[Federal Register Volume 79, Number 250 (Wednesday, December 31, 2014)]
[Notices]
[Pages 78806-78821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30539]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC228


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Operation, Maintenance, and Repair 
of the Northeast Gateway Liquefied Natural Gas Port and the Algonquin 
Pipeline Lateral Facilities in Massachusetts Bay

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

ACTION: Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Northeast 
Gateway[supreg] Energy BridgeTM, L.P. (Northeast Gateway or 
NEG) and Algonquin Gas Transmission, L.L.C. (Algonquin) to take, by 
harassment, small numbers of 14 species of marine mammals incidental to 
operating, maintaining, and repairing a liquefied natural gas (LNG) 
port and the Algonquin Pipeline Lateral (Pipeline Lateral) facilities 
by NEG and Algonquin, in Massachusetts Bay, between December 22, 2014, 
through December 21, 2015.

DATES: Effective December 22, 2014, through December 21, 2015.

ADDRESSES: A copy of the original and revised application containing a 
list of the references used in this document, The Maritime 
Administration (MARAD), U.S. Coast Guard (USCG) Final Environmental 
Impact Statement (Final EIS) on the Northeast Gateway Energy Bridge LNG 
Deepwater Port license application, and other related documents are 
available for viewing at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

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

Background

    Sections 101(a)(5)(A)(D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    An 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 citizens of the U.S. can apply for a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. Section 101(a)(5)(D) establishes a 45-day 
time limit for NMFS review of an application followed by a 30-day 
public notice and comment period on any proposed authorizations for the 
incidental harassment of marine mammals. Within 45 days of the close of 
the comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On January 18, 2013, NMFS received an application from Excelerate 
and Tetra Tech, on behalf of Northeast Gateway and Algonquin, for an 
authorization to take 14 species of marine mammals by Level B 
harassment incidental to operations, maintenance, and repair of an LNG 
port and the Pipeline Lateral facilities in Massachusetts Bay. They 
are: North Atlantic right whale, humpback whale, fin whale, sei whale, 
minke whale, long-finned pilot whale, Atlantic white-sided dolphin, 
bottlenose dolphin, short-beaked common dolphin, killer whale, Risso's 
dolphin, harbor porpoise, harbor

[[Page 78807]]

seal, and gray seal. Since LNG Port and Pipeline Lateral operation, 
maintenance, and repair activities have the potential to take marine 
mammals, a marine mammal take authorization under the MMPA is 
warranted.
    In response to the IHA application, NMFS published a Federal 
Register notice for the proposed IHA on November 18, 2013 (78 FR 
69049), which included proposed mitigation and monitoring measures to 
minimize and monitor potential impacts to marine mammals that could 
result from the proposed LNG Port and Pipeline Lateral operation, 
maintenance, and repair activities. After the close of the public 
comment period, Northeast Gateway notified NMFS that it does not intend 
to use marine autonomous recording units (MARUs) for long-term passive 
acoustic monitoring (PAM), as was described in the November 18, 2013, 
proposed IHA Federal Register notice, the IHA application, and marine 
mammal monitoring plan, except under certain levels of LNG port 
activity, and requested NMFS to modify the monitoring measures in the 
proposed IHA to use alternative acoustic monitoring, with triggers for 
additional long-term monitoring during higher levels of LNG port 
activity (which would require reinstallation of MARUs).
    Following discussions with NMFS' Office of Protected Resources, the 
NMFS Greater Atlantic Regional Fisheries Office (GARFO), and National 
Ocean Service's Stellwagen Bank National Marine Sanctuary, on June 20, 
2014, Excelerate and Tetra Tech submitted a revised IHA application 
with tiered PAM measures corresponding to different levels of LNG Port 
and Pipeline Lateral operation, maintenance, and repair activities. On 
October 6, 2014, NMFS published a Federal Register notice (79 FR 60142) 
for the revised proposed IHA that include updated PAM. No changes was 
made for the proposed updated PAM as described in the revised proposed 
IHA. Please refer to Federal Register notices for the proposed IHA (78 
FR 69049; November 18, 2013) and the revised proposed IHA (79 FR 60142; 
October 6, 2014) for a detailed description of the project activities 
and the updated PAM.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Northeast Gateway and 
Algonquin was published in the Federal Register notice on November 18, 
2013 (78 FR 69049), and was revised in a second Federal Register notice 
on October 6, 2014 (79 FR 60142). These notices described, in detail, 
Northeast Gateway and Algonquin's activities, the marine mammal species 
that may be affected by the activity, the anticipated effects on marine 
mammals, and the proposed monitoring, mitigation, and reporting 
measures.
    During the 30-day public comment period for the Federal Register 
notice published on November 18, 2013, NMFS received two comment 
letters: one from the Marine Mammal Commission (Commission) and one 
from the Whale and Dolphin Conservation (WDC) and the Humane Society of 
the United States (HSUS). During the 30-day public comment period for 
the Federal Register notice published on October 6, 2014, NMFS received 
only one comment letter from the Commission. In that comment letter, 
the Commission states that it believes that the revised acoustic 
monitoring measures are justified and, in combination with other 
previously proposed mitigation and monitoring measures, are sufficient 
to ensure that NMFS' previous findings and determinations are still 
valid. All relevant comments are addressed here.
    Comment 1: The Commission recommends that NMFS issue the requested 
authorization, subject to inclusion of the proposed mitigation and 
monitoring measures.
    Response: NMFS concurs with the Commission's recommendation and has 
included the mitigation and monitoring measures contained in the 
proposed authorization in the issued IHA.
    Comment 2: Citing Mussoline et al. (2012), the WDC and HSUS state 
that North Atlantic right whales are detected within Massachusetts Bay 
year round, and therefore NEG's maintenance and repair activities 
between May 1 and November 30 would have ``direct impact'' to North 
Atlantic right whales. In addition, the WDC and HSUS point out that 
other endangered whale species can also be found in Massachusetts Bay 
during this time span but they are not mentioned in the IHA 
application. WDC and HSUS thus conclude that since no lethal take can 
be authorized, any takes would violate both the MMPA and the Endangered 
Species Act (ESA).
    Response: NMFS does not agree with the WDC and HSUS' assessment on 
the potential impacts of whales in Massachusetts Bay and their 
conclusion in regards to lethal takes.
    First, Mussoline et al. (2012) used marine autonomous recording 
units (MARUs) deployed throughout the Stellwagen Bank National Marine 
Sanctuary (SBNMS, Massachusetts Bay) from January 2006 to February 2007 
to study the presence and absence of the North Atlantic right whales in 
the area by detection of the whale's up-calls. The results showed that 
although up-calls were detected year round, except during July and 
August, in the SBNMS area, calling rates were highest from January 
through May, peaking in April (Mussoline et al. 2012, Figure 2), 
suggesting seasonal variation. These seasonal variations in 
distribution of the North Atlantic right whale in the project vicinity 
were taken into consideration when analyzing potential human impacts 
from the proposed NEG and Algonquin LNG Port operations and maintenance 
and repair activities and fashioning mitigation such as the window for 
planned maintenance and repair.
    Second, with regard to the issue of lethal take, it is stated 
clearly in the Federal Register notices for the proposed IHA that no 
mortality or injury of marine mammals from the proposed LNG Port/
Pipeline operations and maintenance and repair activities (with 
mitigation and monitoring) is expected and none are authorized. 
Potential adverse effects to marine mammals, including endangered 
whales that might occur in the proposed LNG Port action area, were 
assessed and provided in the Federal Register notice for the proposed 
IHA, as well as the associated EIS. Finally, in preparation for the 
issuance of the IHA, NMFS Office of Protected Resources conducted a 
section 7 consultation under the ESA with the NMFS Greater Atlantic 
Region Fisheries Office. A Biological Opinion was issued on November 
21, 2014, concluding that the proposed action is not likely to 
jeopardize the continued existence of endangered marine mammal and 
other species, with no mortality anticipated.
    Comment 3: Citing potential vessel collision of the endangered 
North Atlantic right whales, WDC and HSUS recommend limiting the Energy 
Bridge Regasification Vessel (EBRV) speeds to 10 knots as right whales 
have been sighted throughout Massachusetts and Cape Cod Bays at all 
times of the year. The WDC and HSUS further state that monitoring 
measures are not effective because not all whales in an area will be 
seen or heard, and detection can only provide a record of where whales 
have been recently seen.
    Response: NMFS is aware of the potential threats of vessel 
collision to the North Atlantic right whale from all transiting cargo 
ships, not just EBRVs, in the area. Therefore, a series of temporal and 
spatial vessel speed related measures are required for the LNG Port/
Pipeline operations and maintenance and repair activities in the 
Massachusetts Bay. These measures are the results of careful analyses 
and

[[Page 78808]]

