[Federal Register Volume 84, Number 103 (Wednesday, May 29, 2019)]
[Proposed Rules]
[Pages 24926-24968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10965]
[[Page 24925]]
Vol. 84
Wednesday,
No. 103
May 29, 2019
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Taking and Importing Marine Mammals; Taking Marine Mammals Incidental
to Construction and Operation of the Liberty Drilling and Production
Island, Beaufort Sea, Alaska; Proposed Rule
Federal Register / Vol. 84 , No. 103 / Wednesday, May 29, 2019 /
Proposed Rules
[[Page 24926]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 180627584-9388-01]
RIN 0648-BI00
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Construction and Operation of the Liberty Drilling and
Production Island, Beaufort Sea, Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS has received a request from Hilcorp Alaska (Hilcorp) for
authorization to take marine mammals incidental to construction and
operation of the Liberty Drilling and Production Island (LDPI), over
the course of five years. Pursuant to the Marine Mammal Protection Act
(MMPA), NMFS is proposing regulations to govern that take, and requests
comments on the proposed regulations. NMFS will consider public
comments prior to making any final decision on the issuance of the
requested MMPA authorization and agency responses will be summarized in
the final notice of our decision.
DATES: Comments and information must be received no later than June 28,
2019.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2018-0053, by any of the following methods:
Electronic submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0053 click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Submit written comments to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service, 1315 East West Highway, Silver
Spring, MD 20910.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Hilcorp's application and any supporting documents, as
well as a list of the references cited in this document, 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 (see FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
NMFS received an application from Hilcorp requesting five-year
regulations and authorization to incidentally take multiple species of
marine mammals in Foggy Island Bay, Beaufort Sea, by Level A harassment
(non-serious injury) and Level B harassment (behavioral disturbance),
incidental to construction and operation of the LDPI and associated
infrastructure. Please see ``Background'' below for definitions of
harassment. In addition, a limited unintentional take involving the
mortality or serious injury of no more than two ringed seals (Phoca
hispida) would be authorized to occur during annual ice road
construction and maintenance. This proposed rule establishes a
framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to
allow for the authorization of take of marine mammals incidental to
Hilcorp's activities related to construction and operation of the LDPI.
Legal Authority for the Proposed Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the ``Proposed Mitigation''
section), as well as monitoring and reporting requirements. Section
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR
part 216, subpart I provide the legal basis for issuing this proposed
rule containing five-year regulations, and for any subsequent Letters
of Authorization (LOAs). As directed by this legal authority, this
proposed rule contains mitigation, monitoring, and reporting
requirements.
Summary of Major Provisions Within the Proposed Rule
Following is a summary of the major provisions of this proposed
rule Hilcorp would be required to implement. These measures include:
Use of soft start during impact pile driving to allow
marine mammals the opportunity to leave the area prior to beginning
impact pile driving at full power;
Implementation of shutdowns of construction activities
under certain circumstances to minimize harassment, including injury;
Prohibition on impact pile driving during the fall Cross
Island bowhead whale hunt and seasonal drilling restrictions to
minimize impacts to marine mammals and subsistence users;
Implementation of best management practices to avoid and
minimize ice seal and habitat disturbance during ice road construction,
maintenance, and use;
Use of marine mammal and acoustic monitoring to detect
marine mammals and verify predicted sound fields;
Coordination with subsistence users and adherence to a
Plan of Cooperation (POC); and
Limitation on vessel speeds and transit areas, where
appropriate.
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
[[Page 24927]]
harassment, a notice of a proposed incidental take authorization is
provided to the public for review. Under the MMPA, ``take'' is defined
as meaning to harass, hunt, capture, or kill, or attempt to harass,
hunt, capture, or kill any marine mammal. ``Harassment'' is statutorily
defined as any act of pursuit, torment, or annoyance which has the
potential to injure a marine mammal or marine mammal stock in the wild
(Level A harassment) or 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 but which does not have the potential
to injure a marine mammal or marine mammal stock in the wild (Level B
harassment).
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.
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 evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
On August 23, 2018, the Bureau of Ocean Energy Management (BOEM)
released a Final Environmental Impact Statement (EIS) analyzing the
possible environmental impacts of Hilcorp's proposed Liberty
development and production plan (DPP). BOEM's Draft EIS was made
available for public comment from August 18, 2017 through December 8,
2017. The final EIS may be found at https://www.boem.gov/hilcorp-liberty/. NMFS is a cooperating agency on the EIS. Accordingly, NMFS
plans to adopt the EIS, provided our independent evaluation of the
document finds that it includes adequate information analyzing the
effects on the human environment of issuing the rule. We will review
all comments submitted in response to this notice prior to concluding
our NEPA process or making a final decision on the regulations request.
Summary of Request
On August 2, 2017, Hilcorp petitioned NMFS for rulemaking under
Section 101(a)(5)(A) of the MMPA to authorize the take of six species
of marine mammals incidental to construction and operation of the
proposed LDPI in Foggy Island Bay, Alaska. On April 26, 2018, Hilcorp
submitted a revised petition which NMFS deemed adequate and complete.
On May 9, 2018, we published a notice of receipt of Hilcorp's petition
in the Federal Register, requesting comments and information related to
the request for thirty days (83 FR 21276). We received comments from
the Center for Biological Diversity and 15,843 citizens opposing
issuance of the requested regulations and LOA. We also received
comments from the Alaska Eskimo Whaling Commission (AEWC) who
recommended we include subsistence related mitigation and coordination
requirements in the final rule. The comments and information received
were considered in development of this proposed rule and are available
online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. More recently,
Hilcorp provided subsequent additional information, including details
on a previously undescribed component of the project (installation of
foundation piles in the interior of the LDPI), and revised marine
mammal density and estimate take numbers on February 4, 2019. Hilcorp
also updated their proposed Marine Mammal Mitigation and Monitoring
Plan (4MP) on January 29, 2019.
To extract oil and gas in the Liberty Oil Field, Hilcorp is
proposing to construct a 9.3 acre artificial island (the LDPI) in 19
feet (ft) (5.8 meters (m)) of water in Foggy Island Bay, approximately
5 miles (mi) (8 kilometers (km)) north of the Kadleroshilik River and
install supporting infrastructure (e.g., ice roads, pipeline). Ice
roads would be constructed annually and begin December 2020. Island
construction, which requires impact and vibratory pile driving, is
proposed to commence and be completed in 2021. Pile driving would
primarily occur during ice-covered season (only ice seals are present
during this time period); however, up to two weeks of pile driving may
occur during the open-water season. Pipeline installation is
anticipated to occur in 2022. Drilling and production is proposed to
occur from 2022 through 2025.
Hilcorp requests, and NMFS is proposing to authorize, the take, by
Level A harassment and Level B harassment, of bowhead whales (Balaena
mysticetus), gray whales (Eschrichtius robustus), beluga whales
(Delphinapterus leucas), ringed seals (Phoca hispida), bearded seals
(Erignathus barbatus), and spotted seals (Phoca largha) incidental to
LDPI construction and operation activities (e.g., pile driving, ice
road and island construction). Hilcorp also requested, and NMFS is
proposing to authorize, mortality and serious injury of two ringed
seals incidental to annual ice road construction over a 5-year period.
The proposed regulations and LOA would be valid for five years from
December 1, 2020, through November 30, 2025.
Description of the Specified Activity
Overview
Hilcorp is proposing to construct and operate the LDPI, a self-
contained offshore drilling and production facility located on an
artificial gravel island. Infrastructure and facilities necessary to
drill wells and process and export approximately 60,000 to 70,000
barrels of oil per day to shore would be installed on the island. To
transport oil, a pipeline from the island would be installed, tying
into the existing Bandami pipeline located on shore between the
Sagavanirktok and Kadleroshilik Rivers on Alaska's North Slope. To
access the island and move vehicles and equipment, ice roads would be
constructed annually. All island construction and pipeline installation
would occur during winter months as much as possible; however, pile
driving and slope protection could occur during the open water season.
Drilling and production, once begun, would occur year round. After
island and pipeline construction, Hilcorp would commence and continue
drilling and production for approximately 20 to 25 years at which time
the island would be decommissioned. The proposed regulations and LOA
would cover the incidental take of marine mammals during LDPI
construction and operation for the first five years of work.
Thereafter, data collected during these five years (e.g., acoustic
monitoring during drilling, ice road marine mammal monitoring) would
determine
[[Page 24928]]
if future incidental take authorizations are warranted for continuing
operations.
Dates and Duration
The proposed regulations would be valid for a period of five years
from December 1, 2020, through November 30, 2025. Ice road construction
and pipeline installation would be limited to winter months. Island
construction would be conducted primarily during winter months;
however, given construction schedules are subject to delays for
multiple reasons. Hilcorp anticipates, at most, up to two weeks of
open-water pile driving may be required in the first year to complete
any pile driving not finished during the winter. Other work such as
island slope armoring may also occur during open-water conditions. All
island construction would commence and is expected to be completed in
the first year of the proposed regulations (December 2020 through
November 2021). Pipeline installation would occur in year 2 of the
proposed regulations (December 2021 through November 2022), while
drilling and production would begin in year 3 and continue through the
life of the proposed regulations. Ice road construction and maintenance
activities would occur each winter.
Specified Geographical Region
The Liberty field is located in Federal waters of Foggy Island Bay,
Beaufort Sea about 8.9 km (5.5 mi) offshore in 6.1 m (20 ft) of water
and approximately 8 to 13 km (5 to 8 mi) east of the existing Endicott
Satellite Drilling Island (SDI) and approximately 32 km (20 mi) east of
Prudhoe Bay. Hilcorp would construct the Liberty project on three
leases, OCS-Y-1650, OCS-Y-1886, and OCS-Y-1585. The proposed LDPI would
be constructed in 19 ft (5.8 m) of water about 5 mi (8 km) offshore in
Foggy Island Bay. The LDPI and all associated infrastructure (e.g., ice
roads) are located inside the McClure barrier island group which
separates Foggy Island Bay from the Beaufort Sea (Figure 1).
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Detailed Description of Activities
The Liberty Prospect is located 8.85 km offshore in about 6 m of
water, inside the Beaufort Sea's barrier islands. Hilcorp, as the
Liberty operator, is proposing to develop the Liberty Oil Field
reservoir, located on the Outer Continental Shelf (OCS), in Foggy
Island Bay, Beaufort Sea, Alaska. The Liberty reservoir is the largest
delineated but undeveloped light oil reservoir on the North Slope. It
is projected to deliver a peak production rate of between 60,000 and
70,000 barrels of oil per day within two years of initial production.
Total recovery over an estimated field life of 15 to 20 years is
predicted to be in the range of 80 to 150 million stock tank barrels of
oil. The Liberty Oil Field leases were previously owned by BP
Exploration Alaska, Inc. (BPXA). In April 2014, BPXA announced the sale
of several North Slope assets to Hilcorp including the area where the
proposed LDPI would be constructed and other existing oil production
islands (Northstar, Endicott, Milne Point). The Liberty Project has
many similarities to previous oil and gas islands constructed on the
North Slope, including Endicott, Northstar and Oooguruk.
The proposed LDPI project includes development of a mine-site to
supply gravel for the construction of the LDPI, construction of the
island and annual ice roads, installation of an undersea pipeline that
reaches shore from the LDPI and then connects to the existing above-
ground Badami pipeline, drilling, production and operation (for
simplicity, hence forward we refer to both production and operation as
``production''). The mine site is located inland of marine mammal
habitat over which NMFS has jurisdiction; therefore, its development
will not be discussed further in this proposed rule as no impacts to
marine mammals under NMFS jurisdiction would be affected by this
project component. Here, we discuss those activities that have the
potential to take marine mammals: Ice road construction and
maintenance, island construction (pile driving and slope armoring),
pipeline installation, drilling and production. We also describe
auxiliary activities, including vessel and aircraft transportation. A
schedule of all phases on the project and summary of equipment and
activities involved are included in Table 1.
Table 1--LDPI Project Components, Schedule, and Associated Equipment
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Regulation
Project component year Season Equipment and activity
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Ice road construction, use, and 1-5 Ice-covered.............. Grader, ice auger, trucks
maintenance. (flood road, haul gravel,
general transit,
maintenance).
Island construction................... * 1 Ice-covered, open water.. Impact and vibratory pile and
pipe driving, backhoe
(digging), excavator (slope
shaping, armor installation,
ditchwitch (sawing ice).
Pipeline installation................. 2 Ice-covered.............. Ditchwitch (sawing ice),
backhoe (digging), trucks.
Drilling and production............... 3-5 Ice-covered, open water.. Drill rig, land-based
equipment on island (e.g.,
generators).
Marine vessel and aircraft support.... 1-5 Open-water, ice-covered Barge, tugs, crew boats,
(helicopter only). helicopter.
Emergency and oil response training... 1-5 Ice-covered, open water.. Vessels, hovercrafts, all-
terrain vehicles, snow
machines, etc.
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* Hilcorp has indicated a goal to complete all LDPI construction in the first year the regulations would be
valid; however, they may need to install foundation piles in year 2.
Ice Road and Ice Pad Construction and Maintenance
Hilcorp will construct ice roads and perform maintenance, as
necessary. Ice roads are a route across sea ice created by clearing and
grading snow then pumping seawater from holes drilled through the
floating ice. Some roads may use grounded ice. Hilcorp would clear away
snow using a tractor, bulldozer, or similar piece of equipment then
pump seawater from holes drilled through floating ice, and then flood
the ice road. The ice roads will generally be constructed by pumper
units equipped with an ice auger to drill holes in the sea ice and then
pump water from under the ice to flood the surface of the ice. The ice
augers and pumping units will continue to move along the ice road
alignment to flood the entire alignment, returning to a previous area
as soon as the flooded water has frozen. The ice road will be
maintained and kept clean of gravel and other solids. Freshwater can be
sprayed onto the road surface to form a cap over the main road
structure for the top layer or to repair any cracks.
