[Federal Register Volume 77, Number 49 (Tuesday, March 13, 2012)]
[Notices]
[Pages 14736-14744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6058]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XB034


Takes of Marine Mammals Incidental to Specified Activities; Pile 
Placement for Fishermen's Offshore Wind Farm

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

[[Page 14737]]


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

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SUMMARY: NMFS has received an application from AMEC Environment & 
Infrastructure, on behalf of Fishermen's Atlantic City Windfarm, LLC 
(Fishermen's) for an Incidental Harassment Authorization (IHA) to take 
marine mammals, by harassment, incidental to pile driving off the New 
Jersey coast. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS 
is proposing to issue an IHA to take, by Level B harassment, bottlenose 
dolphins, harbor porpoises, and harbor seals during the specified 
activity within a specific geographic region and is requesting comments 
on its proposal.

DATES: Comments and information must be received no later than April 
12, 2012.

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

FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specific 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which U.S. citizens can apply for an authorization to incidentally 
take small numbers of marine mammals by harassment. Section 
101(a)(5)(D) further established a 45-day time limit for NMFS' review 
of an application, followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
marine mammals. Within 45 days of the close of the comment period, NMFS 
must either issue or deny the authorization.
    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 August 30, 2011, NMFS received an application from AMEC 
Environment & Infrastructure, on behalf of Fishermen's, requesting an 
IHA for the take, by Level B harassment, of small numbers of bottlenose 
dolphins, harbor porpoises, and harbor seals incidental to pile driving 
activities off the New Jersey coast. Upon receipt of additional 
information and a revised application, NMFS determined the application 
complete and adequate on February 17, 2012.
    Fishermen's plans to construct a 20 megawatt offshore wind farm 4.5 
kilometers (km) off the New Jersey coast. The long-term project would 
comprise a single row of six electric generating windmills. Pile 
driving is required to construct a jacketed foundation on the sea floor 
for each turbine. Because elevated sound levels from pile driving have 
the potential to result in marine mammal harassment, NMFS is proposing 
to issue an IHA for take incidental to pile driving activities.

Description of the Specified Activity

    Fishermen's proposes to install 18 piles to create six jacketed 
foundations for a row of wind turbines in the Atlantic Ocean. Each 
foundation would consist of a three-legged structure, made up of three 
hollow steel pipes with an outer diameter of about 132 centimeters 
(cm). Each leg, or pipe, would be driven to a depth of about 46 meters 
(m) below the sea floor. Cross braces, placed between each leg, would 
provide additional support to the foundation. Each side of the 
foundation would measure about 16 m at the sea floor. The foundations 
would extend through the water column to about 14 m above mean higher 
high water, depending on tide levels. The top of each foundation would 
connect to the turbine with a transition piece, which would be welded 
to the foundation at about 93 m above mean higher high water. A scour 
protection mat would be installed at the base of each foundation to 
prevent ocean currents from eroding the sea floor around the 
foundation.
    Fishermen's would use a Delmag D-100 or equivalent hydraulic hammer 
to install the 18 piles. The hydraulic hammer would be positioned on a 
heavy lift crane barge along with the lift crane, which would be used 
to lift the foundation off a second barge and place it on the seafloor. 
Each pile would require 600 to 900 blows over a period of 1 to 2 hours. 
The foundations' jacket structure and design are expected to lessen the 
amount and intensity of sound propagation because each pile would be 
encased within a leg of the jacket during hammering. The planned 
distance between each foundation is about 1,080 m. One turbine would be 
constructed at a time.
    Fishermen's would also install a submarine electric cable to 
transmit power from the turbines to the shore. The cable would make 
landfall at a point in Atlantic City and continue underground to the 
existing Huron

[[Page 14738]]

Substation located along Absecon Avenue. The subsea cable would likely 
be arranged in a single string configuration and composed of three 
copper conductors, each 185 mm square, arranged within an insulated, 
single wire armored submarine electric composite cable. Fishermen's 
would use jet plowing to install the submarine electric cables, which 
is a common burial method that minimizes environmental impacts to water 
quality and aquatic natural resources. The jet plow device is 
hydraulically powered and requires a specially designed cable-laying 
vessel to tow it along the seafloor. As it is pulled forward, it 
fluidizes the sediment in such a way that the cable settles into the 
trench under its own weight. The subsea cable will be buried about 3 m 
deep from the turbine field to a point about 550 m from the shoreline. 
About 76 m\3\ of bottom material may be displaced during the process 
and a 21 m\2\ surface area may be disturbed. The remaining hole would 
be backfilled to the extent possible using previously removed material.