assessment on the seasonal and spatial distribution of the right whale, 
and the balance between species conservation and practicability. 
Although right whales are sighted in Massachusetts and Cape Cod Bays 
throughout the year, their presence in the summer months is extremely 
rare, and NMFS does not believe reducing vessel speeds from 12 knots to 
10 knots would provide any additional conservation benefits to the 
species because vessels will have protected species observers on board. 
However, mitigation measures require that once a whale is acoustically 
detected, the vessel must slow down to 10 knots or less within 5 miles 
(8 km) of the last sighting area, which provides for a fairly large 
buffer to avoid any potential collision with North Atlantic right 
whales. We determined that this measure was protective and would reduce 
the likelihood of collision further.
    Comment 4: Citing the NEG IHA application that maintenance and 
repair activities will result in ``increased levels of turbidity which 
can interfere with the ability of whales to forage effectively by 
obscuring visual detection of or dispersing potential prey,'' WDC and 
HSUS state that the proposed LNG Port maintenance and repair activities 
may result in reduced fitness of marine mammal species.
    Response: NMFS disagrees with the cited statement in the IHA 
application, as well as the conclusion from WDC and HSUS based on the 
incorrect statement. NMFS is aware that turbidity is a potential effect 
from Algonquin Pipeline Lateral maintenance and repair activities. 
However, the area that may be affected by these activities is expected 
to be of very small scale, on the order of tens of meters. Because the 
disturbance would occur on such a small scale relative to the size of 
Massachusetts Bay and available foraging area, we determined that the 
maintenance and repair activities would not appreciably affect the 
visual detection of prey by marine mammals. In addition, the turbidity 
by soil disturbance from the proposed maintenance and repair activities 
is expected to be brief in duration. Suspended sediments from the ocean 
bottom are expected to resettle within hours after any disturbance.
    Comment 5: The WDC and HSUS are concerned about the dramatic 
increase in water withdrawal that has been requested. The WDC and HSUS 
states that these withdrawals would increase from 2.6 billion gallons 
of sea water per year to 11 billion gallons per year. The WDC and HSUS 
question the assessment performed by the applicant on abundance of 
planktonic species due to their patchy distribution (citing Baumgartner 
et al. 2003). Further, without providing any scientific evidence, the 
WDC and HSUS state that an increase of 400% or more in water uptake is 
bound to have significant effects on localized plankton aggregations.
    Response: NMFS does not agree with WDC and HSUS' statement that the 
increase of water intake would have significant effects on localized 
plankton aggregations. The Federal Register notice for the proposed IHA 
provided detailed analyses on the extra water intake by the proposed 
LNG Port operations and maintenance and repair activities. Under the 
requested water-use scenario, Tech Tech (2011) conducted an 
environmental impact assessment (EIA) titled ``Environmental 
Assessment: Northeast Gateway Deepwater Port'' on the potential impacts 
to marine mammals and their prey. To evaluate impacts to phytoplankton 
under the increased water usage, the biomass of phytoplankton lost from 
the Massachusetts Bay ecosystem was estimated based on the same method 
presented in the final Environmental Impact Statement/Environmental 
Impact Report (EIS/EIR). Phytoplankton densities of 65,000 to 390,000 
cells/gallon were multiplied by the annual planned activities 
withdrawal rate of 11 billion gallons to estimate a loss of 7.15 x 
10\14\ to 4.29 x 10\15\ cells per year. Assuming a dry-weight biomass 
of 10-10 to 10-11 gram per cell (g/cell), an 
estimated 7.2 kg to 429 kg of biomass would be lost annually from 
Massachusetts Bay under the proposed activity, up to approximately 4.2 
times greater than that estimated in the EIS/EIR for the permitted 
operational scenario. An order of magnitude estimate of the effect of 
this annual biomass loss on the regional food web can be calculated 
assuming a 10 percent transfer of biomass from one trophic level to the 
next (Sumich 1988) following the method used in the final EIS/EIR. This 
suggests that the loss of 7.2 kg to 429 kg of phytoplankton will result 
in the loss of about 0.7 kg to 42.9 kg of zooplankton, less than 0.1 kg 
to 4.3 kg of small planktivorous fish, and up to 0.4 kg of large 
piscivorous fish (approximately equivalent to a single 1-pound striped 
bass). Relative to the biomass of these trophic levels in the project 
area, this biomass loss is minor and consistent with the findings in 
the final EIS/EIR. NMFS' analysis relied on the analysis in the EIA for 
its own analysis, and the comment does not provide support for a 
contradictory conclusion.
    In addition, the density of zooplankton determined by the sampling 
conducted by the Massachusetts Water Resource Authority (MWRA) to 
characterize the area is approximately of 34.9 x 10\3\ organisms per 
m\3\. Applying this density, the water withdrawal volume under the 
proposed activity would result in the entrainment of 2.2 x 10\10\ 
zooplankton individuals per trip or 1.5 x 10\12\ individuals per year. 
Assuming an average biomass of 0.63 x 10-6 g per individual, 
this would result in the loss of 14.1 kg of zooplankton per shipment or 
916.5 kg of zooplankton per year for 65 shipments. As discussed for 
phytoplankton, biomass transfers from one trophic level to the next at 
a rate of about 10 percent. Therefore, this entrainment of zooplankton 
would result in loss of about 91.6 kg of planktivorous fish and 9.2 kg 
of large piscivorous fish (approximately equivalent to two 9-pound 
striped bass). These losses are minor relative to the total biomass of 
these trophic levels in Massachusetts Bay.
    Finally, ichthyoplankton (fish eggs and larvae) losses and 
equivalent age one juvenile fish estimates under the proposed activity 
were made based on actual monthly ichthyoplankton data collected in the 
port area from October 2005 through December 2009 and the proposed 
activity withdrawal volume of 11 billion gallons per year evenly 
distributed among months (0.92 billion gallons per month) as a worst-
case scenario, representing the maximum number of Port deliveries 
during any given month. Similarly, the lower, upper, and mean annual 
entrainment estimates are based on the lower and upper 95 percent 
confidence limits, of the monthly mean ichthyoplankton densities, and 
the monthly mean estimates multiplied by the monthly withdrawal rate of 
0.92 billion gallons per month. At this withdrawal rate, approximately 
106 million eggs and 67 million larvae are estimated to be lost. 
Nevertheless, the demand for natural gas and corresponding Port 
activities will likely be greatest during the winter heating season 
(November through March) when impacts from entrainment will likely be 
lower.
    These estimated losses are not significant given the very high 
natural mortality of ichthyoplankton. This comparison was done in the 
final EIS/EIR where ichthyoplankton losses based on historic regional 
ichthyoplankton densities and a withdrawal rate of approximately 2.6 
billion gallons per year were represented by the equivalent

[[Page 78809]]

number of age one fish. Under the final EIS/EIR withdrawal scenario, 
equivalent age one losses due to entrainment ranged from 1 haddock to 
43,431 sand lance (Tetra Tech 2010). Equivalent age one losses when no 
NEG Port operations occurred were recalculated using Northeast Gateway 
monitoring data in order to facilitate comparisons between the 
permitted scenario and no action scenario. Using Northeast Gateway 
monitoring data, withdrawal of 2.6 billion gallons per year would 
result in equivalent age one losses ranging from less than 1 haddock to 
5,602 American sand lance. By comparison, equivalent age one losses 
under the proposed activity withdrawal rate of 11 billion gallons per 
year ranged from less than 1 haddock to 23,701 sand lance and were 
generally similar to or less than those in the final EIS/EIR.
    Although no reliable annual food consumption rates of baleen whales 
are available for comparison, based on the calculated quantities of 
phytoplankton, zooplankton, and ichthyoplankton removal analyzed above, 
we believe it is reasonable to conclude that baleen whale predation 
rates would dwarf any reasonable estimates of prey removals by NEG Port 
operations.
    In conducting this analysis, NMFS is aware of the prey patchiness 
in the natural environment. However, for a large scale and long-term 
environmental assessment, random and uniform plankton distribution is a 
valid assumption to make. Therefore, NMFS determined that the prey 
removals by NEG Port operations resulting from water usage will have 
inconsequential impacts on plankton aggregation.
    Comment 6: The WDC and HSUS are concerned about the increased 
discharge of warm water during off-loading. The WDC and HSUS state that 
there are likely to be adverse impacts to zooplankton in the area and, 
consequently, the forage base for several endangered whale species. The 
WDC and HSUS further state that in particular, this warmer water could 
affect right whale prey distribution and prey availability, as their 
primary prey, Calanus finmarchicus, tends to be concentrated in 
discrete thermal layers (Baumgartner and Mate, 2005). In addition, WDC 
and HSUS point out that research by Keller et al. (2002) has indicated 
that presence or absence of right whales was dependent on water 
temperature differences of as little as 2 [deg]C.
    Response: NMFS is aware of the increased discharge of warm water 
during NEG LNG Port operation off-loading process. In 2011, NMFS 
requested that NEG conduct an analysis of its warm water discharge from 
the cooling systems. The analysis used a refined software system, 
CORnell MIxing Zone Expert System (CORMIX), to estimate behavior of the 
thermal plumes (Dill and Hamilton 2011).
    Initial data indicate the actual temperature difference ([Delta]T) 
associated with the discharge water can approach 12 [deg]C, which is 
greater than originally anticipated (2.6 [deg]C). Using the newer 
version of the modeling software (CORMIX 6.0-GT) to simulate the 
originally estimated discharge characteristics as a point of 
comparison, and to simulate a range of conditions, including variable 
plume discharge [Delta]T levels from the main condenser cooling system 
of 4 to 12 [deg]C, and variable receiving water conditions in winter 
and summer, the results showed the following:

     Summer conditions: Results showed for summer (when the 
water column in Massachusetts Bay is stratified) that the plume 
generally is expected to surface when [Delta]T is 6 [deg]C or 
greater. The plume is unstable in the near-field, and may surface 
immediately adjacent to the hull. Lower temperature differences 
(e.g., [Delta]T of 4 [deg]C) can mix at depth within the cooler 
lower layer of Massachusetts Bay. The distance at which a [Delta]T 
of 0.8 [deg]C is achieved ranges from 13 to 65 m from the ship. At 
500 m from the ship, the surface [Delta]T is 0.34 [deg]C or less.
     Winter conditions: Results showed for winter (when the 
water column is well-mixed) that the plume surfaces within 37 m 
(discharge [Delta]T of 12 [deg]C) to 78 m (discharge [Delta]T of 4 
[deg]C) from the ship. The distance at which [Delta]T of 0.8 [deg]C 
is achieved ranges from 19 to 37 m from the ship, which is a 
submerged position within the plume. Maximum surface [Delta]T is 
less than 1 [deg]C. At 500 m from the ship, the surface [Delta]T is 
0.31 [deg]C or less.

    In summary, the temperature difference is expected to drop to non-
significant over the distance of tens of meters from the vessel. 
Therefore, NMFS determined that the warm water discharge from the LNG 
Port operations is expected to have no effects on the marine 
environment, zooplankton in the area, and marine mammal prey 
distribution.
    Comment 7: The WDC and HSUS state that the applicant does not 
appear concerned that underwater sound resulting from maintenance and 
operation of the port is likely to result in harassment to marine 
mammals, except noise from a DP dive vessel. The WDC and HSUS further 
states that sound propagation calculations the applicant performed were 
based on outdated data that may no longer be applicable, as 
environmental factors such as seabed composition are likely to have 
changed in the past twenty years, and the applicant acknowledges that 
the maximum radius of the Zone of Influence (ZOI) is inherently 
variable.
    Response: NMFS does not agree. The initial Federal Register notice 
(FR 69049; November 18, 2013) for the proposed IHA described noise from 
the proposed maintenance and repair activities, and the analysis 
discussed more than just sound from a DP dive vessel, including models 
used to assess vessel noises such as turning screws, engine noise, 
noise of operating machinery, and thruster use. In addition, to confirm 
these modeled results and better understand the noise footprint 
associated with the initial construction activities at the LNG Port, 
field measurements were taken of various construction activities during 
the 2007 NEG Port and Algonquin Pipeline Lateral Construction period. 
Measurements were taken to establish the ``loudest'' potential 
construction measurement event. The location at the LNG Port was used 
to determine site-specific distances to the 120/180 dB re 1 [micro]Pa 
isopleths for NEG Port maintenance and repair activities.
    As described for NEG Port operations, sound propagation 
calculations were performed to determine the noise footprint of the 
construction activity. The calculations took into consideration aspects 
of water depth, sea state, bathymetry, and seabed composition, and 
specifically evaluated sound energy in the range that encompasses the 
auditory frequencies of marine mammals and sound propagation beyond the 
immediate vicinity of the source. These results were then summed across 
frequencies to provide the broadband received levels at receptor 
locations. The resulting distance to the 120 dB isopleth (180 dB re 1 
[micro]Pa does not exist) was estimated to determine the maximum 
distance at which Level B harassment may occur.
    NMFS used the most recent and best data available regarding sound 
measurements from the Port, which were collected during maintenance and 
repair activities in 2009. We note, however, that this IHA requires the 
applicant to conduct passive acoustic monitoring (PAM) for the noise 
environment in Massachusetts Bay during operations and maintenance and 
repair activities. The acoustic data collected by the PAM will measure 
and document the sound ``budget'' of Massachusetts Bay so as to 
eventually assist in determining whether or not an overall increase in 
noise in the Bay associated with the Project might be having a 
potentially negative impact on marine mammals. These acoustic data will 
provide additional new insight on the noise levels from NEG's proposed

[[Page 78810]]

