[Federal Register Volume 84, Number 102 (Tuesday, May 28, 2019)]
[Notices]
[Pages 24490-24498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10973]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XG799
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to City of Juneau Waterfront
Improvement Project
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that we have issued an incidental harassment authorization (IHA) to the
City and Borough of Juneau (CBJ), Alaska, to take small numbers of
marine mammals, by harassment, incidental to the Juneau dock and harbor
waterfront improvement project.
DATES: This authorization is effective from July 15, 2019, through July
14, 2020.
FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as the issued IHA, may be obtained
online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems
accessing these documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
Summary of Request
On October 25, 2018, City and Borough of Juneau (CBJ) submitted a
request to NMFS requesting an IHA for the possible harassment of small
numbers of harbor seals incidental to the City of Juneau Dock and
Harbor waterfront improvement project in Juneau, Alaska, from June 15,
2019 to June 14, 2020. After receiving the revised project description
and the revised IHA application, NMFS determined that the IHA
application is adequate and complete on January 30, 2019. Neither the
CBJ nor NMFS expect mortality or serious injury to result from this
activity and, therefore, an IHA is appropriate. On April 17, 2019, CBJ
sent a request to NMFS to change the IHA dates to cover the period
between July 15, 2019, and July 14, 2020. NMFS has issued an IHA to CBJ
for the take by Level B harassment of harbor seal (Phoca vitulina)
incidental to its waterfront improvement project.
Description of Proposed Activity
Overview
The purpose of the CBJ's project is to improve the downtown
waterfront area within Gastineau Channel in Juneau, Alaska, to
accommodate the needs of the growing cruise ship visitor industry and
its passengers while creating a waterfront that meets the expectations
of a world-class facility. The project would meet the needs of an
expanding cruise ship industry and its passengers by creating ample
open space thereby decreasing congestion and improving pedestrian
circulation.
Dates and Duration
Construction of the CBJ waterfront improvements project is planned
to occur between May 15, 2019 and August 31, 2020. CBJ is requesting an
IHA for one year with an effective date of July 15, 2019 as in-water
work will not proceed until July 15 or later and it is anticipated all
in-water work will be completed prior to July 15, 2020.
Specified Geographic Region
The project area is at downtown waterfront within the Gastineau
Channel in Juneau, Alaska (Figure 1 of the IHA application). The
channel separates Juneau on the mainland side from Douglas (now part of
Juneau), on Douglas Island. The channel is navigable by large ships,
only from the southeast, as far as the Douglas Bridge, which is
approximately 0.5 mile north of the project area. The channel north of
the bridge is navigable by smaller craft and only at high tide. The
channel at the project area is approximately 0.7 mile wide. It is
located within Section 23, Township 41 South, Range 67 East of the
Copper River Meridian.
Detailed Description of the CBJ Waterfront Improvement Project
The proposed CBJ waterfront improvements project would construct a
pile supported deck along the
[[Page 24491]]
waterfront to meet the needs of an expanding cruise ship industry and
its passengers by creating ample open space thereby decreasing
congestion and improving pedestrian circulation. More details of the
CBJ waterfront improvement project are provided in the Federal Register
notice for the proposed IHA (84 FR 7880; March 5, 2019) and are not
repeated here. There is no change from the description of the project
activities that is provided in the Federal Register notice for the
proposed IHA.
A list of pile driving and removal activities is provided in Table
1. The total number of days that involve in-water pile driving is
estimated to be 82 days.
Table 1--Summary of In-Water Pile Driving Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pile driving/
removal
duration
(sec.) per
Method Pile type and size Total # piles # piles/day pile Work days
(vibratory) or
strikes per
pile (impact)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory pile removal....................... Timber piles, unknown diameter but 100 10 900 10
assumed to be no more than 14-in.