Date and Duration of Proposed Activity

    Fishermen's plans to commence turbine installation and cable laying 
in the summer of 2012, pending final state and federal authorizations. 
Installation of all 18 piles would require a total of 12 to 15 hours of 
driving time. Construction of the entire wind farm is anticipated to 
take 4 months, but pile driving activities would occur for 15 to 24 
days. Pile driving is expected to last a maximum of 24 days, during the 
months of May and June. NMFS would issue the IHA for a 4-month period 
(May-August) to allow for permitting and weather delays. Pile driving 
would only occur in weather that provides adequate visibility for 
marine mammal monitoring activities.

Region of Proposed Activity

    The proposed activity would occur in state waters of New Jersey, 
about 4.5 km from Atlantic City. The future turbines would run roughly 
parallel to the coast in a single line. This location was chosen over 
alternative sites in New Jersey waters based on public support. Water 
depths at the proposed project location are 8 to 12 m at mean lower low 
water.

Sound Propagation

    Sound is a mechanical disturbance consisting of minute vibrations 
that travel through a medium, such as air or water, and is generally 
characterized by several variables. Frequency describes the sound's 
pitch and is measured in hertz (Hz) or kilohertz (kHz), while sound 
level describes the sound's loudness and is measured in decibels (dB). 
Sound level increases or decreases exponentially with each dB of 
change. For example, 10 dB yields a sound level 10 times more intense 
than 1 dB, while a 20 dB level equates to 100 times more intense, and a 
30 dB level is 1,000 times more intense. Sound levels are compared to a 
reference sound pressure (micro-Pascal) to identify the medium. For air 
and water, these reference pressures are ``re: 20 [micro]Pa'' and ``re: 
1 [micro]Pa,'' respectively. Root mean square (RMS) is the quadratic 
mean sound pressure over the duration of an impulse. RMS is calculated 
by squaring all of the sound amplitudes, averaging the squares, and 
then taking the square root of the average (Urick, 1975). RMS accounts 
for both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units rather than by peak pressures.
    Based on measurements taken around impact hammers at other in-water 
locations, source levels during pile driving are estimated to reach 
about 185 dB RMS. Assuming a practical spreading loss of 15 log R, 
Fishermen's estimates that the 180-dB (Level A harassment threshold) 
isopleth for the impact hammer would be about 50 m from the source. The 
160-dB (Level B harassment threshold) isopleth would be about 500 m 
from the source. The foundations' jacket structure and design are 
expected to lessen sound levels and intensity, but the amount of sound 
reduction afforded by the jacket is unknown. Noise associated with 
other construction activities (e.g,. cable laying) is expected to be 
minimal.

Description of Marine Mammals in the Area of the Specified Activity

    There are 42 marine mammal species with confirmed or potential 
occurrence off the coast of New Jersey. Of these, 20 species are 
regular inhabitants to the northeast Atlantic Ocean and could occur in 
the proposed project area at some point during the year (Table 1).

   Table 1--Marine mammal species considered a regular or normal part of the fauna in the northeast Atlantic Ocean, which could possibly occur in the
 project area. The ``Observance within Proposed Study Area'' denotes whether or not the species was observed within a 170-acre area during recent vessel
                                                                    or aerial surveys
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                                                                                                                                     Observance within
            Common name                  Scientific name           ESA  Status            Time of year             Presence         proposed  study area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes.........................
    North Atlantic right whale.....  Eubalaena glacialis...  E.....................  Year round...........  Possible.............  Yes.
    Humpback whale.................  Megaptera novaeangliae  E.....................  Year round...........  Possible.............  Yes.
    Minke whale....................  Balaenoptera            ......................  Winter/summer........  Possible.............  Yes.
                                      acutorostrata.
    Sei whale......................  Balaenoptera borealis.  E.....................  N/A..................  Uncommon.............  No.
    Fin whale......................  Balaenoptera physalus.  E.....................  Year round...........  Possible.............  Yes.
Odontocetes
    Bottlenose dolphin.............  Tursiops truncatus....  ......................  May-August...........  Possible.............  Yes.
    Atlantic spotted dolphin.......  Stenella frontalis....  ......................  N/A..................  Uncommon.............  No.
    Common dolphin.................  Delphinus delphis.....  ......................  November-March.......  Possible.............  Yes.
    Atlantic white-sided dolphin...  Lagenorhynchus acutus.  ......................  N/A..................  Uncommon.............  No.
    Risso's dolphin................  Grampus griseus.......  ......................  N/A..................  Uncommon.............  No.
    Long-finned pilot whale........  Globicephala melas....  ......................  N/A..................  Uncommon.............  No.
    Short-finned pilot whale.......  Globicephala            ......................  N/A..................  Uncommon.............  No.
                                      macrorhynchus.
    Harbor porpoise................  Phocoena phocoena.....  ......................  Fall-spring..........  Possible.............  Yes.

