[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]
[Notices]
[Pages 44407-44420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18045]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD330


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Breakwater Replacement Project in 
Eastport, Maine

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

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

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SUMMARY: NMFS has received an application from the Maine Department of 
Transportation (ME DOT) for an Incidental Harassment Authorization 
(IHA) to take marine mammals, by harassment, incidental to in-water 
construction activities in Eastport, Maine. Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is proposing to issue an IHA to 
incidentally harass, by Level B harassment, four species of marine 
mammals 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 
September 2, 2014.

ADDRESSES: Comments on the application and this proposal should be

[[Page 44408]]

addressed to Jolie Harrison, 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.
    An electronic 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.
    NMFS is also preparing an Environmental Assessment (EA) in 
accordance with the National Environmental Policy Act (NEPA) and will 
consider comments submitted in response to this notice as part of that 
process. The EA will be posted at the foregoing internet site once it 
is finalized.

FOR FURTHER INFORMATION CONTACT: Brian D. Hopper, 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 United States 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.''
    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 February 21, 2014, NMFS received an application from ME DOT 
requesting an IHA for the take, by Level B harassment, of small numbers 
of harbor seals (Phoca vitulina), gray seals (Halichoerus grypus), 
harbor porpoises (Phocoena phocoena), and Atlantic white-sided dolphins 
(Lagenorhynchus acutus) incidental to in-water construction activities 
in Eastport, Maine. Upon receipt of additional information and a 
revised application, NMFS determined the application complete and 
adequate on May 6, 2014.
    ME DOT and the Eastport Port Authority plan to replace and expand 
the pier and breakwater in Eastport, Maine. The project includes the 
removal of the original filled sheet pile structure (built in 1962), 
the replacement of the approach pier, expansion of the existing pier 
head, and the construction of a new wave attenuator. Because elevated 
sound levels from pile driving activities and the operation of an 
underwater saw have the potential to result in marine mammal 
harassment, NMFS proposes to issue an IHA for take incidental to in-
water construction activities.

Description of the Specified Activity

Overview

    The Eastport Breakwater is a solid fill multi-use pier serving the 
local fishing community by providing a safe harbor for berthing as well 
as a loading and off-loading point for the fishing fleet. It also 
serves as a berth for larger commercial and passenger ships and a 
docking area for U.S. Coast Guard vessels. It is an `L' shaped 
structure with one leg perpendicular to the shoreline and the outer leg 
parallel (see Appendix A of the ME DOT IHA application). The existing 
pier was built in 1962 and is on the verge of being taken out of 
service due to public safety concerns. Recently, emergency repairs have 
been completed to prevent shutdown; however, these repairs are only 
temporary and will not keep the pier in service indefinitely. The 
recommended replacement structure would consist of an open pier 
supported by 151 piles, which would consist of steel pipe piles, 
reinforced concrete pile caps, and a prestressed plank deck with 
structural overlay. The proposed approach pier would be 40 ft by 300 ft 
and the proposed main pier section that would be parallel to the 
shoreline would be 50 ft by 400 ft.

Date and Duration of Proposed Activity

    ME DOT plans to begin in-water construction in September 2014. The 
potential construction schedule is presented in Table 1. Although 
construction is expected to last more than one year, under the MMPA, 
NMFS can only issue an IHA for a one-year period; therefore, ME DOT 
will have to apply for another IHA to complete the project. Pile 
driving would only occur in weather that provides adequate visibility 
for marine mammal monitoring activities.

                                                    Table 1--Easport Breakwater Construction Schedule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Approximate hours
                                                                                                 of in water noise
                                                                                                     producing         Pile type to be driven/activity
            Activity                   Duration                   Expected timeframe              activities with          resulting in harassment
                                                                                                 sound levels over
                                                                                                     120 dB RMS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Approach Pier Work..............  15-17 weeks.......  September 2014-January 2015..............                140  Sheet Piles.

[[Page 44409]]

 
Construction of New Pile          32-34 weeks.......  January 2015-August 2015.................                190  16-24 inch steel pipe piles.
 Supported Pier.
Demolition of Old Pier..........  1 week of sheet     August 2015-September 2015...............                 25  Vibratory Extractor/Underwater Saw.
                                   removal, 6 weeks
                                   old fill removal.
Breakwater Construction.........  6 weeks...........  October 2015-December 2015...............                 50  N/A.
Installation of Fender Piles....  2 weeks...........  October 2015-December 2015...............                 15  24-36 inch steel pipe piles.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Specified Geographic Region

    The proposed activity would occur in Cobscook Bay, in Eastport, 
Maine. The breakwater lies near the mouth of the St. Croix River at the 
end of a long peninsula adjacent to Quoddy Head. Cobscook Bay has 
extremely strong tidal currents and notably high tides, creating an 
extensive intertidal habitat for marine and coastal species. Water 
depths at the proposed project location are between 8-55 ft (2.4-17m). 
The Bay is considered a relatively intact marine system, as the area 
has not experienced much industrialization.

Detailed Description of Activities

    The replacement pier will consist of two different sections. The 
approach pier will be replaced in kind by placing fill inside of a 
sheet pile enclosure, supported by driven piles. The approach section 
will consist of sheet piles that are driven just outside of the 
existing sheet piles. The sheet piles can be installed by use of a 
vibratory hammer only. The main pier, fender system, and wave fence 
system will be pile supported with piles ranging from 16 inch-36 inch 
diameter pipe piles. These piles will be driven with a vibratory hammer 
to a point and must be seated with an impact hammer to ensure 
stability. The breakdown of the size and amount of piles can be found 
in Table 2.
    The vibratory hammer will drive the pile by applying a rapidly 
alternating force to the pile by rotating eccentric weights resulting 
in a downward vibratory force on the pile. The vibratory hammer will be 
attached to the pile head with a clamp. The vertical vibration in the 
pile functions by disturbing or liquefying the soil next to the pile, 
causing the soil particles to lose their frictional grip on the pile. 
The pile moves downward under its own weight, plus the weight of the 
hammer. It takes approximately one to three minutes to drive one pile. 
An impact hammer will be used to ensure the piles are embedded deep 
enough into the substrate to remain stable for the life of the pier. 
The impact hammer works by dropping a mass on top of the pile 
repeatedly to drive it into the substrate. Diesel combustion is used to 
push the mass upwards and allow it to fall onto the pile again to drive 
it.