Ice roads will be used for onshore and offshore access, installing
the pipeline, hauling gravel used to construct the island, moving
equipment on/off island, personnel and supply transit, etc. Ice roads
are best constructed when weather is -20 degrees Fahrenheit (F) to -30
degrees F, but temperatures below 0 degree F are considered adequate
for ice road construction. Ice road construction can typically be
initiated in mid- to late-December and roads maintained until mid-May.
At the end of the season, ice roads will be barricaded by snow berm
and/or slotted at the entrance to prevent access and allowed to melt
naturally. Figure 1 shows the locations of the proposed ice roads.
Ice road # 1 will extend approximately 11.3 km (7 mi) over
shorefast sea ice from the Endicott SDI to the LDPI (the SDI to LDPI
ice road). It will be approximately 37 m wide (120 ft) with driving
lane of approximately 12 m (40 ft). It would cover approximately 160
acres of sea ice.
Ice road # 2 (approximately 11.3 km (7 mi)) will connect
the LDPI to the proposed Kadleroshilik River gravel mine site and then
will continue to the juncture with the Badami ice road (which is ice
road # 4). It will be approximately 15 m (50 ft) wide.
Ice road # 3 (approximately 9.6 km [6 mi], termed the
``Midpoint Access Road'') will intersect the SDI to LDPI ice road and
the ice road between the LDPI and the mine site. It will be
approximately 12 m (40 ft) wide.
Ice road # 4 (approximately 19.3 km (12 mi)), located
completely onshore, will parallel the Badami pipeline and connect the
mine site with the Endicott road.
All four ice roads would be constructed for the first three years
to support pipeline installation and transportation from existing North
Slope roads to the proposed gravel mine site, and from the mine site to
the proposed LDPI location in the Beaufort Sea. After year 3, only ice
road #1 would be constructed to allow additional materials and
equipment to be
[[Page 24930]]
mobilized to support LDPI, pipeline, and facility construction
activities as all island construction and pipeline installation should
be complete by year 3. Winter sea ice road/trail construction will
begin as early as possible (typically December 1 through mid-February).
It is anticipated that all ice road construction activities will be
initiated prior to March 1, before the time when female ringed seals
establish birth lairs.
In addition to the ice roads, three ice pads are proposed to
support construction activities (year 2 and 3). These would be used to
support LDPI, pipeline, (including pipe stringing and two stockpile/
disposal areas) and facilities construction. A fourth staging area ice
pad (approximately 350 feet by 700 feet) would be built on the sea ice
on the west side of the LDPI during production well drilling
operations.
Other on-ice activities occurring prior to March 1 could also
include spill training exercises, pipeline surveys, snow clearing, and
work conducted by other snow vehicles such as a Pisten Bully, snow
machine, or rollagon. Prior to March 1, these activities could occur
outside of the delineated ice road/trail and shoulder areas.
LDPI Construction
The LDPI will include a self-contained offshore drilling and
production facility located on an artificial gravel island with a
subsea pipeline to shore. The LDPI will be located approximately 8
kilometers (km) or 5 miles (mi) offshore in Foggy Island Bay and 11.7
km (7.3 mi) southeast of the existing SDI on the Endicott causeway (see
Figure 1). The LDPI will be constructed of reinforced gravel in 5.8
meters (m) (19 feet (ft)) of water and have a working surface of
approximately 3.8 hectares (ha) (9.3 acres (ac)). A steel sheet pile
wall would surround the island to stabilize the placed gravel and the
island would include slope protection bench, dock and ice road access
and a seawater intake area (Figure 2).
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Hilcorp would begin constructing the LDPI during the winter
immediately following construction of the ice road from the mine site
to the island location. Sections of sea ice at the island's location
would be cut using a ditchwitch and removed. A backhoe and support
trucks using the ice road would move ice away. Once the ice is removed,
gravel will be poured through the water column to the sea floor,
building the island structure from the bottom up. A conical pile of
gravel (hauled in from trucks from the mine site using the ice road)
will form on the sea floor until it reaches the surface of the ice.
Gravel hauling over the ice road to the LDPI construction site is
estimated to continue for 50 to 70 days, and conclude mid-April or
earlier depending on road conditions. The construction would continue
with a sequence of removing additional ice and pouring gravel until the
surface size is achieved. Following gravel placement, slope armoring
and protection installation would occur. Using island-based equipment
(e.g., backhoe, bucket-dredge) and divers, Hilcorp would create a slope
protection profile consisting of a 60-ft (18.3 m) wide bench covered
with a linked concrete mat that
[[Page 24931]]
extends from a sheet pile wall surrounding the island to slightly above
mean low low water (MLLW) (Figure 3). The linked concrete mat requires
a high strength, yet highly permeable woven polyester fabric under
layer to contain the gravel island fill. The filter fabric panels will
be overlapped and tied together side-by-side (requiring diving
operations) to prevent the panels from separating and exposing the
underlying gravel fill. Because fabric is overlapped and tied together,
no slope protection debris would enter the water column should it be
damaged. Above the fabric under layer, a robust geo-grid will be placed
as an abrasion guard to prevent damage to the fabric by the linked mat
armor. The concrete mat system would continue another at a 3:1 slope
another 86.5 ft into the water, terminating at a depth of -19 ft (-5.8
m). In total, from the sheet pile wall, the bench and concrete mat
would extend 146.5 ft. Island slope protection is required to assure
the integrity of the gravel island by protecting it from the erosive
forces of waves, ice ride-up, and currents. A detailed inspection of
the island slope protection system will be conducted annually during
the open-water season to document changes in the condition of the
island slope protection system that have occurred since the previous
year's inspection. Any damaged material would be removed. Above-water
activities will consist of a visual inspection of the dock and sheet
pile enclosure, and documenting the condition of the island bench and
ramps. The below-water slopes will be inspected by divers or if water
clarity allows, remotely by underwater cameras contracted separately by
Hilcorp. The results of the below water inspection will be recorded for
repair if needed. No vessels will be required. Multi-beam bathymetry
and side-scan sonar imagery of the below-water slopes and adjacent sea
bottom will be acquired using a bathymetry vessel. The sidescan sonar
would operate at a frequency between 200-400 kilohertz (kHz). The
single-beam echosounder would operate at a frequency of about 210 kHz.
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Once the slope protection is in place, Hilcorp would install the
sheet pile wall around the perimeter of the island using vibratory and,
if necessary, impact hammers. Hilcorp anticipates driving up to 20
piles per day to a depth of 25 ft. A vibratory hammer would be used
first followed by an impact hammer to ``proof'' the pile. Hilcorp
anticipates each pile needing 100 hammer strikes over approximately 2
minutes of impact driving to obtain final desired depth for each sheet
pile. Per day, this equates to a maximum of 40 minutes and 2,000
strikes of impact hammering per day. For vibratory driving, pile
penetration speed can vary depending on ground conditions, but a
minimum sheet pile penetration speed is 20 inches (0.5 m) per minute to
avoid damage to pile or hammer (NASSPA 2005). For this project, the
anticipated duration is based on a preferred penetration speed greater
than 40 inches (1 m) per minute, resulting in 7.5 minutes to drive each
pile. Given the high storm surge and larger waves that are expected to
arrive at the LDPI site from the west and northwest, the wall will be
higher on the west side than on the east side. At the top of the sheet-
pile wall, overhanging steel ``parapet'' will be installed to prevent
wave passage over the wall.
[[Page 24932]]
Within the interior of the island, 16 steel conductor pipes would
be driven to a depth of 160 ft (49 m) to provide the initial stable
structural foundation for each oil well. They would be set in a well
row in the middle of the island. Depending on the substrate the
conductor pipes would be driven by impact or vibratory methods or both.
During construction of the nearby Northstar Island (located in deeper
water), it took 5 to 8.5 hours to drive one conductor pipe (Blackwell
et al., 2004). For the Liberty LDPI, Hilcorp anticipates it would take
two hours of active pile driving per day to install a conductor pipe
given the 5 to 8.5 hour timeframe at Northstar includes pauses in pile
driving and occurred in deeper water requiring deeper pile depths. In
addition, approximately 700 to 1,000 foundation piles may also be
installed within the interior of the island should engineering
determine they are necessary for island support.
Pipeline Installation
Hilcorp would install a pipe-in-pipe subsea pipeline consisting of
a 12-in diameter inner pipe and a 16-in diameter outer pipe to
transport oil from the LDPI to the existing Bandami pipeline. Pipeline
construction is planned for the winter after the island is constructed.
A schematic of the pipeline can be found in Figure 2-3 of BOEM's Final
EIS available at https://www.boem.gov/Hilcorp-Liberty/. The pipeline
will extend from the LDPI, across Foggy Island Bay, and terminate
onshore at the existing Badami Pipeline tie-in location. For the marine
segment, construction will progress from shallower water to deeper
water with multiple construction spreads.
To install the pipeline, a trench will be excavated using ice-road
based long reach excavators with pontoon tracks. The pipeline bundle
will be lowered into the trench using side booms to control its
vertical and horizontal position, and the trench will be backfilled by
excavators using excavated trench spoils and select backfill. Hilcorp
intends to place all material back in the trench slot. All work will be
done from ice roads using conventional excavation and dirt-moving
construction equipment. The target trench depth is 9 to 11 ft (2.7 to
3.4 m) with a proposed maximum depth of cover of approximately 7 ft
(2.1 m). The pipeline will be approximately 5.6 mi (9 km) long. Hydro-
testing (pressure testing using sea water) of the entire pipeline will
be completed prior to commissioning.
Drilling and Production
The final drill rig has yet to be chosen by Hilcorp but has been
narrowed to two options and will accommodate drilling of 16 wells. The
first option is the use of an existing platform-style drilling unit
that Hilcorp owns and operates in the Cook Inlet. Designated as Rig
428, the rig has been used recently and is well suited in terms of
depth and horsepower rating to drill the wells at Liberty. A second
option that is being investigated is a new build drilling unit that
would be built to not only drill Liberty development wells, but would
be more portable and more adaptable to other applications on the North
Slope. Regardless of drill rig type, the well row arrangement on the
island is designed to accommodate up to 16 wells. We note that while
Hilcorp is proposing a 16 well design, only 10 wells would be drilled.
The 6 additional well slots would be available as backups or for
potential in-fill drilling if needed during the project life.
Process facilities on the island will separate crude oil from
produced water and gas. Gas and water will be injected into the
reservoir to provide pressure support and increase recovery from the
field. A single-phase subsea pipe-in-pipe pipeline will transport
sales-quality crude from the LDPI to shore, where an aboveground
pipeline will transport crude to the existing Badami pipeline. From
there, crude will be transported to the Endicott Sales Oil Pipeline,
which ties into Pump Station 1 of the TransAlaska Pipeline System
(TAPS) for eventual delivery to a refinery.
Description of Marine Mammals in the Area of the Specified Activity
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' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (www.nmfs.noaa.gov/pr/species/mammals/). Additional information
may be found in BOEM's Final EIS for the project which is available
online at https://www.boem.gov/Hilcorp-Liberty/.
Table 2 lists all species with expected potential for occurrence in
Foggy Island Bay and surrounding Beaufort Sea 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 (2016). 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' SARs). 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.
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' 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' U.S. 2017 SAR for Alaska (Muto et al., 2018). 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).
[[Page 24933]]
Table 2--Marine Mammals With Expected Potential Occurrence in Beaufort Sea, Alaska
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 Eschrichtiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale.......................... Eschrichtius robustus.. Eastern North Pacific.. -;N 20,990 (0.05, 20,125, 624 132
2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bowhead whale....................... Balaena mysticetus..... Western Arctic......... E/D; Y 16,820 (0.052, 16,100, 161 46
2011).
Humpback whale...................... Megaptera novaeangliae. Central North Pacific E/D; Y 10,103 (0.3, 7,891, 83 26
Stock. 2006).
Minke whale......................... ....................... Alaska................. -;N unk................... undet 0
Fin whale........................... ....................... Northeast Pacific...... E/D; Y 3,168 (0.26, 2,554, 5.1 0.6
2013) \6\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beluga whale........................ Delphinapterus leucas.. Beaufort Sea........... -; N 39,258 (0.229, N/A, Und 139
1992).
....................... Eastern Chukchi........ -; N 20,752 (0.70, 12,194, 244 67
2012).
Killer whale........................ Orcinus orcas.......... Eastern North Pacific -;N 587 (n/a, 587, 2012).. 5.9 0
Gulf of Alaska,
Aleutian Islands, and
Bering Sea Transient.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steller sea lion.................... Eumatopias jubatus..... Eastern U.S............ -; N 41,638 (-, 41,638, 2,498 108
2015).
....................... Western U.S............ E/D;Y 53,303 (-, 53,303, 320 241
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ringed Seal......................... Pusa hispida........... Alaska................. T, D; Y 170,000 (-, 170,000, Und 1,054
2012) \4\.
Bearded seal........................ Erignathus barbatus.... Alaska................. T, D; Y 299,174 (-, 273,676) Und 391
\5\.
Spotted seal........................ Phoca largha........... Alaska................. .................. 423,625 (-, 423,237, 12,697 329
2013).
Ribbon seal......................... Histriophoca fasciata.. Alaska................. .................. 184,000 (-, 163,086, 9,785 3.9
2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
stock abundance.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
subsistence use, commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum
value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The population provided here was derived using a using a very limited sub-sample of the data collected from the U.S. portion of the Bering Sea in
2012 (Conn et al., 2014). Thus, the actual number of ringed seals in the U.S. sector of the Bering Sea is likely much higher, perhaps by a factor of
two or more (Muto et al., 2018). Reliable estimates of abundance are not available for the Chukchi and Beaufort seas (Muto et al., 2018).
