the LOAs will be due 90 days after the end
of the period of effectiveness of the regulations.
General Conclusions Drawn From Previous Monitoring Reports
Throughout the construction period, Neptune submitted weekly
reports on marine mammal sightings in the area. While it is difficult
to draw biological conclusions from these reports, NMFS can make some
general conclusions. Data gathered by PSOs is generally useful to
indicate the presence or absence of marine mammals (often to a species
level) within the safety zones (and sometimes without) and to document
the implementation of mitigation measures. Though it is by no means
conclusory, it is worth noting that no instances of obvious behavioral
disturbance as a result of Neptune's activities were observed by the
PSOs. Of course, these observations only cover the animals that were at
the surface and within the distance that the PSOs could see. Based on
the number of sightings contained in the weekly reports, it appears
that NMFS' estimated take levels are accurate. No SRVs have yet arrived
at the Port for regasification; therefore, there are no reports
describing the results of the visual monitoring program for this phase
of the project. However, it is anticipated that visual observations
will be able to continue as they were during construction.
As described previously in this document, Neptune was required to
maintain an acoustic array to monitor calling North Atlantic right
whales (humpback and fin whale calls were also able to be detected).
Cornell BRP analyzed the data and submitted a report covering the
initial construction phase of the project, which occurred in 2008.
While acoustic data can only be collected if the animals are actively
calling, the report indicates that humpback and fin whales were heard
calling on at least some of the ARUs on all construction days, and
right whale calls were heard only 28 percent of the time during active
construction days. The passive acoustic arrays will remain deployed
during the time frame of these proposed regulations in order to obtain
information during the operational phase of the Port facility.
Adaptive Management
The final regulations governing the take of marine mammals
incidental to operation and repair/maintenance activities at the
Neptune Port will contain an adaptive management component. In
accordance with 50 CFR 216.105(c), regulations for the proposed
activity must be based on the best available information. As new
information is developed, through monitoring, reporting, or research,
the regulations may be modified, in whole or in part, after notice and
opportunity for public review. The use of adaptive management will
allow NMFS to consider new information from different sources to
determine if mitigation or monitoring measures should be modified
(including additions or deletions) if new data suggest that such
modifications are appropriate for subsequent LOAs.
The following are some of the possible sources of applicable data:
Results from Neptune's monitoring from the previous year;
Results from general marine mammal and sound research; or
Any information which reveals that marine mammals may have
been taken in a manner, extent or number not authorized by these
regulations or subsequent LOAs.
If, during the effective dates of the regulations, new information
is presented from monitoring, reporting, or research, these regulations
may be modified, in whole, or in part after notice and opportunity of
public review, as allowed for in 50 CFR 216.105(c). In addition, LOAs
shall be withdrawn or suspended if, after notice and opportunity for
public comment, the Assistant Administrator finds, among other things,
the regulations are not being substantially complied with or the taking
allowed is having more than a negligible impact on the species or
stock, as allowed for in 50 CFR 216.106(e). That is, should substantial
changes in marine mammal populations in the project area occur or
monitoring
[[Page 80278]]
and reporting show that the Port operations are having more than a
negligible impact on marine mammals, then NMFS reserves the right to
modify the regulations and/or withdraw or suspend LOAs after public
review.
Estimated Take by Incidental Harassment
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: ``Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [Level A harassment]; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment].'' Only take by Level B harassment is
anticipated as a result of Neptune's operational and repair/maintenance
activities. Anticipated take of marine mammals is associated with
thruster sound during maneuvering of the SRVs while docking and
undocking, occasional weathervaning at the Port, and during thruster
use of DP maintenance vessels should a major repair be necessary. The
regasification process itself is an activity that does not rise to the
level of taking, as the modeled source level for this activity is 110
dB (rms). Certain species may have a behavioral reaction to the sound
emitted during the activities; however, hearing impairment as a result
of these activities is not anticipated. Additionally, vessel strikes
are not anticipated, especially because of the speed restriction
measures that are proposed that were described earlier in this
document.
For continuous sounds, such as those produced by Neptune's proposed
activities, NMFS uses a received level of 120-dB (rms) to indicate the
onset of Level B harassment. The basis for Neptune's ``take'' estimate
is the number of marine mammals that potentially could be exposed to
sound levels in excess of 120 dB. This has been determined by applying
the modeled zone of influence (ZOI; e.g., the area ensonified by the
120-dB contour) to the seasonal use (density) of the area by marine
mammals and correcting for seasonal duration of sound-generating
activities and estimated duration of individual activities when the
maximum sound-generating activities are intermittent to occasional.
Nearly all of the required information is readily available in the
MARAD/USCG Final EIS, with the exception of marine mammal density
estimates for the project area. In the case of data gaps, a
conservative approach was used to ensure that the potential number of
takes is not underestimated, as described next.
In 2009, Neptune contracted JASCO to conduct sound source
measurement tests on the SRV while using the thrusters at full power.
The reports are contained in Appendix C of Neptune's application (see
ADDRESSES). The results for the use of both bow thrusters at 100
percent power indicate that the 120-dB radius is estimated to be 1.9 mi
(3 km), creating a maximum ZOI of 11.2 mi\2\ (29 km\2\). Since thruster
use will be intermittent during the docking and regasification
activities, this zone presents a realistic representation of the amount
of area that could potentially be ensonified for a short period of time
to dock the SRV to the Port.
Other vessels would be required for use during maintenance and
repair activities at the Port facility. Sounds generated during those
activities would be similar to or less than those generated during
original construction of the facility. Therefore, NMFS has used the
120-dB contour estimated for construction in the previous IHAs (see 74
FR 21648, May 8, 2009) for repair and maintenance activities. Depending
on water depth, the 120-dB contour during repair and maintenance
activities will extend from the source (the Port) out to 2.4 mi (3.9
km) and cover an area of 20.1 mi\2\ (52 km\2\).