Vibratory piling for supported dock.......... Steel piles, 16-in....................... *42 5 5,400 9
Impact proofing for supported dock........... Steel piles, 16-in....................... *42 5 150 9
Vibratory piling for supported dock.......... Steel piles, 18-in....................... *45 5 5,400 9
Impact proofing for supported dock........... Steel piles, 18-in....................... *45 5 150 9
Vibratory piling for temporary piles......... Steel piles, 18-in....................... 87 5 5,400 18
Vibratory pile removal for temporary piles... Steel piles, 18-in....................... 87 5 900 18
----------------------------------------------------------------------------------------------------------
Total.................................... ......................................... 274 .............. .............. 82
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Vibratory driving and impact proofing will occur on separate days.
Comments and Responses
A notice of NMFS' proposal to issue an IHA was published in the
Federal Register on March 5, 2019 (84 FR 7880). During the 30-day
public comment period, NMFS received a comment letter from the Marine
Mammal Commission (Commission). Specific comments and responses are
provided below.
Comment 1: The Commission recommends that NMFS refrain from
implementing its proposed renewal process and instead use abbreviated
Federal Register notices and reference existing documents to streamline
the IHA process. If NMFS adopts the proposed renewal process, the
Commission recommends that NMFS provide the Commission and the public a
legal analysis supporting its conclusion that the process is consistent
with section 101(a)(5)(D) of the MMPA.
Response: The notice of the proposed IHA expressly notifies the
public that under certain, limited conditions an applicant could seek a
renewal IHA for an additional year. The notice describes the conditions
under which such a renewal request could be considered and expressly
seeks public comment in the event such a renewal is sought. Additional
reference to this solicitation of public comment has recently been
added at the beginning of the Federal Register notices that consider
renewals, requesting input specifically on the possible renewal itself.
NMFS appreciates the streamlining achieved by the use of abbreviated
Federal Register notices and intends to continue using them for
proposed IHAs that include minor changes from previously issued IHAs,
but which do not satisfy the renewal requirements. However, we believe
our method for issuing renewals meets statutory requirements and
maximizes efficiency. However, importantly, such renewals will be
limited to circumstances where: The activities are identical or nearly
identical to those analyzed in the proposed IHA; monitoring does not
indicate impacts that were not previously analyzed and authorized; and,
the mitigation and monitoring requirements remain the same, all of
which allow the public to comment on the appropriateness and effects of
a renewal at the same time the public provides comments on the initial
IHA. NMFS has, however, modified the language for future proposed IHAs
to clarify that all IHAs, including renewal IHAs, are valid for no more
than one year and that the agency will consider only one renewal for a
project at this time. In addition, notice of issuance or denial of a
renewal IHA will be published in the Federal Register, as they are for
all IHAs. The option for issuing renewal IHAs has been in NMFS'
incidental take regulations since 1996. We will provide any additional
information to the Commission and consider posting a description of the
renewal process on our website before any renewal is issued utilizing
this process.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).
Table 2 lists all species with expected potential for occurrence in
the Southeast Alaskan waters and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and potential biological removal (PBR), where known. For taxonomy, we
follow Committee on Taxonomy (2018). PBR is defined by the MMPA as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS's SARs). While no mortality is anticipated or authorized here, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
[[Page 24492]]
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Alaska Marine Mammal SARs (Carretta et al., 2017). All
values presented in Table 2 are the most recent available at the time
of publication and are available in the 2017 SARs (Muto et al., 2018);
and draft 2018 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).
Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae:
Humpback whale.................. Megaptera novaneagliae. Central North Pacific.. E/D; Y 10,103 (0.300, 7,890). 82 8.5
Family Delphinidae:
Killer whale.................... Orcinus orca........... Eastern N. Pacific N 261 (NA, 261)......... 1.96 0
Northern Resident. N 2,347 (NA, 2,347)..... 24 1
Eastern N. Pacific
Alaska Resident.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Lynn Canal/Stephens N 9,478 (NA, 8,605)..... 155 0
Passage.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
All species that could potentially occur in the proposed survey
areas are included in Table 2. However, the presence of humpback whale
and killer whale are extremely rare, and the implementation of
monitoring and mitigation measures are such that take is not expected
to occur, and they are not discussed further beyond the explanation
provided here. Although these two species have been sighted within the
Gastineau Channel near the vicinity of the project area, CBJ proposes
to implement strict monitoring and mitigation measures and implement
shutdown to prevent any takes of these two species. Thus, the take of
this marine mammal stock can be avoided, as their occurrence would be
considered unlikely and mitigation and monitoring is expected to
prevent take should they occur (see details in Mitigation section).