\5\ 5. In spring of 2012 and 2013, surveys were conducted in the Bering Sea and Sea of Okhotsk; these data do not include seals in the Chukchi and
Beaufort Seas at the time of the survey.
\6\ NBEST, NMIN, and PBR have been calculated for this stock; however, important caveats exist. See Stock Assessment Report text for details.
Note--Italicized species are not expected to be taken or proposed for authorization.
All species that could potentially occur in the Beaufort Sea are
included in Table 2. However, the temporal and/or spatial occurrence of
minke, fin, humpback whales, killer whales, narwhals, harbor porpoises,
and ribbon seals are such that take is not expected to occur, and they
are not discussed further beyond the explanation provided here. These
species, regularly occur in the Chukchi Sea but not as commonly in the
Beaufort Sea. Narwhals, Steller sea lions, and hooded seals are
considered extralimital to the proposed action area These species could
occur in the Beaufort Sea, but are either uncommon or extralimital east
of Barrow (located in the Foggy Island Bay area and surveys within the
Bay have revealed zero sightings).
In addition, the polar bear may be found in Foggy Island Bay.
However, this species is managed by the U.S. Fish and Wildlife Service
and is not considered further in this document.
On October 11, 2016, NOAA released the Final Environmental Impact
Statement (FEIS) for the Effects of Oil and Gas Activities in the
Arctic Ocean (81 FR 72780, October 21, 2016) regarding geological and
geophysical (i.e., seismic) activities, ancillary activities, and
exploratory drilling. The Final EIS may be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/environmental-impact-statement-eis-effects-oil-and-gas-activities. Although no
seismic activities are proposed by Hilcorp, the EIS contains detailed
[[Page 24934]]
information on marine mammal species proposed to be potentially taken
by Hilcorp's specified activities. More recently, BOEM released a final
EIS on the Liberty Project. We incorporate by reference the information
on the species proposed to be potentially taken by Hilcorp's specified
activities from these documents and provide a summary and any relevant
updates on species status here.
Bowhead Whale
The only bowhead whale stock found within U.S. waters is the
Western Arctic stock, also known as the Bering-Chukchi-Beaufort stock
(Rugh et al., 2003) or Bering Sea stock (Burns et al., 1993). The
majority of the Western Arctic stock migrates annually from wintering
areas (December to March) in the northern Bering Sea, through the
Chukchi Sea in the spring (April through May), to the eastern Beaufort
Sea where they spend much of the summer (June through early to mid-
October) before returning again to the Bering Sea in the fall
(September through December) to overwinter (Braham et al., 1980, Moore
and Reeves 1993, Quakenbush et al., 2010a, Citta et al., 2015). Some
bowhead whales are found in the western Beaufort, Chukchi, and Bering
seas in summer, and these are thought to be a part of the expanding
Western Arctic stock (Rugh et al., 2003; Clarke et al., 2013, 2014,
2015; Citta et al., 2015). The most recent population parameters (e.g.,
abundance, PBR) of western Arctic bowhead whales are provided in Table
2.
Bowhead whale distribution in the Beaufort Sea during summer-fall
has been studied by aerial surveys through the Bowhead Whale Aerial
Survey Project (BWASP). This project was funded or contracted by the
Minerals Management Service (MMS)/Bureau of Ocean Energy Management
(BOEM) and Bureau of Land Management (BLM) annually from 1979 to 2010.
The focus of the BWASP aerial surveys was the autumn migration of
bowhead whales through the Alaskan Beaufort Sea, although data were
collected on all marine mammals sighted. The NMFS National Marine
Mammal Laboratory (NMML) began coordinating BWASP in 2007, with funding
from MMS. In 2011, an Interagency Agreement between the BOEM and NMML
combined BWASP with COMIDA under the auspices of a single survey called
Aerial Surveys of Arctic Marine Mammals (ASAMM) (Clarke et al., 2012);
both studies are funded by BOEM. In September to mid-October bowheads
begin their western migration out of the Canadian Beaufort Sea to the
Chukchi Sea (Figure 3.2-10). Most westward travel across the Beaufort
Sea by tagged whales was over the shelf, within 100 km (62 mi) of
shore, although a few whales traveled farther offshore (Quakenbush et
al., 2012).
During winter and spring, bowhead whales are closely associated
with sea ice (Moore and Reeves 1993, Quakenbush et al., 2010a, Citta et
al., 2015). The bowhead whale spring migration follows fractures in the
sea ice around the coast of Alaska, generally in the shear zone between
the shorefast ice and the mobile pack ice. During summer, most of the
population is in relatively ice-free waters in the southeastern
Beaufort Sea (Citta et al., 2015), an area often exposed to industrial
activity related to petroleum exploration (e.g., Richardson et al.,
1987, Davies, 1997). Summer aerial surveys conducted in the western
Beaufort Sea during July and August of 2012-2014 have had relatively
high sighting rates of bowhead whales, including cows with calves and
feeding animals (Clarke et al., 2013, 2014, 2015). During the autumn
migration through the Beaufort Sea, bowhead whales generally select
shelf waters (Citta et al., 2015). In winter in the Bering Sea, bowhead
whales often use areas with ~100 percent sea-ice cover, even when
polynyas are available (Quakenbush et al., 2010a, Citta et al., 2015).
From 2006 through 2014, median distance of bowhead whales from
shore was 23.6 km (14.7 mi) in the East Region and 24.2 km (15.0 mi) in
the West Region during previous low-ice years, with annual median
distances ranging from as close as 6.3 km (3.9 mi) in 2009 to 37.6 km
(23.4 mi) in 2013 (Clarke et al., 2015b). Median depth of sightings
during previous low-ice years was 39 m (128 ft) in the East Region and
21 m (69 ft) in the West Region; in 2014, median depth of on-transect
sightings was 20 m (66 ft) and 19 m (62 ft), respectively (Clarke et
al., 2015b). In September and October 2014, bowhead whales in the East
Region of the study area were sighted in shallower water and closer to
shore than in previous years of light sea ice cover; in the West
Region, bowhead sightings in fall 2014 were in shallower water than in
previous light ice years, but the distance from shore did not differ
(Clarke et al., 2015b). Behaviors included milling, swimming, and
feeding, to a lesser degree. Highest numbers of sightings were in the
central Beaufort Sea and east of Point Barrow. Overall, the most
shoreward edge of the bowhead migratory corridor for bowhead extends
approximately 40 km (25 mi) north from the barrier islands, which are
located approximately 7 km (4 mi) north of Liberty Project. The closest
approach of a tagged whale occurred in August 2016 when it came within
16 km of the proposed LDPI (Quakenbush, 2018).
Historically, there have been few spring, summer, or autumn
observations of bowheads in larger bays such as Camden, Prudhoe, and
Harrison Bays, although some groups or individuals have occasionally
been observed feeding around the periphery of or, less commonly, inside
the bays as migration demands and feeding opportunities permit.
Observations indicate that juvenile, sub-adult, and cow-calf pairs of
bowheads are the individuals most frequently observed in bays and
nearshore areas of the Beaufort, while more competitive whales are
found in the Canadian Beaufort and Barrow Canyon, as well as deeper
offshore waters (Clarke et al., 2011b, 2011c, 2011d, 2012, 2013, 2014,
2015b; Koski and Miller, 2009; Quakenbush et al., 2010).
Clarke et al. (2015) evaluated biologically important areas (BIAs)
for bowheads in the U.S. Arctic region and identified nine BIAs. The
spring (April-May) migratory corridor BIA for bowheads is far offshore
of the LDPI but within the transit portion of the action area, while
the fall (September-October) migratory corridor BIA (western Beaufort
on and north of the shelf) for bowheads is further inshore and closer
to the LDPI. Clarke et al. (2015) also identified four BIAs for
bowheads that are important for reproduction and encompassed areas
where the majority of bowhead whales identified as calves were observed
each season; none of these reproductive BIAs overlap with the LDPI, but
may be encompassed in indirect areas such as vessel transit route.
Finally, three bowhead feeding BIAs were identified. Again, there is no
spatial overlap of the activity area with these BIAs.
From July 8, 2008, through August 25, 2008, BPXA conducted a 3D
seismic survey in the Liberty Prospect, Beaufort Sea. During the August
survey a mixed-species group of whales was observed in one sighting
near the barrier islands that included bowhead and gray whales (Aerts
et al., 2008). This is the only known survey sighting of bowhead whales
within Foggy Island Bay despite industry surveys occurring during the
open water season in 2010, 2014, and 2015 and NMFS aerial surveys flown
inside Foggy Island Bay in 2016 and 2017.
Alaska Natives have been taking bowhead whales for subsistence
purposes for at least 2,000 years (Marquette and Bockstoce, 1980,
Stoker
[[Page 24935]]
and Krupnik, 1993). Subsistence takes have been regulated by a quota
system under the authority of the IWC since 1977. Alaska Native
subsistence hunters, primarily from 11 Alaska communities, take
approximately 0.1-0.5 percent of the population per annum (Philo et
al., 1993, Suydam et al., 2011). The average annual subsistence take
(by Natives of Alaska, Russia, and Canada) during the 5-year period
from 2011 through 2015 is 43 landed bowhead whales (Muto et al., 2018).
Gray Whale
The eastern North Pacific population of gray whales migrates along
the coasts of eastern Siberia, North America, and Mexico (Allen and
Angliss 2010; Weller et al., 2002) and population size has been
steadily increasing, potentially reaching carrying capacity (Allen and
Angliss, 2010, 2012). Abundance estimates will likely rise and fall in
the future as the population finds a balance with the carrying-capacity
of the environment (Rugh et al., 2005). The steadily increasing
population abundance warranted delisting of the eastern North Pacific
gray whale stock in 1994, as it was no longer considered endangered or
threatened under the ESA (Rugh et al., 1999). A five-year status review
determined that the stock was neither in danger of extinction nor
likely to become endangered in the foreseeable future, thus, retaining
the non-threatened classification (Rugh et al., 1999). Table 2 provided
population parameters for this stock.
The gray whale migration may be the longest of any mammalian
species. They migrate over 8,000 to 10,000 km (5,000 to 6,200 mi)
between breeding lagoons in Mexico and Arctic feeding areas each spring
and fall (Rugh et al., 1999). The southward migration out of the
Chukchi Sea generally begins during October and November, passing
through Unimak Pass in November and December, then continues along a
coastal route to Baja California (Rice et al., 1984). The northward
migration usually begins in mid-February and continues through May
(Rice et al. 1984).
Gray whales are the most coastal of all the large whales and
inhabit primarily inshore or shallow, offshore continental shelf waters
(Jones and Swartz, 2009); however, they are more common in the Chukchi
than in the Beaufort Sea. Throughout the summers of 2010 and 2011, gray
whales regularly occurred in small groups north of Point Barrow and
west of Barrow (George et al., 2011; Shelden et al., 2012). In 2011,
there were no sightings of gray whales east of Point Barrow during
ASAMM aerial surveys (Clarke et al., 2012); however, they were observed
east of Point Barrow, primarily in the vicinity of Barrow Canyon, from
August to October 2012 (Clarke et al., 2013). Gray whales were again
observed east of Point Barrow in 2013, with all sightings in August
except for one sighting in late October (Clarke et al., 2014). In 2014,
sightings in the Beaufort Sea included a few whales east of Point
Barrow and one north of Cross Island near Prudhoe Bay (Clarke et al.,
2015b). Gray whales prefer shoal areas (<60 m (197 ft) deep) with low
(<7 percent) ice cover (Moore and DeMaster, 1997). These areas provide
habitat rich in gray whale prey (amphipods, decapods, and other
invertebrates).
From July 8, 2008 through August 25, 2008, BPXA conducted a 3D
seismic survey in the Liberty Prospect, Beaufort Sea. During the August
survey a mixed-species group of whales was observed in one sighting
near the barrier islands that included bowhead and gray whales (Aerts
et al., 2008). This is the only known survey sighting of gray whales
within Foggy Island Bay despite industry surveys occurring during the
open water season in 2010, 2014, and 2015 and NMFS aerial surveys flown
inside Foggy Island Bay in 2016 and 2017.
Beluga Whale
Five beluga whale stocks are present in Alaska including the Cook
Inlet, Bristol Bay, eastern Bering Sea, eastern Chukchi Sea, and
Beaufort Sea stocks (O'Corry-Crowe et al., 1997, Allen and Angliss,
2015). The eastern Chukchi and Beaufort Sea stocks are thought to
overlap in the Beaufort Sea. Both stocks are closely associated with
open leads and polynyas in ice-covered regions throughout Arctic and
sub-Arctic waters of the Northern Hemisphere. Distribution varies
seasonally. Whales from both the Beaufort Sea and eastern Chukchi Sea
stocks overwinter in the Bering Sea. Belugas of the eastern Chukchi may
winter in offshore, although relatively shallow, waters of the western
Bering Sea (Richard et al., 2001), and the Beaufort Sea stock may
winter in more nearshore waters of the northern Bering Sea (R. Suydam,
pers. comm. 2012c). In the spring, belugas migrate to coastal
estuaries, bays, and rivers. Annual migrations may cover thousands of
kilometers (Allen and Angliss, 2010, 2012a).