                Table 2--Proposed Pile Types and Amounts
                          [Approximate amounts]
------------------------------------------------------------------------
                                                                Amount
                     Pile size and type                        proposed
------------------------------------------------------------------------
16'' steel pipe pile.......................................           32
20'' steel pipe pile.......................................           97
24'' steel pipe pile.......................................           14
36'' steel pipe pile.......................................            8
Steel sheet pile...........................................          215
------------------------------------------------------------------------

    The breakwater component of the facility consists of two portions; 
sheet piles will be installed along the back of the main pier and the 
other portion will be full depth wave attenuator consisting of king 
piles and sheet piles. Each king pile is designed as a cantilever beam 
to resist lateral loads. The king piles may also be able to be used to 
anchor the floating docks. The wave attenuator will be placed on the 
inshore side of the pier structure to reduce overall length and 
eliminate interference with the berthing face.
    Electrical and water utilities will be installed inside of the 
approach pier and also under the main pier. This will require a small 
amount of trenching under the main pier to bury portions of these 
lines.
    At this stage of the project, the demolition of the old breakwater/
pier system will take place. This is likely to be staged after a 
portion of the construction of the new pier is completed to help with 
access during demolition. The existing pier is a solid fill pier that 
is surrounded by sheet piles. Demolition will include removal of the 
fill material between the sheet piles, and cutting the sheet piles off 
at the mud line for removal. The fill will likely be removed with an 
excavator. Hydroacoustic impacts are also expected from using an 
underwater saw to cut off piles at the mud line.
    Standard ME DOT construction best management practices (BMPs) will 
be used throughout the project. The erosion and sedimentation control 
BMPs can be found at the following link: http://www.maine.gov/mdot/env/envdocs.htm. A spill prevention, control, and countermeasure (SPCC) 
plan will also be required for the project. This plan will make sure 
that all contaminants are properly stored and a cleanup plan is in 
place in case of any spills.
    The data included in Table 3 below is found in Technical Guidance 
for Assessment and Mitigation of the Hydroacoustic Effects of Pile 
Driving on Fish, prepared for Caltrans, 2009. The remaining data comes 
from the references below.
    Caltrans states that drilling and saw cutting are anticipated to 
produce underwater sound pressure levels (SPLs) in excess of 120 dB 
RMS, but are not anticipated to exceed the 180 dB re 1 [mu]Pa (RMS) (79 
FR 2421, January 14, 2014).

[[Page 44410]]

    Installation of some of the pile anchors will require the use of a 
down hole hammer. The hydroacoustic impacts of a down hole hammer are 
largely unknown. Hydroacoustic measurements from work on the Memorial 
Bridge between Maine and New Hampshire suggest that these impacts may 
reach Peak SPL limits of 240 dB dB re 1 [mu]Pa. The down hole hammer 
will be required for installation of 14-24'' steel pipe piles.

        Table 3--Summary of Data for Unattenuated Pile Strikes With an Impact Hammer and Down Hole Hammer
----------------------------------------------------------------------------------------------------------------
                                                                       Average sound pressure measured in dB
            Pile type/size                Relative water depth   -----------------------------------------------
                                                                       Peak             RMS             SEL
----------------------------------------------------------------------------------------------------------------
12''/Steel Pipe.......................  <5 meters...............             192             177  ..............
24''/Steel Pipe.......................  ~15 meters..............             207             194             178
36''/Steel Pipe.......................  ~10 meters..............             210             193             183
Down Hole Hammer......................  ~3 meters...............             240  ..............  ..............
----------------------------------------------------------------------------------------------------------------


          Table 4--Summary of Data for Unattenuated Pile Driving With a Vibratory Hammer/Underwater Saw
----------------------------------------------------------------------------------------------------------------
                                                                       Average sound pressure measured in dB
            Pile type/size                Relative water depth   -----------------------------------------------
                                                                       Peak             RMS             SEL
----------------------------------------------------------------------------------------------------------------
12''/Steel Pipe.......................  <5 meters...............             171             150             150
36''/Steel Pipe.......................  ~5 meters...............             180             170             170
24''/Steel Sheet......................  ~15 meters..............             182             165             165
Underwater Saw........................  UNK.....................  ..............         120-180  ..............
----------------------------------------------------------------------------------------------------------------

Description of Marine Mammals in the Area of the Specified Activity

    Marine mammals with known presence in this region of Cobscook Bay 
are the harbor seal, grey seal, harbor porpoise, and Atlantic white-
sided dolphin (Table 5). The best available data for marine mammals in 
the vicinity of the project comes from the monitoring surveys conducted 
in preparation of the Ocean Renewable Power Company (ORPC) tidal 
generator project that was located between Eastport and Lubec, ME. 
Although the ORPC project was located on the other side of the 
peninsula from the Eastport pier, the presence of species and timing of 
their occurrence would be similar between the two sites.

    Table 5--List of Marine Mammal Species Under NMFS Jurisdiction That Occur in the Vicinity of the Eastport
                                         Breakwater Replacement Project
----------------------------------------------------------------------------------------------------------------
          Common name             Scientific name         Stock            ESA status            Abundance
----------------------------------------------------------------------------------------------------------------
Harbor Seal....................  Phoca vitulina...  Western North      Not listed.......  70,142.
                                                     Atlantic.
Gray Seal......................  Halichoerus        Western North      Not listed.......  Over 250,000.
                                  grypus.            Atlantic.
Harbor Porpoise................  Phocoena phocoena  Gulf of Maine-Bay  Not listed.......  79,883.
                                                     of Fundy.
Atlantic White-sided Dolphin...  Lagenorhynchus     Western North      Not listed.......  48,819.
                                  acutus.            Atlantic.
----------------------------------------------------------------------------------------------------------------

    ORPC has been conducting incidental visual observations of marine 
mammals in Cobscook Bay since 2007, during turbine testing, travel to 
and from ORPC's research vessel Energy Tide 2, and acoustic, fisheries, 
subtidal, and avian surveys. During this time, ORPC personnel and 
contractors, who have received specialized training in marine mammal 
observation and documentation, recorded approximately 252 4-hr 
observational periods over 222 days. Marine mammal observers recorded 
57 seals, 47 harbor porpoises, and two Atlantic white-sided dolphins 
(Table 6). The most intensive monitoring effort was conducted in 2010, 
when approximately 71 marine mammals were observed over the course of 
132 observation days between March 8 and December 31. Marine mammal 
observers recorded 2 dolphins, 27 harbor porpoises, and 42 harbor 
seals. This information is documented in ORPC's Marine Mammal 
Monitoring Plan for the Cobscook Bay Tidal Power Project (ORPC, 2011). 
No observations of any whale species have been made in Cobscook Bay by 
ORPC since monitoring began in 2007. In addition, a review of available 
databases does not indicate any recorded whale sightings in Cobscook 
Bay. Other species that may possibly occur in the vicinity of the 
proposed activity include North Atlantic right whale (Eubalaena 
glacialis), humpback whale (Megaptera novaengliae), fin whale 
(Balaenoptera borealis), minke whale (Balaenoptera acutorostrata), and 
sei whale (Balaenoptera borealis). However, these five species are 
generally associated with open ocean habitats and occur in more 
offshore locations. NMFS has concluded that the specified activity will 
not impact these five species and they are not discussed further.