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. Neptune presented density estimates using the CETAP
(1982) and U.S. Navy MRA (2005) data. The NCCOS (2006) report uses
information from these sources; however, it also includes information
from some other studies. Therefore, NMFS used density information for
the species that are included in the NCCOS (2006) report. These species
include: North Atlantic right, fin, humpback, minke, pilot, and sei
whales and Atlantic white-sided dolphins.
The NCCOS study used cetacean sightings from two sources: (1) the
North Atlantic Right Whale Consortium (NARWC) sightings database held
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet
Bird Observatory (MBO) database, held at 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 CETAP,
the Canadian Department of Fisheries and Oceans, the Provincetown
Center for Coastal Studies, International Fund for Animal Welfare,
NEFSC, New England Aquarium, WHOI, 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 ``Description of
[[Page 80279]]
Marine Mammals in the Area of the Specified Activity'' section. For a
detailed description and calculation of the cetacean abundance data and
SPUE, refer to the NCCOS study (NCCOS, 2006). SPUE for all four seasons
were analyzed, and the highest value SPUE for the season with the
highest abundance of each species was used to determine relative
abundance. Based on the data, the relative abundance of North Atlantic
right, fin, humpback, minke, sei, and pilot whales and Atlantic white-
sided dolphins, as calculated by SPUE in number of animals per square
kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0084, 0.0407, and
0.1314 n/km, respectively. Table 1 in this document outlines the
density, abundance, take estimates, and percent of population for the
14 species for which NMFS is proposing to authorize Level B harassment.
In calculating the area density of these species from these linear
density data, NMFS used 0.25 mi (0.4 km) 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 on an annual basis for North Atlantic right, fin, humpback,
minke, sei, and pilot whales and Atlantic white-sided dolphins, within
the 120-dB ZOI of the LNG Port facility area of approximately 11.2
mi\2\ (29 km\2\) maximum ZOI, corrected for 50 percent underwater, are
22, 26, 72, 16, 6, 111, and 357, respectively. This estimate is based
on an estimated 50 SRV trips annually (for all of these species except
for sei whales) that will produce sounds of 120 dB or greater. This
estimate is based on an estimated 12.5 SRV trips annually that will
produce sounds of 120 dB or greater for sei whales. Sei whales only
occur in the area in the spring. Therefore, shipments during the other
three months will not result in the take of sei whales. For this
reason, take from shipment operations has only been calculated at a
quarter of the rate of the other species.
Based on the same calculation method described above for Port
operations (but using the 120-dB ZOI of approximately 20.1 mi\2\ (52
km\2\)), the estimated take numbers by Level B harassment on an annual
basis for North Atlantic right, fin, humpback, minke, sei, and pilot
whales and Atlantic white-sided dolphins incidental to Port maintenance
and repair activities, corrected for 50 percent underwater, are 11, 13,
36, 8, 11, 56, and 179, respectively. These numbers are based on 14
days of repair and maintenance activities occurring annually. It is
unlikely that this much repair and maintenance work would be required
each year.
The total estimated annual take of these species as a result of
both operations and repair and maintenance activities of the Neptune
Port facility is: 33 North Atlantic right whales; 39 fin whales; 108
humpback whales; 24 minke whales; 17 sei whales; 166 long-finned pilot
whales; and 536 Atlantic white-sided dolphins. These numbers represent
a maximum of 9.9, 1.8, 12.8, 0.7, 4.4, 0.5, and 0.8 percent of the
populations for these species or stocks in the western North Atlantic,
respectively. It is likely that individual animals will be ``taken'' by
harassment multiple times (because certain individuals may occur in the
area more than once while other individuals of the population or stock
may not enter the proposed project area). Additionally, the highest
value SPUE for the season with the highest abundance of each species
was used to determine relative abundance. Moreover, it is not expected
that Neptune will have 50 SRV transits and LNG deliveries in the first
year or two of operations. Therefore, these percentages represent the
upper boundary of the animal population that could be affected. Thus,
the actual number of individual animals being exposed or taken is
expected to be far less, especially in the first couple of years of
operation.
In addition, bottlenose dolphins, common dolphins, Risso's
dolphins, killer whales, harbor porpoises, harbor seals, and gray seals
could also be taken by Level B harassment as a result of the deepwater
LNG port project. Because these species are less likely to occur in the
area, and there are no density estimates specific to this particular
area, NMFS based the take estimates on one or two encounters with
typical group size. Therefore, NMFS estimates that up to approximately
10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20
killer whales, 5 harbor porpoises, 15 harbor seals, and 15 gray seals
could be exposed to continuous noise at or above 120 dB re 1 [mu]Pa rms
incidental to operations and repair and maintenance activities
annually, respectively.
Because Massachusetts Bay represents only a small fraction of the
western North Atlantic basin where these animals occur NMFS has
preliminarily determined that only small numbers of the marine mammal
species or stocks in the area would be potentially affected by the
Neptune LNG deepwater project. The take estimates presented in this
section of the document do not take into consideration the mitigation
and monitoring measures that are proposed for inclusion in the
regulations (if issued).
Table 1--Density Estimates, Population Abundance Estimates, Total Annual Proposed Take (When Combine Takes From
Operation and Maintenance/Repair Activities), and Percentage of Population That May Be Taken for the Potentially
Affected Species
----------------------------------------------------------------------------------------------------------------
Percentage of
Species SPUE (n/km) Abundance \1\ Abundance \2\ Total annual stock or
proposed take population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...... 0.0082 345 361 33 9.1-9.6
Fin whale....................... 0.0097 2,269 3,985 39 1-1.7
Humpback whale.................. 0.0265 847 847 108 12.8
Minke whale..................... 0.0059 3,312 8,987 24 0.3-0.7
Sei whale....................... 0.0084 386 386 17 4.4
Long-finned pilot whale......... 0.0407 31,139 12,619 167 0.5-1.3
Atlantic white-sided dolphin.... 0.1314 63,368 63,368 536 0.8
Bottlenose dolphin.............. NA 7,489 9,604 10 0.1
Common dolphin.................. NA 120,743 120,743 20 0.02
Risso's dolphin................. NA 20,479 20,479 20 0.1
Killer whale.................... NA NA NA 20 NA
Harbor porpoise................. NA 89,054 89,054 5 0.01
Harbor seal..................... NA 99,340 NA 15 0.02
[[Page 80280]]
Gray seal....................... NA 125,541-169,06 125,541-169,06 15 0.01
4 4
----------------------------------------------------------------------------------------------------------------
\1\ Abundance estimates in 2009 NMFS Atlantic and Gulf of Mexico SAR; \2\ Abundance estimates in 2010 Draft NMFS
Atlantic and Gulf of Mexico SAR; NA = Not Available
Negligible Impact and Small Numbers Analysis and Preliminary
Determination
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * *
an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.'' In making a negligible impact determination,
NMFS considers a variety of factors, including but not limited to: (1)
The number of anticipated mortalities; (2) the number and nature of
anticipated injuries; (3) the number, nature, intensity, and duration
of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of
Neptune's proposed port operation and maintenance and repair
activities, and none are proposed to be authorized by NMFS.