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. The functional groups and
the associated frequencies are indicated below (note that these
frequency ranges correspond to the range for the composite group, with
the entire range not necessarily reflecting the capabilities of every
species within that group):
Low-frequency cetaceans (mysticetes): generalized hearing
is estimated to occur between approximately 7 hertz (Hz) and 35
kilohertz (kHz);
Mid-frequency cetaceans (larger toothed whales, beaked
whales, and most delphinids): Generalized hearing is estimated to occur
between approximately 150 Hz and 160 kHz;
High-frequency cetaceans (porpoises, river dolphins, and
members of the genera Kogia and Cephalorhynchus; including two members
of the genus Lagenorhynchus, on the basis of recent echolocation data
and genetic data): Generalized hearing is estimated to occur between
approximately 275 Hz and 160 kHz;
Pinnipeds in water; Phocidae (true seals): Generalized
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
and
Pinnipeds in water; Otariidae (eared seals): Generalized
hearing is estimated to occur between 60 Hz and 39 kHz.
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
[[Page 24493]]
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al.,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Three marine mammal species (two cetacean and one pinniped (i.e.,
harbor seal) species) have the reasonable potential to co-occur with
the proposed construction activity. Please refer to Table 2. Of the
cetacean species that may be present, one species is classified as low-
frequency cetaceans (i.e., humpback whale) and one is classified as
mid-frequency cetacean (i.e., killer whale). However, as mentioned
earlier, monitoring and mitigation measures will be implemented to
avoid the take of these cetacean species.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section includes a summary and discussion of the ways that
components of the specified activity may impact marine mammals and
their habitat. The Estimated Take by Incidental Harassment section
later in this document includes a quantitative analysis of the number
of individuals that are expected to be taken by this activity. The
Negligible Impact Analysis and Determination section considers the
content of this section, the Estimated Take by Incidental Harassment
section, and the Mitigation section, to draw conclusions regarding the
likely impacts of these activities on the reproductive success or
survivorship of individuals and how those impacts on individuals are
likely to impact marine mammal species or stocks.
Potential impacts to marine mammals from the proposed CBJ
waterfront improvement project are from noise generated during in-water
pile driving and pile removal activities. A detailed analysis of these
effects is provided in the Federal Register notice of the proposed IHA
(84 FR 7880; March 5, 2019) and is not repeated here.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of whether the number of takes is ``small'' and the negligible impact
determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise generated from vibratory pile driving
and removal. Based on the nature of the activity and the anticipated
effectiveness of the mitigation measures (i.e., shutdown measures--
discussed in detail below in Proposed Mitigation section), Level A
harassment is neither anticipated nor proposed to be authorized.
As described previously, no mortality is anticipated or authorized
for this activity. Below we describe how the take is estimated.
Described in the most basic way, we estimate take by considering:
(1) Acoustic thresholds above which NMFS believes the best available
science indicates marine mammals will be behaviorally harassed or incur
some degree of permanent hearing impairment; (2) the area or volume of
water that will be ensonified above these levels in a day; (3) the
density or occurrence of marine mammals within these ensonified areas;
and, (4) and the number of days of activities. Below, we describe these
components in more detail and present the take estimate.
Acoustic Thresholds
Using the best available science, NMFS has developed acoustic
thresholds that identify the received level of underwater sound above
which exposed marine mammals would be reasonably expected to be
behaviorally harassed (equated to Level B harassment) or to incur PTS
of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g.
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms)
for non-explosive impulsive (e.g., seismic airguns) or intermittent
(e.g., scientific sonar) sources.