Satellite telemetry data from 23 whales tagged in Kaseguluk Lagoon
in 1998 through 2002 provided information on movements and migrations
of eastern Chukchi Sea belugas. Animals initially traveled north and
east into the northern Chukchi and western Beaufort seas after capture
(Suydam et al., 2001, 2005). Movement patterns between July and
September vary by age and/or sex classes. Adult males frequent deeper
waters of the Beaufort Sea and Arctic Ocean (79-80[deg] N), where they
remain throughout the summer. Immature males moved farther north than
immature females but not as far north as adult males. All of the
belugas frequented water deeper than 200 m (656 ft) along and beyond
the continental shelf break. Use of the inshore waters within the
Beaufort Sea Outer Continental Shelf lease sale area was rare (Suydam
et al., 2005).
Most information on distribution and movements of belugas of the
Beaufort Sea stock was similarly derived using satellite tags. A total
of 30 belugas were tagged in the Mackenzie River Delta, Northwest
Territories, Canada, during summer and autumn in 1993, 1995, and 1997
(Richard et al., 2001). Approximately half of the tagged whales
traveled far offshore of the Alaskan coastal shelf, while the remainder
traveled on the shelf or near the continental slope (Richard et al.,
2001). Migration through Alaskan waters lasted an average of 15 days.
In 1997, all of the tagged belugas reached the western Chukchi Sea
(westward of 170[deg] W) between September 15 and October 9. Overall,
the main fall migration corridor for beluga whales is believed to be
approximately 62 mi (100 km) north of the Project Area (Richard et al.,
1997, 2001). Both the spring (April-May) and fall (September-October)
migratory corridor BIAs for belugas are far north of the proposed
action area because sightings of belugas from aerial surveys in the
western Beaufort Sea are primarily on the continental slope, with
relatively few sightings on the shelf (Clarke et al., 2015). No
reproductive and feeding BIAs exist for belugas in the action area
(Clarke et al., 2015).
O'Corry et al. (2018) studied genetic marker sets in 1,647 beluga
whales. The data set was from over 20 years and encompassed all of the
whales' major coastal summering regions in the Pacific Ocean. The
genetic marker analysis of the migrating whales revealed that while
both the wintering and summering areas of the eastern Chukchi Sea and
eastern Beaufort Sea subpopulations may overlap, the timing of spring
migration differs such that the whales hunted at coastal sites in
Chukotka, the Bering Strait (i.e., Diomede), and northwest Alaska
(i.e., Point Hope) in the spring and off of Alaska's Beaufort Sea coast
in summer were predominantly from the eastern Beaufort Sea population.
Earlier genetic investigations and recent telemetry
[[Page 24936]]
studies show that the spring migration of eastern Beaufort whales
occurs earlier and through denser sea ice than eastern Chukchi Sea
belugas. The discovery that a few individual whales found at some of
these spring locations had higher likelihood of having eastern Chukchi
Sea ancestry or being of mixed-ancestry, indicates that the Bering
Strait region is also an area where the stock mix in spring. Citta et
al. (2016) also observed that tagged eastern Beaufort Sea whales
migrated north in spring through the Bering Strait earlier than the
eastern Chukchi belugas so they had to pass through the latter's
primary wintering area. Therefore, the eastern Chukchi stock should not
be present in the action area at any time in general, but especially
during summer-late fall, when the beluga exposures would be anticipated
for this project. Therefore, we assume all belugas impacted by the
proposed project are from the Beaufort Sea stock.
Beluga whales were regularly sighted during the September-October
BWASP and the more recent ASAMM aerial surveys of the Alaska Beaufort
Sea coast. Burns and Seaman (1985) suggest that beluga whales are
strongly associated with the ice fringe and that the route of the
autumn migration may be mainly determined by location of the drift ice
margin. Relatively few beluga whales have been observed in the
nearshore areas (on the continental shelf outside of the barrier
islands) of Prudhoe Bay. However, groups of belugas have been detected
nearshore in September (Clarke et al., 2011a) and opportunistic
sightings have been recorded from Northstar Island and Endicott. These
sightings are part of the fall migration which generally occurs farther
offshore although a few sightings of a few individuals do occur closer
to the shore, and occasionally inside the barrier islands of Foggy
Island Bay. During the 2008 seismic survey in Foggy Island Bay, three
sightings of eight individuals were observed at a location about 3 mi
(4.8 km) east of the Endicott Satellite Drilling Island (Aerts et al.,
2008). In 2014, during a BPXA 2D HR shallow geohazard survey in July
and August, PSOs recorded eight groups of approximately 19 individual
beluga whales, five of which were juveniles (Smultea et al., 2014).
During the open water season July 9 through July 19, 2015, five
sightings of belugas occurred (Cate et al., 2015). Also in 2015,
acoustic monitoring was conducted in Foggy Island Bay between July 6
and September 22, 2015, to characterize ambient sound conditions and to
determine the acoustic occurrence of marine mammals near Hilcorp's
Liberty Prospect in Foggy Island Bay (Frouin-Jouy et al., 2015). Two
recorders collected underwater sound data before, during, and after
Hilcorp's 2015 geohazard survey (July 6-Sept. 22). Detected marine
mammal vocalizations included those from beluga whales and pinnipeds.
Belugas were detected on five days by passive-recorders inside the bay
during the three-month survey period (Frouin-Jouy et al., 2015). During
the 2016 and 2017 ASAMM surveys flown inside Foggy Island Bay, no
belugas were observed. Beluga whales are the cetacean most likely to be
encountered during the open-water season in Foggy Island Bay, albeit
few in abundance.
Ringed Seal
One of five Arctic ringed seal stocks, the Alaska stock, occurs in
U.S. waters. The Arctic subspecies of ringed seals was listed as
threatened under the ESA on December 28, 2012, primarily due to
expected impacts on the population from declines in sea and snow cover
stemming from climate change within the foreseeable future (77 FR
76706). However, on March 11, 2016, the U.S. District Court for the
District of Alaska issued a decision in a lawsuit challenging the
listing of ringed seals under the ESA (Alaska Oil and Gas Association
et al. v. National Marine Fisheries Service, Case No. 4:14-cv-00029-
RRB). The decision vacated NMFS' listing of Arctic ringed seals as a
threatened species. However, on February 12, 2018, in Alaska Oil & Gas
Association v. Ross, Case No. 16-35380, the U.S. Court of Appeals for
the Ninth Circuit reversed the district court's 2016 decision. As such,
Arctic ringed seals remain listed as threatened under the ESA.
During winter and spring in the United States, ringed seals are
found throughout the Beaufort and Chukchi Seas; they occur in the
Bering Sea as far south as Bristol Bay in years of extensive ice
coverage. Most ringed seals that winter in the Bering and Chukchi Seas
are thought to migrate northward in spring with the receding ice edge
and spend summer in the pack ice of the northern Chukchi and Beaufort
Seas.
Ringed seals are resident in the Beaufort Sea year-round, and based
on results of previous surveys in Foggy Island Bay (Aerts et al., 2008,
Funk et al., 2008, Savarese et al., 2010, Smultea et al., 2014), and
monitoring from Northstar Island (Aerts and Richardson, 2009, 2010),
they are expected to be the most commonly occurring pinniped in the
action area year-round.
Ringed seals are present in the nearshore and sea ice year-round,
maintaining breathing holes and excavating subnivean lairs in the
landfast ice during the ice-covered season. Ringed seals overwinter in
the landfast ice in and around the LDPI action area. There is some
evidence indicating that ringed seal densities are low in water depths
of less than 3 m, where landfast ice extending from the shoreline
generally freezes to the sea bottom in very shallow waters during the
course of the winter (Moulton et al., 2002a, Moulton et al., 2002b,
Richardson and Williams, 2003). Ringed seals that breed on shorefast
ice may either forage within 100 km (62.1 mi) of their breeding habitat
or undertake extensive foraging trips to more productive areas at
distances of between 100-1,000 kilometers (Kelly et al., 2010b). Adult
Arctic ringed seals show site fidelity, returning to the same subnivean
site after the foraging period ends. Movements are limited during the
ice-bound months, including the breeding season, which limits their
foraging activities and may minimize gene flow within the species
(Kelly et al. 2010b). During April to early June (the reproductive
period), radio-tagged ringed seals inhabiting shorefast ice near
Prudhoe Bay had home range sizes generally less than 1,336 ac (500 ha)
in area (Kelly et al., 2005). Sub-adults, however, were not constrained
by the need to defend territories or maintain birthing lairs and
followed the advancing ice southward to winter along the Bering Sea ice
edge where there may be enhanced feeding opportunities and less
exposure to predation (Crawford et al., 2012). Sub-adult ringed seals
tagged in the Canadian Beaufort Sea similarly undertook lengthy
migrations across the continental shelf of the Alaskan Beaufort Sea
into the Chukchi Sea, passing Point Barrow prior to freeze-up in the
central Chukchi Sea (Harwood et al., 2012). Factors most influencing
seal densities during May through June in the central Beaufort Sea
between Oliktok Point and Kaktovik were water depth, distance to the
fast ice edge, and ice deformation. Highest densities of seals were at
depths of 5 to 35 m (16 to 144 ft) and on relatively flat ice near the
fast ice edge (Frost et al., 2004).
Sexual maturity in ringed seals varies with population status. It
can be as early as 3 years for both sexes and as late as 7 years for
males and 9 years for females. Ringed seals breed annually, with timing
varying regionally. Mating takes place while mature females are still
nursing their pups on the ice and
[[Page 24937]]
is thought to occur under the ice near birth lairs. In all subspecies
except the Okhotsk, females give birth to a single pup hidden from view
within a snow-covered birth lair. Ringed seals are unique in their use
of these birth lairs. Pups learn how to dive shortly after birth. Pups
nurse for 5 to 9 weeks and, when weaned, are four times their birth
weights. Ringed seal pups are more aquatic than other ice seal pups and
spend roughly half their time in the water during the nursing period
(Lydersen and Hammill, 1993). Pups are normally weaned before the
break-up of spring ice.
Ringed seals are an important resource for Alaska Native
subsistence hunters. Approximately 64 Alaska Native communities in
western and northern Alaska, from Bristol Bay to the Beaufort Sea,
regularly harvest ice seals (Ice Seal Committee, 2016). Based on the
harvest data from 12 Alaska Native communities, a minimum estimate of
the average annual harvest of ringed seals in 2009-2013 is 1,050 seals
(Muto et al., 2016).
Other sources of mortality include commercial fisheries and
predation by marine and terrestrial predators including polar bears,
arctic foxes, walrus, and killer whales. During 2010-2014, incidental
mortality and serious injury of ringed seals was reported in 4 of the
22 federally-regulated commercial fisheries in Alaska monitored for
incidental mortality and serious injury by fisheries observers: the
Bering Sea/Aleutian Islands flatfish trawl, Bering Sea/Aleutian Islands
pollock trawl, Bering Sea/Aleutian Islands Pacific cod trawl, and
Bering Sea/Aleutian Islands Pacific cod longline fisheries (Muto et
al., 2016). From May 1, 2011 to December 31, 2016, 657 seals, which
included 233 dead stranded seals, 179 subsistence hunted seals, and 245
live seals, stranded or were sampled during permitted health
assessments studies. Species involved were primarily ice seals
including ringed, bearded, ribbon, and spotted seals in northern and
western Alaska. The investigation identified that clinical signs were
likely due to an abnormality of the molt, but a definitive cause for
the abnormal molt was not determined.
Bearded Seal
Two subspecies of bearded seal have been described: E. b. barbatus
from the Laptev Sea, Barents Sea, North Atlantic Ocean, and Hudson Bay
(Rice 1998); and E. b. nauticus from the remaining portions of the
Arctic Ocean and the Bering and Okhotsk seas (Ognev, 1935, Scheffer,
1958, Manning, 1974, Heptner et al., 1976). On December 28, 2012, NMFS
listed two distinct population segments (DPSs) of the E. b. nauticus
subspecies of bearded seals--the Beringia DPS and Okhotsk DPS--as
threatened under the ESA (77 FR 76740). Similar to ringed seals, the
primary concern for these DPSs is the ongoing and projected loss of
sea-ice cover stemming from climate change, which is expected to pose a
significant threat to the persistence of these seals in the foreseeable
future (based on projections through the end of the 21st century;
Cameron et al., 2010). Similar to ringed seals, the ESA listing of the
Beringia and Okhotsk DPSs of bearded seal was challenged in the U.S.
District Court for the District of Alaska, and on July 25, 2014, the
court vacated NMFS' listing of those DPSs of bearded seals as
threatened under the ESA (Alaska Oil and Gas Association et al. v.
Pritzker, Case No. 4:13-cv-00018-RRB). However, the U.S. Court of
Appeals for the Ninth Circuit reversed the district court's 2016
decision on October 24, 2016 (Alaska Oil & Gas Association v. Pritzer,
Case No. 14-35806). As such, the Beringia and Okhotsk DPSs of bearded
seal remain listed as threatened under the ESA.
For the purposes of MMPA stock assessments, the Beringia DPS is
considered the Alaska stock of the bearded seal (Muto et al., 2016).
The Beringia DPS of the bearded seal includes all bearded seals from
breeding populations in the Arctic Ocean and adjacent seas in the
Pacific Ocean between 145[deg] E longitude (Novosibirskiye) in the East
Siberian Sea and 130[deg] W longitude in the Canadian Beaufort Sea,
except west of 157[deg] W longitude in the Bering Sea and west of the
Kamchatka Peninsula (where the Okhotsk DPS is found). They generally
prefer moving ice that produces natural openings and areas of open-
water (Heptner et al., 1976, Fedoseev, 1984, Nelson et al., 1984). They
usually avoid areas of continuous, thick, shorefast ice and are rarely
seen in the vicinity of unbroken, heavy, drifting ice or large areas of
multi-year ice (Fedoseev, 1965, Burns and Harbo, 1972, Burns and Frost,
1979, Burns, 1981, Smith, 1981, Fedoseev, 1984, Nelson et al., 1984).