LNG Port operations and maintenance and repair activities.
    Comment 8: The WDC and HSUS state that the applicant does not take 
into account the fact that GDF SUEZ-Neptune LNG is also operating in 
Massachusetts Bay, and because the ports are ``very similar in their 
potential need and type or maintenance and repair'', the cumulative 
impacts of noise from both ports should be considered but have not been 
discussed by the applicant.
    Response: The potential cumulative impacts from the nearby Neptune 
LNG Port were analyzed in the EIS/EIR for the NEG LNG project. However, 
on July 5, 2013, the Maritime Administration granted the request of 
Neptune LNG to suspend operations of their LNG Port facility for a 
period of 5 years, which began on June 26, 2013. Therefore, Neptune LNG 
will not be conducting any operations until at least June 26, 2018.
    Comment 9: The WDC and HSUS are concerned by the estimated number 
of takes of marine mammals, particularly the North Atlantic right 
whale. The applicant estimates takes for this species as high as 29 per 
year due to port operations and maintenance and repair activities of 
the NEG Port and the Algonquin Pipeline Lateral.
    Response: As analyzed and discussed in detail in the Federal 
Register notices for the proposed IHA, the estimated take of up to 29 
North Atlantic right whale by Level B behavioral harassment represent 
6.59% of the population. Since it is likely that individual animals 
could be ``taken'' by harassment multiple times, the percentage is the 
upper boundary of the numbers of animals in the population that could 
be affected. The Level B behavioral harassment of these animals is 
expected to consist of brief exposure of anthropogenic underwater noise 
levels above 120 dB re 1 [micro]Pa, and animals exposed to that level 
may exhibit brief alert or avoidance activities during the exposure. In 
addition, no mortality or injury is expected to occur, and due to the 
nature, degree, and context of the Level B harassment anticipated, the 
activity is not expected to impact rates of recruitment or survival.
    Comment 10: The WDC and HSUS point out an inconsistency in the IHA 
application regarding historical marine mammal take numbers. The WDC 
and HSUS state that in the IHA application, the applicant stated that 
``to date, based on both ERBV vessel observations and MARU data, no 
take by harassment has been recorded during NEG Port operations,'' 
while later in the application it stated that ``[t]o date, these 
mitigation and monitoring activities have successfully safeguarded 
marine mammals and sea turtles, resulting in a total of only 1 take by 
acoustic harassment over the past 3 years of operation.''
    Response: NMFS contacted NEG for clarification of these two 
statements. After review of the original marine mammal monitoring 
records, NEG's contractor Tetra Tech states that the only observed take 
of a marine mammal was on February 5, 2009, when an unidentified small 
marine mammal (either a seal or a dolphin) was briefly spotted within 
the 120 dB re 1 [micro]Pa zone of influence at a distance between 1 and 
1.2 miles from the EBRV Explorer while DP thrusters were engaged.

Description of Marine Mammals in the Area of the Specified Activities

    The Federal Register notice (78 FR 69049; November 18, 2013) for 
the proposed IHA and Northeast Gateway's IHA application identified 14 
marine mammal species under NMFS jurisdiction likely to occur in the 
construction area:

North Atlantic right whale (Eubalaena glacialis),
humpback whale (Megaptera novaeangliae),
fin whale (Balaenoptera physalus),
minke whale (B. acutorostrata),
long-finned pilot whale (Globicephala melas),
Atlantic white-sided dolphin (Lagenorhynchus acutus),
bottlenose dolphin (Tursiops truncatus),
common dolphin (Delphinus delphis),
killer whale (Orcinus orca),
Risso's dolphin (Grampus griseus),
harbor porpoise (Phocoena phocoena),
harbor seal (Phoca vitulina), and
gray seal (Halichoerus grypus).

    Information on those species that may be affected by this activity 
is discussed in detail in the USCG Final EIS on the Northeast Gateway 
LNG proposal. Please refer to that document for more information on 
these species and potential impacts from operation of this LNG 
facility. In addition, general information on these marine mammal 
species can also be found in W[uuml]rsig et al. (2000) and in the NMFS 
Stock Assessment Reports (Waring et al., 2014). This latter document is 
available at: http://www.nmfs.noaa.gov/pr/sars/pdf/ao2013_tm228.pdf. 
That information has not changed and is therefore not repeated here.

Potential Effects of the Specified Activity on Marine Mammals

    The proposed NEG LNG port/pipeline operations and maintenance and 
repair activities could affect marine mammal species and stocks by 
exposing them to elevated noise levels in the vicinity of the activity 
area. As described in detail in the Federal Register notice of proposed 
IHA (78 FR 69049, November 18, 2013), potential impacts from port 
operations and maintenance and repair activities could result in 
behavioral disturbances, masking, habituation, and although highly 
unlikely temporary hearing threshold shift. That information has not 
changed and is therefore not repeated here.
    Northeast Gateway contracted with Tetra Tech EC, Inc. (Tetra Tech) 
to perform field investigations to document various underwater noise 
levels emitted during the construction of the NEG Port and Algonquin 
Pipeline Lateral and during the operation of NEG Port facilities 
(namely the operation of EBRVs). Tetra Tech conducted five offshore 
hydroacoustic field programs: One in 2005 and one in 2006 at the Gulf 
Gateway Deepwater Port located approximately 116 miles off the coast of 
Louisiana in the Gulf of Mexico; and three in 2007 at the NEG Port and 
Algonquin Pipeline Lateral Project area. The 2005 measurements were 
completed to determine underwater noise levels during EBRV onboard 
regasification and vessel movements. The data from the 2005 field 
program was used to support the modeling and analysis of potential 
acoustic effects of EBRV operations in Massachusetts Bay during the NEG 
Port permitting and licensing process. The data collected in 2006 was 
also associated with EBRV operation activities and were collected for 
the purpose of verifying the measurement completed in 2005 as well as 
to further document sound levels during additional operational and EBRV 
activities such as EBRV coupling and decoupling from the buoy system, 
transit and the use of stern and bow thrusters required for dynamic 
positioning. The 2007 measurements were collected during NEG Port and 
Algonquin Pipeline Lateral construction to obtain site-specific 
underwater sound-level data associated with various construction 
activities that were previously modeled in support of permitting and 
licensing. These data are used here to analyze potential noise impacts 
to marine mammals and to provide the basis for take calculation before 
new measurements are made on-site (see Monitoring Measures section 
below).
    A detailed report describing both the 2006 and 2007 operation and 
construction noise measurement events and associated results have been 
included as Appendix B of the IHA application. The Federal Register 
notice of proposed IHA provided a complete description of NEG port 
operations,

[[Page 78811]]

NEG port maintenance and repair, and Algonquin pipeline lateral 
operations and maintenance and unplanned repair, the activities that 
could result in Level B harassment from the described activities.

Potential Effects on Marine Mammal Habitat

NEG Port Operations

    Operation of the NEG Port will not result in short-term effects on 
habitat; however, long-term effects on the marine environment, 
including alteration of the seafloor conditions, continued disturbance 
of the seafloor, regular withdrawal of sea water, and regular 
generation of underwater noise, will result from Port operations. 
Specifically, a small area (0.14 acre) along the Pipeline Lateral has 
been permanently altered (armored) at two cable crossings. In addition, 
the structures associated with the NEG Port (flowlines, mooring wire 
rope and chain, suction anchors, and pipeline end manifolds) occupy 4.8 
acres of seafloor. An additional area of the seafloor of up to 43 acres 
(a worst case scenario based on severe 100-year storm with EBRVs 
occupying both STL buoys) will be subject to disturbance due to chain 
sweep while the buoys are occupied. Given the relatively small size of 
the NEG Port area that will be directly affected by Port operations, 
NMFS does not anticipate that habitat loss will be significant.
    EBRVs are currently authorized to withdraw an average of 4.97 
million gallons per day (mgd) and 2.6 billion gallons per year of sea 
water for general ship operations during it cargo delivery activities 
at the NEG Port. However, during the operations of the NEG Port 
facility, it was revealed that significantly more water usage is needed 
from what was originally evaluated in the final USCG Environmental 
Impact Statement/Environmental Impact Report (EIS/EIR). The updates for 
the needed water intake and discharge temperature are:

     11 billion gallons of total annual water use at the 
Port;
     Maximum daily intake volume of up to 56 mgd at a rate 
of 0.45 feet per second when an EBRV is not able to achieve the heat 
recovery system (HRS: It is the capability of reducing water use 
during the regasification process) mode of operation; and,
     Maximum daily change in discharge temperature of 12 
[deg]C (21.6 [deg]F) from ambient from the vessel's main condenser 
cooling system.

    Under the requested water-use scenario, Tech Tech (2011) conducted 
an environmental analysis on the potential impacts to marine mammals 
and their prey. To evaluate impacts to phytoplankton under the 
increased water usage, the biomass of phytoplankton lost from the 
Massachusetts Bay ecosystem was estimated based on the method presented 
in the final EIS/EIR. Phytoplankton densities of 65,000 to 390,000 
cells/gallon were multiplied by the annual planned activities of 
withdrawal rate of 11 billion gallons to estimate a loss of 7.15 x 
10\14\ to 4.29 x 10\15\ cells per year. Assuming a dry-weight biomass 
of 10-\10\ to 10-\11\ gram per cell (g/cell), an 
estimated 7.2 kg to 429 kg of biomass would be lost from Massachusetts 
Bay under the proposed activity, up to approximately 4.2 times that 
estimated in the final EIS/EIR for the permitted operational scenario. 
An order of magnitude estimate of the effect of this annual biomass 
loss on the regional food web can be calculated assuming a 10 percent 
transfer of biomass from one trophic level to the next (Sumich 1988) 
following the method used in the final EIS/EIR. This suggests that the 
loss of 7.2 kg to 429 kg of phytoplankton will result in the loss of 
about 0.7 kg to 42.9 kg of zooplankton, less than 0.1 kg to 4.3 kg of 
small planktivorous fish, and up to 0.4 kg of large piscivorous fish 
(approximately equivalent to a single 1-pound striped bass). Relative 
to the biomass of these trophic levels in the project area, this 
biomass loss is minor and consistent with the findings in the final 
EIS/EIR.
    In addition, zooplankton losses will also increase proportionally 
to the increase in water withdrawn. The final EIS/EIR used densities of 
zooplankton determined by the sampling conducted by the Massachusetts 
Water Resource Authority (MWRA) to characterize the area around its 
offshore outfall and assumed a mean zooplankton density of 34.9 x 10\3\ 
organisms per m\3\. Applying this density, the water withdrawal volume 
under the proposed activity would result in the entrainment of 2.2 x 
10\10\ zooplankton individuals per trip or 1.5 x 10\12\ individuals per 
year. Assuming an average biomass of 0.63 x 10-\6\ g per 
individual, this would result in the loss of 14.1 kg of zooplankton per 
shipment or 916.5 kg of zooplankton per year. As discussed for 
phytoplankton, biomass transfers from one trophic level to the next at 
a rate of about 10 percent. Therefore, this entrainment of zooplankton 
would result in loss of about 91.6 kg of planktivorous fish and 9.2 kg 
of large piscivorous fish (approximately equivalent to two 9-pound 
striped bass). These losses are minor relative to the total biomass of 
these trophic levels in Massachusetts Bay.
    Finally, ichthyoplankton (fish eggs and larvae) losses and 
equivalent age one juvenile fish estimates under the proposed activity 
were made based on actual monthly ichthyoplankton data collected in the 
port area from October 2005 through December 2009 and the proposed 
activity withdrawal volume of 11 billion gallons per year evenly 
distributed among months (0.92 billion gallons per month) as a worst-
case scenario, representing the maximum number of Port deliveries 
during any given month. Similarly, the lower, upper, and mean annual 
entrainment estimates are based on the lower and upper 95 percent 
confidence limits, of the monthly mean ichthyoplankton densities, and 
the monthly mean estimates multiplied by the monthly withdrawal rate of 
0.92 billion gallons per month. At this withdrawal rate approximately 
106 million eggs and 67 million larvae are estimated to be lost (see 
Table 4.2-2 of the IHA application). The most abundant species and life 
stages estimated to be entrained under the proposed activity are cunner 
post yolk-sac larvae (33.3 million), yellowtail flounder/Labridae eggs 
(27.4 million) and hake species eggs (18.7 million). Together, these 
species and life stages accounted for approximately 46 percent of the 
total entrainment estimated. Entrainment was estimated to be highest in 
June through July when 97.4 million eggs and larvae (approximately 57 
percent of the annual total) were estimated to be entrained. 
Nevertheless, the demand for natural gas and corresponding Port 
activities will likely be greatest during the winter heating season 
(November through March), when impacts from entrainment will likely be 
lower.
    These estimated losses are not significant given the very high 
natural mortality of ichthyoplankton. This comparison was done in the 
final EIS/EIR where ichthyoplankton losses based on historic regional 
ichthyoplankton densities and a withdrawal rate of approximately 2.6 
billion gallons per year were represented by the equivalent number of 
age one fish. Under the final EIS/EIR withdrawal scenario, equivalent 
age one losses due to entrainment ranged from 1 haddock to 43,431 sand 
lance (Tetra Tech 2010). Equivalent age one losses under the conditions 
when no NEG Port operations occur were recalculated using Northeast 
Gateway monitoring data in order to facilitate comparisons between the 
permitted scenario. Using Northeast Gateway monitoring data, withdrawal 
of 2.6 billion gallons per year would result in