[[Page 44411]]



  Table 6--Marine Mammal Observations in the Proposed Project Vicinity Between December 2007, and December 2010
----------------------------------------------------------------------------------------------------------------
                                                     Hours of       Harbor and        Harbor      Atlantic white-
                      Month                           effort         grey seal       porpoise      sided dolphin
----------------------------------------------------------------------------------------------------------------
January.........................................              16               0               0               0
February........................................              36               0               1               0
March...........................................              56               1               0               0
April...........................................             160               4               3               0
May.............................................              56               1               3               0
June............................................              84               8               1               0
July............................................              84               4              10               0
August..........................................             120              16              24               2
September.......................................             100               9               5               0
October.........................................              96               8               0               0
November........................................              72               4               0               0
December........................................             104               2               0               0
                                                 ---------------------------------------------------------------
    Total.......................................           1,008              57              47               2
----------------------------------------------------------------------------------------------------------------

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 70,142 harbor seals in the western North 
Atlantic stock and the population is increasing. Harbor seals are not 
listed under the Endangered Species Act (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.

Gray Seals

    Gray seals reside in coastal waters and also inhabit islands, 
sandbars, ice shelves, and icebergs. The western North Atlantic stock 
ranges from eastern Canada to the northeastern United States. Current 
population numbers for the western North Atlantic stocks are unknown, 
but are estimated at over 250,000 animals. Most recent population 
estimates show increases in abundance in Canada and the United States, 
although the population in the Gulf of St. Lawrence appears to be 
declining. Gray seals pup at two established colonies off the coast of 
Maine: Green Island and Seal Island. Both colonies are tens of miles 
away from the proposed project site. Gray seals are not listed under 
the ESA nor considered depleted under the MMPA. More information, 
including stock assessment reports, can be found at http://ww.nmfs.noaa.gov/pr/sepcies/mammals/pinnipeds/grayseal.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).

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 (650 ft) deep. In the western North 
Atlantic, harbor porpoises range from west Greenland to Cape Hatteras, 
North Carolina. Harbor porpoises in United States waters are divided 
into 10 stocks, based on genetics, movement patterns, and management. 
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 79,883 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.
    Cetaceans are divided into three functional hearing groups: Low-
frequency, mid-frequency, and high-frequency. 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.

Atlantic White-Sided Dolphins

    Atlantic white-sided dolphins are only found in temperate waters of 
the North Atlantic Ocean and typically reside along the continental 
shelf and slope. They range from Greenland to North Carolina and 
exhibit seasonal movements between inshore northern waters and southern 
offshore waters. The western North Atlantic stock has an estimated 
48,819 animals, but there is insufficient information to determine 
population trends. Atlantic white-sided dolphins 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/whitesideddolphin_atlantic.htm.
    Atlantic white-sided dolphins are considered mid-frequency 
cetaceans and their estimated auditory bandwidth ranges from 150 Hz to 
160 kHz.

Potential Effects of the Specified Activity on Marine Mammals

    This section discusses the types of stressors associated with the 
specified activity (e.g., in-water construction) and their impacts on 
marine mammals. This section may include a discussion of known effects 
that do not rise to the level of an MMPA take (for example, with 
acoustics, we may include a discussion of studies that reported no 
reaction to sound from animals or exhibiting barely measureable 
avoidance). This discussion may also include reactions that we consider 
to rise to the level of take. This section provides background on 
potential effects and does not consider either the specific manner in 
which the proposed activity will be carried out or the

[[Page 44412]]

mitigation that may be implemented or how either influences the 
anticipated impacts of the specific activity. The ``Estimated Take by 
Incidental Harassment'' section later in this document includes a 
quantitative analysis of the number of individuals that are expected to 
be taken by the proposed activity. The ``Negligible Impact Analysis'' 
section includes the analysis of how this specific activity will impact 
marine mammals and considers the content of this section, the 
``Estimated Take by Incidental Harassment'' section, the ``Mitigation'' 
section, and the ``Anticipated Effects on Marine Mammal Habitat'' 
section to draw preliminary conclusions regarding the likely impacts of 
the proposed activity on the reproductive success or survivorship of 
individuals and on the affected marine mammal populations or stocks.
    Elevated in-water sound levels from pile driving and operating an 
underwater saw 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 more than six 
nautical miles (NM) 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).