[[Page 14739]]

 
Phocids
    Harbor seal....................  Phoca vitulina........  ......................  Year round...........  Possible.............  Yes.
    Gray seal......................  Halichoerus grypus....  ......................  N/A..................  Possible.............  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Fishermen's proposed project area was included in a large, 
comprehensive ecological baseline study of New Jersey's marine waters 
(NJDEP, 2010). From January 2008, through December 2009, transects 
totaling 18,183 km were surveyed in order to collect baseline 
information on the distribution, abundance, and migratory patterns of 
coastal and marine species. Within Fishermen's project area (a 170-acre 
area encompassing the future wind turbine array), 611 km of study 
transects were dedicated to surveying for marine mammals and sea 
turtles. Marine mammal data were collected over the 2-year period using 
shipboard surveys, aerial surveys, and passive acoustic monitoring. 
Records show that bottlenose dolphins and a single unidentified 
pinniped were the only marine mammal species observed in the project 
area.
    In January 2011, marine mammal observers were onboard the vessels 
conducting geophysical and geotechnical surveys of the project area. No 
marine mammal species were sighted during that time. Fishermen's also 
conducted pre-construction monitoring of the project area in order to 
fulfill a New Jersey Department of Environmental Protection 
requirement. This study was comprised of seven survey track lines, 
spaced about 2 km apart, and included a 2-km radius buffer zone around 
the proposed turbine locations. A total of 389 transects were surveyed 
totaling more than 140 survey hours over 2,601 km from May 2010, 
through May 2011. During this study, observers sighted bottlenose 
dolphins, fin whales, humpback whales, minke whales, harbor porpoises, 
and harbor seals. Bottlenose dolphins were most commonly seen and only 
six mysticetes (baleen whales) were observed during the study. 
Sightings of fin whales, humpback whales, minke whales, and harbor 
porpoises were only observed from late September to mid-April. Based on 
sightings data, habitat preference, seasonality, and the proposed 
project timeline, all species from Table 1 except bottlenose dolphins, 
harbor porpoises, and harbor seals are considered unlikely to be 
impacted by the proposed pile driving operations and are not discussed 
further. Detailed information on the species likely to be harassed 
during pile driving is provided below.

Bottlenose Dolphin

    Bottlenose dolphins are found in a wide variety of habitats at both 
tropical and temperate latitudes. Depending on their habitat, they 
might feed on benthic fish, invertebrates, and pelagic or mesopelagic 
fish. They are often found in groups, most commonly of two to 15 
individuals. NMFS currently recognizes 15 stocks of bottlenose dolphins 
in the Atlantic Ocean. Bottlenose dolphins in the proposed project area 
would likely be part of the Western North Atlantic Northern Migratory 
Coastal stock. The coastal stock is found along the inner continental 
shelf and around islands and often moves into or resides in bays, 
estuaries, and the lower reaches of rivers and has an estimated 
abundance of 9,604. There are insufficient data to determine the 
population trends for these stocks. Bottlenose dolphins are not listed 
under the Endangered Species Act (ESA), but the Western North Atlantic 
Northern Migratory Coastal stock is considered depleted under the MMPA. 
More information, including stock assessment reports, can be found at: 
http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/bottlenosedolphin.htm. Bottlenose dolphins, like other dolphin species 
and most toothed whales, are in the mid-frequency hearing group, with 
an estimated functional hearing range of 150 Hz to 160 kHz (Southall et 
al., 2007).

Harbor Porpoises

    Harbor porpoises reside in northern temperate and subarctic coastal 
and offshore waters. They are commonly found in bays, estuaries, 
harbors, and fjords less than 200 m deep. In the western North 
Atlantic, harbor porpoises range from west Greenland to Cape Hatteras, 
North Carolina. Harbor porpoises in U.S. waters are divided into 10 
stocks, based on genetics, movement patterns, and management. During 
summer months, harbor porpoises are concentrated in the northern Gulf 
of Maine and southern Bay of Fundy region. Any harbor porpoises 
encountered during the proposed project would be part of the Gulf of 
Maine-Bay of Fundy stock, which has an estimated abundance of 89,054 
animals. Population trends for all U.S. stocks of harbor porpoises are 
currently unknown. Gulf of Maine-Bay of Fundy harbor porpoises are not 
listed under the ESA nor considered depleted under the MMPA. More 
information, including stock assessment reports, can be found at: 
http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/harborporpoise.htm. Harbor porpoises are considered high-frequency 
cetaceans and their estimated auditory bandwidth (lower to upper 
frequency hearing cut-off) ranges from 200 Hz to 180 kHz (Southall et 
al., 2007).