Additionally, animals in the area are not anticipated to incur any
hearing impairment (i.e., TTS, a Level B harassment, or PTS, a Level A
[injury] harassment), as the modeling results for the SRV indicate a
source level of 180 dB (rms), which is below the threshold used by NMFS
for acoustic injury to marine mammals. All takes are anticipated to be
by Level B behavioral harassment only. Certain species may have a
behavioral reaction (e.g., increased swim speed, avoidance of the area,
etc.) to the sound emitted during the operations and maintenance
activities. Table 1 in this document outlines the number of Level B
harassment takes that are anticipated as a result of the proposed
activities. These takes are anticipated to be of low intensity due to
the low level of sound emitted by the activities themselves. The
activities could occur year-round. However, operations are not
anticipated to occur on successive days. Should repair or maintenance
work be required, this could occur on successive days but likely only
for 1-2 weeks. The activities do not occur in any critical habitat for
the affected species, although there is some nearby for North Atlantic
right whales. Maintenance and repair activities will be conducted to
avoid times of year when that species is most likely to be in the area.
While some of the species occur in the proposed project area year-
round, some species only occur in the area during certain seasons. For
example, sei whales are only anticipated in the area during the spring.
Therefore, if shipments and/or maintenance/repair activities occur in
other seasons, the likelihood of sei whales being affected is quite
low. Additionally, any repairs that can be scheduled in advance will be
scheduled to avoid the peak time that North Atlantic right whales occur
in the area, which usually is during the early spring. North Atlantic
right, humpback, and minke whales are not expected in the project area
in the winter. During the winter, a large portion of the North Atlantic
right whale population occurs in the southeastern U.S. calving grounds
(i.e., South Carolina, Georgia, and northern Florida). The fact that
certain activities will occur during times when certain species are not
commonly found in the area will help reduce the amount of Level B
harassment for these species.
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral
reactions to noise exposure (such as disruption of critical life
functions, displacement, or avoidance of important habitat) are more
likely to be significant if they last more than one diel cycle or recur
on subsequent days (Southall et al., 2007). Consequently, a behavioral
response lasting less than one day and not recurring on subsequent days
is not considered particularly severe unless it could directly affect
reproduction or survival (Southall et al., 2007). Operational
activities are not anticipated to occur at the Port on consecutive
days. Once Neptune is at full operations, SRV shipments would occur
every 4-8 days, with thruster use needed for a couple of hours during
each shipment. Therefore, Neptune will not be creating increased sound
levels in the marine environment for several days at a time.
Of the 14 marine mammal species likely to occur in the area, four
are listed as endangered under the ESA: North Atlantic right, humpback,
fin, and sei whales. These four species, as well as the northern
coastal stock of bottlenose dolphin, are also considered depleted under
the MMPA. As stated previously in this document, the affected humpback
and North Atlantic right whale populations have been increasing in
recent years. However, there is insufficient data to determine
population trends for the other depleted species in the proposed
project area. There is currently no designated critical habitat or
known reproductive areas for any of these species in or near the
proposed project area. However, there are several well known North
Atlantic right whale feeding grounds in the CCB and GSC. As mentioned
previously, to the greatest extent practicable, all maintenance/repair
work will be scheduled during the May 1 to November 30 time frame to
avoid peak right whale feeding in these areas, which occur close to the
Neptune Port. No mortality or injury is expected to occur and due to
the nature, degree, and context of the Level B harassment anticipated,
the activity is not expected to impact rates of recruitment or
survival.
The population estimates for the species that may be taken by
harassment from the most recent U.S. Atlantic SARs were provided
earlier in this document (see the ``Description of Marine Mammals in
the Area of the Specified Activity'' section). From the most
conservative estimates of both marine mammal densities in the project
area and the size of the 120-dB ZOI, the maximum calculated number of
individual marine mammals for each species that could potentially be
harassed annually is small relative to the overall population sizes
(12.8 percent for humpback whales, 9.1-9.6 percent for North Atlantic
right whales, and no more than 4.4 percent of any other species).
As stated previously, NMFS' practice has been to apply the 120 dB
re 1 [micro]Pa
[[Page 80281]]
(rms) received level threshold for underwater continuous sound levels
to determine whether take by Level B harassment occurs. However, not
all animals react to sounds at this low level, and many will not show
strong reactions (and in some cases any reaction) until sounds are much
stronger. Southall et al. (2007) provide a severity scale for ranking
observed behavioral responses of both free-ranging marine mammals and
laboratory subjects to various types of anthropogenic sound (see Table
4 in Southall et al. (2007)). Tables 15, 17, 19, and 21 in Southall et
al. (2007) outline the numbers of low-frequency, mid-frequency, and
high-frequency cetaceans and pinnipeds in water, respectively, reported
as having behavioral responses to non-pulses in 10-dB received level
increments. These tables illustrate, especially for cetaceans, that
more intense observed behavioral responses did not occur until sounds
were higher than 120 dB (rms). Many of the animals had no observable
response at all when exposed to anthropogenic sound at levels of 120 dB
(rms) or even higher.