Acoustic Impacts

    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 have been derived using 
auditory evoked potentials, 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 hearing is estimated to occur between approximately 7 Hz and 
22 kHz (however, a study by Au et al. (2006) of humpback whale songs 
indicate that the range may extend to at least 24 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, four marine mammal 
species (two cetacean and two pinniped species) are likely to occur in 
the area of the proposed activity. Of the two cetacean species likely 
to occur in the proposed project area, the Atlantic white-sided dolphin 
is classified as a mid-frequency cetacean and the harbor porpoise is 
classified as a high-frequency cetacean (Southall et al. 2007). A 
species' functional hearing group is a consideration when we analyze 
the effects of exposure to sound on marine mammals.
    ME DOT and NMFS determined that in-water construction activities 
involving the use of impact and vibratory pile driving and operation of 
an underwater saw during the Eastport Breakwater replacement project 
have the potential to result in behavioral harassment of marine mammal 
species and stocks in the vicinity of the proposed activity.
    Marine mammals exposed to high intensity sound repeatedly or for 
prolonged periods can experience hearing threshold shift (TS), which is 
the loss of hearing sensitivity at certain frequency ranges (Kastak et 
al. 1999; Schlundt et al. 2000; Finneran et al. 2002; 2005). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is 
unrecoverable, or temporary (TTS), in which case the animal's hearing 
threshold will recover over time (Southall et al. 2007). Since marine 
mammals depend on acoustic cues for vital biological functions, such as 
orientation, communication, finding prey, and avoiding predators, 
hearing impairment could result in the reduced ability of marine 
mammals to detect or interpret important sounds. Repeated noise 
exposure that leads to TTS could cause PTS.
    Experiments on a bottlenose dolphin (Tursiops truncates) and beluga 
whale (Delphinapterus leucas) showed that exposure to a single watergun 
impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p), 
which is equivalent to 228 dB (p-p) re 1 [mu]Pa, resulted in a 7 and 6 
dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds 
returned to within 2 dB of the pre-exposure level within 4 minutes of 
the exposure (Finneran et al. 2002). No TTS was observed in the 
bottlenose dolphin. Although the source level of pile driving from one 
hammer strike is expected to be much lower than the single watergun 
impulse cited here, animals being exposed for a prolonged period to 
repeated hammer strikes could receive more noise exposure in terms of 
SEL than from the single watergun impulse (estimated at 188 dB re 1 
[mu]Pa\2\-s) in the aforementioned experiment (Finneran et al. 2002).
    Chronic exposure to excessive, though not high-intensity, noise 
could cause masking at particular frequencies for marine mammals that 
utilize sound for vital biological functions (Clark et al. 2009). 
Masking can interfere with detection of acoustic signals such as 
communication calls, echolocation sounds, and environmental sounds 
important to marine mammals. Therefore, under certain circumstances, 
marine mammals whose acoustical sensors or environment are being 
severely masked could also be impaired.
    Masking occurs at the frequency band which the animals utilize. 
Therefore, since noise generated from in-water vibratory pile driving 
and sawing is mostly concentrated at low frequency ranges, it may have 
less effect on high frequency echolocation sounds by odontocetes 
(toothed whales). However, lower frequency man-made noises are more 
likely to affect detection of communication calls and other potentially 
important natural sounds such as surf and prey noise. It may also 
affect communication signals when they occur near the noise band and 
thus reduce the communication space of animals (e.g., Clark et al. 
2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt 
et al. 2009).

[[Page 44413]]

    Unlike TS, masking can potentially impact the species at 
population, community, or even ecosystem levels, as well as individual 
levels. Masking affects both senders and receivers of the signals and 
could have long-term chronic effects on marine mammal species and 
populations. Recent science suggests that low frequency ambient sound 
levels have increased by as much as 20 dB (more than 3 times in terms 
of SPL) in the world's ocean from pre-industrial periods, and most of 
these increases are from distant shipping (Hildebrand 2009). All 
anthropogenic noise sources, such as those from vessels traffic and 
pile driving, contribute to the elevated ambient noise levels, thus 
intensify masking.
    Nevertheless, the sum of noise from the proposed construction 
activities at the Eastport Breakwater is confined in an area that is 
largely bounded by jetty and landmass, therefore, the noise generated 
is not expected to contribute to increased ocean ambient noise. Due to 
shallow water depths near the construction site, underwater sound 
propagation for low-frequency sound (which is the major noise source 
from pile driving and underwater sawing) is expected to be poor.
    Finally, exposure of marine mammals to certain sounds could lead to 
behavioral disturbance (Richardson et al. 1995), such as: Changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities, 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping), avoidance of 
areas where noise sources are located, and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, and reproduction. Some of these 
significant behavioral modifications include:
     Drastic change in diving/surfacing patterns (such as those 
thought to be causing beaked whale stranding due to exposure to 
military mid-frequency tactical sonar);
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cease feeding or social interaction.
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography), and is also difficult to predict (Southall et 
al. 2007).
    The proposed project area is not a prime habitat for marine 
mammals, nor is it considered an area frequented by marine mammals. 
Therefore, behavioral disturbances that could result from anthropogenic 
noise associated with breakwater replacement activities are expected to 
affect only a small number of marine mammals on an infrequent basis.

Visual Disturbance

    The activities of workers in the project area may also cause 
behavioral reactions of marine mammals, such as pinnipeds flushing from 
haul-out sites, or moving farther from the disturbance to forage. No 
impacts from visual disturbance are anticipated because there are no 
known pinniped haul-outs within the proposed project area. The only 
potential disturbance anticipated to occur would be during diving 
operations, which may cause individual marine mammals to temporarily 
avoid the area. Therefore, the presence of workers would not result in 
population level impacts or affect the long-term fitness of the 
species.

Anticipated Effects on Marine Mammal Habitat

    The proposed activities at the Eastport Breakwater would not result 
in permanent impacts to habitats used directly by marine mammals, such 
as haul-out sites, but may have potential short-term impacts to food 
sources such as forage fish. There are no rookeries or major haul-out 
sites nearby, foraging hotspots, or other ocean bottom structure of 
significant biological importance to marine mammals that may be present 
in the marine waters in the vicinity of the project area. Therefore, 
the main impact issue associated with the proposed activity would be 
temporarily elevated sound levels and the associated direct effects on 
marine mammals, as discussed previously in this document. The most 
likely impact to marine mammal habitat occurs from pile driving effects 
on likely marine mammal prey (i.e., fish) near the pier and minor 
impacts to the immediate substrate during installation of piles and 
removal of the old structure during the breakwater replacement project.
    Construction activities would produce both pulsed (i.e., impact 
pile driving) and continuous (i.e., vibratory pile driving and 
underwater saw) sounds. Fish react to sounds which are especially 
strong and/or intermittent low-frequency sounds. Short duration, sharp 
sounds can cause overt or subtle changes in fish behavior and local 
distribution. Hastings and Popper (2005, 2009) identified several 
studies that suggest fish may relocate to avoid certain areas of sound 
energy. Additional studies have documented effects of pile driving (or 
other types of continuous sounds) on fish, although several are based 
on studies in support of large, multiyear bridge construction projects 
(e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound 
pulses at received levels of 160 dB re 1 [mu]Pa may cause subtle 
changes in fish behavior. SPLs of 180 dB may cause noticeable changes 
in behavior (Pearson et al., 1992; Skalski et al., 1992). SPLs of 
sufficient strength may cause injury to fish and fish mortality. The 
most likely impact to fish from pile driving and underwater sawing 
activities at the project area would be temporary behavioral avoidance 
of the area. The duration of fish avoidance of this area after these 
activities stop is unknown, but a rapid return to normal recruitment, 
distribution and behavior is anticipated. In general, impacts to marine 
mammal prey species are expected to be minor and temporary due to the 
short timeframe for the pier replacement project.
    Avoidance by potential prey (i.e., fish) of the immediate area due 
to the temporary loss of this foraging habitat is also possible. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution and 
behavior is anticipated. Any behavioral avoidance by fish of the 
disturbed area would still leave significantly large areas of fish and 
marine mammal foraging habitat in the vicinity of Cobscook Bay.
    Given the short daily duration of sound associated with individual 
pile driving and sawing events and the relatively small areas being 
affected, in-water construction activities associated with the proposed 
action are not likely to have a permanent, adverse effect on any fish 
habitat, or populations of fish species. Therefore, pile the proposed 
in-water construction activities are not likely to have a permanent, 
adverse effect on marine mammal foraging habitat at the project area.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must 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

[[Page 44414]]

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).
    ME DOT proposed the following mitigation measures to minimize 
adverse impacts to marine mammals:

Sound Attenuation Device

    When using a diesel impact hammer to ``proof'' piles, ME DOT would 
use sound absorption cushions and/or a bubble curtain to reduce 
hydroacoustic sound levels and avoid the potential for marine mammal 
injury. Based on previous studies, sound attenuation devices are 
expected to reduce sound levels by at least 5 dB.