Harbor Seals

    Harbor seals are typically found in temperate coastal habitats and 
use rocks, reefs, beaches, and drifting glacial ice as haul outs and 
pupping sites. On the east coast, they range from the Canadian Arctic 
to southern New England, New York, and occasionally the Carolinas. 
There are an estimated 91,000 harbor seals in the western North 
Atlantic stock and the population is increasing. There are three well 
known, long-term haul out sites in New Jersey: Sandy Hook, Barnegat 
Inlet, and Great Bay. However, the closest haul out (Great Bay) is 
about 21 km north of the proposed project area. Harbor seal abundance 
at this site has increased since 1994 and shows strong seasonality, 
with seals consistently present between November and April (Slocum et 
al., 1999; Slocum et al., 2005). No other haul out sites were 
identified during aerial surveys for the ecological baseline study. 
Harbor seals are considered the most common seal

[[Page 14740]]

species present in New Jersey waters, although gray seals, harp seals, 
and hooded seals, also appear in winter months. Harbor seals are not 
listed under the ESA nor considered depleted under the MMPA. More 
information, including stock assessment reports, can be found at: 
http://www.nmfs.noaa.gov/pr/species/mammals/pinnipeds/harborseal.htm.
    Pinnipeds produce a wide range of social signals, most occurring at 
relatively low frequencies (Southall et al., 2007), suggesting that 
hearing is keenest at these frequencies. Pinnipeds communicate 
acoustically both on land and underwater, but have different hearing 
capabilities dependent upon the medium (air or water). Based on 
numerous studies, as summarized in Southall et al. (2007), pinnipeds 
are more sensitive to a broader range of sound frequencies underwater 
than in air. Underwater, pinnipeds can hear frequencies from 75 Hz to 
75 kHz. In air, pinnipeds can hear frequencies from 75 Hz to 30 kHz 
(Southall et al., 2007).

Potential Effects on Marine Mammals

    Elevated in-water sound levels from pile driving in the proposed 
project area may temporarily impact marine mammal behavior. Elevated 
in-air sound levels are not a concern because the nearest significant 
pinniped haul-out is 21 km away. Marine mammals are continually exposed 
to many sources of sound. For example, lightning, rain, sub-sea 
earthquakes, and animals are natural sound sources throughout the 
marine environment. Marine mammals produce sounds in various contexts 
and use sound for various biological functions including, but not 
limited to, (1) social interactions; (2) foraging; (3) orientation; and 
(4) predator detection. Interference with producing or receiving these 
sounds may result in adverse impacts. Audible distance or received 
levels will depend on the sound source, ambient noise, and the 
sensitivity of the receptor (Richardson et al., 1995). Marine mammal 
reactions to sound may depend on sound frequency, ambient sound, what 
the animal is doing, and the animal's distance from the sound source 
(Southall et al., 2007).

Hearing Impairment

    Marine mammals may experience temporary or permanent hearing 
impairment when exposed to loud sounds. Hearing impairment is 
classified by temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for when PTS first occurs in 
marine mammals; therefore, it must be estimated from when TTS first 
occurs and from the rate of TTS growth with increasing exposure levels. 
PTS is likely if the animal's hearing threshold is reduced by >= 40 dB 
of TTS. PTS is considered auditory injury (Southall et al., 2007) and 
occurs in a specific frequency range and amount. Irreparable damage to 
the inner or outer cochlear hair cells may cause PTS; however, other 
mechanisms are also involved, such as exceeding the elastic limits of 
certain tissues and membranes in the middle and inner ears and 
resultant changes in the chemical composition of the inner ear fluids 
(Southall et al., 2007). Due to proposed mitigation measures and source 
levels in the proposed project area, NMFS does not expect marine 
mammals to be exposed to sound levels associated with PTS.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to days, but is recoverable. 
TTS also occurs in specific frequency ranges; therefore, an animal 
might experience a temporary loss of hearing sensitivity only between 
the frequencies of 1 and 10 kHz, for example. The amount of change in 
hearing sensitivity is also variable and could be reduced by 6 dB or 30 
dB, for example. Recent literature highlights the inherent complexity 
of predicting TTS onset in marine mammals, as well as the importance of 
considering exposure duration when assessing potential impacts (Mooney 
et al., 2009a, 2009b; Kastak et al., 2007). Generally, with sound 
exposures of equal energy, quieter sounds (lower SPL) of longer 
duration were found to induce TTS onset more than louder sounds (higher 
SPL) of shorter duration (more similar to subbotom profilers). For 
sound exposures at or somewhat above the TTS-onset threshold, hearing 
sensitivity recovers rapidly after exposure to the sound ends. Southall 
et al. (2007) considers a 6 dB TTS (i.e., baseline thresholds are 
elevated by 6 dB) to be a sufficient definition of TTS-onset. NMFS 
considers TTS as Level B harassment that is mediated by physiological 
effects on the auditory system; however, NMFS does not consider onset 
TTS to be the lowest level at which Level B harassment may occur. A 
limited number of behavioral studies have been performed to assess the 
responses of mid-frequency cetaceans (such as bottlenose dolphins) to 
multiple pulses. Combined data show a range of behavioral responses, 
from temporary pauses in vocalization for received levels of 80 to 90 
dB, to a lack of observable reactions for received levels of 120 to 180 
dB (Southall, et al., 2007). Data on behavioral reactions of pinnipeds 
to multiple pulses is also limited, but suggests that exposures in the 
150 to 180 dB range have limited potential to induce avoidance behavior 
(Southall et al., 2007). Some studies suggest that harbor porpoises may 
be more sensitive to sound than other odontocetes (Lucke et al., 2009 
and Kastelein et al., 2011). Although TTS onset may occur in harbor 
porpoises at lower received levels (when compared to other 
odontocetes), NMFS' Level B harassment threshold is based on the onset 
of behavioral harassment, not TTS. However, the potential for TTS is 
considered in NMFS' analysis of potential impacts from Level B 
harassment.