Applicant's proposed activity includes the generation of impulse
(impact pile driving) and continuous (vibratory pile driving and
removal) sources; and, therefore, both 160- and 120-dB re 1 [mu]Pa
(rms) are used.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Technical Guidance, 2016 and 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). Applicant's proposed activity would
generate and non-impulsive (vibratory pile driving and pile removal)
noises.
These thresholds were developed by compiling and synthesizing the
best available science and soliciting input multiple times from both
the public and peer reviewers to inform the final product and are
provided in the table below. The references, analysis, and methodology
used in the development of the thresholds are described in NMFS 2018
Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
[[Page 24494]]
Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
--------------------------------------------------------------------------------------------------------------------------------------------------------
PTS onset thresholds Behavioral thresholds
Hearing group --------------------------------------------------------------------------------------------------------------------
Impulsive Non-impulsive Impulsive Non-impulsive
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....... Lpk,flat: 219 dB, LE,LF,24h: 199 dB............ Lrms,flat: 160 dB............ Lrms,flat: 120 dB
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans....... Lpk,flat: 230 dB, LE,MF,24h: 198 dB............
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans...... Lpk,flat: 202 dB, LE,HF,24h: 173 dB............
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW), (Underwater) Lpk,flat: 218 dB LE,PW,24h: 201 dB............
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW), Lpk,flat: 232 dB, LE,OW,24h: 219 dB............
(Underwater). LE,OW,24h: 203 dB.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive
sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be
considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has a reference value of 1[mu]Pa2s. In this
Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by
ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is being included to
indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative
sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways
(i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which
these acoustic thresholds will be exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds.
Source Levels
Source levels for vibratory driving and removal of 16- and 18-inch
(in) steel piles are based on measurement of vibratory pile removal of
16- and 24-in steel piles by the Navy in Puget Sound (NAVFAC 2015). The
measured SPLrms at 10 meters (m) was 161 dB re 1 [micro]Pa.
This source level is revised from the proposed IHA where a different
measurement of 156.2 dB at 7 m from Kake, Alaska, was used. This change
reflects our discussion with the Commission that the Kake's measurement
could be underestimated due to soft substrate.
Source levels for impact pile driving of 16-in and 18-in steel
piles are based on JASCO's pile driving review for a 24-in steel pile
(Yurk et al., 2015). The values are 175 dB re 1 [micro]Pa\2\-s, 190 dB
re 1 [micro]Pa, and 205 dB re 1 [micro]Pa for single strike SEL,
SPLrms, and SPLpk, respectively.
Source level for vibratory timber pile removal is based on
measurements of vibratory pile removal at Port Townsend, Washington
(WSDOT, 2011). The measured level was 150 dB re 1 [micro]Pa at 52 ft,
and is corrected to 153 dB re 1 [micro]Pa at 10 m.
A summary of the source levels are provided in Table 4.
Table 4--Summary of In-Water Pile Driving Source Levels
[at 10 m from source]
----------------------------------------------------------------------------------------------------------------
SEL, dB re 1 SPLrms, dB re SPLpk, dB re 1
Method Pile type/size (inch) [micro]Pa\2\-s 1 [micro]Pa [micro]Pa
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal............. Steel, 16- and 18-in.... 161 161 ..............
Vibratory removal..................... Timber.................. 153 153 ..............
Impact pile driving (proof)........... Steel, 16- and 18-in.... 175 190 205
----------------------------------------------------------------------------------------------------------------
These source levels are used to compute the Level A harassment
zones and to estimate the Level B harassment zones. For Level A
harassment zones, since the peak source levels for both pile driving
are below the injury thresholds, cumulative SEL were used to do the
calculations using the NMFS acoustic guidance (NMFS 2018).
Estimating Harassment Zones
The Level B harassment ensonified areas for vibratory removal of
timber piles are based on the above source level of 153
dBrms re 1 [micro]Pa at 10 m, applying practical spreading
loss of 15*log(R) for transmission loss calculation. The derived
distance to the 120-dB Level B zone is 1,585 m.