Exclusion Zone

    The purpose of the proposed exclusion zone is to prevent Level A 
harassment (injury) of any marine mammal species. During all in-water 
impact pile driving, ME DOT would establish a preliminary marine mammal 
exclusion zone around each pile to avoid exposure to sounds at or above 
180 dB. The preliminary exclusion zone is based on the results of 
ORPC's 2012 monitoring report and the reported ranges to the Level A 
and Level B harassment thresholds while driving 30-inch piles with a 
wood block cushion (Table 7).

       Table 7--Range to Level A and Level B Harassment Thresholds
------------------------------------------------------------------------
                                          Range to Level  Range to Level
               Hammer type                  A threshold     B threshold
                                            (in meters)     (in meters)
------------------------------------------------------------------------
Vibratory...............................             N/A             500
Impact..................................              10             275
------------------------------------------------------------------------

    Prior to commencing pile driving, ME DOT would conduct 
hydroacoustic monitoring to measure sound from in-water construction 
activities. The hydroacousitc monitoring plan would include the 
following elements: Monitoring for dB (rms) levels at 10 m from the 
pile; monitoring at 100 m to proof the marine mammal monitoring areas; 
and real time reporting of noise levels to the construction team. ME 
DOT would provide NMFS with a report following completion of the 
hydroacoustic monitoring. Once hydroacoustic monitoring is conducted, 
the exclusion and buffer zone may be adjusted accordingly so that 
marine mammals are not exposed to Level A harassment sound pressure 
levels. The exclusion zone would be monitored continuously during 
impact pile driving to ensure that no marine mammals enter the area. 
Two protected species observers (PSOs) would be stationed on the pier. 
One PSO would be responsible for monitoring the exclusion zone, while 
the second observer would conduct behavioral monitoring outwards to a 
distance of 1 nm. Several floats anchored at 10 m (33 ft) and 305 m 
(1000 ft) would be located around the installation site to help 
identify when marine mammals are entering or within the exclusion zone. 
An exclusion zone for vibratory pile driving and underwater sawing is 
unnecessary as source levels would not exceed the Level A harassment 
threshold.

Impact Pile Driving Shut Down and Delay Procedures

    If a PSO sees a marine mammal within or approaching the exclusion 
zone prior to start of impact pile driving, the observer would notify 
the on-site project lead (or other authorized individual) who would 
then be required to delay pile driving until the marine mammal has 
moved 305 m (1000 ft) from the sound source or if the animal has not 
been resighted within 30 minutes. If a marine mammal is sighted within 
or on a path toward the 10-m (33-ft) exclusion zone during pile 
driving, pile driving would cease until that animal has moved 305 m 
(1000 ft) and is on a path away from the exclusion zone or 30 minutes 
has lapsed since the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique would be used at the beginning of each 
pile installation and each use of the underwater saw to allow any 
marine mammal that may be in the immediate area to leave before the 
pile hammer reaches full energy or saw begins sawing. For vibratory 
pile driving, the soft-start procedure requires contractors to initiate 
noise from the vibratory hammer for 15 seconds at 40-60 percent reduced 
energy followed by a 1-minute waiting period. The procedure would be 
repeated two additional times before full energy may be achieved. For 
impact hammering, contractors would be required to provide an initial 
set of three strikes from the impact hammer at 40 percent energy, 
followed by a 1-minute waiting period, then two subsequent three-strike 
sets. For operating the underwater saw, contractors would be required 
to turn on the saw 3 or 4 times for 2 to 3 seconds each time over the 
course of 30 seconds. Soft-start procedures would be conducted any time 
hammering ceases for more than 30 minutes.

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 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.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of sound from impact and vibratory pile driving and operation of 
an underwater saw, or other activities expected to result in the take 
of marine mammals (this goal may contribute to 1, above, or to reducing 
harassment takes only).
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of sound from impact and vibratory pile driving and 
operation of an underwater saw, or other activities expected to result 
in the take of marine mammals (this goal may contribute to 1, above, or 
to reducing harassment takes only).
    4. A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of sound from impact and vibratory pile driving and operation of 
an underwater saw, or other activities expected to result in the take 
of marine mammals (this goal may contribute to a, above, or to reducing 
the severity of harassment takes only).
    5. Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically

[[Page 44415]]

important areas, permanent destruction of habitat, or temporary 
destruction/disturbance of habitat during a biologically important 
time.
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

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.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    2. An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of sound from impact and vibratory pile 
driving and operation of an underwater saw that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:

--Behavioral observations in the presence of stimuli compared to 
observations in the absence of stimuli (need to be able to accurately 
predict received level, distance from source, and other pertinent 
information);
--Physiological measurements in the presence of stimuli compared to 
observations in the absence of stimuli (need to be able to accurately 
predict received level, distance from source, and other pertinent 
information);
--Distribution and/or abundance comparisons in times or areas with 
concentrated stimuli versus times or areas without stimuli.

    4. An increased knowledge of the affected species; and
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.

Monitoring

    Hydroacoustic monitoring would be performed at the initial 
installation of each pile driving method to ensure that the harassment 
isopleths are not extending past the calculated distances described in 
this notice and to assess the efficiency of the sound attenuation 
devices. ME DOT would designate two biologically-trained, on-site PSOs, 
approved in advance by NMFS, to monitor the exclusion zone 
(preliminarily set at 10 m [33 ft]) for marine mammals 30 minutes 
before, during, and 30 minutes after all impact pile driving activities 
and call for shut down if any marine mammal is observed within or 
approaching the exclusion zone. These PSOs would be positioned on the 
pier. One observer would survey inwards toward the pile driving site 
and the second observer would conduct behavioral monitoring outwards to 
a distance of 1 nm during all impact pile driving.
    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 as well as a digital SLR 
camera with telephoto lens and video capability) in order to determine 
if animals have entered into the exclusion zone or Level B harassment 
isopleth and to record species, behaviors, and responses to pile 
driving. If hydroacoustic monitoring indicates that threshold isopleths 
are greater than originally calculated, ME DOT would contact NMFS 
within 48 hours and make the necessary adjustments. Likewise, if 
threshold isopleths are actually less than originally calculated, 
downward adjustments may be made to the exclusion and buffer zone.

