[Federal Register Volume 83, Number 55 (Wednesday, March 21, 2018)]
[Notices]
[Pages 12338-12340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05652]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG090


Waiver of Requirements Under Sections 101(a) and 102(a) of the 
Marine Mammal Protection Act (MMPA) for the Mid-Barataria Sediment 
Diversion, the Mid-Breton Sound Sediment Diversion, and Calcasieu Ship 
Channel Salinity Control Measures Projects

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

ACTION: Notice; issuance of a waiver.

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SUMMARY: On February 9, 2018, Congress passed the Bipartisan Budget Act 
of 2018 (Budget Act), which included a requirement that the Secretary 
of Commerce, as delegated to the Assistant Administrator of the 
National Marine Fisheries Service (NMFS), issue a waiver of the Marine 
Mammal Protection Act (MMPA) moratorium and prohibitions for the Mid-
Barataria Sediment Diversion, Mid-Breton Sound Sediment Diversion, and 
the Calcasieu Ship Channel Salinity Control Measures projects, as 
selected in the Louisiana Comprehensive Master Plan for a Sustainable 
Coast. NMFS has issued the waiver.

DATES: The waiver was issued on March 15, 2018.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected 
Resources, NMFS, (301) 427-8401. The waiver and supporting documents 
may be obtained online at https://www.fisheries.noaa.gov/action/marine-mammal-protection-act-waiver-select-louisiana-coastal-master-plan-projects. In case of problems accessing these documents, please call 
the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a) of the MMPA (16 U.S.C. 1361 et seq.) establishes a 
moratorium on the taking and importation of marine mammals, along with 
exceptions to the moratorium. Section 102(a) of the MMPA prohibits, 
among other things, the taking of marine mammals and includes further 
exceptions to the prohibitions in certain circumstances. The MMPA 
defines the term ``take'' to mean to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill any marine mammal. Section 
101(a)(3)(A) allows the Secretary of Commerce, as delegated to NMFS, to 
waive the requirements of section 101 and allow the taking of marine 
mammals under sections 101(a) and 102(a), provided consultation with 
the Marine Mammal Commission occurs and certain determinations are 
made.
    On February 9, 2018, the Budget Act (Pub. L. 115-123) was enacted 
by Congress. Section 20201 in title II of the Budget Act directs the 
Secretary of Commerce to, within 120 days of enactment, issue a waiver 
pursuant to section 20201 and section 101(a)(3) of the MMPA for three 
projects included in the 2017 Louisiana Comprehensive Master Plan for a 
Sustainable Coast. Specifically, in Congress' recognition of their 
consistency with the findings and policy declarations in section 2(6) 
of the MMPA, the Budget Act directs the Secretary to issue a waiver for 
the Mid-Barataria Sediment Diversion, the Mid-Breton Sound Sediment 
Diversion, and the Calcasieu Ship Channel Salinity Control Measures 
projects from the requirements of sections 101(a) and 102(a) of the 
MMPA for the duration of the construction, operation, and maintenance 
of the projects. The Budget Act further indicates that no

[[Page 12339]]

rulemaking, permit, determination, or other condition or limitation 
shall be required when issuing the waiver. Although section 
101(a)(3)(A) of the MMPA requires the agency to make certain findings 
and determinations and follow certain procedures when issuing a waiver, 
Congress removed NMFS's discretion under section 101(a)(3)(A) to make 
those findings and determinations and to follow those procedures to 
determine whether waiver of the take moratorium is warranted.
    Section 20201 of the Budget Act further indicates that, upon the 
issuance of the waiver, the State of Louisiana (State) shall, in 
consultation with the Secretary of Commerce: (1) To the extent 
practicable and consistent with the purposes of the projects, minimize 
impacts on marine mammal species and population stocks, and (2) Monitor 
and evaluate the impacts of the projects on such species and population 
stocks.

Description of the Action

    On March 15, 2018, NMFS issued the waiver from the requirements of 
the MMPA section 101(a) moratorium and section 102 prohibitions for 
take caused by the Mid-Barataria Sediment Diversion, Mid-Breton Sound 
Sediment Diversion and Calcasieu Ship Channel Salinity Control Measures 
projects, as identified in the 2017 Louisiana Comprehensive Master Plan 
for a Sustainable Coast, as required by the Budget Act. The waiver 
applies to take caused by construction, operation, and maintenance and 
remains in effect for the duration of these activities for the three 
projects. Take that is not caused by the construction, operation, and 
maintenance of the projects is not covered by the waiver.
    Prior to issuing the waiver, NMFS consulted with the Marine Mammal 
Commission (Commission) on issuance of the waiver, as required under 
section 101(a)(3)(A) of the MMPA. On March 12, 2018, the Commission 
provided the following comments and recommendations (the Commission's 
letter can be found at https://www.fisheries.noaa.gov/action/marine-mammal-protection-act-waiver-select-louisiana-coastal-master-plan-projects).