Behavioral Disturbance

    Behavioral responses to sound are highly variable and context-
specific. An animal's perception of and response to (in both nature and 
magnitude) an acoustic event can be influenced by prior experience, 
perceived proximity, bearing of the sound, familiarity of the sound, 
etc. (Southall et al., 2007). If a marine mammal does react briefly to 
an underwater sound by changing its behavior or moving a small 
distance, the impacts of the change are unlikely to be significant to 
the individual, let alone the stock or populations. However, if a sound 
source displaces marine mammals from an important feeding or breeding 
area for a prolonged period, impacts on individuals and populations 
could be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). 
Given the many uncertainties in predicting the quantity and types of 
impacts of noise on marine mammals, it is common practice to estimate 
how many mammals would be present within a particular distance of 
activities and/or exposed to a particular level of sound. In most 
cases, this approach likely overestimates the numbers of marine mammals 
that would be affected in some biologically-important manner.

Impulse Sounds

    The only sounds from the proposed activity expected to result in 
the harassment of marine mammals are impulse sounds associated with 
impact pile driving. Southall et al. (2007) addresses behavioral 
responses of marine mammals to impulse sounds (like impact pile 
driving). The studies that address the responses of mid-frequency 
cetaceans to impulse sounds include data gathered both in the field

[[Page 14741]]

and the laboratory and related to several different sound sources (of 
varying similarity to boomers), including: Small explosives, airgun 
arrays, pulse sequences, and natural and artificial pulses. The data 
show no clear indication of increasing probability and severity of 
response with increasing received level. Behavioral responses seem to 
vary depending on species and stimuli. Data on behavioral responses of 
high-frequency cetaceans to multiple pulses is not available. Although 
individual elements of some non-pulse sources (such as pingers) could 
be considered pulses, it is believed that some mammalian auditory 
systems perceive them as non-pulse sounds (Southall et al., 2007).
    The studies that address the responses of pinnipeds in water to 
impulse sounds include data gathered in the field and related to 
several different sources, including: Small explosives, impact pile 
driving, and airgun arrays. Quantitative data on reactions of pinnipeds 
to impulse sounds is limited, but a general finding is that exposures 
in the 150 to 180 dB range generally have limited potential to induce 
avoidance behavior (Southall et al., 2007).
    No impacts to marine mammal reproduction are anticipated because 
there are no known pinniped rookeries or cetacean breeding grounds 
within the proposed project area. Marine mammals may avoid the area 
around the hammer, thereby reducing their exposure to elevated sound 
levels. NMFS expects any impacts to marine mammal behavior to be 
temporary, Level B harassment (for example, avoidance or alteration of 
behavior). Fishermen's conservatively assumes a maximum of 24 pile 
driving days may occur over the validity of the IHA. Marine mammal 
injury or mortality is not likely, as the 180 dB isopleth (NMFS' Level 
A harassment threshold for cetaceans) for the impact hammer is expected 
to be less than a 50-m radius. Fishermen's proposes to continuously 
monitor a 1,000-m area around the sound source and reduce or cease all 
pile driving to prevent Level A harassment to marine mammals.