The take estimates presented in this document are likely an
overestimate of the actual number of animals that may be taken by Level
B harassment in any given year. First, NMFS used the highest value SPUE
for the season with the highest abundance of each species to determine
relative abundance from the NCCOS (2006) report. However, the SPUE
quantiles used in that report had very large ranges. For example, for
humpback whales, NMFS used the SPUE quantile with a value of 0.1-11.8
but used 11.8 as the SPUE to determine density. In most cases, the
highest value SPUE in any given quantile is many magnitudes larger than
the minimum value in that particular quantile. Second, the estimates
assume that repairs will be required every year, which may not be the
case. For the reasons discussed in this section of the document (and
elsewhere), the proposed take estimates presented by NMFS are likely an
overestimate.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the mitigation and monitoring
measures, NMFS preliminarily finds that operation, including repair and
maintenance activities, of the Neptune Port will result in the
incidental take of small numbers of marine mammals, by Level B
harassment only, and that the total taking from Neptune's proposed
activities will have a negligible impact on the affected species or
stocks.
Impact on Availability of Affected Species or Stock for Taking for
Subsistence Uses
There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, NMFS has determined that the total taking of
affected species or stocks would not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.
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.
On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting
reinitiation of the section 7 consultation. MARAD and USCG determined
that certain routine planned operations and maintenance activities,
inspections, surveys, and unplanned repair work on the Neptune
Deepwater Port pipelines and flowlines, as well as any other Neptune
Deepwater Port component (including buoys, risers/umbilicals, mooring
systems, and sub-sea manifolds), may constitute a modification not
previously considered in the 2007 Biological Opinion. Construction of
the Port facility has been completed, and, therefore, is no longer part
of the proposed action. On July 12, 2010, NMFS' Northeast Regional
Office issued a Biological Opinion, which concludes that the operation
of the Neptune LNG deepwater port, including required maintenance and
repair work, is likely to adversely affect, but is not likely to
jeopardize the continued existence of the North Atlantic right,
humpback, fin, and sei whales. NMFS reached this conclusion after
reviewing the best available information on the status of endangered
and threatened species under NMFS jurisdiction, the environmental
baseline for the action area, the effects of the action, and the
cumulative effects in the action area. Although MARAD served as the
lead Federal agency for the section 7 consultation, the Biological
Opinion also considered the effects of permits issued by the Army Corps
of Engineers, the Federal Energy Regulatory Commission, and the
Environmental Protection Agency for various portions of the maintenance
and operation of the Port and associated pipeline, as well as NMFS'
issuance of authorizations to Neptune under the MMPA for the take of
marine mammals incidental to Port operations and maintenance/repairs.
NMFS has preliminarily determined that issuance of these regulations
and subsequent LOAs will not have any impacts beyond those analyzed in
the 2010 Biological Opinion. NMFS' Northeast Regional Office will issue
an Incidental Take Statement upon issuance of the LOA.
National Environmental Policy Act (NEPA)
MARAD and the USCG released a Final EIS/Environmental Impact Report
(EIR) for the proposed Neptune LNG Deepwater Port (see ADDRESSES). A
notice of availability of the Final EIS/EIR was published by MARAD on
November 2, 2006 (71 FR 64606). The Final EIS/EIR provides detailed
information on the proposed project facilities, construction methods,
and analysis of potential impacts on marine mammals.
NMFS was a cooperating agency in the preparation of the Draft and
Final EISs based on a Memorandum of Understanding related to the
Licensing of Deepwater Ports entered into by the U.S. Department of
Commerce along with 10 other government agencies. On June 3, 2008, NMFS
adopted the USCG and MARAD FEIS and issued a separate Record of
Decision for issuance of authorizations pursuant to sections
101(a)(5)(A) and (D) of the MMPA for the construction and operation of
the Neptune LNG Port facility. NMFS is currently reviewing the FEIS to
ensure that the analysis contained in that document accurately
describes and analyzes the impacts to the human environment of NMFS'
action of issuing an MMPA authorization for the operation and repair
and maintenance of the Neptune Port. This review will be completed
prior to the issuance of final regulations for this action.
Information Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning the request and the content of the proposed
regulations to authorize the taking (see ADDRESSES). Prior to
submitting comments, NMFS recommends readers review NMFS' responses to
comments made previously
[[Page 80282]]
for this action (see 73 FR 33400, June 12, 2008; 74 FR 31926, July 6,
2009; 75 FR 41440, July 16, 2010).
Classification
OMB has determined that this proposed rule is not significant for
purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Neptune LNG LLC is the only entity that would be subject to the
requirements in these proposed regulations. Neptune is one of several
companies at GDF SUEZ Energy North America (GSENA), which itself is a
business division of GDF SUEZ Energy Europe & International. GSENA has
more than 2,000 employees in North America alone. Therefore, it is not
a small governmental jurisdiction, small organization, or small
business, as defined by the RFA. Because of this certification, a
regulatory flexibility analysis is not required and none has been
prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. This proposed rule
contains collection-of-information requirements subject to the
provisions of the PRA. These requirements have been approved by OMB
under control number 0648-0151 and include applications for
regulations, subsequent LOAs, and reports. Send comments regarding any
aspect of this data collection, including suggestions for reducing the
burden, to NMFS and the OMB Desk Officer (see ADDRESSES).
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: December 14, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is proposed
to be amended as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
1. The authority citation for part 217 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Subpart R is added to part 217 to read as follows:
Subpart R--Taking of Marine Mammals Incidental to Operation and
Maintenance of a Liquefied Natural Gas Facility Off Massachusetts
Sec.
217.170 Specified activity and specified geographical region.
217.171 Effective dates.
217.172 Permissible methods of taking.
217.173 Prohibitions.
217.174 Mitigation.
217.175 Requirements for monitoring and reporting.
217.176 Applications for Letters of Authorization.
217.177 Letters of Authorization.
217.178 Renewal of Letters of Authorization and Adaptive Management.
217.179 Modifications of Letters of Authorization.
Subpart R--Taking of Marine Mammals Incidental to Operation and
Maintenance of a Liquefied Natural Gas Facility Off Massachusetts
Sec. 217.170 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Neptune LNG LLC
(Neptune) and those persons it authorizes to conduct activities on its
behalf for the taking of marine mammals that occurs in the area
outlined in paragraph (b) of this section and that occur incidental to
commissioning and operation, including maintenance and repair
activities, at the Neptune Deepwater Port (Port).