Spring surveys conducted in 1999-2000 along the Alaska coast
indicate that bearded seals are typically more abundant 20-100 nautical
miles (nmi) from shore than within 20 nmi from shore, except for high
concentrations nearshore to the south of Kivalina (Bengtson et al.,
2005; Simpkins et al., 2003).
Although bearded seal vocalizations (produced by adult males) have
been recorded nearly year-round in the Beaufort Sea (MacIntyre et al.,
2013, MacIntyre et al., 2015), most bearded seals overwinter in the
Bering Sea. In addition, during late winter and early spring, Foggy
Island Bay is covered with shorefast ice and the nearest lead systems
are at least several kilometers away, making the area unsuitable
habitat for bearded seals. Therefore, bearded seals are not expected to
be encountered in or near the LDPI portion of the action area during
this time (from late winter through early spring).
During the open-water period, the Beaufort Sea likely supports
fewer bearded seals than the Chukchi Sea because of the more extensive
foraging habitat available to bearded seals in the Chukchi Sea. In
addition, as a result of shallow waters, the sea floor in Foggy Island
Bay south of the barrier islands is often scoured by ice, which limits
the presence of bearded seal prey species. Nevertheless, aerial and
vessel-based surveys associated with seismic programs, barging, and
government surveys in this area between 2005 and 2010 reported several
bearded seal sightings (Green and Negri, 2005, Green and Negri 2006,
Green et al., 2007, Funk et al., 2008, Hauser et al., 2008, Savarese et
al., 2010, Clarke et al., 2011, Reiser et al., 2011). In addition,
eight bearded seal sightings were documented during shallow geohazard
seismic and seabed mapping surveys conducted in July and August 2014
(Smultea et al., 2014). Frouin-Mouy et al. (2016) conducted acoustic
monitoring in Foggy Island Bay from early July to late September 2014,
and detected pinniped vocalizations on 10 days via the nearshore
recorder and on 66 days via the recorder farther offshore. Although the
majority of these detections were unidentified pinnipeds, bearded seal
vocalizations were positively identified on two days (Frouin-Mouy et
al., 2016).
Bearded seals are an important resource for Alaska Native
subsistence hunters. Approximately 64 Alaska Native communities in
western and northern Alaska, from Bristol Bay to the Beaufort Sea,
regularly harvest ice seals (Ice Seal Committee, 2016). However, during
2009-2013, only 12 of 64 coastal communities were surveyed for bearded
seals; and, of those communities, only 6 were surveyed for two or more
consecutive years (Ice Seal Committee, 2016). Based on the harvest data
from these 12 communities (Table 2), a minimum estimate of the average
annual harvest of bearded seals in 2009-2013 is 390 seals. Harvest
surveys are designed to estimate harvest within the surveyed community,
but because of differences in seal availability, cultural hunting
practices, and environmental
[[Page 24938]]
conditions, extrapolating harvest numbers beyond that community is not
appropriate (Muto et al., 2016).
Of the 22 federally-regulated U.S. commercial fisheries in Alaska
monitored for incidental mortality and serious injury by fisheries
observers, 12 fisheries could potentially interact with bearded seals.
During 2010-2014, incidental mortality and serious injury of bearded
seals occurred in three fisheries: The Bering Sea/Aleutian Islands
pollock trawl, Bering Sea/Aleutian Islands flatfish trawl, and Bering
Sea/Aleutian Islands Pacific cod trawl fisheries (Muto et al., 2016).
This species was also part of the aforementioned 2011-2016 UME.
Spotted Seal
Spotted seals are distributed along the continental shelf of the
Bering, Chukchi, and Beaufort seas, and the Sea of Okhotsk south to the
western Sea of Japan and northern Yellow Sea. Eight main areas of
spotted seal breeding have been reported (Shaughnessy and Fay, 1977)
and Boveng et al. (2009) grouped those breeding areas into three DPSs:
The Bering DPS, which includes breeding areas in the Bering Sea and
portions of the East Siberian, Chukchi, and Beaufort seas that may be
occupied outside the breeding period; the Okhotsk DPS; and the Southern
DPS, which includes spotted seals breeding in the Yellow Sea and Peter
the Great Bay in the Sea of Japan. For the purposes of MMPA stock
assessments, NMFS defines the Alaska stock of spotted seals to be that
portion of the Bering DPS in U.S. waters.
The distribution of spotted seals is seasonally related to specific
life-history events that can be broadly divided into two periods: Late-
fall through spring, when whelping, nursing, breeding, and molting
occur in association with the presence of sea ice on which the seals
haul out, and summer through fall when seasonal sea ice has melted and
most spotted seals use land for hauling out (Boveng et al., 2009).
Spotted seals are most numerous in the Bering and Chukchi seas
(Quakenbush, 1988), although small numbers do range into the Beaufort
Sea during summer (Rugh et al., 1997; Lowry et al., 1998).
At Northstar, few spotted seals have been observed. A total of 12
spotted seals were positively identified near the source-vessel during
open-water seismic programs in the central Alaskan Beaufort Sea,
generally occurring near Northstar from 1996 to 2001 (Moulton and
Lawson, 2002). The number of spotted seals observed per year ranged
from zero (in 1998 and 2000) to four (in 1999).
During a seismic survey in Foggy Island Bay, PSOs recorded 18
pinniped sightings, of which one was confirmed as a spotted seal (Aerts
et al., 2008). Spotted seals were the second most abundant seal species
observed by PSOs during Hilcorp's geohazard surveys in July-August 2014
(Smultea et al., 2014) and in July 2015 (Cate et al., 2015). Given
their seasonal distribution and low numbers in the nearshore waters of
the central Alaskan Beaufort Sea, no spotted seals are expected in the
action area during late winter and spring, but could be present in low
numbers during the summer or fall.
Similar to other ice seal species, spotted seals are an important
resource for Alaska Native subsistence hunters. Of the 12 communities
(out of 64) surveyed during 2010-2014, the minimum annual spotted seal
harvest estimates totaled across 12 out of 64 user communities surveyed
ranged from 83 (in 2 communities) to 518 spotted seals (in 10
communities). Based on the harvest data from these 12 communities, a
minimum estimate of the average annual harvest of spotted seals in
2010-2014 is 328 seals.
From 2011-2015, incidental mortality and serious injury of spotted
seals occurred in 2 of the 22 federally-regulated U.S. commercial
fisheries in Alaska monitored for incidental mortality and serious
injury by fisheries observers: The Bering Sea/Aleutian Islands flatfish
trawl and Bering Sea/Aleutian Islands Pacific cod longline fisheries.
In 2014, there was one report of a mortality incidental to research on
the Alaska stock of spotted seals, resulting in a mean annual mortality
and serious injury rate of 0.2 spotted seals from this stock in 2011-
2015. This species was also part of the aforementioned 2011-2016 UME.
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 and 2019) 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 dB
threshold from the normalized composite audiograms, with an exception
for lower limits for low-frequency cetaceans where the result 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 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): Functional
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
and
Pinnipeds in water; Otariidae (eared seals): Functional
hearing is estimated to occur between approximately 60 Hz and 39 kHz.
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Six marine mammal species (three cetacean and three phocid pinniped)
have the potential to co-occur with Hilcorp's LDPI project. Of the
three cetacean species that may be present, two are classified as low-
frequency cetaceans (i.e., all mysticete species) and one is classified
as a mid-frequency cetacean (beluga whale).
[[Page 24939]]
Potential Effects of the Specified Activity 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 Proposed 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.
The potential impacts of the proposed LDPI on marine mammals
involve both non-acoustic and acoustic effects. Potential non-acoustic
effects could result from the physical presence of personnel,
structures and equipment, construction or maintenance activities, and
the occurrence of oil spills. The LDPI project also has the potential
to result in mortality and serious injury of ringed seals via direct
physical interaction on ice roads and harass (by Level A harassment and
Level B harassment) cetaceans and seals via acoustic disturbance. We
first discuss the effects of ice road and ice trail construction and
maintenance on ringed seals with respect to direct human interaction
followed by an in-depth discussion on sound and potential effects on
marine mammals from acoustic disturbance. The potential for and
potential impacts from both small and large oil spills are discussed in
more detail later in this section; however, please note Hilcorp did not
request, nor is NMFS proposing to authorize, take from oil spills.
Mortality, Serious Injury and Non-Acoustic Harassment--Ice Seals
This section discusses the potential impacts of ice road
construction, use and maintenance on ringed seals, the only species
likely to be encountered during this activity. Acoustic impacts from
this and other activities (e.g., pile driving) are provided later in
the document. To assess the potential impacts from ice roads, one must
understand sea ice dynamics, the influence of ice roads on sea ice, and
ice seal ecology.
Sea ice is constantly moving and flexing due to winds, currents,
and snow load. Sea ice grows (thickens) to its maximum in March, then
begins to degrade once solar heating increases above the necessary
threshold. Sea ice will thin and crack due to atmospheric pressure and
temperature changes. In the absence of ice roads, sea ice is constantly
cracking, deforming (creating pressure ridges and hummocks), and
thickening or thinning. Ice road construction interrupts this dynamic
by permanently thickening and stabilizing the sea ice for the season;
however, it thins and weakens sea ice adjacent to ice roads due to
weight of the ice road and use as speed and load of vehicles using the
road creates pressure waves in the ice, cracking natural ice adjacent
to the road (pers. comm., M. Williams, August 17, 2018). These cracks
and thinned ice, occurring either naturally or adjacent to ice roads,
are easily exploitable habitat for ringed seals.
As discussed in the Description of Marine Mammal section, ringed
seals build lairs which are typically concentrated along pressure
ridges, cracks, leads, or other surface deformations (Smith and
Stirling 1975, Hammill and Smith, 1989, Furgal et al., 1996). To build
a lair, a pregnant female will first excavate a breathing hole, most
easily in cracked or thin ice. The lair will then be excavated (snow
must be present for lair construction). Later in the season, basking
holes may be created from collapsed lairs or new basking holes will be
excavated; both of which must have breathing holes and surface access
(pers. comm., M. Williams, August 17, 2018).
Williams et al. (2006) provides the most in-depth discussion of
ringed seal use around Northstar Island, the first offshore oil and gas
production facility seaward of the barrier islands in the Alaskan
Beaufort Sea. Northstar is located 9.5 km from the mainland on a
manmade gravel island in 12 m of water. In late 2000 and early 2001,
sea ice in areas near Northstar Island where summer water depth was
greater than 1.5 m was searched for ringed seal structures. At
Northstar, ringed seals were documented creating and using sea ice
structures (basking holes, breathing holes, or birthing lairs) within
11 to 3,500 m (36 to 11,482 ft) of Northstar infrastructure which
includes ice roads, pipeline, and the island itself (Williams et al.,
2006). Birth lairs closest to Northstar infrastructure were 882 m and
144 m (2,894 and 374 ft) from the island and ice road, respectively
(Williams et al., 2006). Two basking holes were found within 11 and 15
m (36 and 49 ft) from the nominal centerline of a Northstar ice road
and were still in use by the end of the study (Williams et al., 2006).
Although located in deeper water outside of the barrier islands, we
anticipate ringed seals would use ice around the LDPI and associated
ice roads in a similar manner.
Since 1998, there have been three documented incidents of ringed
seal interactions on North Slope ice roads, with one recorded
mortality. On April 17, 1998, during a vibroseis on-ice seismic
operation outside of the barrier islands east of Bullen Point in the
eastern Beaufort Sea, a ringed seal pup was killed when its lair was
destroyed by a Caterpillar tractor clearing an ice road. The lair was
located on ice over water 9 m (29 ft) deep with an ice thickness of 1.3
m (4.3 ft). It was reported that an adult may have been present in the
lair when it was destroyed. Crew found blood on the ice near an open
hole approximately 1.3 km (0.8 mi) from the destroyed lair; this could
have been from a wounded adult (MacLean, 1998). On April 24, 2018, a
Tucker (a tracked vehicle used in snow conditions) traveling on a
Northstar sea ice trail broke through a brine pocket. After moving the
Tucker, a seal pup climbed out of the hole in the ice, but no adult was
seen in the area. The seal pup remained in the area for the next day
and a half. This seal was seen in an area with an estimated water depth
of 6 to 7 m (20 to 24 ft) (Hilcorp, 2018b). The third reported incident
occurred on April 28, 2018, when a contractor performing routine
maintenance activities to relocate metal plates beneath the surface of
the ice road from Oliktok Point to Spy Island Drill site spotted a
ringed seal pup next to what may have been a lair site. No adult was
observed in the area. The pup appeared to be acting normally and was
seen going in and out of the opening several times (Eni, 2018).
Overall, NMFS does not anticipate the potential for mortality or
serious injury of ringed seals to be high given there has been only one
documented mortality over 25 years of ice road construction in the
Arctic. However, the potential does exist; therefore, we are including
a small amount of mortality or serious injury (n = 2) in this proposed
rule over the five-year life of the regulations. To mitigate this risk,
NMFS and Hilcorp have developed a number of best management practices
(BMPs) aimed at reducing the potential of disturbing (e.g., crushing)
ice seal structures on ice roads (see Proposed Mitigation and
Monitoring).
Potential Acoustic Impacts--Level A Harassment and Level B Harassment
In the following discussion, we provide general background
information
[[Page 24940]]
on sound before considering potential effects to marine mammals from
sound produced by construction and operation of the LDPI.
Description of Sound Sources
This section contains a brief technical background on sound, on the
characteristics of certain sound types, and on metrics used in this
proposal inasmuch as the information is relevant to the specified
activity and to a discussion of the potential effects of the specified
activity on marine mammals found later in this document. For general
information on sound and its interaction with the marine environment,
please see, e.g., Au and Hastings (2008); Richardson et al. (1995);
Urick (1983).