For Level B harassment ensonified areas for vibratory pile driving
and removal of the 16- and 18-in steel piles, the distance is based on
source level of 161 dB re 1 [micro]Pa at 10 m, applying practical
spreading loss of 15*log(R) for transmission loss calculation. The
derived distance to the 120-dB zone is 5,412 m. This is an increase
from 1,585 m provided in the proposed IHA when a lower source level of
156.2 dB at 7 m was used. However, the land mass from the opposite
shore intercept the sound propagation at about 2,000 m, therefore, the
distance of 2,000 m is considered as the maximum distance for Level B
harassment for vibratory pile driving of 16- and 18-in piles.
For Level B harassment ensonified areas for impact proofing of 16-
in and 18-in steel piles, the distance is based on source level of 190
dB re 1 [micro]Pa at 10 m, applying practical spreading loss of
15*log(R) for transmission loss calculation. The derived distance to
the 160-dB zone is 1,000 m.
For Level A harassment, calculation is based on pile driving
duration of each pile and the number of piles installed or removed per
day, using NMFS optional spreadsheet.
The modeled distances to Level A and Level B harassment zones for
various marine mammals are provided in Table 5. As discussed above, the
only marine mammal that could occur in the vicinity of the project area
is the harbor seal (phocid), and, on rare occasions, humpback and
killer whales (mid-frequency cetacean). The inclusion of other marine
mammal hearing groups in Table 5 is for information purposes.
[[Page 24495]]
Table 5--Modeled Distances to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
Injury distance (m)
Pile type, size & pile driving method -------------------------------------------------------------------------------- Level B ZOI
LF cetacean MF cetacean HF cetacean Phocid Otariid (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory drive 16- & 18-in pile (5,400 s/pile, 5 piles/ 8.8 0.8 13 5.3 0.4 2,000
day)...................................................
Vibratory removal 16- & 18-in temporary pile (900 s/ 2.7 0.2 3.9 1.6 0.1 2,000
pile, 5 piles/day).....................................
Vibratory removal timber pile (900 s/pile, 10 piles/day) 3.7 0.3 5.4 2.2 0.2 1,585
Impact proof of 16- & 18-in pile (150 strikes/pile, 5 241.4 8.6 287.6 129.2 9.4 1,000
piles/day).............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
There are no reliable density estimates for marine mammals (harbor
seal, humpback whale, and killer whale) in the project area. However,
there are good observations of harbor seal numbers that generally occur
in the project area.
Harbor seals are residents in the project vicinity and observed
within the action area on a regular basis. Typically there are one to
two harbor seals present near the new Port of Juneau Cruise Ship Berths
and can be found there year round. In addition, a smaller amount of
harbor seals have been observed near the Douglas Island Pink and Chum,
Inc. (DIPAC) salmon hatchery which is approximately five km north of
the project area. The applicant states that based on observations and
discussion with the hatchery personnel, a maximum of 41 harbor seals
have been observed transiting in nearby areas between the hatchery and
the project area. This number in addition to the 1-2 resident harbor
seals at the project area makes a total maximum harbor sea that could
be affected by in-water pile driving during a typical day to be 43.
Humpback whale and killer whale are rarely seen in the vicinity of
the project area. CBJ will implement shutdown measures if these species
are sighted moving towards the Level B harassment zone.
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
For harbor seal takes, the total take number is calculated as: Take
= animal number in a typical day near the project area x operating days
= 43 x 82 = 3,526 animals. However, 18 of these pile driving days will
involve impact pile proofing that results in a larger Level A
harassment zone (129 m). If a harbor seal would be missed during marine
mammal monitoring and slip into the Level A harassment zone during
impact pile proofing, Level A harassment could occur. Based on
discussion with the Commission, we estimated that up to 4 individual
harbor seals could be exposed by Level A harassment each day during
these 18 days. Therefore, we estimate that 72 incidents of Level A
harassment of harbor seal could occur.