Reporting

    ME DOT would be required to submit a report to NMFS within 90 days 
of completion of in-water construction activities. 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, ME DOT would immediately cease the specified activities and 
immediately report the incident to 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 
Greater Atlantic Regional Fisheries Office 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 ME DOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. ME DOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    In the event that ME DOT 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), 
ME DOT would immediately report the incident to the Permits and

[[Page 44416]]

Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401, and/or by email to [email protected] and 
[email protected] and the Greater Atlantic Regional Fisheries 
Office 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 ME DOT to determine 
whether modifications in the activities are appropriate.
    In the event that ME DOT 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), ME DOT would report the incident 
to 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 
Stranding Hotline (866-755-6622) and/or by email to the Greater 
Atlantic Regional Fisheries Office Stranding Coordinator 
([email protected]), within 24 hrs of the discovery. ME DOT 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 of 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 
continuous noise (such as vibratory pile driving and underwater 
sawing). These levels are also considered precautionary.

               Table 8--Current Acoustic Exposure Criteria
------------------------------------------------------------------------
                           Non-explosive sound
-------------------------------------------------------------------------
          Criterion           Criterion definition        Threshold
------------------------------------------------------------------------
Level A Harassment (Injury).  Permanent Threshold   180 dB re 1 microPa-
                               Shift (PTS) (Any      m (cetaceans)/190
                               level above that      dB re 1 microPa-m
                               which is known to     (pinnipeds) root
                               cause TTS).           mean square (rms).
Level B Harassment..........  Behavioral            160 dB re 1 microPa-
                               Disruption (for       m (rms).
                               impulse noises).
Level B Harassment..........  Behavioral            120 dB re 1 microPa-
                               Disruption (for       m (rms).
                               continuous, noise).
------------------------------------------------------------------------

    Distances to NMFS' harassment thresholds were calculated based on 
the expected sound levels at each source and the expected attenuation 
rate of sound (Table 3). The 10-m (33-ft) distance to the Level A 
harassment threshold provides protected species observers plenty of 
time and adequate visibility to prevent marine mammals from entering 
the area during impact pile driving. This would prevent marine mammals 
from being exposed to sound levels that reach the Level A harassment 
threshold.

Proposed Incidental Takes

    The estimated number of marine mammals potentially taken is based 
on ORPC's marine mammal monitoring observations between 2007 and 2010. 
Based on marine mammal sightings during that period, further 
consultation between ORPC and NMFS, and the estimated number of pile 
driving and underwater sawing days for the Eastport Breakwater project, 
ME DOT requests authorization for the incidental take of 45 seals 
(because they cannot always be identified to the species-level), 39 
harbor porpoises, and two Atlantic white-sided dolphins. The proposed 
take is based on the maximum group size of animals observed during 
ORPC's marine mammal observations (i.e., six seals, five to six harbor 
porpoises, and one Atlantic white-sided dolphin) multiplied by the 
maximum expected number of pile driving and underwater sawing days. 
These numbers are extremely conservative and indicate the maximum 
number of animals expected to occur within the largest Level B 
harassment isopleth.

                          Table 8--Estimated Marine Mammal Takes by Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                                             Percentage of
                                    Estimated take                               stock
       Common species name            by Level B      Abundance of stock      potentially      Population trend
                                      harassment                               affected
----------------------------------------------------------------------------------------------------------------
Gray seal........................                45  Over 250,000 in                  0.018  increasing.
                                                      western North
                                                      Atlantic.
Harbor seal......................                    70,142 in western                0.049  N/A.
                                                      North Atlantic.
Harbor porpoise..................                39  79,883 in Gulf of                0.043  N/A.
                                                      Maine/Bay of Fundy.
Atlantic white-sided dolphin.....                 2  48,819 in the                    0.003  N/A.
                                                      western North
                                                      Atlantic.
----------------------------------------------------------------------------------------------------------------


[[Page 44417]]

Preliminary Determinations

Negligible Impact

    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.'' A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes, alone, is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, NMFS must consider other factors, such as the likely nature 
of any responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, effects on habitat, and the status 
of the species. ME DOT's proposed Eastport breakwater replacement 
project would involve pile driving and removal activities as well as 
the use of an underwater saw. Elevated noise levels are expected to be 
generated as a result of these activities. However, ME DOT would use 
noise attenuation devices (e.g., pile cushions, bubble curtains) during 
impact pile driving to ensure that sound levels of 180 dB (rms) do not 
extend more than 10 m from the pile, which eliminates the potential for 
injury (PTS) and TTS. Given the required mitigation and monitoring, no 
injuries or mortalities are anticipated to occur as a result of ME 
DOT's proposed action in Eastport, and none are proposed to be 
authorized. In addition, as described above, marine mammals in the area 
would not be exposed to activities or sound levels which would result 
in hearing impairment (TTS or PTS) or non-auditory physiological 
effects. The small number of takes that are anticipated to occur would 
be limited to short-term Level B harassment.
    In-water construction activities would occur in relatively shallow 
coastal waters of Cobscook Bay. The proposed project area is not 
considered significant habitat for marine mammals. Marine mammals 
approaching the action area would likely be traveling or 
opportunistically foraging. There are no rookeries or major haul-out 
sites nearby, foraging hotspots, or other ocean bottom structure of 
significant biological importance to marine mammals that may be present 
in the marine waters in the vicinity of the project area. The closest 
significant pinniped haul out is more than 6 nm away (ME DOT, pers. 
comm.), which is well outside the project area's largest harassment 
zone. The proposed project area is not a prime habitat for marine 
mammals, nor is it considered an area frequented by marine mammals. 
Therefore, behavioral disturbances that could result from anthropogenic 
noise associated with breakwater replacement activities are expected to 
affect only a small number of marine mammals on an infrequent basis. 
Although it is possible that some individual marine mammals may be 
exposed to sounds from in-water construction activities more than once, 
the duration of these multi-exposures is expected to be low since 
animals would be constantly moving in and out of the area and in-water 
construction activities would not occur continuously throughout the 
day.
    Marine mammals may be temporarily impacted by noise from pile 
driving activities and the operation of an underwater saw. These low 
intensity, localized, and short-term noise exposures may cause brief 
startle reactions or short-term behavioral modifications by the 
animals. These reactions and behavioral changes are expected to subside 
quickly when the exposures cease. Moreover, marine mammals are expected 
to avoid the area during in-water construction because animals 
generally move away from active sound sources, thereby reducing 
exposure and impacts. In addition, through mitigation measures 
including soft start, marine mammals are expected to move away from a 
sound source that is annoying prior to its becoming potentially 
injurious and detection of marine mammals by observers would enable the 
implementation of shutdowns to avoid injury, serious injury, or 
mortality. In-water construction activities involving pile driving and 
underwater sawing are expected to occur for about 12 days total each 
month. Repeated exposures of individuals to levels of sound that may 
cause Level B harassment are unlikely to result in hearing impairment 
or to significantly disrupt foraging behavior. Thus, even repeated 
Level B harassment of some small subset of an overall stock is unlikely 
to result in any significant realized decrease in fitness to those 
individuals, and thus would not result in any adverse impact to the 
stock as a whole. Level B harassment will be reduced to the level of 
least practicable impact through use of mitigation measures described 
herein and, if sound produced by project activities is sufficiently 
disturbing, animals are likely to simply avoid the project area while 
the activity is occurring.
    Based on the application and subsequent analysis, the impact of the 
described in-water construction activities may result in, at most, 
short-term modification of behavior by small numbers of marine mammals 
within the action area. No injury, serious injury, or mortality 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.
    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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
the affected marine mammal species or stocks.