[[Page 78812]]

equivalent age one losses ranging from less than 1 haddock to 5,602 
American sand lance. By comparison, equivalent age one losses under the 
proposed activity withdrawal rate of 11 billion gallons per year ranged 
from less than 1 haddock to 23,701 sand lance and were generally 
similar to or less than those in the final EIS/EIR. Substantially more 
equivalent age one Atlantic herring, pollock, and butterfish were 
estimated to be lost under the final EIS/EIR at a withdrawal rate of 
2.6 billion gallons per year, while substantially more equivalent age 
one Atlantic cod, silver hake and hake species, cunner, and Atlantic 
mackerel are estimated to be lost under the proposed activity.
    Although no reliable annual food consumption rates of baleen whales 
are available for comparison, based on the calculated quantities of 
phytoplankton, zooplankton, and ichthyoplankton removal analyzed above, 
it is reasonable to conclude that baleen whale predation rates would 
dwarf any reasonable estimates of prey removals by NEG Port operations. 
Therefore, NMFS believes that the prey removals by NEG Port operations 
resulting from water usage will have negligible impacts on marine 
mammal habitat.

NEG Port Maintenance

    As stated earlier, NEG LNG Port will require scheduled maintenance 
inspections using either divers or ROVs. The duration of these 
inspections are not anticipated to be more than two 8-hour working 
days. An EBRV will not be required to support these annual inspections. 
Water usage during the LNG Port maintenance would be limited to the 
standard requirements of NEG's normal support vessel. As with all 
vessels operating in Massachusetts Bay, sea water uptake and discharge 
is required to support engine cooling, typically using a once-through 
system. The rate of seawater uptake varies with the ship's horsepower 
and activity and therefore will differ between vessels and activity 
type. For example, the Gateway Endeavor is a 90-foot vessel powered 
with a 1,200 horsepower diesel engine with a four-pump seawater cooling 
system. This system requires seawater intake of about 68 gallons per 
minute (gpm) while idling and up to about 150 gpm at full power. Use of 
full power is required generally for transit. A conservatively high 
estimate of vessel activity for the Gateway Endeavor would be operation 
at idle for 75 percent of the time and full power for 25 percent of the 
time. During the routine activities this would equate to approximately 
42,480 gallons of seawater per 8-hour work day. When compared to the 
engine cooling requirements of an EBRV over an 8-hour period 
(approximately 18 million gallons), the Gateway Endeavour uses about 
0.2 percent of the EBRV requirement. To put this water use into 
context, potential effects from the waters-use scenario of 56 mgd have 
been concluded to be orders of magnitude less than the natural 
fluctuations of Massachusetts Bay and Cape Cod Bay and not detectable. 
Water use by support vessels during routine port activities would not 
materially add to the overall impacts.
    Certain maintenance and repair activities may also require the 
presence of an EBRV at the Port. Such instances may include maintenance 
and repair on the STL Buoy, vessel commissioning, and any onboard 
equipment malfunction or failure occurring while a vessel is present 
for cargo delivery. Because the requested water-use scenario allows for 
daily water use of up to 56 mgd to support standard EBRV requirements 
when not operating in the HRS mode, vessels would be able to remain at 
the Port as necessary to support all such maintenance and repair 
scenarios. Therefore, NMFS considers that NEG Port maintenance and 
repair would have negligible impacts to marine mammal habitat in the 
proposed activity area.

Unanticipated Algonquin Pipeline Lateral Maintenance and Repair

    Proper care and maintenance of the Algonquin Pipeline Lateral 
should minimize the likelihood of an unanticipated maintenance and/or 
repair event; however, unanticipated activities may occur from time to 
time if facility components become damaged or malfunction. 
Unanticipated repairs may range from relatively minor activities 
requiring minimal equipment and one or two diver/ROV support vessels to 
major activities requiring larger construction-type vessels similar to 
those used to support the construction and installation of the 
facility.
    Major repair activities, although unlikely, may include repairing 
or replacement of pipeline manifolds or sections of the Pipeline 
Lateral. This type of work would likely require the use of large 
specialty construction vessels such as those used during the 
construction and installation of the NEG Port and Algonquin Pipeline 
Lateral. The duration of a major unplanned activity would depend upon 
the type of repair work involved and would require careful planning and 
coordination.
    Turbidity would likely be a potential effect of Algonquin Pipeline 
Lateral maintenance and repair activities on listed species. In 
addition, the possible removal of benthic or planktonic species, 
resulting from relatively minor construction vessel water use 
requirements, as measured in comparison to EBRV water use, is unlikely 
to affect in a measurable way the food sources available to marine 
mammals. Therefore, NMFS considers that Algonquin Pipeline Lateral 
maintenance and repair would have negligible impacts to marine mammal 
habitat in the proposed activity area.

Mitigation Measures

    In order to issue an incidental take authorization 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 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.
    NMFS is requiring the following mitigation measures to minimize the 
potential impacts to marine mammals in the project vicinity as a result 
of the LNG Port and Algonquin Pipeline Lateral operations and 
maintenance and repair activities. The primary purpose of these 
mitigation measures is to ensure that no marine mammal will be injured 
or killed by vessels transiting the LNG Port facility, and to minimize 
the intensity of noise exposure of marine mammals in the activity area.
(a) General Marine Mammal Avoidance Measures
    (i) All vessels shall utilize the International Maritime 
Organization (IMO)-approved Boston Traffic Separation Scheme (TSS) on 
their approach to and departure from the NEG Port and/or the repair/
maintenance area at the earliest practicable point of transit in order 
to avoid the risk of whale strikes.
    (ii) Upon entering the TSS and areas where North Atlantic right 
whales are known to occur, including the Great South Channel Seasonal 
Management Area (GSC-SMA) and the SBNMS, the EBRV shall go into 
``Heightened Awareness'' as described below.
    (A) Prior to entering and navigating the modified TSS the Master of 
the vessel shall:
    (I) Consult Navigational Telex (NAVTEX), NOAA Weather Radio, the 
NOAA Right Whale Sighting Advisory System (SAS) or other means to 
obtain current right whale sighting information as well as the most 
recent Cornell

[[Page 78813]]

acoustic monitoring buoy data for the potential presence of marine 
mammals;
    (II) Post a look-out to visually monitor for the presence of marine 
mammals;
    (III) Provide the US Coast Guard (USCG) required 96-hour 
notification of an arriving EBRV to allow the NEG Port Manager to 
notify Cornell of vessel arrival.
    (B) The look-out shall concentrate his/her observation efforts 
within the 2-mile radius zone of influence (ZOI) from the maneuvering 
EBRV.
    (C) If marine mammal detection was reported by NAVTEX, NOAA Weather 
Radio, SAS and/or an acoustic monitoring buoy, the look-out shall 
concentrate visual monitoring efforts towards the areas of the most 
recent detection.
    (D) If the look-out (or any other member of the crew) visually 
detects a marine mammal within the 2-mile radius ZOI of a maneuvering 
EBRV, he/she will take the following actions:
    (I) The Officer-of-the-Watch shall be notified immediately; who 
shall then relay the sighting information to the Master of the vessel 
to ensure action(s) can be taken to avoid physical contact with marine 
mammals.
    (II) The sighting shall be recorded in the sighting log by the 
designated look-out.
    (iii) In accordance with 50 CFR 224.103(c), all vessels associated 
with NEG Port and Pipeline Lateral activities shall not approach closer 
than 500 yards (460 m) to a North Atlantic right whale and 100 yards 
(91 m) to other whales to the extent physically feasible given 
navigational constraints. In addition, when approaching and departing 
the project area, vessels shall be operated so as to remain at least 1 
km away from any visually-detected North Atlantic right whales.
    (iv) In response to active right whale sightings and active 
acoustic detections, and taking into account exceptional circumstances, 
EBRVs, repair and maintenance vessels shall take appropriate actions to 
minimize the risk of striking whales. Specifically vessels shall:
    (A) Respond to active right whale sightings and/or Dynamic 
Management Area (DMA) as described at 73 FR 60173, 60180 (October 10, 
2008) reported on the Mandatory Ship Reporting (MSR) or SAS by 
concentrating monitoring efforts towards the area of most recent 
detection and reducing speed to 10 knots or less if the vessel is 
within the boundaries of a DMA or within the circular area centered on 
an area 8 nm in radius from a sighting location;
    (B) Respond to active acoustic detections by concentrating 
monitoring efforts towards the area of most recent detection and 
reducing speed to 10 knots or less within an area 5 nm in radius 
centered on the detecting AB; and
    (C) Respond to additional sightings made by the designated look-
outs within a 2-mile radius of the vessel by slowing the vessel to 10 
knots or less and concentrating monitoring efforts towards the area of 
most recent sighting.
    (v) All vessels operated under NEG and Algonquin must follow the 
established specific speed restrictions when calling at the NEG Port. 
The specific speed restrictions required for all vessels (i.e., EBRVs 
and vessels associated with maintenance and repair) consist of the 
following:
    (A) Vessels shall reduce their maximum transit speed while in the 
TSS from 12 knots or less to 10 knots or less from March 1 to April 30 
in all waters bounded by straight lines connecting the following points 
in the order stated below unless an emergency situation dictates for an 
alternate speed. This area shall hereafter be referred to as the Off 
Race Point Seasonal Management Area (ORP-SMA) and tracks NMFS 
regulations at 50 CFR 224.105:

42[deg]30' N 70[deg]30' W
42[deg]30' N 69[deg]45' W
41[deg]40' N 69[deg]45' W
42[deg]04.8' N 70[deg]10' W
41[deg]40' N 69[deg]57' W
42[deg]12' N 70[deg]15' W
42[deg]12' N 70[deg]30' W
42[deg]30' N 70[deg]30' W

    (B) Vessels shall reduce their maximum transit speed while in the 
TSS to 10 knots or less unless an emergency situation dictates for an 
alternate speed from April 1 to July 31 in all waters bounded by 
straight lines connecting the following points in the order stated 
below. This area shall hereafter be referred to as the GSC-SMA and 
tracks NMFS regulations at 50 CFR 224.105:

42[deg]30' N 69[deg]45' W
42[deg]30' N 67[deg]27' W
42[deg]09' N 67[deg]08.4' W
41[deg]40' N 69[deg]45' W
42[deg]30' N 69[deg]45' W
41[deg]00' N 69[deg]05' W