A summary of estimated takes in relation to population percentage is
provided in Table 6.
Table 6--Estimated Take Numbers
----------------------------------------------------------------------------------------------------------------
Estimated Estimated Estimated
Species Level A take Level B take total take Abundance
----------------------------------------------------------------------------------------------------------------
Harbor seal..................................... 72 3,454 3,526 9,478
----------------------------------------------------------------------------------------------------------------
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable 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 (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting such
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned) the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Mitigation for Marine Mammals and Their Habitat
1. Time Restriction.
Work would occur only during daylight hours, when visual monitoring
of marine mammals can be conducted.
2. Establishing and Monitoring Level A and Level B Harassment Zones
and Shutdown Zones.
[[Page 24496]]
CBJ shall establish shutdown zones that encompass the distances
within which marine mammals except harbor seal could be taken by Level
B harassment (see Table 5 above).
For harbor seals, CBJ shall establish shutdown zones that encompass
the distances within which a seal could be taken by Level A harassment
(see Table 5 above). For Level A harassment zones that are less than 10
m from the source, a minimum of 10 m distance should be established as
a shutdown zone.
A summary of shutdown zones is provided in Table 7.
Table 7--Shutdown Zones for Various Pile Driving Activities and Marine
Mammal Hearing Groups
------------------------------------------------------------------------
Shutdown distance (m)
Pile type, size & pile driving method -------------------------------
Cetacean Phocid
------------------------------------------------------------------------
Vibratory drive and removal of 16- & 18- 2,000 10
in steel piles.........................
Vibratory removal timber pile (900 s/ 1,585
pile, 10 piles/day)....................
Impact proof of 16- & 18-in pile (150 1,000 130
strikes/pile, 5 piles/day).............
------------------------------------------------------------------------
CBJ shall also establish a Zone of Influence (ZOI) for harbor seals
based on the Level B harassment zones for take monitoring where
received underwater SPLs are higher than 160 dBrms re 1
[micro]Pa for impulsive noise sources (impact pile driving) and 120
dBrms re 1 [micro]Pa for continuous noise sources (vibratory
pile driving and pile removal). For all other marine mammals, the ZOI
is the same as the shutdown zones.
NMFS-approved protected species observers (PSO) shall conduct an
initial 30-minute survey of the shutdown zones to ensure that no marine
mammals are seen within the zones before pile driving and pile removal
of a pile segment begins. If marine mammals are found within the
shutdown zone, pile driving of the segment would be delayed until they
move out of the area. If a marine mammal is seen above water and then
dives below, the contractor would wait 15 minutes. If no marine mammals
are seen by the observer in that time it can be assumed that the animal
has moved beyond the shutdown zone.
3. Soft-start.
A ``soft-start'' technique is intended to allow marine mammals to
vacate the area before the impact pile driver reaches full power.
Whenever there has been downtime of 30 minutes or more without impact
pile driving, the contractor will initiate the driving with ramp-up
procedures described below.
Soft start for impact hammers requires contractors to provide an
initial set of three strikes from the impact hammer at 40 percent
energy, followed by a 1-minute waiting period, then two subsequent
three-strike sets. Each day, CBJ will use the soft-start technique at
the beginning of impact pile driving, or if impact pile driving has
ceased for more than 30 minutes.
4. Shutdown Measures.
CBJ shall implement shutdown measures if a marine mammal is
detected within or enters a shutdown zone listed in Table 7.
Further, CBJ shall implement shutdown measures if the number of
authorized takes for harbor seals reaches the limit under the IHA and
if seals are sighted within the vicinity of the project area and are
approaching the Level B harassment zone during in-water construction
activities.