(b) The taking of marine mammals by Neptune may be authorized in a
Letter of Authorization only if it occurs at the Neptune Deepwater Port
within Outer Continental Shelf blocks NK 19-04 6525 and NK 19-04 6575,
which are located at approximately 42[deg]28'09'' N. lat and
70[deg]36'22'' W. long.
Sec. 217.171 Effective dates.
Regulations in this subpart become effective upon issuance of the
final rule.
Sec. 217.172 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 217.177 of this chapter, the Holder of the Letter of
Authorization (hereinafter ``Neptune'') may incidentally, but not
intentionally, take marine mammals within the area described in Sec.
217.170(b), provided the activity is in compliance with all terms,
conditions, and requirements of the regulations in this subpart and the
appropriate Letter of Authorization.
(b) The incidental take of marine mammals under the activities
identified in Sec. 217.170(a) is limited to the following species and
is limited to Level B Harassment:
(1) Mysticetes:
(i) North Atlantic right whale (Eubalaena glacialis)--165 (an
average of 33 annually)
(ii) Fin whale (Balaenoptera physalus)--195 (an average of 39
annually)
(iii) Humpback whale (Megaptera novaeangliae)--540 (an average of
108 annually)
(iv) Minke whale (Balaenoptera acutorostrata)--120 (an average of
24 annually)
(v) Sei whale (Balaenoptera borealis)--85 (an average of 17
annually)
(2) Odontocetes:
(i) Long-finned pilot whale (Globicephala melas)--835 (an average
of 167 annually)
(ii) Atlantic white-sided dolphin (Lagenorhynchus acutus)--2,680
(an average of 536 annually)
(iii) Bottlenose dolphin (Tursiops truncatus)--50 (an average of 10
annually)
(iv) Common dolphin (Delphinus delphis)--100 (an average of 20
annually)
(v) Risso's dolphin (Grampus griseus)--100 (an average of 20
annually)
(vi) Killer whale (Orcinus orca)--100 (an average of 20 annually)
(vii) Harbor porpoise (Phocoena phocoena)--25 (an average of 5
annually)
(3) Pinnipeds:
(i) Harbor seal (Phoca vitulina)--75 (an average of 15 annually)
(ii) Gray seal (Halichoerus grypus)--75 (an average of 15 annually)
Sec. 217.173 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.170 and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 217.177, no person in connection with the activities described in
Sec. 217.170 may:
(a) Take any marine mammal not specified in Sec. 217.172(b);
(b) Take any marine mammal specified in Sec. 217.172(b) other than
by incidental, unintentional Level B Harassment;
(c) Take a marine mammal specified in Sec. 217.172(b) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
[[Page 80283]]
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.177.
Sec. 217.174 Mitigation.
(a) When conducting the activities identified in Sec. 217.170(a),
the mitigation measures contained in the Letter of Authorization issued
under Sec. Sec. 216.106 and 217.177 must be implemented. These
mitigation measures include but are not limited to:
(1) Major Repairs (May 1-November 30):
(i) During repairs, if a marine mammal is detected within 0.5 mi
(0.8 km) of the repair vessel, the vessel superintendent or on-deck
supervisor shall be notified immediately. The vessel's crew will be put
on a heightened state of alert. The marine mammal will be monitored
constantly to determine if it is moving toward the repair area.
(ii) Repair vessels shall cease any movement in the area if a
marine mammal other than a right whale is sighted within or approaching
to a distance of 100 yd (91 m) from the operating repair vessel. Repair
vessels shall cease any movement in the construction area if a right
whale is sighted within or approaching to a distance of 500 yd (457 m)
from the operating vessel. Vessels transiting the repair area, such as
pipe haul barge tugs, shall also be required to maintain these
separation distances.
(iii) Repair vessels shall cease all sound emitting activities if a
marine mammal other than a right whale is sighted within or approaching
to a distance of 100 yd (91 m) or if a right whale is sighted within or
approaching to a distance of 500 yd (457 m), from the operating repair
vessel. The back-calculated source level, based on the most
conservative cylindrical model of acoustic energy spreading, is
estimated to be 139 dB re 1 [mu]Pa.
(iv) Repair activities may resume after the marine mammal is
positively reconfirmed outside the established zones (either 500 yd
(457 m) or 100 yd (91 m), depending upon species).
(v) While under way, all repair vessels shall remain 500 yd (457 m)
away from right whales and 100 yd (91 m) away from all other marine
mammals, unless constrained by human safety concerns or navigational
constraints.
(vi) All repair vessels 300 gross tons or greater must maintain a
speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross
tons carrying supplies or crew between the shore and the repair site
must contact the Mandatory Ship Reporting System, the U.S. Coast Guard
(USCG), or the protected species observers (PSOs) at the repair site
before leaving shore for reports of recent right whale sightings or
active Dynamic Management Areas (DMAs) and, consistent with navigation
safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8
km) of any recent sighting location and within any existing DMA.
(vii) Vessels transiting through the Cape Cod Canal and Cape Cod
Bay (CCB) between January 1 and May 15 must reduce speeds to 10 knots
(18.5 km/hr) or less, follow the recommended routes charted by NOAA to
reduce interactions between right whales and shipping traffic, and
avoid aggregations of right whales in the eastern portion of CCB.