Sound travels in waves, the basic components of which are
frequency, wavelength, velocity, and amplitude. Frequency is the number
of pressure waves that pass by a reference point per unit of time and
is measured in Hz or cycles per second. Wavelength is the distance
between two peaks or corresponding points of a sound wave (length of
one cycle). Higher frequency sounds have shorter wavelengths than lower
frequency sounds, and typically attenuate (decrease) more rapidly,
except in certain cases in shallower water. Amplitude is the height of
the sound pressure wave or the ``loudness'' of a sound and is typically
described using the relative unit of the decibel (dB). A sound pressure
level (SPL) in dB is described as the ratio between a measured pressure
and a reference pressure (for underwater sound, this is 1 microPascal
([mu]Pa)), and is a logarithmic unit that accounts for large variations
in amplitude; therefore, a relatively small change in dB corresponds to
large changes in sound pressure. The source level (SL) represents the
SPL referenced at a distance of 1 m from the source (referenced to 1
[mu]Pa), while the received level is the SPL at the listener's position
(referenced to 1 [mu]Pa).
Root mean square (rms) is the quadratic mean sound pressure over
the duration of an impulse. Root mean square is calculated by squaring
all of the sound amplitudes, averaging the squares, and then taking the
square root of the average (Urick, 1983). Root mean square accounts for
both positive and negative values; squaring the pressures makes all
values positive so that they may be accounted for in the summation of
pressure levels (Hastings and Popper, 2005). This measurement is often
used in the context of discussing behavioral effects, in part because
behavioral effects, which often result from auditory cues, may be
better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s)
represents the total energy in a stated frequency band over a stated
time interval or event, and considers both intensity and duration of
exposure. The per-pulse SEL is calculated over the time window
containing the entire pulse (i.e., 100 percent of the acoustic energy).
SEL is a cumulative metric; it can be accumulated over a single pulse,
or calculated over periods containing multiple pulses. Cumulative SEL
represents the total energy accumulated by a receiver over a defined
time window or during an event. Peak sound pressure (also referred to
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous
sound pressure measurable in the water at a specified distance from the
source, and is represented in the same units as the rms sound pressure.
When underwater objects vibrate or activity occurs, sound-pressure
waves are created. These waves alternately compress and decompress the
water as the sound wave travels. Underwater sound waves radiate in a
manner similar to ripples on the surface of a pond and may be either
directed in a beam or beams or may radiate in all directions
(omnidirectional sources), as is the case for sound produced by the
pile driving activity considered here. The compressions and
decompressions associated with sound waves are detected as changes in
pressure by aquatic life and man-made sound receptors such as
hydrophones.
Even in the absence of sound from the specified activity, the
underwater environment is typically loud due to ambient sound, which is
defined as environmental background sound levels lacking a single
source or point (Richardson et al., 1995). The sound level of a region
is defined by the total acoustical energy being generated by known and
unknown sources. These sources may include physical (e.g., wind and
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds
produced by marine mammals, fish, and invertebrates), and anthropogenic
(e.g., vessels, dredging, construction) sound. A number of sources
contribute to ambient sound, including wind and waves, which are a main
source of naturally occurring ambient sound for frequencies between 200
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to
increase with increasing wind speed and wave height. Precipitation can
become an important component of total sound at frequencies above 500
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can
contribute significantly to ambient sound levels, as can some fish and
snapping shrimp. The frequency band for biological contributions is
from approximately 12 Hz to over 100 kHz. Sources of ambient sound
related to human activity include transportation (surface vessels),
dredging and construction, oil and gas drilling and production,
geophysical surveys, sonar, and explosions. Vessel noise typically
dominates the total ambient sound for frequencies between 20 and 300
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz
and, if higher frequency sound levels are created, they attenuate
rapidly.
The sum of the various natural and anthropogenic sound sources that
comprise ambient sound at any given location and time depends not only
on the source levels (as determined by current weather conditions and
levels of biological and human activity) but also on the ability of
sound to propagate through the environment. In turn, sound propagation
is dependent on the spatially and temporally varying properties of the
water column and sea floor, and is frequency-dependent. As a result of
the dependence on a large number of varying factors, ambient sound
levels can be expected to vary widely over both coarse and fine spatial
and temporal scales. Sound levels at a given frequency and location can
vary by 10-20 decibels (dB) from day to day (Richardson et al., 1995).
The result is that, depending on the source type and its intensity,
sound from the specified activity may be a negligible addition to the
local environment or could form a distinctive signal that may affect
marine mammals.
Sounds are often considered to fall into one of two general types:
Pulsed and non-pulsed (defined in the following). The distinction
between these two sound types is important because they have differing
potential to cause physical effects, particularly with regard to
hearing (e.g., Ward, 1997 in Southall et al., 2007). See Southall et
al. (2007) for an in-depth discussion of these concepts. The
distinction between these two sound types is not always obvious, as
certain signals share properties of both pulsed and non-pulsed sounds.
A signal near a source could be categorized as a pulse, but due to
propagation effects as it moves farther from the source, the signal
duration becomes longer (e.g., Greene and Richardson, 1988).
Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic
booms, impact pile driving) produce signals
[[Page 24941]]
that are brief (typically considered to be less than one second),
broadband, atonal transients (ANSI, 1986, 2005; Harris, 1998; NIOSH,
1998; ISO, 2003) and occur either as isolated events or repeated in
some succession. Pulsed sounds are all characterized by a relatively
rapid rise from ambient pressure to a maximal pressure value followed
by a rapid decay period that may include a period of diminishing,
oscillating maximal and minimal pressures, and generally have an
increased capacity to induce physical injury as compared with sounds
that lack these features.
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or
prolonged, and may be either continuous or intermittent (ANSI, 1995;
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals
of short duration but without the essential properties of pulses (e.g.,
rapid rise time). Examples of non-pulsed sounds include those produced
by vessels, aircraft, machinery operations such as drilling or
dredging, vibratory pile driving, and active sonar systems. The
duration of such sounds, as received at a distance, can be greatly
extended in a highly reverberant environment.
The impulsive sound generated by impact hammers is characterized by
rapid rise times and high peak levels. Vibratory hammers produce non-
impulsive, continuous noise at levels significantly lower than those
produced by impact hammers. Rise time is slower, reducing the
probability and severity of injury, and sound energy is distributed
over a greater amount of time (e.g., Nedwell and Edwards, 2002; Carlson
et al., 2005).
Acoustic Effects
We previously provided general background information on marine
mammal hearing (see ``Description of Marine Mammals in the Area of the
Specified Activity''). Here, we discuss the potential effects of sound
on marine mammals.
Potential Effects of Underwater Sound--Note that, in the following
discussion, we refer in many cases to a review article concerning
studies of noise-induced hearing loss conducted from 1996-2015 (i.e.,
Finneran, 2015). For study-specific citations, please see that work.
Anthropogenic sounds cover a broad range of frequencies and sound
levels and can have a range of highly variable impacts on marine life,
from none or minor to potentially severe responses, depending on
received levels, duration of exposure, behavioral context, and various
other factors. The potential effects of underwater sound from active
acoustic sources can potentially result in one or more of the
following: Temporary or permanent hearing impairment, non-auditory
physical or physiological effects, behavioral disturbance, stress, and
masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al.,
2007; Southall et al., 2007; G[ouml]tz et al., 2009). The degree of
effect is intrinsically related to the signal characteristics, received
level, distance from the source, and duration of the sound exposure. In
general, sudden, high level sounds can cause hearing loss, as can
longer exposures to lower level sounds. Temporary or permanent loss of
hearing will occur almost exclusively for noise within an animal's
hearing range. We first describe specific manifestations of acoustic
effects before providing discussion specific to pile driving.
Richardson et al. (1995) described zones of increasing intensity of
effect that might be expected to occur, in relation to distance from a
source and assuming that the signal is within an animal's hearing
range. First is the area within which the acoustic signal would be
audible (potentially perceived) to the animal but not strong enough to
elicit any overt behavioral or physiological response. The next zone
corresponds with the area where the signal is audible to the animal and
of sufficient intensity to elicit behavioral or physiological
responsiveness. Third is a zone within which, for signals of high
intensity, the received level is sufficient to potentially cause
discomfort or tissue damage to auditory or other systems. Overlaying
these zones to a certain extent is the area within which masking (i.e.,
when a sound interferes with or masks the ability of an animal to
detect a signal of interest that is above the absolute hearing
threshold) may occur; the masking zone may be highly variable in size.
Potential effects from impulsive sound sources can range in
severity from effects such as behavioral disturbance or tactile
perception to physical discomfort, slight injury of the internal organs
and the auditory system, or mortality (Yelverton et al., 1973). Non-
auditory physiological effects or injuries that theoretically might
occur in marine mammals exposed to high level underwater sound or as a
secondary effect of extreme behavioral reactions (e.g., change in dive
profile as a result of an avoidance reaction) caused by exposure to
sound include neurological effects, bubble formation, resonance
effects, and other types of organ or tissue damage (Cox et al., 2006;
Southall et al., 2007; Zimmer and Tyack, 2007; Tal et al., 2015). The
construction and operational activities associated with the LDPI do not
involve the use of devices such as explosives or mid-frequency tactical
sonar that are associated with these types of effects.
Auditory Threshold Shifts
NMFS defines threshold shift (TS) as a change, usually an increase,
in the threshold of audibility at a specified frequency or portion of
an individual's hearing range above a previously established reference
level (NMFS, 2018). The amount of threshold shift is customarily
expressed in decibels (ANSI, 1995). Threshold shift can be permanent
(PTS) or temporary (TTS). As described in NMFS (2018), there are
numerous factors to consider when examining the consequence of TS,
including, but not limited to, the signal temporal pattern (e.g.,
impulsive or non-impulsive), likelihood an individual would be exposed
for a long enough duration or to a high enough level to induce a TS,
the magnitude of the TS, time to recovery (seconds to minutes or hours
to days), the frequency range of the exposure (i.e., spectral content),
the hearing and vocalization frequency range of the exposed species
relative to the signal's frequency spectrum (i.e., how animal uses
sound within the frequency band of the signal; e.g., Kastelein et al.,
2014b), and their overlap (e.g., spatial, temporal, and spectral).
Marine mammals exposed to high-intensity sound, or to lower-
intensity sound for prolonged periods, can experience hearing threshold
shift (TS), which is the loss of hearing sensitivity at certain
frequency ranges (Finneran, 2015). TS can be permanent (PTS), in which
case the loss of hearing sensitivity is not fully recoverable, or
temporary (TTS), in which case the animal's hearing threshold would
recover over time (Southall et al., 2007). Repeated sound exposure that
leads to TTS could cause PTS. In severe cases of PTS, there can be
total or partial deafness, while in most cases the animal has an
impaired ability to hear sounds in specific frequency ranges (Kryter,
1985).
When PTS occurs, there is physical damage to the sound receptors in
the ear (i.e., tissue damage), whereas TTS represents primarily tissue
fatigue and is reversible (Southall et al., 2007). In addition, other
investigators have suggested that TTS is within the normal bounds of
physiological variability and tolerance and does not represent physical
injury (e.g., Ward, 1997).
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Therefore, NMFS does not consider TTS to constitute auditory injury.
Relationships between TTS and PTS thresholds have not been studied
in marine mammals, and there is no PTS data for cetaceans, but such
relationships are assumed to be similar to those in humans and other
terrestrial mammals. PTS typically occurs at exposure levels at least
several decibels above (a 40-dB threshold shift approximates PTS onset;
e.g., Kryter et al., 1966; Miller, 1974) that inducing mild TTS (a 6-dB
threshold shift approximates TTS onset; e.g., Southall et al. 2007).
Based on data from terrestrial mammals, a precautionary assumption is
that the PTS thresholds for impulse sounds (such as impact pile driving
pulses as received close to the source) are at least 6 dB higher than
the TTS threshold on a peak-pressure basis and PTS cumulative sound
exposure level thresholds are 15 to 20 dB higher than TTS cumulative
sound exposure level thresholds (Southall et al., 2007). Given the
higher level of sound or longer exposure duration necessary to cause
PTS as compared with TTS, it is considerably less likely that PTS could
occur.
TTS is the mildest form of hearing impairment that can occur during
exposure to sound (Kryter, 1985). While experiencing TTS, the hearing
threshold rises, and a sound must be at a higher level in order to be
heard. In terrestrial and marine mammals, TTS can last from minutes or
hours to days (in cases of strong TTS). In many cases, hearing
sensitivity recovers rapidly after exposure to the sound ends. Few data
on sound levels and durations necessary to elicit mild TTS have been
obtained for marine mammals.
Marine mammal hearing plays a critical role in communication with
conspecifics, and interpretation of environmental cues for purposes
such as predator avoidance and prey capture. Depending on the degree
(elevation of threshold in dB), duration (i.e., recovery time), and
frequency range of TTS, and the context in which it is experienced, TTS
can have effects on marine mammals ranging from discountable to
serious. For example, a marine mammal may be able to readily compensate
for a brief, relatively small amount of TTS in a non-critical frequency
range that occurs during a time where ambient noise is lower and there
are not as many competing sounds present. Alternatively, a larger
amount and longer duration of TTS sustained during time when
communication is critical for successful mother/calf interactions could
have more serious impacts.