Small Numbers

    The amount of take NMFS proposes to authorize is considered small 
(less than one percent) relative to the estimated populations of 70,142 
harbor seals, 250,000 gray seals, 79,883 harbor porpoises, and 48,819 
Atlantic white-sided dolphins. 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 small 
numbers of marine mammals will be taken relative to the populations of 
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. 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)

    No marine mammal species listed under the ESA are anticipated to 
occur within the action area. Therefore, NMFS has determined that a 
section 7 consultation under the ESA is not required.

[[Page 44418]]

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 
one-year IHA. This analysis will be completed prior to the issuance or 
denial of this proposed IHA. Upon completion, this EA will be available 
on the NMFS Web site listed in the beginning of this document (see 
ADDRESSES).

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to ME DOT for the Breakwater Replacement Project in 
Eastport, Maine, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.
    This section contains a draft of the IHA itself. The wording 
contained in this section is proposed for inclusion in the IHA (if 
issued). The language contained in the draft IHA is not intended for 
codification and would not be published in the Code of Federal 
Regulations, if issued. The draft IHA language is provided next.
    1. This Authorization is valid from September 1, 2014 through 
August 31, 2015.
    2. This Authorization is valid for in-water construction activities 
in Eastport, Maine for replacement of a pier and breakwater, as 
described in the Incidental Harassment Authorization (IHA) application.
    3. ME DOT is hereby authorized to take, by Level B harassment only, 
45 total grey and harbor seals (Halichoerus grypus and Phoca vitulina), 
39 harbor porpoises (Phocoena phocoena), and two Atlantic white-sided 
dolphins (Lagenorhynchus acutus) incidental to in-water construction 
activities associated with the breakwater replacement project.
    4. The taking by Level A harassment, serious injury, or mortality 
of any of the species listed in 3 above or the taking of any kind of 
any other species of marine mammal is prohibited and may result in the 
modification, suspension, or revocation of this Authorization.
    5. The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported immediately to NMFS' Greater 
Atlantic Regional Fisheries Office, 55 Great Republic Drive, 
Gloucester, MA 01930-2276; phone 978-281-9328, and NMFS' Office of 
Protected Resources (NMFS), 1315 East-West Hwy, Silver Spring, MD 
20910; phone 301-427-8401; fax 301-713-0376.
    6. The holder or designees must notify NMFS' Greater Atlantic 
Regional Fisheries Office and Headquarters at least 24 hours prior to 
the seasonal commencement of the specified activity (see contact 
information in 5 above).
    7. Mitigation Requirements--The holder of this Authorization is 
required to abide by the following mitigation conditions listed in 
7(a)-(d). Failure to comply with these conditions may result in the 
modification, suspension or revocation of this Authorization.
    (a) Sound Attenuation Device: When using an impact pile hammer to 
install piles, sound absorption cushions and/or a bubble curtain will 
be used to reduce hydroacoustic sound levels and avoid the potential 
for marine mammal injury.
    (b) Establishment of an Exclusion Zone: During all in-water impact 
pile driving, ME DOT will establish a preliminary marine mammal 
exclusion and buffer zone of 10 m (33 ft) around each pile to avoid 
exposing marine mammals to sounds at or above 180 dB. The exclusion 
zone will be monitored continuously during all impact pile driving to 
ensure that no marine mammals enter the 10-m (33-ft) radius. Once 
underwater sound measurements are taken, the exclusion and buffer zone 
may be adjusted accordingly so that marine mammals are not exposed to 
Level A harassment sound pressure levels. An exclusion zone for 
vibratory pile driving or underwater sawing is unnecessary to prevent 
Level A harassment as source levels will not exceed the Level A 
harassment threshold.
    (c) Pile Driving Shut Down and Delay Procedures: If a protected 
species observer sees a marine mammal within or approaching the 
exclusion zone prior to the start of impact pile driving, the observer 
will notify the on-site project lead (or other authorized individual), 
who will then be required to delay pile driving until the marine mammal 
has moved 305 m (1,000 ft) from the sound source or the animal has not 
been resighted within 30 minutes. If a marine mammal is sighted within 
or on a path toward the 152-m (500-ft) exclusion and buffer zone during 
pile driving, pile driving will cease until that animal has moved 305 m 
(1,000 ft) and is on a path away from the exclusion zone or 30 minutes 
has lapsed since the last sighting.
    (d) Soft-start Procedures: A ``soft-start'' technique will be used 
at the beginning of each pile installation and each use of the 
underwater saw to allow any marine mammal that may be in the immediate 
area to leave before the pile hammer reaches full energy or saw begins 
sawing. For vibratory pile driving, contractors will initiate noise 
from the vibratory hammer for 15 seconds at 40-60 percent reduced 
energy, followed by a 1-minute waiting period. The procedure will be 
repeated two additional times before full energy may be achieved. For 
impact hammering, contractors will provide an initial set of three 
strikes from the impact hammer at 40 percent energy, followed by a 1-
minute waiting period, then two subsequent three-strike sets. For 
underwater sawing, contractors will turn on the saw 3 or 4 times for 2 
to 3 seconds each time over the course of 30 seconds. The soft-start 
procedure will be conducted prior to driving each pile if hammering 
ceases for more than 30 minutes.
    8. Monitoring Requirements--The holder of this Authorization is 
required to abide by the following monitoring conditions listed in 
8(a)-(b). Failure to comply with these conditions may result in the 
modification, suspension, or revocation of this Authorization.
    (a) Visual Monitoring
    (i) The holder of this Authorization must designate at least two 
biologically-trained, on-site individual(s), approved in advance by 
NMFS, to monitor the exclusion and buffer zone (preliminarily set at 
152 m [500 ft]) for marine mammals 30 minutes before, during, and 30 
minutes after all impact pile driving activities. The protected species 
observer(s) shall conduct observations on the number, type(s), 
location(s), and behavior(s) of marine mammals in the designated 
exclusion zone (see Reporting section below).
    (ii) Protected species observers must call for delay or shut down 
if any marine mammal is observed within or approaching the designated 
exclusion zone (preliminarily set at 10 m [33 ft]).
    (iii) The holder of this Authorization must designate at least two 
biologically trained, on-site individuals, approved in advance by NMFS, 
to conduct behavioral monitoring out to 1 nmi during all impact pile 
driving. In addition, observers will be stationed at the Level B 
harassment isopleth (4,600 m [2.5 mi]) during at least three events of 
vibratory pile driving/underwater sawing to conduct behavioral 
monitoring and validate take estimates.
    (iv) Protected species observers will be provided with the 
equipment necessary to effectively monitor for marine mammals (for 
example, high-quality binoculars, spotting scopes, compass, range-
finder, and digital SLR