(2) Major Repairs (December 1-April 30): If unplanned/emergency
repair activities cannot be conducted between May 1 and November 30,
then Neptune shall implement the following mitigation measures in
addition to those listed in Sec. 217.174(a)(1)(i)-(vii):
(i) If on-board PSOs do not have at least 0.5-mi (0.8-km)
visibility, they shall call for a shutdown of repair activities. If
dive operations are in progress, then they shall be halted and divers
brought on board until visibility is adequate to see a 0.5-mi (0.8-km)
range. At the time of shutdown, the use of thrusters must be minimized
to the lowest level needed to maintain personnel safety. If there are
potential safety problems due to the shutdown, the captain must decide
what operations can safely be shut down and shall document such
activities in the data log.
(ii) Prior to leaving the dock to begin transit, the barge must
contact one of the PSOs on watch to receive an update of sightings
within the visual observation area. If the PSO has observed a North
Atlantic right whale within 30 minutes of the transit start, the vessel
shall hold for 30 minutes and again seek clearance to leave from the
PSOs on board. PSOs will assess whale activity and visual observation
ability at the time of the transit request to clear the barge for
release and will grant clearance if no North Atlantic right whales have
been sighted in the last 30 minutes in the visual observation area.
(iii) Neptune or its contractor shall provide a half-day training
course to designated crew members assigned to the transit barges and
other support vessels who will have responsibilities for watching for
marine mammals. This course shall cover topics including, but not
limited to, descriptions of the marine mammals found in the area,
mitigation and monitoring requirements contained in the Letter of
Authorization, sighting log requirements, and procedures for reporting
injured or dead marine mammals. These designated crew members shall be
required to keep watch on the bridge and immediately notify the
navigator of any whale sightings. All watch crew members shall sign
into a bridge log book upon start and end of watch. Transit route,
destination, sea conditions, and any protected species sightings/
mitigation actions during watch shall be recorded in the log book. Any
whale sightings within 3,281 ft (1,000 m) of the vessel shall result in
a high alert and slow speed of 4 knots (7.4 km/hr) or less. A sighting
within 2,461 ft (750 m) shall result in idle speed and/or ceasing all
movement.
(iv) The material barges and tugs used for repair work shall
transit from the operations dock to the work sites during daylight
hours, when possible, provided the safety of the vessels is not
compromised. Should transit at night be required, the maximum speed of
the tug shall be 5 knots (9.3 km/hr).
(v) Consistent with navigation safety, all repair vessels must
maintain a speed of 10 knots (18.5 km/hr) or less during daylight
hours. All vessels shall operate at 5 knots (9.3 km/hr) or less at all
times within 3.1 mi (5 km) of the repair area.
(3) Speed Restrictions in Seasonal Management Areas (SMAs): Repair
vessels and shuttle regasification vessels (SRVs) shall transit at 10
knots (18.5 km/hr) or less in the following seasons and areas, which
either correspond to or are more restrictive than the times and areas
in NMFS' final rule (73 FR 60173, October 10, 2008) to implement speed
restrictions to reduce the likelihood and severity of ship strikes of
right whales:
(i) 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;
(ii) 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
(iii) Great South Channel (GSC) SMA from April 1 through July 31,
which is bounded by straight lines connecting the following coordinates
in the order stated:
42[deg]30' N. 69[deg]45' W.
41[deg]40' N. 69[deg]45' W.
41[deg]00' N. 69[deg]05' W.
[[Page 80284]]
42[deg]09' N. 67[deg]08'24'' W.
42[deg]30' N. 67[deg]27' W.
42[deg]30' N. 69[deg]45' W.
(4) Additional Mitigation Measures:
(i) In approaching and departing from the Neptune Port, SRVs shall
use the Boston Traffic Separation Scheme (TSS) starting and ending at
the entrance to the GSC. Upon entering the TSS, the SRV shall go into a
``heightened awareness'' mode of operation.
(ii) In the event that a whale is visually observed within 0.6 mi
(1 km) of the Port or a confirmed acoustic detection is reported on
either of the two auto-detection buoys (ABs) closest to the Port,
departing SRVs shall delay their departure from the Port, unless
extraordinary circumstances, defined in the Marine Mammal Detection,
Monitoring, and Response Plan (the Plan), require that the departure is
not delayed. The departure delay shall continue until either the
observed whale has been visually (during daylight hours) confirmed as
more than 0.6 mi (1 km) from the Port or 30 minutes have passed without
another confirmed detection either acoustically within the acoustic
detection range of the two ABs closest to the Port or visually within
0.6 mi (1 km) from Neptune.
(iii) SRVs that are approaching or departing from the Port and are
within the Area to be Avoided (ATBA) surrounding Neptune shall remain
at least 0.6 mi (1 km) away from any visually detected right whales and
at least 100 yd (91 m) away from all other visually detected whales
unless extraordinary circumstances, as defined in Section 1.2 of the
Plan, require that the vessel stay its course. The ATBA is defined in
33 CFR 150.940. It is the largest area of the Port marked on nautical
charts, and it is enforceable by the USCG in accordance with the
150.900 regulations. The Vessel Master shall designate at least one
lookout to be exclusively and continuously monitoring for the presence
of marine mammals at all times while the SRV is approaching or
departing Neptune.
(vi) Neptune shall ensure that other vessels providing support to
Port operations during regasification activities that are approaching
or departing from the Port and are within the ATBA shall be operated so
as to remain at least 0.6 mi (1 km) away from any visually detected
right whales and at least 100 yd (91 m) from all other visually
detected whales.
(v) PSOs shall direct a moving vessel to slow to idle if a baleen
whale is seen less than 0.6 mi (1 km) from the vessel.
(vi) Use of lights during repair or maintenance activities shall be
limited to areas where work is actually occurring, and all other lights
must be extinguished. Lights must be downshielded to illuminate the
deck and shall not intentionally illuminate surrounding waters, so as
not to attract whales or their prey to the area.
(vii) Neptune must immediately suspend any repair and maintenance
or operations activities if a dead or injured marine mammal is found in
the vicinity of the project area, and the death or injury of the animal
could be attributable to the Port facility activities. Upon finding a
dead or injured marine mammal, Neptune must contact NMFS, the Northeast
Stranding and Disentanglement Program, and the USCG. NMFS will review
the documentation submitted by the PSO and attempt to attribute a cause
of death. Activities shall not resume until review and approval has
been given by NMFS.