    (C) Vessels are not expected to transit the Cape Cod Bay or the 
Cape Cod Canal; however, in the event that transit through the Cape Cod 
Bay or the Cape Cod Canal is required, vessels shall reduce maximum 
transit speed to 10 knots or less from January 1 to May 15 in all 
waters in Cape Cod Bay, extending to all shorelines of Cape Cod Bay, 
with a northern boundary of 42[deg]12' N latitude and the Cape Cod 
Canal. This area shall hereafter be referred to as the Cape Cod Bay 
Seasonal Management Area (CCB-SMA).
    (D) All Vessels transiting to and from the project area shall 
report their activities to the mandatory reporting Section of the USCG 
to remain apprised of North Atlantic right whale movements within the 
area. All vessels entering and exiting the MSRA shall report their 
activities to WHALESNORTH. Vessel operators shall contact the USCG by 
standard procedures promulgated through the Notice to Mariner system.
    (E) All Vessels greater than or equal to 300 gross tons (GT) shall 
maintain a speed of 10 knots or less, unless an emergency situation 
requires speeds greater than 10 knots.
    (F) All Vessels less than 300 GT traveling between the shore and 
the project area that are not generally restricted to 10 knots will 
contact the Mandatory Ship Reporting (MSR) system, the USCG, or the 
project site before leaving shore for reports of active DMAs and/or 
recent right whale sightings and, consistent with navigation safety, 
restrict speeds to 10 knots or less within 5 miles (8 kilometers) of 
any sighting location, when traveling in any of the seasonal management 
areas (SMAs) or when traveling in any active DMA.
(b) NEG Port-Specific Operations
    (i) In addition to the general marine mammal avoidance requirements 
identified in (5)(a) above, vessels calling on the NEG Port must comply 
with the following additional requirements:
    (A) EBRVs shall travel at 10 knots maximum speed when transiting 
to/from the TSS or to/from the NEG Port/Pipeline Lateral area. For 
EBRVs, at 1.86 miles (3 km) from the NEG Port, speed will be reduced to 
3 knots and to less than 1 knot at 1,640 ft (500 m) from the NEG buoys, 
unless an emergency situation dictates the need for an alternate speed.
    (B) EBRVs that are approaching or departing from the NEG Port and 
are within the ATBA5 surrounding the NEG Port, shall remain at least 1 
km away from any visually-detected North Atlantic right whale and at 
least 100 yards (91 m) away from all other visually-detected whales 
unless an emergency situation requires that the vessel stay its course. 
During EBRV maneuvering, the Vessel Master shall designate at least one 
look-out to be exclusively and continuously monitoring for the presence 
of marine mammals at all times while the EBRV is

[[Page 78814]]

approaching or departing from the NEG Port.
    (C) During NEG Port operations, in the event that a whale is 
visually observed within 1 km of the NEG Port or a confirmed acoustic 
detection is reported on either of the two ABs closest to the NEG Port 
(western-most in the TSS array), departing EBRVs shall delay their 
departure from the NEG Port, unless an emergency situation requires 
that departure is not delayed. This departure delay shall continue 
until either the observed whale has been visually (during daylight 
hours) confirmed as more than 1 km from the NEG Port or 30 minutes have 
passed without another confirmed detection either acoustically within 
the acoustic detection range of the two ABs closest to the NEG Port, or 
visually within 1 km from the NEG Port.
    (ii) Vessel captains shall focus on reducing dynamic positioning 
(DP) thruster power to the maximum extent practicable, taking into 
account vessel and Port safety, during the operation activities. Vessel 
captains will shut down thrusters whenever they are not needed.
(c) Planned and Unplanned Maintenance and Repair Activities
(i) NEG Port
    (A) The Northeast Gateway shall conduct empirical source level 
measurements on all noise emitting construction equipment and all 
vessels that are involved in maintenance/repair work.
    (B) If dynamic positioning (DP) systems are employed and/or 
activities will emit noise with a source level of 139 dB re 1 [mu]Pa at 
1 m or greater, activities shall be conducted in accordance with the 
requirements for DP systems listed in (b)(ii) above.
    (C) Northeast Gateway shall provide the NMFS Headquarters Office of 
the Protected Resources, NMFS Northeast Region Ship Strike Coordinator, 
and SBNMS with a minimum of 30 days notice prior to any planned repair 
and/or maintenance activity. For any unplanned/emergency repair/
maintenance activity, Northeast Gateway shall notify the agencies as 
soon as it determines that repair work must be conducted. Northeast 
Gateway shall continue to keep the agencies apprised of repair work 
plans as further details (e.g., the time, location, and nature of the 
repair) become available. A final notification shall be provided to 
agencies 72 hours prior to crews being deployed into the field.
(ii) Pipeline Lateral
    (A) Pipeline maintenance/repair vessels less than 300 GT traveling 
between the shore and the maintenance/repair area that are not 
generally restricted to 10 knots shall contact the MSR system, the 
USCG, or the project site before leaving shore for reports of active 
DMAs and/or recent right whale sightings and, consistent with 
navigation safety, restrict speeds to 10 knots or less within 5 miles 
(8 km) of any sighting location, when travelling in any of the seasonal 
management areas (SMAs) as defined above.
    (B) Maintenance/repair vessels greater than 300 GT shall not exceed 
10 knots, unless an emergency situation that requires speeds greater 
than 10 knots.
    (C) Planned maintenance and repair activities shall be restricted 
to the period between May 1 and November 30.
    (D) Unplanned/emergency maintenance and repair activities shall be 
conducted utilizing anchor-moored dive vessel whenever operationally 
possible.
    (E) Algonquin shall also provide the NMFS Office of the Protected 
Resources, NMFS Northeast Region Ship Strike Coordinator, and 
Stellwagen Bank National Marine Sanctuary (SBNMS) with a minimum of 30-
day notice prior to any planned repair and/or maintenance activity. For 
any unplanned/emergency repair/maintenance activity, Northeast Gateway 
shall notify the agencies as soon as it determines that repair work 
must be conducted. Algonquin shall continue to keep the agencies 
apprised of repair work plans as further details (e.g., the time, 
location, and nature of the repair) become available. A final 
notification shall be provided to agencies 72 hours prior to crews 
being deployed into the field.
    (F) If dynamic positioning (DP) systems are to be employed and/or 
activities will emit noise with a source level of 139 dB re 1 [mu]Pa at 
1 m or greater, activities shall be conducted in accordance with the 
requirements for DP systems listed in (b)(ii) above.
    (G) In the event that a whale is visually observed within 0.5 mile 
(0.8 kilometers) of a repair or maintenance vessel, the vessel 
superintendent or on-deck supervisor shall be notified immediately. The 
vessel's crew shall be put on a heightened state of alert and the 
marine mammal shall be monitored constantly to determine if it is 
moving toward the repair or maintenance area.
    (H) Repair/maintenance vessel(s) must cease any movement and/or 
cease all activities that emit noises with source level of 139 dB re 1 
[mu]Pa @1 m or higher when a right whale is sighted within or 
approaching at 500 yd (457 m) from the vessel. Repair and maintenance 
work may resume after the marine mammal is positively reconfirmed 
outside the established zones (500 yd [457 m]) or 30 minutes have 
passed without a redetection. Any vessels transiting the maintenance 
area, such as barges or tugs, must also maintain these separation 
distances.
    (I) Repair/maintenance vessel(s) must cease any movement and/or 
cease all activities that emit noises with source level of 139 dB re 1 
[mu]Pa @1 m or higher when a marine mammal other than a right whale is 
sighted within or approaching at 100 yd (91 m) from the vessel. Repair 
and maintenance work may resume after the marine mammal is positively 
reconfirmed outside the established zones (100 yd [91 m]) or 30 minutes 
have passed without a redetection. Any vessels transiting the 
maintenance area, such as barges or tugs, must also maintain these 
separation distances.
    (J) Algonquin and associated contractors shall also comply with the 
following:
    (I) Operations involving equipment with sound source levels 
exceeding 139 dB re 1[mu]Pa @1 m shall ``ramp-up'' sound sources, 
allowing whales a chance to leave the area before sounds reach maximum 
levels. In addition, Northeast Gateway, Algonquin, and other associated 
contractors shall maintain equipment to manufacturers' specifications, 
including any sound-muffling devices or engine covers in order to 
minimize noise effects. Noisy construction equipment shall only be used 
as needed and equipment shall be turned off when not in operation.
    (II) Any material that has the potential to entangle marine mammals 
(e.g., anchor lines, cables, rope or other construction debris) shall 
only be deployed as needed and measures shall be taken to minimize the 
chance of entanglement.
    (III) For any material mentioned above that has the potential to 
entangle marine mammals, such material shall be removed from the water 
immediately unless such action jeopardizes the safety of the vessel and 
crew as determined by the Captain of the vessel.
    (IV) In the event that a marine mammal becomes entangled, the 
marine mammal coordinator and/or PSO will notify NMFS (if outside the 
SBNMS), and SBNMS staff (if inside the SBNMS) immediately so that a 
rescue effort may be initiated.
    (K) All maintenance/repair activities shall be scheduled to occur 
between

[[Page 78815]]

May 1 and November 30; however, in the event of unplanned/emergency 
repair work that cannot be scheduled during the preferred May through 
November work window, the following additional measures shall be 
followed for Pipeline Lateral maintenance and repair related activities 
between December and April:
    (I) Between December 1 and April 30, if on-board PSOs do not have 
at least 0.5-mile visibility, they shall call for a shutdown. At the 
time of shutdown, the use of thrusters must be minimized. If there are 
potential safety problems due to the shutdown, the captain will decide 
what operations can safely be shut down.
    (II) Prior to leaving the dock to begin transit, the barge shall 
contact one of the PSOs on watch to receive an update of sightings 
within the visual observation area. If the PSO has observed a North 
Atlantic right whale within 30 minutes of the transit start, the vessel 
shall hold for 30 minutes and again get a clearance to leave from the 
PSOs on board. PSOs shall assess whale activity and visual observation 
ability at the time of the transit request to clear the barge for 
release.
    (III) Transit route, destination, sea conditions and any marine 
mammal sightings/mitigation actions during watch shall be recorded in 
the log book. Any whale sightings within 1,000 m of the vessel shall 
result in a high alert and slow speed of 4 knots or less and a sighting 
within 750 m shall result in idle speed and/or ceasing all movement.
    (IV) The material barges and tugs used in repair and maintenance 
shall transit from the operations dock to the work sites during 
daylight hours when possible provided the safety of the vessels is not 
compromised. Should transit at night be required, the maximum speed of 
the tug shall be 5 knots.
    (V) All repair vessels must maintain a speed of 10 knots or less 
during daylight hours. All vessels shall operate at 5 knots or less at 
all times within 5 km of the repair area.
(d) Acoustic Monitoring Related Activities
    (i) Vessels associated with maintaining the AB network operating as 
part of the mitigation/monitoring protocols shall adhere to the 
following speed restrictions and marine mammal monitoring requirements.
    (A) In accordance with 50 CFR 224.103 (c), all vessels associated 
with NEG Port activities shall not approach closer than 500 yards (460 
meters) to a North Atlantic right whale.
    (B) All vessels shall obtain the latest DMA or right whale sighting 
information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other 
available means prior to operations to determine if there are right 
whales present in the operational area.
    (I) In the ORP-SMA between March 1 and April 30; and
    (II) In the CCB-SMA between January 1 and May 15.
    (C) All vessels shall obtain the latest DMA or right whale sighting 
information via the NAVTEX, MSR, SAS, NOAA Weather Radio, or other 
available means prior to operations to determine if there are right 
whales present in the operational area.

Mitigation Conclusions

    NMFS has carefully evaluated the mitigation 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.

    Based on our evaluation of mitigation measures, NMFS has determined 
that the mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting Measures

    In order to issue an ITA 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 ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the proposed action area.