Anticipated Effects on Habitat

    The installation of piles and submarine electric cable would result 
in both temporary disturbance and limited, but permanent, loss of 
benthic habitat. These effects would be limited to the area within the 
project footprint and along the cable route where sediment disturbing 
activities would occur. The cable installation process would 
temporarily affect benthic resources and habitat by entrainment of 
microorganisms and displacement or burial of other benthic resources. 
However, since the jetting and cable laying process occurs very slowly 
(less than 1 knot speed by the vessel), most mobile organisms are 
likely to avoid the area. Installation may result in a temporary loss 
of forage items and a temporary reduction in the amount of benthic 
habitat available for foraging marine mammals. However, there are no 
known foraging grounds around the project area, so marine mammals in 
the area would likely be foraging opportunistically. The cable route 
has been designed to avoid submerged aquatic vegetation. Impacts 
associated with cable installation and vessel anchoring would be 
temporary and localized.
    Pile driving (resulting in temporary ensonification) may impact 
prey species and marine mammals by causing avoidance or abandonment of 
the area; however these impacts are expected to be local and temporary. 
Installation of the jacketed foundations and associated scour 
protection would result in the permanent loss of less than one acre of 
benthic habitat. However, this loss is not likely to have a measurable 
adverse impact on marine mammal foraging activity due to the limited 
size and lack of known or significant foraging grounds in the proposed 
project area. The total impacted area represents less than one percent 
of similar bottom habitat in the proposed project area. Furthermore, 
the vertical foundation structure that would be added to the 
environment may provide additional habitat and foraging opportunities 
to marine species. The effects of habitat loss or modification to 
marine mammals are expected to be insignificant or discountable.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth, where applicable, 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. Fishermen's proposed 
the following mitigation measures to minimize adverse impacts to marine 
mammals:

Exclusion Zone

    The purpose of an exclusion zone is to prevent Level A harassment 
(injury) of any marine mammal species. Fishermen's proposes to 
establish a radius around each pile driving site that would be 
continuously monitored for marine mammals. If a marine mammal is 
observed nearing or entering this perimeter, Fishermen's would reduce 
hammering power (or stop hammering) to reduce the sound pressure 
levels. More specifically, Fishermen's would establish a preliminary 
1,000-m exclusion zone around each pile driving site, based on the 
estimated rates of sound attenuation discussed earlier in this notice. 
This distance is considered conservative because it would encompass the 
estimated 180-dB isopleth, within which injury could occur, plus an 
additional 950-m buffer. The 1,000-m exclusion zone would also 
encompass the estimated 160-dB isopleth (less than 500 m), within which 
behavioral harassment could occur. Fishermen's would perform field 
verification of the impact hammer's resulting sound pressure levels to 
ensure that estimated distances to the 180-dB (Level A) and 160-dB 
(Level B) isopleths are accurate. Once hydroacoustic monitoring is 
conducted, the exclusion zone may be adjusted accordingly so that 
marine mammals are not exposed to Level A harassment sound pressure 
levels. Any new exclusion zone would encompass the 180-dB and 160-dB 
isopleth to avoid any takes of ESA-listed species. The exclusion zone 
would be monitored continuously during impact pile driving to ensure 
that no marine mammals enter the area. If a marine mammal is nearing or 
enters the 1,000-m zone, hammering would be reduced to 50 percent 
capacity, which would reduce the 160 dB isopleth to about 300 m. If a 
marine mammal continues to move toward the Level B harassment zone, 
Fishermen's is prepared to stop all pile driving activities in order to 
prevent Level A harassment to marine mammals. Fishermen's initially 
proposed having a single protected species observer (PSO) to monitor 
the exclusion zone. However, following NMFS recommendation, Fishermen's 
plans to use two PSOs, each responsible for monitoring a 180-degree 
field of vision. The PSOs would be stationed aboard a dedicated support 
vessel that would patrol the exclusion zone throughout pile driving.

Pile Driving Shut Down and Delay Procedures

    If a PSO sees a marine mammal within or approaching the exclusion 
zone (1,000 m) prior to start of impact pile driving, the observer 
would notify the construction manager (or other authorized individual) 
who would then be required to delay pile driving until the marine 
mammal has moved outside of the exclusion zone or if the animal

[[Page 14742]]