(5) Additional mitigation measures as contained in a Letter of
Authorization issued under Sec. Sec. 216.106 and 217.177.
(b) [Reserved]
Sec. 217.175 Requirements for monitoring and reporting.
(a) Visual Monitoring Program:
(1) Neptune shall employ two (2) PSOs (who must be approved by NMFS
after a review of their qualifications) during maintenance- and repair-
related activities on each vessel that has a dynamic positioning
system. All PSOs must receive NMFS-approved PSO training and be
approved in advance by NMFS after a review of their qualifications.
(2) Qualifications for these PSOs shall include direct field
experience on a marine mammal observation vessel and/or aerial surveys
in the Atlantic Ocean/Gulf of Mexico.
(3) The PSOs (one primary and one secondary) are responsible for
visually locating marine mammals at the ocean's surface and, to the
extent possible, identifying the species. The primary PSO shall act as
the identification specialist, and the secondary PSO shall serve as
data recorder and also assist with identification. Both PSOs shall have
responsibility for monitoring for the presence of marine mammals.
(4) The PSOs shall monitor the maintenance/repair area beginning at
daybreak using the naked eye, hand-held binoculars, and/or power
binoculars.
(5) The PSOs shall scan the ocean surface by eye for a minimum of
40 minutes every hour. All sightings must be recorded in marine mammal
field sighting logs. Observations of marine mammals shall be identified
to the species or the lowest taxonomic level possible, and their
relative position in relation to the vessel shall be recorded.
(6) While a SRV is navigating within the designated TSS, three
people have lookout duties on or near the bridge of the ship including
the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch.
(7) In addition to standard watch procedures, while the SRV is
within the ATBA and/or while actively engaging in the use of thrusters,
an additional lookout shall be designated to exclusively and
continuously monitor for marine mammals. Once the SRV is moored and
regasification activities have begun, the vessel is no longer
considered in ``heightened awareness'' status.
(8) At the conclusion of regasification activities, when the SRV is
prepared to depart from the Port, the Master shall once again ensure
that the responsibilities as defined in the Plan are carried out. All
sightings of marine mammals by the designated lookout, individuals
posted to navigational lookout duties, and/or any other crew member
while the SRV is within the TSS, in transit to the ATBA, within the
ATBA, and/or when actively engaging in the use of thrusters shall be
immediately reported to the Officer-of-the-Watch who shall then alert
the Master.
(b) Passive Acoustic Monitoring (PAM) Program:
(1) Neptune shall work with NMFS, Stellwagen Bank National Marine
Sanctuary (SBNMS), and other scientists to monitor an array of passive
acoustic buoys in the Boston TSS that meets the criteria specified in
the recommendations developed by NOAA through consultation with the
USCG under the National Marine Sanctuary Act (NMSA). The system shall
provide near real-time information on the presence of vocalizing whales
in the shipping lanes.
(2) Neptune shall work with NMFS, SBNMS, and other scientists to
monitor the archival array of acoustic recording units (ARUs), or
``pop-ups,'' around the Port that meets the criteria specified in the
program developed by NOAA in consultation with the USCG under the NMSA.
The ARUs shall remain in place for 5 years following initiation of
operations to monitor the actual acoustic output of port operations and
alert NOAA to any unanticipated adverse effects of port operations,
such as large-scale abandonment of the area or greater acoustic impacts
than predicted through modeling.
[[Page 80285]]
(3) Passive acoustic devices shall be actively monitored for
detections by a NMFS-approved bioacoustic technician.
(4) Repair Activity PAM Measures: PAM, in addition to that required
in this section of these regulations, is required for repair activities
that occur between May 1 and November 30 in any given year in order to
better detect right whales in the area of repair work and to collect
additional data on the noise levels produced during repair and
maintenance activities.
(i) Neptune shall work with NOAA (NMFS and SBNMS) to install and
maintain a passive acoustic system to detect and provide early warnings
for potential occurrence of right whales in the vicinity of the repair
area. The number of passive acoustic detection buoys installed around
the activity site shall be commensurate with the type and spatial
extent of maintenance/repair work required, but must be sufficient to
detect vocalizing right whales within the 120-dB impact zone.
(ii) Neptune shall provide NMFS with empirically measured source
level data for all sources of noise associated with Port maintenance
and repair activities. Measurements shall be carefully coordinated with
noise-producing activities and should be collected from platforms that
are as close as possible to noise producing activities.
(5) SRV Regasification PAM Measures: Source levels associated with
dynamic positioning of SRVs at the buoys shall be estimated using
empirical measurements collected from a platform positioned as close as
practicable to thrusters while in use.
(c) Neptune must implement the following reporting requirements:
(1) Because the Port is within the Mandatory Ship Reporting Area
(MSRA), all SRVs transiting to and from the Port must 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 must report their activities to
WHALESNORTH. Any North Atlantic right whale sightings must be reported
to the NMFS Sighting Advisory System.
(2) Repair Work Reports. (i) For any repair work associated with
the pipeline lateral or other port components, Neptune shall notify the
appropriate NOAA personnel as soon as practicable after it is
determined that repair work must be conducted.
(ii) During maintenance and repair of the pipeline lateral or other
port components, weekly status reports must be provided to NOAA. The
weekly report must include data collected for each distinct marine
mammal species observed in the project area during the period of the
repair activity. The weekly reports shall include the following:
(A) The location, time, and nature of the pipeline lateral
activities;
(B) Whether the dynamic position (DP) system was operated and, if
so, the number of thrusters used and the time and duration of DP
operation;
(C) Marine mammals observed in the area (number, species, age
group, and initial behavior);
(D) The distance of observed marine mammals from the repair
activities;
(E) Observed marine mammal behaviors during the sighting;
(F) Whether any mitigation measures were implemented;
(G) Weather conditions (sea state, wind speed, wind direction,
ambient temperature, precipitation, and percent cloud cover, etc.);
(H) Condition of the marine mammal observation (visibility and
glare); and
(I) Details of passive acoustic detections and any action taken in
response to those detections.