[[Page 44419]]

camera with telephoto lens) in order to determine if animals have 
entered into the exclusion zone or Level B harassment isopleth and to 
record species, behaviors, and responses to in-water construction 
activities.
    (v) NMFS must be informed immediately of any changes or deletions 
to any portions of the monitoring plan, as described in the 
application.
    (b) Hydroacoustic Monitoring
    (i) Underwater sound measurements will be taken at the initial 
installation of each pile driving method to ensure that the harassment 
isopleths are not extending past the estimated distances. Exclusion 
zones and harassment isopleths may be adjusted accordingly for marine 
mammals so that they are not exposed to Level A harassment sound 
pressure levels (180 dB). ME DOT will contact NMFS within 48 hours in 
order to make the necessary adjustments.
    (ii) Persons conducting sound measurements shall coordinate with 
the pile driver operator and marine mammal observer(s) to determine 
which activities are occurring at the time measurements are taken and 
if any marine mammals are in the area.
    9. Reporting Requirements--The holder of this Authorization is 
required to submit a report on all activities and visual and acoustic 
monitoring results to the Office of Protected Resources, NMFS, and the 
Greater Atlantic Regional Administrator, NMFS, 90 days prior to the 
expiration of the IHA if a renewal is sought, or within 90 days of 
completion of in water construction activities.
    (a) The visual monitoring report must contain the following 
information:
    (i) Number of marine mammals observed and number taken, by species, 
and, if possible, sex and age class;
    (ii) Marine mammal behavior patterns observed;
    (iii) Marine mammal distances to pile driving or sawing activities;
    (iv) Time pile driving begins and ends and if pile driving was 
occurring during a sighting;
    (v) Time underwater sawing begins and ends if sawing was occurring 
during a sighting;
    (vi) Time and locations of all marine mammal sightings;
    (vii) environmental conditions, including but not limited to 
visibility, tide level and state (i.e., slack, ebb, flood), and sea 
state; and
    (viii) other human activity in the area (e.g., vessel operation).
    (b) The acoustic monitoring report must contain the following:
    (i) Type of equipment used to collect acoustic data including 
frequency range;
    (ii) estimated water depth of pile being driven and depth at which 
measurements were taken;
    (iii) distances to the source where acoustic data were collected;
    (iv) maximum, minimum, and average dBRMS levels received 
at each measured distance;
    (v) the type of pile driving method (i.e., impact or vibratory) 
associated with each collected measurement;
    (vi) estimated rate of attenuation or transmission loss (TL) based 
on collected measurements; and
    (vii) estimated source levels based on TL rate.
    (c) In the unanticipated event that in-water construction 
activities clearly cause the take of a marine mammal in a manner 
prohibited by this Authorization, such as an injury (Level A 
harassment), serious injury, or mortality, ME DOT shall immediately 
cease in-water construction activities and report the incident to 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 Greater Atlantic Regional Stranding 
Coordinator ([email protected]). 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 and leading up to the incident;
    (iv) Description of the incident;
    (v) Status of all sound source use in the 24 hours preceding the 
incident;
    (vi) Water depth;
    (vii) Environmental conditions (e.g. wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (viii) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (ix) Species identification or description of the animal(s) 
involved;
    (x) The fate of the animal(s); and
    (xi) Photographs or video footage of the animal (if equipment is 
available).

Activities shall not resume until NFMS is able to review the 
circumstances of the prohibited take. NMFS shall work with ME DOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. ME DOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (d) In the event that ME DOT 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), 
ME DOT will immediately report the incident to 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 Greater Atlantic Regional Stranding 
Coordinator ([email protected]). The report must include the same 
information identified in Condition 9(c) above. Activities may continue 
while NMFS reviews the circumstances of the incident. NMFS will work 
with ME DOT to determine whether modifications in the activities are 
appropriate.
    (e) In the event that ME DOT 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 Condition 3 
of this Authorization (e.g., previously wounded animal, carcass with 
moderate to advanced decomposition, or scavenger damage), ME DOT shall 
report the incident to 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 Greater 
Atlantic Regional Stranding Coordinator ([email protected]), within 
24 hours of the discovery. ME DOT shall 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.
    10. A copy of this Authorization must be in the possession of the 
lead contractor on site and PSOs operating under the authority of this 
Incidental Harassment Authorization.
    11. This Authorization may be modified, suspended, or withdrawn if 
the Holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals.

Request for Public Comments

    NMFS requests comments on our analysis, the draft authorization, 
and any other aspect of the Notice of Proposed IHA for ME DOT's 
construction project in Eastport, Maine. Please include with your 
comments any supporting data or literature citations to help inform our 
final decision on ME

[[Page 44420]]

DOT's request for an MMPA authorization.

    Dated: July 28, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-18045 Filed 7-30-14; 8:45 am]
BILLING CODE 3510-22-P