Comments and Responses

    Comment 1: The Commission notes Section 20201 of the Budget Act 
includes a finding that the three identified projects are consistent 
with the findings and policy declarations in section 2(6) of the MMPA. 
They note, however, that it is unclear if the projects are consistent 
with other stated purposes and policies of the MMPA, including 
maintaining marine mammal species and stocks at optimum sustainable 
population levels and ensuring that species and stocks do not diminish 
to the point where they cease to be significant functioning elements in 
the ecosystems of which they are a part.
    NMFS Response: NMFS has no comment regarding Congress' 
interpretation of the consistency of these projects with different 
sections of the MMPA.
    Comment 2: The Commission recommends that the waiver indicate 
waiver recipients.
    NMFS Response: Congress did not identify specific recipients who 
should be covered by the waiver. Rather, Congress directed that the 
waiver should cover all persons (as defined under the MMPA) who will 
engage in the activities of constructing, operating, and maintaining 
the three named diversion projects. Therefore, unlike issuance of a 
typical permit, authorization, or waiver under the MMPA, this waiver 
applies to any individual or entity that causes the take of marine 
mammals during construction, operation, or maintenance of the three 
projects. In fact, it would not be possible for NMFS to identify all 
individuals and entities who will engage in these activities, 
especially for projects in the early planning stages or for long-term 
maintenance.
    Comment 3: The Commission recommends that NMFS seek agreement with 
the State or otherwise clarify that the requirements of section 
20201(b) are ongoing responsibilities with consultations between the 
State and NMFS continuing as needed throughout all construction, 
operations, and maintenance activities.
    NMFS Response: NMFS agrees consultation regarding impact 
minimization, monitoring, and evaluation should be ongoing as each 
project develops through design and engineering, construction, 
operation, and maintenance phases. It is ultimately the State's 
responsibility to engage in consultation with NMFS and, upon doing so, 
NMFS will work with the State to develop clear consultation 
expectations in accordance with the intent of the Budget Act. NMFS 
anticipates the State will utilize existing environmental review 
processes (e.g., National Environmental Policy Act (NEPA)), where 
available, to both begin consultation and develop an approach for 
ongoing consultation through the various phases for each project.
    Comment 4: The Commission recommends that consultations between 
NMFS and the State begin immediately to review ongoing monitoring 
programs and update and expand them, as necessary, to ensure that 
essential baseline information is available before construction begins. 
Further, the Commission encourages NMFS to seek the advice of 
appropriate outside experts in helping to design effective monitoring 
programs.
    NMFS Response: For the Mid-Barataria Sediment Diversion, NMFS is a 
cooperating agency on the project's Environmental Impact Statement 
(EIS) under NEPA and a member of the Louisiana Trustees. Through these 
roles, NMFS has been and will continue to evaluate impacts of the 
project on marine mammals and continue to work with the State on marine 
mammal monitoring. For example, NMFS, in cooperation with the State's 
Coastal Protection and Restoration Authority (CPRA), has developed a 
marine mammal science plan which includes the collection of baseline 
data on Barataria Bay dolphins through tagging, health assessments, and 
modeling. This plan was developed with internal and external marine 
mammal experts, as recommended by the Commission, who led efforts to 
collect data on Barataria Bay dolphins after the Deepwater Horizon oil 
spill (e.g., Smith et al., 2017, Well et al., 2017). Phase I of the 
science plan is partially complete and NMFS is in discussion with the 
CPRA on funding for Phase II. For all projects, NMFS intends to 
continue working with external marine mammal experts to inform 
development and implementation of a comprehensive marine mammal 
monitoring plan as part of the State's consultation requirement.

Minimizing and Monitoring Impacts on Marine Mammals

    As described above, the Budget Act requires the State, in 
consultation with the Secretary, to minimize, monitor, and evaluate 
impacts on marine mammals from the projects included in the waiver. We 
note here, as recommended by the Commission (see above), that by 
necessity the consultation will need to be ongoing to appropriately 
address the evolving project planning and design for the construction, 
operation, and maintenance phases of these three projects.
    Currently, for the Mid-Barataria Sediment Diversion, the State and 
the U.S. Army Corps of Engineers are coordinating closely with NMFS to 
ensure compliance under multiple statutes other than the MMPA (e.g., 
NEPA and the Clean Water Act), and further coordinating in 
consideration of the Mid-Barataria Sediment Diversion pursuant to the 
Deepwater Horizon restoration planning efforts. These statutes and 
processes include various

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requirements to assess, minimize, and/or monitor impacts to different 
resources, including marine mammals. While the State has coordinated 
most closely with NMFS on the Mid-Barataria Sediment Diversion to date, 
it is likely the other two projects covered under the waiver will be 
similarly coordinated with NMFS to some degree due to the NEPA 
processes and permitting requirements under other Federal statutes. We 
believe that in many cases other statutes and processes will provide 
the State efficient frameworks within which to conduct the required 
consultation with NMFS, and we will support the State in integrating 
Budget Act compliance into these processes, discussions, and timelines, 
as needed. Regardless, NMFS is prepared to support the State in 
identifying and developing practicable measures to minimize and monitor 
impacts of the covered projects on marine mammals.

    Authority:  16 U.S.C. 1361 et seq.

    Dated: March 15, 2018.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2018-05652 Filed 3-20-18; 8:45 am]
 BILLING CODE 3510-22-P