Monitoring Measures

(a) Vessel-Based Visual Monitoring
    (i) Vessel-based monitoring for marine mammals shall be done by 
trained look-outs during NEG LNG Port and Pipeline Lateral operations 
and maintenance and repair activities. The observers shall monitor the 
occurrence of marine mammals near the vessels during LNG Port and 
Pipeline Lateral related activities. Lookout duties include watching 
for and identifying marine mammals; recording their numbers, distances, 
and reactions to the activities; and documenting ``take by 
harassment''.
    (ii) The vessel look-outs assigned to visually monitor for the 
presence of marine mammals shall be provided with the following:
    (A) Recent NAVTEX, NOAA Weather Radio, SAS and/or acoustic 
monitoring buoy detection data;
    (B) Binoculars to support observations;
    (C) Marine mammal detection guide sheets; and
    (D) Sighting log.
(b) NEG LNG Port Operations
    (i) All individuals onboard the EBRVs responsible for the 
navigation duties and any other personnel that could be assigned to 
monitor for marine mammals shall receive training on marine mammal 
sighting/reporting and vessel strike avoidance measures.
    (ii) While an EBRV is navigating within the designated TSS, there 
shall be three people with look-out duties on or near the bridge of the 
ship including the Master, the Officer-of-the-Watch and the Helmsman-
on-watch. In addition to the standard watch procedures, while the EBRV 
is transiting within the designated TSS, maneuvering within the Area to 
be Avoided (ATBA), and/or while actively engaging in the use of 
thrusters, an additional look-out shall be designated to exclusively 
and continuously monitor for marine mammals.
    (iii) All sightings of marine mammals by the designated look-out, 
individuals posted to navigational look-out duties and/or any other 
crew member while the EBRV is transiting within the TSS, maneuvering 
within the ATBA and/or when actively engaging in the use of thrusters, 
shall be immediately reported to the Officer-of-the-Watch who shall 
then alert the Master. The Master or Officer-of-the-Watch shall ensure 
the required reporting procedures are followed and the designated 
marine mammal look-out records all pertinent information relevant to 
the sighting.
    (iv) Visual sightings made by look-outs from the EBRVs shall be 
recorded

[[Page 78816]]

using a standard sighting log form. Estimated locations shall be 
reported for each individual and/or group of individuals categorized by 
species when known. This data shall be entered into a database and a 
summary of monthly sighting activity shall be provided to NMFS. 
Estimates of take and copies of these log sheets shall also be included 
in the reports to NMFS.
(c) Planned and Unplanned Maintenance and Repair
    (i) Two (2) qualified and NMFS-approved protected species observers 
(PSOs) shall be assigned to each vessel that will use dynamic 
positioning (DP) systems during maintenance and repair related 
activities. PSOs shall operate individually in designated shifts to 
accommodate adequate rest schedules. Additional PSOs shall be assigned 
to additional vessels if auto-detection buoy (AB) data indicates that 
sound levels exceed 120 dB re 1 [micro]Pa, further then 100 meters (328 
feet) from these vessels.
    (ii) All PSOs shall receive NMFS-approved marine mammal observer 
training and be approved in advance by NMFS after review of their 
resume. All PSOs shall have direct field experience on marine mammal 
vessels and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico.
    (iii) PSOs (one primary and one secondary) shall be responsible for 
visually locating marine mammals at the ocean's surface and, to the 
extent possible, identifying the species. The primary PSO shall act as 
the identification specialist and the secondary PSO will serve as data 
recorder and also assist with identification. Both PSOs shall have 
responsibility for monitoring for the presence of marine mammals and 
sea turtles. Specifically PSO's shall:
    (A) Monitor at all hours of the day, scanning the ocean surface by 
eye for a minimum of 40 minutes every hour.
    (B) Monitor the area where maintenance and repair work is conducted 
beginning at daybreak using 25x power binoculars and/or hand-held 
binoculars. Night vision devices must be provided as standard equipment 
for monitoring during low-light hours and at night.
    (C) Conduct general 360[deg] visual monitoring during any given 
watch period and target scanning by the observer shall occur when 
alerted of a whale presence.
    (D) Alert the vessel superintendent or construction crew supervisor 
of visual detections within 2 miles (3.31 kilometers) immediately.
    (E) Record all sightings on marine mammal field sighting logs. 
Specifically, all data shall be entered at the time of observation, 
notes of activities will be kept, and a daily report prepared and 
attached to the daily field sighting log form. The basic reporting 
requirements include the following:

     Beaufort sea state;
     Wind speed;
     Wind direction;
     Temperature;
     Precipitation;
     Glare;
     Percent cloud cover;
     Number of animals;
     Species;
     Position;
     Distance;
     Behavior;
     Direction of movement; and
     Apparent reaction to construction activity.

    (iv) In the event that a whale is visually observed within the 2-
mile (3.31-kilometers) zone of influence (ZOI) of a DP vessel or other 
construction vessel that has shown to emit noise with source level in 
excess of 139 dB re 1 [mu]Pa @ 1 m, the PSO will notify the repair/
maintenance construction crew to minimize the use of thrusters until 
the animal has moved away, unless there are divers in the water or an 
ROV is deployed.
(d) Acoustic Monitoring
    (i) Northeast Gateway shall deploy 10 ABs within the Separation 
Zone of the TSS for the operational life of the Project.
    (ii) The ABs shall be used to detect a calling North Atlantic right 
whale an average of 5 nm from each AB. The AB system shall be the 
primary detection mechanism that alerts the EBRV Master to the 
occurrence of right whales, heightens EBRV awareness, and triggers 
necessary mitigation actions as described in section (5) above.
    (iii) Northeast Gateway shall conduct short-term passive acoustic 
monitoring to document sound levels during:
    (A) The initial operational events in the 2014-2015 winter heating 
season;
    (B) regular deliveries outside the winter heating season should 
such deliveries occur; and (C) scheduled and unscheduled maintenance 
and repair activities.
    (iv) Northeast Gateway shall conduct long-term monitoring of the 
noise environment in Massachusetts Bay in the vicinity of the NEG Port 
and Pipeline Lateral using marine autonomous recording units (MARUs) 
when there is anticipated to be more than 5 LNG shipments in a 30-day 
period or over 20 shipments in a six-month period.
    (v) The acoustic data collected in 6(d)(ii) shall be analyzed to 
document the seasonal occurrences and overall distributions of whales 
(primarily fin, humpback and right whales) within approximately 10 nm 
of the NEG Port and shall measure and document the noise ``budget'' of 
Massachusetts Bay so as to eventually assist in determining whether or 
not an overall increase in noise in the Bay associated with the Project 
might be having a potentially negative impact on marine mammals.
    (vi) Northeast Gateway shall make all acoustic data, including data 
previously collected by the MARUs during prior construction, 
operations, and maintenance and repair activities, available to NOAA. 
Data storage will be the responsibility of NOAA.
(e) Acoustic Whale Detection and Response Plan
(i) NEG Port Operations
    (A) Ten (10) ABs that have been deployed since 2007 shall be used 
to continuously screen the low-frequency acoustic environment (less 
than 1,000 Hertz) for right whale contact calls occurring within an 
approximately 5-nm radius from each buoy (the AB's detection range).
    (B) Once a confirmed detection is made, the Master of any EBRVs 
operating in the area will be alerted immediately.
(ii) NEG Port and Pipeline Lateral Planned and Unplanned/Emergency 
Repair and Maintenance Activities
    (A) If the repair/maintenance work is located outside of the 
detectible range of the 10 project area ABs, Northeast Gateway and 
Algonquin shall consult with NOAA (NMFS and SBNMS) to determine if the 
work to be conducted warrants the temporary installation of an 
additional AB(s) to help detect and provide early warnings for 
potential occurrence of right whales in the vicinity of the repair 
area.
    (B) The number of ABs installed around the activity site shall be 
commensurate with the type and spatial extent of maintenance/repair 
work required, but must be sufficient to detect vocalizing right whales 
within the 120-dB impact zone.
    (C) Should acoustic monitoring be deemed necessary during a planned 
or unplanned/emergency repair and/or maintenance event, active 
monitoring for right whale calls shall begin 24 hours prior to the 
start of activities.
    (D) Revised noise level data from the acoustic recording units 
deployed in the NEG Port and/or Pipeline Lateral maintenance and repair 
area shall be provided to NMFS.

[[Page 78817]]

Reporting Measures

    (a) Throughout NEG Port and Pipeline Lateral operations, Northeast 
Gateway and Algonquin shall provide a monthly Monitoring Report. The 
Monitoring Report shall include:
    (i) Both copies of the raw visual EBRV lookout sighting information 
of marine mammals that occurred within 2 miles of the EBRV while the 
vessel transits within the TSS, maneuvers within the ATBA, and/or when 
actively engaging in the use of thrusters, and a summary of the data 
collected by the look-outs over each reporting period.
    (ii) Copies of the raw PSO sightings information on marine mammals 
gathered during pipeline repair or maintenance activities. This visual 
sighting data shall then be correlated to periods of thruster activity 
to provide estimates of marine mammal takes (per species/species class) 
that took place during each reporting period.
    (iii) Conclusion of any planned or unplanned/emergency repair and/
or maintenance period, a report shall be submitted to NMFS summarizing 
the repair/maintenance activities, marine mammal sightings (both visual 
and acoustic), empirical source-level measurements taken during the 
repair work, and any mitigation measures taken.
    (b) During the maintenance and repair of NEG Port and Pipeline 
Lateral components, weekly status reports shall be provided to NOAA 
(both NMFS and SBNMS) using standardized reporting forms. The weekly 
reports shall include data collected for each distinct marine mammal 
species observed in the repair/maintenance area during the period that 
maintenance and repair activities were taking place. The weekly reports 
shall include the following information:
    (i) Location (in longitude and latitude coordinates), time, and the 
nature of the maintenance and repair activities;
    (ii) Indication of whether a DP system was operated, and if so, the 
number of thrusters being used and the time and duration of DP 
operation;
    (iii) Marine mammals observed in the area (number, species, age 
group, and initial behavior);
    (iv) The distance of observed marine mammals from the maintenance 
and repair activities;
    (v) Changes, if any, in marine mammal behaviors during the 
observation;
    (vi) A description of any mitigation measures (power-down, 
shutdown, etc.) implemented;
    (vii) Weather condition (Beaufort sea state, wind speed, wind 
direction, ambient temperature, precipitation, and percent cloud cover 
etc.);
    (viii) Condition of the observation (visibility and glare); and
    (ix) Details of passive acoustic detections and any action taken in 
response to those detections.
(d) Injured/Dead Protected Species Reporting
    (i) In the unanticipated event that survey operations clearly cause 
the take of a marine mammal in a manner prohibited by the proposed IHA, 
such as an injury (Level A harassment), serious injury or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), NEG and/or 
Algonquin shall immediately cease activities and immediately report the 
incident to the Supervisor of the Incidental Take Program, 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 Coordinators 
([email protected] or [email protected]) or by phone at 978-281-
9300. The report must include the following information:
    (A) Time, date, and location (latitude/longitude) of the incident;
    (B) the name and type of vessel involved;
    (C) the vessel's speed during and leading up to the incident;
    (D) description of the incident;
    (E) status of all sound source use in the 24 hours preceding the 
incident;
    (F) water depth;
    (G) environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (H) description of marine mammal observations in the 24 hours 
preceding the incident;
    (I) species identification or description of the animal(s) 
involved;
    (J) the fate of the animal(s); and
    (K) photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with NEG and/or 
Algonquin to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. NEG and/or 
Algonquin may not resume their activities until notified by NMFS via 
letter, email, or telephone.
    (ii) In the event that NEG and/or Algonquin 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), NEG and/or Algonquin will immediately report the incident 
to the Supervisor of the Incidental Take Program, 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 Coordinators 
([email protected] or [email protected]) or by phone at 978-281-
9300, within 24 hours of the discovery. The report must include the 
same information identified above. Activities may continue while NMFS 
reviews the circumstances of the incident. NMFS will work with NEG and/
or Algonquin to determine whether modifications in the activities are 
appropriate.
    (iii) In the event that NEG or Algonquin 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 
(if the IHA is issued) (e.g., previously wounded animal, carcass with 
moderate to advanced decomposition, or scavenger damage), NEG and/or 
Algonquin shall report the incident to the Supervisor of the Incidental 
Take Program, 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 Coordinators ([email protected] or [email protected]) 
or by phone at 978-281-9300, within 24 hours of the discovery. NEG and/
or Algonquin shall provide photographs or video footage (if available) 
or other documentation of the stranded animal sighting to NMFS and the 
Marine Mammal Stranding Network. NEG and/or Algonquin can continue its 
operations under such a case.