Based on our evaluation of the required measures, NMFS has
determined that the prescribed mitigation measures provide the means
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, Section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations 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. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
Proposed Monitoring Measures
CBJ shall employ NMFS-approved PSOs to conduct marine mammal
monitoring for its waterfront improvement project at Juneau Dock and
Harbor. The purposes of marine mammal monitoring are to implement
mitigation measures and learn more about impacts to marine mammals from
CBJ's construction activities. The PSOs will observe and collect data
on marine mammals in and around the project area for 30 minutes before,
during, and for 30 minutes after all pile removal and pile installation
work. NMFS-approved PSOs shall meet the following requirements:
1. Independent observers (i.e., not construction personnel) are
required;
2. At least one observer must have prior experience working as an
observer;
3. Other observers may substitute education (undergraduate degree
in biological science or related field) or training for experience;
4. Where a team of three or more observers are required, one
observer
[[Page 24497]]
should be designated as lead observer or monitoring coordinator. The
lead observer must have prior experience working as an observer; and
5. NMFS will require submission and approval of observer CVs.
Monitoring of marine mammals around the construction site shall be
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
CBJ shall employ a minimum of 2 PSOs to observe and collect data on
marine mammals in and around the pile driving vicinity.
PSOs shall be placed at high evaluation locations such as the
boardwalk and the observation deck of the City Library to conduct
marine mammal monitoring.
PSOs will work shifts of a maximum of four consecutive hours and
will work no more than 12 hours in any 24-hour period.
6. PSOs shall collect the following information during marine
mammal monitoring:
Date and time that monitored activity begins and ends for
each day conducted (monitoring period);
Construction activities occurring during each daily
observation period, including how many and what type of piles driven;
Deviation from initial proposal in pile numbers, pile
types, average driving times, etc.;
Weather parameters in each monitoring period (e.g., wind
speed, percent cloud cover, visibility);
Water conditions in each monitoring period (e.g., sea
state, tide state);
For each marine mammal sighting:
[cir] Species, numbers, and, if possible, sex and age class of
marine mammals;
[cir] Description of any observable marine mammal behavior
patterns, including bearing and direction of travel and distance from
pile driving activity;
[cir] Location and distance from pile driving activities to marine
mammals and distance from the marine mammals to the observation point;
and
[cir] Estimated amount of time that the animals remained in the
Level B zone;
Description of implementation of mitigation measures
within each monitoring period (e.g., shutdown or delay);
Other human activity in the area within each monitoring
period
To verify the required monitoring distance, the shutdown zones and
ZOIs will be determined by using a range finder or hand-held global
positioning system device.
CBJ is required to submit a draft monitoring report within 90 days
after completion of the construction work or the expiration of the IHA
(if issued), whichever comes earlier. In the case if CBJ intends to
renew the IHA (if issued) in a subsequent year, a monitoring report
should be submitted 60 days before the expiration of the current IHA
(if issued). This report would detail the monitoring protocol,
summarize the data recorded during monitoring, and estimate the number
of marine mammals that may have been harassed. NMFS would have an
opportunity to provide comments on the report, and if NMFS has
comments, CBJ would address the comments and submit a final report to
NMFS within 30 days.
In addition, NMFS would require CBJ to notify NMFS' Office of
Protected Resources and NMFS' Alaska Stranding Coordinator within 48
hours of sighting an injured or dead marine mammal in the construction
site. CBJ shall provide NMFS and the Stranding Network with the species
or description of the animal(s), the condition of the animal(s)
(including carcass condition, if the animal is dead), location, time of
first discovery, observed behaviors (if alive), and photo or video (if
available).
In the event that CBJ finds an injured or dead marine mammal that
is not in the construction area, CBJ would report the same information
as listed above to NMFS as soon as operationally feasible.
Negligible Impact Analysis and Determinations
NMFS has defined negligible impact 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 (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
Although some individual harbor seals are estimated to experience
Level A harassment in the form of PTS if they stay within the Level A
harassment zone during the entire pile driving for the day, the degree
of injury is expected to be mild and is not likely to affect the
reproduction or survival of the individual animals. It is expected
that, if hearing impairment occurs, most likely the affected animal
would lose a few dB in its hearing sensitivity, which in most cases is
not likely to affect its survival and recruitment. Hearing impairment
that might occur for these individual animals would be limited to the
dominant frequency of the noise sources, i.e., in the low-frequency
region below 2 kHz. Nevertheless, as for all marine mammal species, it
is known that in general these seals will avoid areas where sound
levels could cause hearing impairment. Therefore it is not likely that
an animal would stay in an area with intense noise that could cause
severe levels of hearing damage.