(iii) For all minor repair work, Neptune must notify NOAA regarding
when and where the repair/maintenance work is to take place along with
a tentative schedule and description of the work. Vessel crews shall
record/document any marine mammal sightings during the work period.
(iv) At the conclusion of all minor repair work, Neptune shall
provide NOAA with a report describing any marine mammal sightings, the
type of work taking place when the sighting occurred, and any avoidance
actions taken during the repair/maintenance work.
(3) Incident Reports. During all phases of project repair/
maintenance activities and operation, sightings of any injured or dead
marine mammals must be reported immediately to the Chief, Permits,
Conservation and Education Division or staff member and the Northeast
Stranding and Disentanglement Program, regardless of whether the injury
or death is caused by project activities. If the injury or death was
caused by a project vessel (e.g., SRV, support vessel, or construction
vessel), the USCG must be notified immediately, and a full report must
be provided to NMFS. Activities will not resume until review and
approval has been given by NMFS. The report must include the following
information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) The name and type of vessel involved;
(iii) The vessel's speed during the incident;
(iv) Description of the incident;
(v) Water depth;
(vi) Environmental conditions (e.g., wind speed and direction, sea
state, cloud cover, and visibility);
(vii) Species identification or description of the animal;
(viii) The fate of the animal; and
(ix) Photographs or video footage of the animal (if equipment is
available).
(4) Annual Reports. (i) An annual report on marine mammal
monitoring and mitigation shall be submitted to NMFS, Office of
Protected Resources, and NMFS, Northeast Regional Office (specific
contact information to be provided in Letter of Authorization), on
August 1 of each year. The annual report shall cover the time period of
July 1 through June 30 of each year of activity.
(ii) The annual report shall include data collected for each
distinct marine mammal species observed in the project area in the
Massachusetts Bay during the period of Port operations and repair/
maintenance activities. Description of marine mammal behavior, overall
numbers of individuals observed, frequency of observation, and any
behavioral changes and the context of the changes relative to operation
and repair/maintenance activities shall also be included in the annual
report. Additional information that shall be recorded during operations
and repair/maintenance activities and contained in the reports include:
date and time of marine mammal detections (visually or acoustically),
weather conditions, species identification, approximate distance from
the source, activity of the vessel when a marine mammal is sighted, and
whether thrusters were in use and, if so, how many at the time of the
sighting.
(5) Five-Year Comprehensive Report. (i) Neptune shall submit a
draft comprehensive final report to NMFS, Office of Protected
Resources, and NMFS, Northeast Regional Office (specific contact
information to be provided in Letter of Authorization), 180 days prior
to the expiration of the regulations. This comprehensive technical
report shall provide full documentation of methods, results, and
interpretation of all monitoring during the first four-and-a-half years
of the LOA.
(ii) Neptune shall submit a revised final comprehensive technical
report, including all monitoring results during the entire period of
the LOAs, 90 days after the end of the period of effectiveness of the
regulations to NMFS, Office of Protected Resources, and NMFS, Northeast
Regional Office (specific contact information to be provided in Letter
of Authorization).
[[Page 80286]]
Sec. 217.176 Applications for Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the U.S. Citizen (as defined by Sec. 216.103) conducting
the activity identified in Sec. 217.170(a) (i.e., Neptune) must apply
for and obtain either an initial Letter of Authorization in accordance
with Sec. 217.177 or a renewal under Sec. 217.178.
(b) [Reserved]
Sec. 217.177 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, shall
be valid for a period of time not to exceed the period of validity of
this subpart.
(b) The Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization shall be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact
on the affected species or stock of marine mammal(s).
Sec. 217.178 Renewal of Letters of Authorization and adaptive
management.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.177 for the activity identified in Sec. 217.170(a) shall be
renewed upon request by the applicant or determination by NMFS and the
applicant that modifications are appropriate pursuant to the adaptive
management component of these regulations, provided that:
(1) NMFS is notified that the activity described in the application
submitted under Sec. 217.176 will be undertaken and that there will
not be a substantial modification to the described work, mitigation or
monitoring undertaken during the upcoming 12 months;
(2) NMFS receives the monitoring reports required under Sec.
217.175(c)(1)-(4); and
(3) NMFS determines that the mitigation, monitoring and reporting
measures required under Sec. Sec. 217.174 and 217.175 and the Letter
of Authorization issued under Sec. Sec. 216.106 and 217.177 were
undertaken and will be undertaken during the upcoming annual period of
validity of a renewed Letter of Authorization.
(b) If either a request for a renewal of a Letter of Authorization
issued under Sec. Sec. 216.106 and 217.178 or a determination by NMFS
and the applicant that modifications are appropriate pursuant to the
adaptive management component of these regulations indicates that a
substantial modification, as determined by NMFS, to the described work,
mitigation or monitoring undertaken during the upcoming season will
occur, NMFS will provide the public a period of 30 days for review and
comment on the request. Review and comment on renewals of Letters of
Authorization are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration,
and
(2) Proposed substantive changes to the mitigation and monitoring
requirements contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
(d) Adaptive Management--NMFS may modify or augment the existing
mitigation or monitoring measures (after consulting with Neptune
regarding the practicability of the modifications) if doing so creates
a reasonable likelihood of more effectively accomplishing the goals of
mitigation and monitoring set forth in the preamble of these
regulations. Below are some of the possible sources of new data that
could contribute to the decision to modify the mitigation or monitoring
measures:
(1) Results from Neptune's monitoring from the previous year;
(2) Results from general marine mammal and sound research; or
(3) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not authorized by these regulations
or subsequent LOAs.
Sec. 217.179 Modifications of Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization issued by NMFS, pursuant to Sec. Sec. 216.106
and 217.177 and subject to the provisions of this subpart shall be made
until after notification and an opportunity for public comment has been
provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 217.178, without modification (except for the
period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 217.172(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 217.177 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.
[FR Doc. 2010-31769 Filed 12-20-10; 8:45 am]
BILLING CODE 3510-22-P