Summary of Previous Monitoring Reports

    Based on monthly activity reports submitted to NMFS for the period 
between August 2010 and January 2014, there were no activities at the 
NEG Port during the period. Therefore, no take of marine mammals 
occurred or were reported during this period.

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

[[Page 78818]]

mammal or marine mammal stock in the wild by causing disruption of 
behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering [Level B 
harassment]. Only take by Level B harassment is anticipated as a result 
of NEG's operation and maintenance and repair activities. Anticipated 
take of marine mammals is associated with operation of dynamic 
positioning during the docking of the LNG vessels and positioning of 
maintenance and dive vessels, and by operations of certain machinery 
during maintenance and repair activities. The regasification process 
itself is an activity that does not rise to the level of taking, as the 
modeled source level for this activity is 108 dB, which is below our 
current threshold for Level B harassment. Certain species may have a 
behavioral reaction to the sound emitted during the activities. Hearing 
impairment is not anticipated. Additionally, vessel strikes are not 
anticipated, especially because of the speed restriction measures that 
are required and were described earlier in this document.
    The full suite of potential impacts to marine mammals was described 
in detail in the ``Potential Effects of the Specified Activity on 
Marine Mammals'' section in the 2013 proposed IHA notice. The potential 
effects of sound from the proposed open water marine survey programs 
might include one or more of the following: masking of natural sounds; 
behavioral disturbance; non-auditory physical effects; and, at least in 
theory, temporary or permanent hearing impairment (Richardson et al. 
1995). As discussed earlier in this document, the most common impact 
will likely be from behavioral disturbance, including avoidance of the 
ensonified area or changes in speed, direction, and/or diving profile 
of the animal. For reasons discussed previously in this document, 
temporary or permanent hearing impairment (TTS and PTS, respectively) 
is highly unlikely to occur based on the proposed mitigation and 
monitoring measures that would preclude marine mammals from being 
exposed to noise levels high enough to cause hearing impairment.
    For non-pulse sounds, such as those produced by operating dynamic 
positioning (DP) thruster during vessel docking and supporting 
underwater construction and repair activities and the operations of 
various machineries that produces non-pulse noises, NMFS uses the 120 
dB (rms) re 1 [mu]Pa isopleth to indicate the onset of Level B 
harassment.

NEG Port and Algonquin Pipeline Lateral Activities Acoustic Footprints

I. NEG Port Operations
    For the purposes of understanding the noise footprint of operations 
at the NEG Port, measurements taken to capture operational noise 
(docking, undocking, regasification, and EBRV thruster use) during the 
2006 Gulf of Mexico field event were taken at the source. Measurements 
taken during EBRV transit were normalized to a distance of 328 feet 
(100 meters) to serve as a basis for modeling sound propagation at the 
NEG Port site in Massachusetts Bay.
    Sound propagation calculations for operational activities were then 
completed at two positions in Massachusetts Bay to determine site-
specific distances to the 120/160/180 dB isopleths:

     Operations Position 1--Port (EBRV Operations): 
70[deg]36.261' W and 42[deg]23.790' N
     Operations Position 2--Boston TSS (EBRV Transit): 
70[deg]17.621' W and 42[deg]17.539' N

    At each of these locations sound propagation calculations were 
performed to determine the noise footprint of the operation activity at 
each of the specified locations. Calculations were performed in 
accordance with Marsh and Schulkin (1985) and Richardson et al. (1995) 
and took into consideration aspects of water depth, sea state, 
bathymetry, and seabed composition. In addition, the acoustic modeling 
performed specifically evaluated sound energy in 1/3-octave spectral 
bands covering frequencies from 12.5 Hz to 20 kHz. The resultant 
distances to the 120 dB isopleth are presented in Table 1.

     Table 1--Radii of 120-dB SPL Isopleths From NEG LNG Operations
------------------------------------------------------------------------
                                                              Radius to
                                                             120-dB zone
                                                                 (m)
------------------------------------------------------------------------
One EBRV docking procedure with support vessel.............        4,250
Two EBRV docking procedure with support vessel.............        5,500
EBRV regasification........................................         <300
EBRV transiting the TSS (10 knot)..........................        1,750
------------------------------------------------------------------------

II. NEG Port Maintenance and Repair
    Modeling analysis conducted for the construction of the NEG Port 
concluded that the only underwater noise of critical concern during NEG 
Port construction would be from vessel noises such as turning screws, 
engine noise, noise of operating machinery, and thruster use. To 
confirm these modeled results and better understand the noise footprint 
associated with construction activities at the NEG Port, field 
measurements were taken of various construction activities during the 
2007 NEG Port and Algonquin Pipeline Lateral Construction period. 
Measurements were taken and normalized as described to establish the 
``loudest'' potential construction measurement event. One position 
within Massachusetts Bay was then used to determine site-specific 
distances to the 120/180 dB isopleths for NEG Port maintenance and 
repair activities:

     Construction Position 1. Port: 70[deg]36.261' W and 
42[deg]23.790' N

    Sound propagation calculations were performed to determine the 
noise footprint of the construction activity. The calculations took 
into consideration aspects of water depth, sea state, bathymetry, and 
seabed composition, and specifically evaluated sound energy in the 
range that encompasses the auditory frequencies of marine mammals and 
at which sound propagates beyond the immediate vicinity of the source. 
These results were then summed across frequencies to provide the 
broadband received levels at receptor locations. The results showed 
that the estimated distance from the loudest source involved in 
construction activities fell to 120 dB re 1 [mu]Pa at a distance of 
3,600 m.
III. Algonquin Pipeline Lateral Maintenance and Repair Activities
    Modeling analysis conducted during the NEG Port and Pipeline 
Lateral construction concluded that the only underwater noise of 
critical concern during such activities would be from vessel noises 
such as turning screws, engine noise, noise of operating machinery, and 
thruster use. As with construction noise at the NEG Port, to confirm 
modeled results and better understand the noise footprint associated 
with construction activities along the Algonquin Pipeline Lateral, 
field measurements were taken of various construction activities during 
the 2007 NEG Port and Algonquin Pipeline Lateral construction period. 
Measurements were taken and normalized to establish the ``loudest'' 
potential construction measurement event. Two positions within 
Massachusetts Bay were then used to determine site-specific distances 
to the 120/160/180 dB isopleths:

     Construction Position 2. PLEM: 70[deg]46.755' W and 
42[deg]28.764' N
     Construction Position 3. Mid-Pipeline: 70[deg]40.842' W 
and 42[deg]31.328' N


[[Page 78819]]


    Sound propagation calculations were performed to determine the 
noise footprint of the construction activity. The calculations took 
into consideration aspects of water depth, sea state, bathymetry, and 
seabed composition, and specifically evaluated sound energy in the 
range that encompasses the auditory frequencies of marine mammals and 
at which sound propagates beyond the immediate vicinity of the source. 
These results were then summed across frequencies to provide the 
broadband received levels at receptor locations. The results of the 
distances to the 120-dB isopleths are shown in Table 2.

 Table 2--Radii of 120-dB SPL Isopleths From Algonquin Pipeline Lateral
                         Maintenance and Repair
------------------------------------------------------------------------
                                                              Radius to
                                                             120-dB zone
                                                                 (m)
------------------------------------------------------------------------
Barge/tug (pulling & pushing)/construction vessel/barge            3,600
 @PLEM.....................................................
Barge/tug (pulling & pushing)/construction vessel/barge            2,831
 @mid-pipeline.............................................
------------------------------------------------------------------------

    The basis for Northeast Gateway and Algonquin's take estimate is 
the number of marine mammals that would be exposed to sound levels at 
or in excess of 120 dB, which is the threshold used by NMFS for 
harassment from non-pulse sounds. For the NEG LNG Port and Algonquin 
Pipeline Lateral operations and maintenance and repair activities, the 
take estimates are determined by multiplying the 120-dB ensonified area 
by local marine mammal density estimates, and then multiplying by the 
estimated number of days such activities would occur during a year-long 
period. For the NEG Port operations, the 120-dB ensonfied area is 56.8 
km\2\ for a single visit during docking when running DP system. For NEG 
Port and Algonquin Pipeline Lateral maintenance and repair activities, 
modeling based on the empirical measurements showed that the distance 
of the 120-dB radius is expected to be 3.6 km, making a maximum 120-dB 
ZOI area of approximately 40.7 km\2\.
    Although there have been no LNG deliveries since February 2010 at 
the NEG LNG Port, under full operation, NEG expects it would receive up 
to 65 LNG shipments per year, and would require 14 days for NEG Port 
maintenance and up to 40 days for planned and unplanned Algonquin 
Pipeline Lateral maintenance and repair.
    NMFS recognizes that baleen whale species other than North Atlantic 
right whales have been sighted in the project area from May to 
November. However, the occurrence and abundance of fin, humpback, and 
minke whales is not well documented within the project area. 
Nonetheless, NMFS uses the data on cetacean distribution within 
Massachusetts Bay, such as those published by the National Centers for 
Coastal Ocean Science (NCCOS 2006), to estimate potential takes of 
marine mammals species in the vicinity of project area.
    The NCCOS study used cetacean sightings from two sources: (1) the 
North Atlantic Right Whale Consortium (NARWC) sightings database held 
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet 
Bird Observatory (MBO) database, held at NMFS Northeast Fisheries 
Science Center (NEFSC). The NARWC data contained survey efforts and 
sightings data from ship and aerial surveys and opportunistic sources 
between 1970 and 2005. The main data contributors included: Cetacean 
and Turtles Assessment Program (CETAP), Canadian Department of 
Fisheries and Oceans, PCCS, International Fund for Animal Welfare, 
NOAA's NEFSC, New England Aquarium, Woods Hole Oceanographic 
Institution, and the University of Rhode Island. A total of 653,725 km 
(406,293 mi) of survey track and 34,589 cetacean observations were 
provisionally selected for the NCCOS study in order to minimize bias 
from uneven allocation of survey effort in both time and space. The 
sightings-per-unit-effort (SPUE) was calculated for all cetacean 
species by month covering the southern Gulf of Maine study area, which 
also includes the project area (NCCOS, 2006).
    The MBO's Cetacean and Seabird Assessment Program (CSAP) was 
contracted from 1980 to 1988 by NMFS NEFSC to provide an assessment of 
the relative abundance and distribution of cetaceans, seabirds, and 
marine turtles in the shelf waters of the northeastern United States 
(MBO, 1987). The CSAP program was designed to be completely compatible 
with NMFS NEFSC databases so that marine mammal data could be compared 
directly with fisheries data throughout the time series during which 
both types of information were gathered. A total of 5,210 km (8,383 mi) 
of survey distance and 636 cetacean observations from the MBO data were 
included in the NCCOS analysis. Combined valid survey effort for the 
NCCOS studies included 567,955 km (913,840 mi) of survey track for 
small cetaceans (dolphins and porpoises) and 658,935 km (1,060,226 mi) 
for large cetaceans (whales) in the southern Gulf of Maine. The NCCOS 
study then combined these two data sets by extracting cetacean sighting 
records, updating database field names to match the NARWC database, 
creating geometry to represent survey tracklines and applying a set of 
data selection criteria designed to minimize uncertainty and bias in 
the data used.
    Owing to the comprehensiveness and total coverage of the NCCOS 
cetacean distribution and abundance study, NMFS calculated the 
estimated take number of marine mammals based on the most recent NCCOS 
report published in December 2006. A summary of seasonal cetacean 
distribution and abundance in the project area is provided above, in 
the ``Description of Marine Mammals in the Area of the Specified 
Activities'' section. For a detailed description and calculation of the 
cetacean abundance data and SPUE, please refer to the NCCOS study 
(NCCOS, 2006). These data show that the relative abundance of North 
Atlantic right, fin, humpback, minke, sei, and pilot whales, and 
Atlantic white-sided dolphins for all seasons, as calculated by SPUE in 
number of animals per square kilometer, is 0.0082, 0.0097, 0.0118, 
0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively.
    In calculating the area density of these species from these linear 
density data, NMFS used 0.5 mi (0.825 km) as the hypothetical strip 
width (W). This strip width is based on the distance of visibility used 
in the NARWC data that was part of the NCCOS (2006) study. However, 
those surveys used a strip transect instead of a line transect 
methodology. Therefore, in order to obtain a strip width, one must 
divide the visibility or transect value in half. Since the visibility 
value used in the NARWC data was 2.3 mi (3.7 km), it thus gives a strip 
width of 1.15 mi (1.85 km). The hypothetical strip width used in the 
analysis is less than half of that derived from the NARWC data, 
therefore, the analysis provided here is more protective in calculating 
marine mammal densities in the area. Based on this information, the 
area density (D) of these species in the project area can be obtained 
by the following formula:

D = SPUE/2W

where D is marine mammal density in the area, and W is the strip width. 
Based on this calculation method, the estimated take numbers per year 
for North Atlantic right, fin, humpback, minke, sei, and pilot whales, 
and

[[Page 78820]]

Atlantic white-sided dolphins by the NEG Port facility operations 
(maximum 65 visits per year), NEG Port maintenance and repair (up to 14 
days per year), and Algonquin Pipeline Lateral operation and 
maintenance (up to 40 days per year), are 29, 35, 42, 21, 30, 145, and 
469, respectively (Table 3). These numbers represent approximately 
6.59%, 1%, 5.12%, 0.1%, 8.4%, 1.2%, and 1% of the populations for these 
species based on the latest NMFS Atlantic marine mammal stock 
assessment reports (Waring et al. 2013), respectively. Since it is very 
likely that individual animals could be ``taken'' by harassment 
multiple times, these percentages are the upper boundary of the animal 
population that could be affected. The actual number of individual 
animals being exposed or taken would likely be far less. There is no 
danger of injury, death, or hearing impairment from the exposure to 
these noise levels.

    Table 3--Estimated Annual Takes, by Level B Harassment, of Marine
 Mammals From the NEG Port and Algonquin Pipeline Lateral Operations and
         Maintenance and Repair Activities in Massachusetts Bay
------------------------------------------------------------------------
                                                              Number of
             Species                   Population/stock         takes
------------------------------------------------------------------------
Right whale......................  Western Atlantic........           29
Humpback whale...................  Gulf of Maine...........           42
Fin whale........................  Western North Atlantic..           35
Sei whale........................  Nova Scotia.............           30
Minke whale......................  Canadian East Coast.....           21
Long-finned pilot whale..........  Western North Atlantic..          145
Atlantic white-sided dolphin.....  Western North Atlantic..          469
Bottlenose dolphin...............  Western North Atlantic             20
                                    Southern Migratory.
Short-beaked common dolphin......  Western North Atlantic..           40
Risso's dolphin..................  Western North Atlantic..           40
Killer whale.....................  Western North Atlantic..           10
Harbor porpoise..................  Gulf of Maine/Bay of               20
                                    Fundy.
Harbor seal......................  Western North Atlantic..           60
Gray seal........................  Western North Atlantic..           30
------------------------------------------------------------------------

    In addition, bottlenose dolphins, common dolphins, killer whales, 
Risso's dolphins, harbor porpoises, harbor seals, and gray seals could 
also be taken by Level B harassment as a result of deepwater NEG Port 
and Algonquin Pipeline Lateral operations and maintenance and repair. 
Since these species are less likely to occur in the area, and there are 
no density estimates specific to this particular area, NMFS based the 
take estimates on typical group size. Therefore, NMFS estimates that up 
to approximately 20 bottlenose dolphins, 40 short-beaked common 
dolphins, 40 Risso's dolphins, 10 killer whales, 20 harbor porpoises, 
60 harbor seals, and 30 gray seals could be exposed to continuous noise 
at or above 120 dB re 1 [mu]Pa rms incidental to operations during the 
one year period of the IHA, respectively. These numbers represent 
0.16%, 0.06%, 0.26%, and 0.03% of the bottlenose dolphin, short-beaked 
common dolphin, Risso's dolphin, and harbor porpoise populations/
stocks. Since no population/stock estimates for killer whale, and 
harbor and gray seals is available, the percentage of estimated takes 
for these species is unknown. Nevertheless, since Massachusetts Bay 
represents only a small fraction of the western North Atlantic basin 
where these animals occur, NMFS has determined that the takes of 10 
killer whales, 60 harbor seals, and 30 gray seals represent a 
relatively small number of marine mammals of the affected species or 
populations stocks (Table 3). The take estimates presented in this 
section of the document do not take into consideration the mitigation 
and monitoring measures that are required in the IHA.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to: (1) 
The number of anticipated mortalities; (2) the number and nature of 
anticipated injuries; (3) the number, nature, intensity, and duration 
of Level B harassment; and (4) the context in which the takes occur.
    No injuries or mortalities are anticipated to occur as a result of 
Northeast Gateway LNG Port Algonquin Pipeline Lateral operations and 
maintenance and repair activities, and none are authorized by NMFS. 
Additionally, animals in the area are not anticipated to incur any 
hearing impairment (i.e., TTS or PTS), as the modeling of source levels 
indicates that none of the source received levels exceed 180 dB (rms).
    While some of the species occur in the proposed project area year-
round, some species only occur in the area during certain seasons. 
Humpback and minke whales are not expected in the project area in the 
winter. During the winter, a large portion of the North Atlantic right 
whale population occurs in the southeastern U.S. calving grounds (i.e., 
South Carolina, Georgia, and northern Florida). The fact that certain 
activities will occur during times when certain species are not 
commonly found in the area will help reduce the amount of Level B 
harassment for these species.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise exposure (such as disruption of critical life 
functions, displacement, or avoidance of important habitat) are more 
likely to be significant if they last more than one diel cycle or recur 
on subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al. 2007). Operational activities 
are not anticipated to occur at the Port on consecutive days. In 
addition, Northeast Gateway EBRVs are expected to make a maximum of 65 
port calls throughout the year (and likely less), with thruster use 
needed for a couple of hours. Therefore, Northeast

[[Page 78821]]

Gateway will not be creating increased sound levels in the marine 
environment for prolonged periods of time.
    Of the 14 marine mammal species likely to occur in the area, four 
are listed as endangered under the ESA: North Atlantic right, humpback, 
and fin whales. All of these species are also considered depleted under 
the MMPA. There is currently no designated critical habitat or known 
reproductive areas for any of these species in or near the proposed 
project area. However, there are several well-known North Atlantic 
right whale feeding grounds in the Cape Cod Bay and Great South 
Channel. No mortality or injury is expected to occur, and due to the 
nature, degree, and context of the Level B harassment anticipated, the 
activity is not expected to impact rates of recruitment or survival. 
There is no critical habitat or biologically important areas for marine 
mammals within the proposed project area.
    The population estimates for the species that may be taken by Level 
B behavioral harassment contained in the most recent U.S. Atlantic 
Stock Assessment Reports were provided earlier in this document. From 
the most protective estimates of both marine mammal densities in the 
project area and the size of the 120-dB ZOI, the maximum calculated 
number of individual marine mammals for each species that could 
potentially be harassed annually is small relative to the overall 
population sizes.
    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 finds that the proposed Northeast Gateway LNG Port and 
Algonquin Pipeline Lateral operations and maintenance and repair 
activities would result in the incidental take of small numbers of 
marine mammals, by Level B harassment only, and that the total taking 
from Northeast Gateway and Algonquin's proposed activities will have a 
negligible impact on the affected species or stocks.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    Our November 18, 2013, Federal Register notice of proposed IHA 
described the history and status of Endangered Species Act (ESA) 
compliance for the NE Gateway LNG facility. As explained in that 
notice, the biological opinions for construction and operation of the 
facility only analyzed impacts on ESA-listed species from activities 
under the initial construction period and during operations, and did 
not take into consideration potential impacts to marine mammals that 
could result from the subsequent LNG Port and Pipeline Lateral 
maintenance and repair activities. In addition, NEG also revealed that 
significantly more water usage and vessel operating air emissions are 
needed from what was originally evaluated for the LNG Port operation. 
NMFS PR1 initiated consultation with NMFS Greater Atlantic Region 
Fisheries Office under section 7 of the ESA on the proposed issuance of 
an IHA to NEG under section 101(a)(5)(D) of the MMPA for the proposed 
activities that include increased NEG Port and Algonquin Pipeline 
Lateral maintenance and repair and water usage for the LNG Port 
operations this activity. A Biological Opinion was issued on November 
21, 2014, and concluded that the proposed action may adversely affect 
but is not likely to jeopardize the continued existence of ESA-listed 
right, humpback, fin, and sei whales.

National Environmental Policy Act

    MARAD and the USCG released a Final EIS/Environmental Impact Report 
(EIR) for the proposed Northeast Gateway Port and Pipeline Lateral. A 
notice of availability was published by MARAD on October 26, 2006 (71 
FR 62657). The Final EIS/EIR provides detailed information on the 
proposed project facilities, construction methods and analysis of 
potential impacts on marine mammals.
    NMFS was a cooperating agency (as defined by the Council on 
Environmental Quality (40 CFR 1501.6)) in the preparation of the Draft 
and Final EISs. NMFS reviewed the Final EIS and adopted it on May 4, 
2007. NMFS issued a separate Record of Decision for issuance of 
authorizations pursuant to section 101(a)(5) of the MMPA for the 
construction and operation of the Northeast Gateway's LNG Port Facility 
in Massachusetts Bay. A 2010 environmental assessment/environmental 
impact assessment conducted by TetraTech analyzed the increased water 
usage and other operational changes. We reviewed that document to 
determine whether there is a need for supplemental NEPA analysis based 
on any substantial changes between the current proposed action and the 
proposed action analyzed for the FEIS/EIR or any significant new 
circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts. Based on our review of 
that analysis, we have determined that supplementation was not 
required.

Authorization

    NMFS has issued an IHA to Northeast Gateway for conducting LNG Port 
facility and Pipeline Lateral operations and maintenance and repair 
activities in Massachusetts Bay, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: December 23, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-30539 Filed 12-30-14; 8:45 am]
BILLING CODE 3510-22-P