has not been resighted within 30 minutes. If a marine mammal is sighted 
within or on a path toward the exclusion zone during pile driving, pile 
driving would be reduced to 50 percent capacity (a soft start level), 
which would reduce the size of the harassment zones. If an animal 
continues to move toward the sound source, then pile driving operations 
will be stopped until the animal has moved outside of the exclusion 
zone or 30 minutes have lapsed since the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique would be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before the pile hammer reaches full energy. The 
soft start requires an initial set of three strikes from the impact 
hammer at 40 percent energy with a 1-minute waiting period between 
subsequent three-strike sets. If a marine mammal is observed within the 
exclusion zone prior to pile driving, or during the soft start, the 
resident engineer (or other authorized individual) would delay pile 
driving until the animal has move outside of the exclusion zone or 30 
minutes have lapsed since the last sighting. Soft-start procedures 
would be conducted any time hammering ceases for more than 30 minutes.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must 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 IHAs 
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.
    Fishermen's proposes to conduct field verification of the exclusion 
zone during pile driving of the first three jacket foundations to 
ensure that the estimated harassment isopleths are accurate. 
Fishermen's proposes taking acoustic measurements during the last half 
(deepest segment) of pile driving for any given jacket foundation leg. 
NMFS further proposes that acoustic measurements be taken during the 
entire duration of pile driving of the first three jacket foundations 
(as opposed to the last half of pile driving) to ensure that the 
highest sound pressure levels are measured. Fishermen's proposes 
establishing one reference location at a distance of 100 m from the 
sound source. They would take sound measurements at the reference 
location at two depths (one near the middle of the water column and one 
near the bottom of the water column). Two additional in-water spot 
measurements would be taken in two different directions of the pile 
driving site. Sound measurements would also be made at locations closer 
to or farther from the sound source, as necessary, to establish the 
distances to the Level B and Level A harassment zones. NMFS further 
proposes that sound measurements be taken 10 m from the pile, so the 
measurements can be treated considered ``source level'' and compared 
with other industry-collected data. NMFS also proposes that 90 percent 
of the energy window from each blow be integrated into Fishermen's 
sound analysis when computing RMS sound pressure levels.
    As explained in the Proposed Mitigation section of this notice, 
there would be two PSOs monitoring the exclusion zone (1,000 m). 
Because the exclusion zone encompasses both the Level B and Level A 
harassment isopleths, PSOs can record behavioral information of animals 
visible outside of the exclusion zone. PSOs would monitor the exclusion 
zone for at least 30 minutes prior to soft start, during pile driving, 
and for 30 minutes after pile driving is completed. Protected species 
observers would be provided with the equipment necessary to effectively 
monitor for marine mammals (for example, high-quality binoculars, 
compass, and range-finder) in order to determine if animals have 
entered into the exclusion zone and to record species, behaviors, and 
responses to pile driving. Fishermen's would provide weekly status 
reports to NMFS that include a summary of the previous week's 
monitoring activities and an estimate of the number of marine mammals 
that may have been harassed as a result of pile driving. PSOs would 
submit a comprehensive report to NMFS within 90 days of completion of 
pile driving.
    The report would include data from marine mammal sightings (such as 
date, time, location, species, group size, and behavior), any observed 
reactions to construction, distance to operating pile hammer, and 
construction activities occurring at time of sighting and environmental 
data for the period (wind speed and direction, Beaufort sea state, 
cloud cover, and visibility).
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury (Level A harassment), serious injury, or 
mortality, Fishermen's would immediately cease the specified activities 
and immediately report the incident to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401 and/or by email to [email protected] and 
[email protected] and the Northeast Regional Stranding 
Coordinator ([email protected]). The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hrs preceding the 
incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hrs preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Fishermen's 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Fishermen's may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that Fishermen's discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Fishermen's would immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
at 301-427-8401, and/or by email to [email protected] and 
[email protected] and the Northeast Regional Stranding 
Coordinator at 978-281-9300 ([email protected]). The report must 
include the same information identified in the paragraph above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS would work with Fishermen's to determine whether

[[Page 14743]]

modifications in the activities are appropriate.
    In the event that Fishermen's discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Fishermen's would report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, at 301-427-8401, and/or by email to 
[email protected] and [email protected] and the NMFS 
Northeast Stranding Hotline (866-755-6622) and/or by email to the 
Northeast Regional Stranding Coordinator ([email protected]), 
within 24 hrs of the discovery. Fishermen's would provide photographs 
or video footage (if available) or other documentation of the stranded 
animal sighting to NMFS and the Marine Mammal Stranding Network. 
Activities may continue while NMFS reviews the circumstances of the 
incident.

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].

    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic noise is that in order to avoid the potential for injury 
(PTS), cetaceans and pinnipeds should not be exposed to impulsive 
sounds of 180 and 190 dB or above, respectively. This level is 
considered precautionary as it is likely that more intense sounds would 
be required before injury would actually occur (Southall et al., 2007). 
Potential for behavioral Level B harassment is considered to have 
occurred when marine mammals are exposed to sounds at or above 160 dB 
for impulse sounds (such as impact pile driving) and 120 dB for non-
pulse noise (such as vibratory pile driving).
    Distances to NMFS' harassment thresholds were calculated based on 
the expected sound levels at each source and the expected attenuation 
rate of sound. Fishermen's proposed 1,000-m exclusion zone is larger 
than both the Level A and Level B harassment zones. This mitigation 
measure minimizes potential impacts to marine mammals from increased 
sound exposures and means that Fishermen's would significantly reduce 
sound exposures before an animal ever enters the Level B harassment 
zone (less than 500 m). The difference between the exclusion zone 
(1,000 m) and the Level A harassment threshold (less than 50 m) 
provides PSOs additional time and adequate visibility to prevent marine 
mammals from being exposed to injurious sound levels if an animal 
(e.g., a small dolphin or pinniped) enters the exclusion zone 
undetected.
    Fishermen's estimated the number of marine mammals potentially 
taken by using their 2010-2011 pre-construction survey data as site-
specific density estimates for the project area over a 12-month period. 
During that survey, Fishermen's observed 260 bottlenose dolphins, three 
humpback whales, two fin whales, one minke whale, two harbor seals, and 
five harbor porpoises. However, the survey was performed over a 12-
month period, whereas pile driving would only take place between May 
and June. The only marine mammal species observed during May and June 
were bottlenose dolphins and an unidentified harbor seal. Fishermen's 
considered the expected number of pile driving days and requested 
authorization for the Level B incidental take of five bottlenose 
dolphins. NMFS determined that this number does not adequately account 
for the likelihood that numerous animals went undetected during visual 
surveys. To account for this, NMFS multiplied species group size by the 
maximum number of pile driving days. More specifically, NMFS used the 
average group size of bottlenose dolphins observed between May and June 
during the pre-construction survey and multiplied this number by 24 
(the maximum number of pile driving days. Because harbor porpoises were 
never observed during the months of May and June, NMFS conservatively 
used the maximum group size (two) of harbor porpoises observed during 
the entire pre-construction survey. NMFS also used the maximum group 
size (two) of harbor seals observed during the entire pre-construction 
survey. These calculations are illustrated below in Table 2.