Currently, TTS data only exist for four species of cetaceans
(bottlenose dolphin (Tursiops truncatus), beluga whale (Delphinapterus
leucas), harbor porpoise, and Yangtze finless porpoise (Neophocoena
asiaeorientalis)) and three species of pinnipeds (northern elephant
seal, harbor seal, and California sea lion) exposed to a limited number
of sound sources (i.e., mostly tones and octave-band noise) in
laboratory settings (Finneran, 2015). TTS was not observed in trained
spotted (Phoca largha) and ringed (Pusa hispida) seals exposed to
impulsive noise at levels matching previous predictions of TTS onset
(Reichmuth et al., 2016). In general, harbor seals and harbor porpoises
have a lower TTS onset than other measured pinniped or cetacean species
(Finneran, 2015). Additionally, the existing marine mammal TTS data
come from a limited number of individuals within these species. There
are no data available on noise-induced hearing loss for mysticetes. For
summaries of data on TTS in marine mammals or for further discussion of
TTS onset thresholds, please see Southall et al. (2007), Finneran and
Jenkins (2012), Finneran (2015), and NMFS (2018).
NMFS defines TTS as ``a temporary, reversible increase in the
threshold of audibility at a specified frequency or portion of an
individual's hearing range above a previously established reference
level'' (NMFS, 2016). A TTS of 6 dB is considered the minimum threshold
shift clearly larger than any day-to-day or session-to-session
variation in a subject's normal hearing ability (Schlundt et al., 2000;
Finneran et al., 2000; Finneran et al., 2002, as reviewed in Southall
et al., 2007 for a review). TTS can last from minutes or hours to days
(i.e., there is recovery), occur in specific frequency ranges (i.e., an
animal might only have a temporary loss of hearing sensitivity between
the frequencies of 1 and 10 kHz)), and can be of varying amounts (for
example, an animal's hearing sensitivity might be temporarily reduced
by only 6 dB or reduced by 30 dB). Currently, TTS measurements exist
for only four species of cetaceans (bottlenose dolphins, belugas,
harbor porpoises, and Yangtze finless porpoise) and three species of
pinnipeds (Northern elephant seal, harbor seal, and California sea
lion). These TTS measurements are from a limited number of individuals
within these species.
Depending on the degree (elevation of threshold in dB), duration
(i.e., recovery time), and frequency range of TTS, and the context in
which it is experienced, TTS can have effects on marine mammals ranging
from discountable to serious (similar to those discussed in auditory
masking, below). For example, a marine mammal may be able to readily
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal
is traveling through the open ocean, where ambient noise is lower and
there are not as many competing sounds present. Alternatively, a larger
amount and longer duration of TTS sustained during time when
communication is critical for successful mother/calf interactions could
have more serious impacts. We note that reduced hearing sensitivity as
a simple function of aging has been observed in marine mammals, as well
as humans and other taxa (Southall et al., 2007), so we can infer that
strategies exist for coping with this condition to some degree, though
likely not without cost.
Behavioral Effects--Behavioral disturbance from elevated noise
exposure may include a variety of effects, including subtle changes in
behavior (e.g., minor or brief avoidance of an area or changes in
vocalizations), more conspicuous changes in similar behavioral
activities, and more sustained and/or potentially severe reactions,
such as displacement from or abandonment of high-quality habitat.
Behavioral responses to sound are highly variable and context-specific
and any reactions depend on numerous intrinsic and extrinsic factors
(e.g., species, state of maturity, experience, current activity,
reproductive state, auditory sensitivity, time of day), as well as the
interplay between factors (e.g., Richardson et al., 1995; Wartzok et
al., 2003; Southall et al., 2007; Weilgart, 2007). Behavioral reactions
can vary not only among individuals but also within an individual,
depending on previous experience with a sound source, context, and
numerous other factors (Ellison et al., 2012), and can vary depending
on characteristics associated with the sound source (e.g., whether it
is moving or stationary, number of sources, distance from the source).
Please see Appendices B-C of Southall et al. (2007) for a review of
studies involving marine mammal behavioral responses to sound.
Habituation can occur when an animal's response to a stimulus wanes
with repeated exposure, usually in the absence of unpleasant associated
events (Wartzok et al., 2003). Animals are most likely to habituate to
sounds that are predictable and unvarying. It is important to note that
habituation is appropriately considered as a ``progressive reduction in
response to
[[Page 24943]]
stimuli that are perceived as neither aversive nor beneficial,'' rather
than as, more generally, moderation in response to human disturbance
(Bejder et al., 2009). The opposite process is sensitization, when an
unpleasant experience leads to subsequent responses, often in the form
of avoidance, at a lower level of exposure. As noted, behavioral state
may affect the type of response. For example, animals that are resting
may show greater behavioral change in response to disturbing sound
levels than animals that are highly motivated to remain in an area for
feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003).
Controlled experiments with captive marine mammals have showed
pronounced behavioral reactions, including avoidance of loud sound
sources (Ridgway et al., 1997; Finneran et al., 2003). Observed
responses of wild marine mammals to loud pulsed sound sources
(typically airguns or acoustic harassment devices) have been varied but
often consist of avoidance behavior or other behavioral changes
suggesting discomfort (Morton and Symonds, 2002; see also Richardson et
al., 1995; Nowacek et al., 2007). However, many delphinids approach
low-frequency airgun source vessels with no apparent discomfort or
obvious behavioral change (e.g., Barkaszi et al., 2012), indicating the
importance of frequency output in relation to the species' hearing
sensitivity.
Available studies show wide variation in response to underwater
sound; therefore, it is difficult to predict specifically how any given
sound in a particular instance might affect marine mammals perceiving
the signal. If a marine mammal does react briefly to an underwater
sound by changing its behavior or moving a small distance, the impacts
of the change are unlikely to be significant to the individual, let
alone the stock or population. However, if a sound source displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on individuals and populations could be
significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC,
2005). However, there are broad categories of potential response, which
we describe in greater detail here, that include alteration of dive
behavior, alteration of foraging behavior, effects to breathing,
interference with or alteration of vocalization, avoidance, and flight.
Changes in dive behavior can vary widely and may consist of
increased or decreased dive times and surface intervals as well as
changes in the rates of ascent and descent during a dive (e.g., Frankel
and Clark, 2000; Costa et al., 2003; Ng and Leung, 2003; Nowacek et
al.; 2004; Goldbogen et al., 2013a, 2013b). Variations in dive behavior
may reflect interruptions in biologically significant activities (e.g.,
foraging) or they may be of little biological significance. The impact
of an alteration to dive behavior resulting from an acoustic exposure
depends on what the animal is doing at the time of the exposure and the
type and magnitude of the response.
Disruption of feeding behavior can be difficult to correlate with
anthropogenic sound exposure, so it is usually inferred by observed
displacement from known foraging areas, the appearance of secondary
indicators (e.g., bubble nets or sediment plumes), or changes in dive
behavior. As for other types of behavioral response, the frequency,
duration, and temporal pattern of signal presentation, as well as
differences in species sensitivity, are likely contributing factors to
differences in response in any given circumstance (e.g., Croll et al.,
2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al.,
2007). A determination of whether foraging disruptions incur fitness
consequences would require information on or estimates of the energetic
requirements of the affected individuals and the relationship between
prey availability, foraging effort and success, and the life history
stage of the animal.
Variations in respiration naturally vary with different behaviors
and alterations to breathing rate as a function of acoustic exposure
can be expected to co-occur with other behavioral reactions, such as a
flight response or an alteration in diving. However, respiration rates
in and of themselves may be representative of annoyance or an acute
stress response. Various studies have shown that respiration rates may
either be unaffected or could increase, depending on the species and
signal characteristics, again highlighting the importance in
understanding species differences in the tolerance of underwater noise
when determining the potential for impacts resulting from anthropogenic
sound exposure (e.g., Kastelein et al., 2001, 2005, 2006; Gailey et
al., 2007; Gailey et al., 2016).
Marine mammals vocalize for different purposes and across multiple
modes, such as whistling, echolocation click production, calling, and
singing. Changes in vocalization behavior in response to anthropogenic
noise can occur for any of these modes and may result from a need to
compete with an increase in background noise or may reflect increased
vigilance or a startle response. For example, in the presence of
potentially masking signals, humpback whales and killer whales have
been observed to increase the length of their songs (Miller et al.,
2000; Foote et al., 2004), while right whales have been observed to
shift the frequency content of their calls upward while reducing the
rate of calling in areas of increased anthropogenic noise (Parks et
al., 2007). In some cases, animals may cease sound production during
production of aversive signals (Bowles et al., 1994).
Avoidance is the displacement of an individual from an area or
migration path as a result of the presence of a sound or other
stressors, and is one of the most obvious manifestations of disturbance
in marine mammals (Richardson et al., 1995). For example, gray whales
are known to change direction--deflecting from customary migratory
paths--in order to avoid noise from airgun surveys (Malme et al.,
1984). Avoidance may be short-term, with animals returning to the area
once the noise has ceased (e.g., Bowles et al., 1994; Goold, 1996;
Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007).
Longer-term displacement is possible, however, which may lead to
changes in abundance or distribution patterns of the affected species
in the affected region if habituation to the presence of the sound does
not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann
et al., 2006).
A flight response is a dramatic change in normal movement to a
directed and rapid movement away from the perceived location of a sound
source. The flight response differs from other avoidance responses in
the intensity of the response (e.g., directed movement, rate of
travel). Relatively little information on flight responses of marine
mammals to anthropogenic signals exist, although observations of flight
responses to the presence of predators have occurred (Connor and
Heithaus, 1996). The result of a flight response could range from
brief, temporary exertion and displacement from the area where the
signal provokes flight to, in extreme cases, marine mammal strandings
(Evans and England, 2001). However, it should be noted that response to
a perceived predator does not necessarily invoke flight (Ford and
Reeves, 2008), and whether individuals are solitary or in groups may
influence the response.
Behavioral disturbance can also impact marine mammals in more
subtle ways. Increased vigilance may result in costs related to
diversion of focus and attention (i.e., when a response consists of
increased vigilance, it may come at
[[Page 24944]]
the cost of decreased attention to other critical behaviors such as
foraging or resting). These effects have generally not been
demonstrated for marine mammals, but studies involving fish and
terrestrial animals have shown that increased vigilance may
substantially reduce feeding rates (e.g., Beauchamp and Livoreil, 1997;
Fritz et al., 2002; Purser and Radford, 2011). In addition, chronic
disturbance can cause population declines through reduction of fitness
(e.g., decline in body condition) and subsequent reduction in
reproductive success, survival, or both (e.g., Harrington and Veitch,
1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et
al. (2006) reported that increased vigilance in bottlenose dolphins
exposed to sound over a five-day period did not cause any sleep
deprivation or stress effects.
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hour cycle). Disruption
of such functions resulting from reactions to stressors such as sound
exposure 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). Note that there is a difference between multi-day
substantive behavioral reactions and multi-day anthropogenic
activities. For example, just because an activity lasts for multiple
days does not necessarily mean that individual animals are either
exposed to activity-related stressors for multiple days or, further,
exposed in a manner resulting in sustained multi-day substantive
behavioral responses.
Stress Responses--An animal's perception of a threat may be
sufficient to trigger stress responses consisting of some combination
of behavioral responses, autonomic nervous system responses,
neuroendocrine responses, or immune responses (e.g., Seyle, 1950;
Moberg, 2000). In many cases, an animal's first and sometimes most
economical (in terms of energetic costs) response is behavioral
avoidance of the potential stressor. Autonomic nervous system responses
to stress typically involve changes in heart rate, blood pressure, and
gastrointestinal activity. These responses have a relatively short
duration and may or may not have a significant long-term effect on an
animal's fitness.
Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that
are affected by stress--including immune competence, reproduction,
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been
implicated in failed reproduction, altered metabolism, reduced immune
competence, and behavioral disturbance (e.g., Moberg, 1987; Blecha,
2000). Increases in the circulation of glucocorticoids are also equated
with stress (Romano et al., 2004).
The primary distinction between stress (which is adaptive and does
not normally place an animal at risk) and ``distress'' is the cost of
the response. During a stress response, an animal uses glycogen stores
that can be quickly replenished once the stress is alleviated. In such
circumstances, the cost of the stress response would not pose serious
fitness consequences. However, when an animal does not have sufficient
energy reserves to satisfy the energetic costs of a stress response,
energy resources must be diverted from other functions. This state of
distress will last until the animal replenishes its energetic reserves
sufficient to restore normal function.
Relationships between these physiological mechanisms, animal
behavior, and the costs of stress responses are well-studied through
controlled experiments and for both laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003;
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to
exposure to anthropogenic sounds or other stressors and their effects
on marine mammals have also been reviewed (Fair and Becker, 2000;
Romano et al., 2002b) and, more rarely, studied in wild populations
(e.g., Romano et al., 2002a). For example, Rolland et al. (2012) found
that noise reduction from reduced ship traffic in the Bay of Fundy was
associated with decreased stress in North Atlantic right whales. These
and other studies lead to a reasonable expectation that some marine
mammals will experience physiological stress responses upon exposure to
acoustic stressors and that it is possible that some of these would be
classified as ``distress.'' In addition, any animal experiencing TTS
would likely also experience stress responses (NRC, 2003).
Auditory Masking--Sound can disrupt behavior through masking, or
interfering with, an animal's ability to detect, recognize, or
discriminate between acoustic signals of interest (e.g., those used for
intraspecific communication and social interactions, prey detection,
predator avoidance, navigation) (Richardson et al., 1995; Erbe et al.,
2016). Masking occurs when the receipt of a sound is interfered with by
another coincident sound at similar frequencies and at similar or
higher intensity, and may occur whether the sound is natural (e.g.,
snapping shrimp, wind, waves, precipitation) or anthropogenic (e.g.,
shipping, sonar, seismic exploration) in origin. The ability of a noise
source to mask biologically important sounds depends on the
characteristics of both the noise source and the signal of interest
(e.g., signal-to-noise ratio, temporal variability, direction), in
relation to each other and to an animal's hearing abilities (e.g.,
sensitivity, frequency range, critical ratios, frequency
discrimination, directional discrimination, age or TTS hearing loss),
and existing ambient noise and propagation conditions.