Under the majority of the circumstances, anticipated takes are
expected to be limited to short-term Level B harassment. Harbor seals
present in the vicinity of the action area and taken by Level B
harassment would most likely show overt brief disturbance (startle
reaction) and avoidance of the area from elevated noise levels during
pile driving and pile removal. Given the limited estimated number of
incidents of Level A and Level B harassment and the limited, short-term
nature of the responses by the individuals, the impacts of the
estimated take cannot be reasonably expected to, and are not reasonably
likely to, rise to the level that they would adversely affect the
species at the population level, through effects on annual rates of
recruitment or survival.
There are no known important habitats, such as rookeries or
haulouts, in the vicinity of the CBJ's waterfront improvement
construction project. The project also is not expected to have
significant adverse effects on affected marine mammals' habitat,
including prey, as analyzed in detail in the ``Anticipated Effects on
Marine Mammal Habitat'' section.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not
[[Page 24498]]
expected to adversely affect the species or stock through effects on
annual rates of recruitment or survival:
No mortality is anticipated or authorized;
Some individual harbor seals are anticipated to experience
a mild level of PTS, but the degree of PTS is not expected to affect
their fitness;
Most adverse effects to harbor seals are temporary
behavioral harassment; and
No biologically important area is present in or near the
proposed construction area.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the proposed activity will have a negligible impact on all affected
marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(D) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, NMFS compares the number of
individuals anticipated to be taken to the most appropriate estimation
of the relevant species or stock size in our determination of whether
an authorization would be limited to small numbers of marine mammals.
The estimated take of harbor seal would be 35 percent of the
population, if each single take were a unique individual. However, this
is highly unlikely because the harbor seal in the vicinity of the
project area shows site fidelity to small areas for periods of time
that can extend between seasons. As discussed earlier, there are one to
two resident harbor seals in the project vicinity and are observed
within the action area on a regular basis. In addition, a smaller
amount of harbor seals have been observed near the DIPAC salmon
hatchery which is approximately 5 km north of the project area.
Therefore, the total maximum number of individual harbor seals at the
project area that could be affect by in-water pile driving during a
typical day is assumed to be 43 individuals.
Based on the analysis contained herein of the proposed activity
(including the prescribed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
each species or stock will be taken relative to the population size of
the affected species or stocks.
Unmitigable Adverse Impact Subsistence Analysis and Determination
The proposed construction project will occur near but not overlap
the subsistence areas in Juneau. The Alaska Department of Fish and Game
(ADF&G) was contacted by CBJ regarding subsistence uses in Gastineau
Channel and it was confirmed that Gastineau Channel is not a
subsistence use area for harbor seals (CBJ, 2018). Therefore, the
proposed project will not adversely impact the availability of any
marine mammal species or stocks that are commonly used for subsistence
purposes in the Juneau area.
Based on the analysis contained herein of the likely effects of the
specified activity on subsistence activities, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the proposed activity will not have
unmitigable adverse impact on subsistence use of marine mammals in the
project area.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an
incidental harassment authorization) with respect to potential impacts
on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental harassment authorizations with
no anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS has determined that the issuance of the
proposed IHA qualifies to be categorically excluded from further NEPA
review.
Endangered Species Act (ESA)
No incidental take of ESA-listed species is authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for this
action.
Authorization
As a result of these determinations, NMFS has issued an IHA to the
City and Borough of Juneau for the Juneau Dock and Harbor waterfront
improvement project in Juneau, Alaska, provided the previously
described mitigation, monitoring, and reporting requirements are
incorporated.
Dated: May 21, 2019.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2019-10973 Filed 5-24-19; 8:45 am]
BILLING CODE 3510-22-P