   Table 2--NMFS' Method for Calculating Potential Take of Marine Mammals During Fishermen's Proposed Activity
----------------------------------------------------------------------------------------------------------------
                                                                       Maximum number of pile      Proposed take
                      Species                         Group size            driving days                \1\
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin................................           \2\ 5                            24             120
Harbor porpoise...................................           \3\ 2                            24              48
Harbor seal.......................................           \3\ 2                            24              48
----------------------------------------------------------------------------------------------------------------
\1\ Proposed take was calculated by multiplying group size and the maximum number of pile driving days.
\2\ NMFS used the average group size of bottlenose dolphins observed during the pre-construction survey for the
  months of May and June (when pile driving would occur).
\3\ NMFS conservatively used the maximum group size of harbor porpoises and harbor seals observed during the
  entire pre-construction survey.

    NMFS is proposing to authorize the take of 120 bottlenose dolphins, 
48 harbor porpoises, and 48 harbor seals. The increase in proposed take 
is based on the likelihood that smaller animals may not have been 
detected during surveys, but may be present in the proposed project 
area during pile driving. These numbers are conservative, do not 
account for mitigation measures, and indicate the maximum number of 
animals expected to occur within proposed project area--an area much 
larger than the 1,000-m exclusion zone isopleth. Takes of other species 
(e.g., humpback whale, fin whale, minke whale) were not proposed 
because they are highly likely to be sighted before entering the 
exclusion zone. Furthermore, the proposed activity is planned to occur 
primarily during summer months when these species are unlikely to be in 
the area.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * * 
an

[[Page 14744]]

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 number of factors which include, but are not limited to, the number 
of anticipated injuries or mortalities (none of which would be 
authorized here), number, nature, intensity, and duration of Level B 
harassment, and the context in which takes occur.
    As described above, marine mammals would not be exposed to 
activities or sound levels which would result in injury (PTS), serious 
injury, or mortality. The proposed project area is not considered 
significant habitat for marine mammals. The closest significant 
pinniped haul out is 21 km away, which is well outside the project 
area's largest harassment zone. Marine mammals approaching the action 
area would likely be traveling or opportunistically foraging. The 
amount of take NMFS proposes to authorize is considered small (less 
than three percent) relative to the estimated populations of 9,604 
bottlenose dolphins, 89,054 harbor porpoises, and 91,000 harbor seals. 
Marine mammals may be temporarily impacted by pile driving noise. 
However, marine mammals may avoid the area, thereby reducing exposure 
and impacts, and mitigation measures would minimize any impacts and 
further reduce the risk of injury or mortality prevent injury. Pile 
driving activities are expected to occur for about 15-24 days total. 
There is no anticipated effect on annual rates of recruitment or 
survival of affected marine mammals. Based on the application and 
subsequent analysis, the impact of the described pile driving 
operations may result in, at most, short-term modification of behavior 
by small numbers of marine mammals within the action area. Marine 
mammals may avoid the area or temporarily alter their behavior at time 
of exposure.
    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 determines that Fishermen's proposed pile 
driving operations would result in the incidental take of small numbers 
of marine mammals, by Level B harassment only, and that the total 
taking would have a negligible impact on the affected species or 
stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Endangered Species Act (ESA)
    Fishermen's is not requesting, nor is NMFS proposing, take of ESA-
listed species; therefore, ESA consultation is not necessary for 
issuance of the proposed IHA.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS is preparing an Environmental 
Assessment (EA) to consider the environmental impacts of issuance of a 
1-year IHA. Upon completion, this EA will be available on the NMFS Web 
site listed in the beginning of this document (see ADDRESSES).

    Dated: March 7, 2012.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-6058 Filed 3-12-12; 8:45 am]
BILLING CODE 3510-22-P