Under certain circumstances, marine mammals experiencing
significant masking could also be impaired from maximizing their
performance fitness in survival and reproduction. Therefore, when the
coincident (masking) sound is man-made, it may be considered harassment
when disrupting or altering critical behaviors. It is important to
distinguish TTS and PTS, which persist after the sound exposure, from
masking, which occurs during the sound exposure. Because masking
(without resulting in TS) is not associated with abnormal physiological
function, it is not considered a physiological effect, but rather a
potential behavioral effect.
The frequency range of the potentially masking sound is important
in determining any potential behavioral impacts. For example, low-
frequency signals may have less effect on high-frequency echolocation
sounds produced by odontocetes but are more likely to affect detection
of mysticete communication calls and other potentially important
natural sounds such as those produced by surf and some prey species.
The masking of communication signals by anthropogenic noise may be
considered as a reduction in the communication space of animals (e.g.,
Clark et al., 2009) and may result in energetic or other costs as
animals change their vocalization behavior (e.g., Miller et al., 2000;
Foote et al., 2004; Parks et al., 2007; Di Iorio and Clark, 2009; Holt
et al., 2009). Masking can be reduced in situations where the signal
and noise come from different directions (Richardson et al., 1995),
through amplitude modulation of the signal, or through other
compensatory behaviors (Houser and Moore, 2014). Masking can
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be tested directly in captive species (e.g., Erbe, 2008), but in wild
populations it must be either modeled or inferred from evidence of
masking compensation. There are few studies addressing real-world
masking sounds likely to be experienced by marine mammals in the wild
(e.g., Branstetter et al., 2013).
Masking affects both senders and receivers of acoustic signals and
can potentially have long-term chronic effects on marine mammals at the
population level as well as at the individual level. Low-frequency
ambient sound levels have increased by as much as 20 dB (more than
three times in terms of SPL) in the world's ocean from pre-industrial
periods, with most of the increase from distant commercial shipping
(Hildebrand, 2009). All anthropogenic sound sources, but especially
chronic and lower-frequency signals (e.g., from vessel traffic),
contribute to elevated ambient sound levels, thus intensifying masking.
Potential Effects of Hilcorp's Activity--As described previously
(see ``Description of the Specified Activity''), Hilcorp proposes to
build ice roads, install a pipeline, construct and operate a gravel
island using impact and vibratory pile driving, and drill for oil in
Foggy Island Bay. These activities would occur under ice and open water
conditions (with the exception of ice roads). These activities have the
potential to harass marine mammals from acoustic disturbance (all
species) and via human disturbance/presence on ice (ice seals). There
is also potential for ice seals, specifically ringed seals, to be
killed in the event a lair is crushed during ice road construction and
maintenance in undisturbed areas after March 1, annually.
NMFS analyzed the potential effects of oil and gas activities,
including construction of a gravel island and associated
infrastructure, in its 2016 EIS on the Effects of Oil and Gas
Activities in the Arctic Ocean (NMFS, 2016; available at https://www.fisheries.noaa.gov/resource/document/effects-oil-and-gas-activities-arctic-ocean-final-environmental-impact). Although that
document focuses on seismic exploration, there is a wealth of
information in that document on marine mammal impacts from
anthropogenic noise. More specific to the proposed project, BOEM
provides a more detailed analysis on the potential impacts of the
Liberty LDPI in its' EIS on the Liberty Development and Production
Plan, Beaufort Sea, Alaska, on which NMFS was a cooperating agency
(BOEM, 2018; available at https://www.boem.gov/Hilcorp-Liberty/). We
refer to those documents, specifically Chapter 4 of each of those
documents, as a comprehensive impact assessment but provide a summary
and complimentary analysis here.
The effects of pile driving on marine mammals are dependent on
several factors, including the size, type, and depth of the animal; the
depth, intensity, and duration of the pile driving sound; the depth of
the water column; the substrate of the habitat; the standoff distance
between the pile and the animal; and the sound propagation properties
of the environment. With both types of pile driving, it is likely that
the onset of pile driving could result in temporary, short term changes
in an animal's typical behavioral patterns and/or avoidance of the
affected area. These behavioral changes may include (as summarized in
Richardson et al., 1995): Changing durations of surfacing and dives,
number of blows per surfacing, or moving direction and/or speed;
reduced/increased vocal activities; changing/cessation of certain
behavioral activities (such as socializing or feeding); visible startle
response or aggressive behavior (such as tail/fluke slapping or jaw
clapping); avoidance of areas where sound sources are located; and/or
flight responses.
For all noise-related activities, bowhead and gray whales are not
anticipated to be exposed to noise above NMFS harassment threshold
often. As previously described, Hilcorp aims to conduct all pile
driving during the ice-covered season, as was done at Northstar;
however, they are allowing for unforeseen scheduling delays. Bowheads
are not present near LDPI during the winter and are not normally found
in the development area during mid-summer (July through mid-August)
when the whales are further east in the Canadian Beaufort. Therefore
there are no impacts on foraging habitat for bowhead whales during mid-
summer. Starting in late August and continuing until late October,
bowheads may be exposed to sounds from the proposed activities at LDPI
or may encounter vessel traffic to and from the island. It is unlikely
that any whales would be displaced from sounds generated by activities
at the LDPI due to their distance from the offshore migrating whales,
and the effects of buffering from the barrier islands. Any displacement
would be subtle and involve no more than a small proportion of the
passing bowheads, likely less than that found at Northstar (Richardson,
2003, 2004; Mcdonald et al., 2012). This is due to the baffling-effect
of the barrier island between the construction activity and the main
migratory pathway of bowhead whales. Moreover, mitigation such as
avoiding pile driving during the fall bowhead whale hunt further
reduces potential for harassment as whales are migrating offshore.
Ongoing activities such as drilling may also harass marine mammals;
however, drilling sounds from artificial islands are relatively low. As
summarized in Richardson et al. (1995), beluga whales (the cetacean
most likely to occur in Foggy Island Bay) are often observed near
drillsites within 100 to 150 m (328.1 to 492.1 ft) from artificial
islands. Drilling operations at Northstar facility during the open-
water season resulted in brief, minor localized effects on ringed seals
with no consequences to ringed seal populations (Richardson and
Williams, 2004). Adult ringed seals seem to tolerate drilling
activities. Brewer et al. (1993) noted ringed seals were the most
common marine mammal sighted and did not seem to be disturbed by
drilling operations at the Kuvlum 1 project in the Beaufort Sea.
Southall et al. (2007) reviewed literature describing responses of
pinnipeds to continuous sound and reported that the limited data
suggest exposures between ~90 and 140 dB re 1 [mu]Pa generally do not
appear to induce strong behavioral responses in pinnipeds exposed to
continuous sounds in water. Hilcorp will conduct acoustic monitoring
during drilling to determine if future incidental take authorizations
are warranted from LDPI operation.
The biological significance of many of these behavioral
disturbances is difficult to predict, especially if the detected
disturbances appear minor. However, the consequences of behavioral
modification could be expected to be biologically significant if the
change affects growth, survival, or reproduction. Significant
behavioral modifications that could lead to effects on growth,
survival, or reproduction, such as drastic changes in diving/surfacing
patterns or significant habitat abandonment are extremely unlikely in
this area (i.e., shallow waters in modified industrial areas).
The onset of behavioral disturbance from anthropogenic sound
depends on both external factors (characteristics of sound sources and
their paths) and the specific characteristics of the receiving animals
(hearing, motivation, experience, demography) and is difficult to
predict (Southall et al., 2007).
Whether impact or vibratory driving, sound sources would be active
for relatively short durations, with relation to the durations animals
use sound (either emitting or receiving) on a daily basis, and over a
small spatial scale
[[Page 24946]]
relative to marine mammal ranges. Therefore, the potential impacts from
masking are limited in both time and space. Further, the frequencies
output of pile driving are low relative to the range of frequencies
used by most species for vital life functions such as communication or
foraging. In summary, we expect some masking to occur; however, the
biological impacts of any potential masking are anticipated to be
negligible. Finally, any masking that might rise to Level B harassment
under the MMPA would occur concurrently within the zones of behavioral
harassment already estimated for vibratory and impact pile driving, and
which have already been taken into account in the exposure analysis.
Oil Spills
During the life of the proposed regulations, Hilcorp would be
actively drilling for crude oil in Foggy Island Bay and transporting
that oil via a single-phase subsea pipe-in-pipe pipeline from the LDPI
to shore, where an aboveground pipeline will transport crude to the
existing Badami pipeline. From there, crude will be transported to the
Endicott Sales Oil Pipeline, which ties into Pump Station 1 of the
TransAlaska Pipeline System (TAPS) for eventual delivery to a refinery.
Whenever oil is being extracted or transported, there is potential for
a spill. Accidental oil spills have a varying potential to occur and
with varying impacts on marine mammals. For example, if a spill or
pipeline leak occurs during the winter, oil would be trapped by the
ice. However, response may be more difficult due in part to the
presence of ice. If a spill or leak occurs during the open-water
season, oil may disperse more widely; however, response time may be
more prompt. Spills may also be large or small. Small spills are
defined as spills of less than 1,000 barrels (bbls), and a large spill
is greater than 1,000 bbls. For reference, 1 bbl equates to 42 gallons.
Based on BOEM's oil spill analyses in its EIS, the only sized
spills that are reasonably likely to occur in association with the
proposed action are small spills (<1,000 bbls) (BOEM, 2017a). Small
spills, although accidental, occur during oil and gas activities with
generally routine frequency and are considered likely to occur during
development, production, and/or decommissioning activities associated
with the proposed action. BOEM estimates about 70 small spills, most of
which would be less than 10 bbls, would occur over the life of the
Liberty Project. Small crude oil spills would not likely occur before
drilling operations begin. Small refined oil spills may occur during
development, production, and decommissioning. The majority of small
spills are likely to occur during the approximate 22-year production
period, which is an average of about 3 spills per year.
The majority of small spills would be contained on the proposed
LDPI or landfast ice (during winter). BOEM anticipates that small
refined spills that reach the open water would be contained by booms or
absorbent pads; these small spills would also evaporate and disperse
within hours to a few days. A 3 bbl refined oil spill during summer is
anticipated to evaporate and disperse within 24 hours, and a 200 bbl
refined oil spill during summer is anticipated to evaporate and
disperse within 3 days (BOEM, 2017a).
A large spill is a statistically unlikely event. The average number
of large spills for the proposed action was calculated by multiplying
the spill rate (Bercha International Inc., 2016; BOEM, 2017a), by the
estimated barrels produced (0.11779 bbl or 117.79 Million Barrels). By
adding the mean number of large spills from the proposed LDPI and wells
(~0.0043) and from pipelines (~0.0024), a mean total of 0.0067 large
spills were calculated for the proposed action. Based on the mean spill
number, a Poisson distribution indicates there is a 99.33 percent
chance that no large spill occurs over the development and production
phases of the project, and a 0.67 percent chance of one or more large
spills occurring over the same period. The statistical distribution of
large spills and gas releases shows that it is much more likely that no
large spills or releases occur than that one or more occur over the
life of the project. However, a large spill has the potential to
seriously harm ESA-listed species and their environment. Assuming one
large spill occurs instead of zero allows BOEM to more fully estimate
and describe potential environmental effects (BOEM, 2017a).
Hilcorp is currently developing its oil spill response plan in
coordination with the Bureau of Safety and Environmental Enforcement
(BSEE) who must approve the plan. BSEE oversees oil spill planning and
preparedness for oil and gas exploration, development, and production
facilities in both state and Federal offshore waters of the United
States. NMFS provided BSEE with its recommended marine mammal oil spill
response protocols available at https://www.fisheries.noaa.gov/resource/document/pinniped-and-cetacean-oil-spill-response-guidelines.
NMFS has provided BSEE with recommended marine mammal protocols should
a spill occur. BSEE has indicated NMFS will have opportunity to provide
comments on Hilcorp's plan during a Federal agency public comment
period. As noted above, Hilcorp did not request, and NMFS is not
proposing to authorize, take of marine mammals incidental to oil
spills. NMFS does not authorize incidental take from oil spills under
section 101(a)(5)(A) of the MMPA in general, and oil spills are not
part of the specified activity in this case.
Cetaceans
While direct mortality of cetaceans is unlikely, exposure to
spilled oil could lead to skin irritation, baleen fouling (which might
reduce feeding efficiency), respiratory distress from inhalation of
hydrocarbon vapors, consumption of some contaminated prey items, and
temporary displacement from contaminated feeding areas. Geraci and St.
Aubin (1990) summarize effects of oil on marine mammals, and Bratton et
al. (1993) provides a synthesis of knowledge of oil effects on bowhead
whales. The number of whales that might be contacted by a spill would
depend on the size, timing, and duration of the spill. Whales may not
avoid oil spills, and some have been observed feeding within oil slicks
(Goodale et al., 1981).
The potential effects on cetaceans are expected to be less than
those on seals (described later in this section of the document).
Cetaceans tend to occur well offshore where cleanup activities (in the
open-water season) are unlikely to be as concentrated. Also, cetaceans
are transient and, during the majority of the year, absent from the
area. Further, drilling would be postponed during the bowhead whale
hunt every fall; therefore, the risk to cetaceans during this time,
when marine mammal presence and subsistence use is high, has been fully
mitigated.
Pinnipeds
Ringed, bearded, and spotted seals are present in open-water areas
during summer and early autumn, and ringed seals remain in the area
through the ice-covered season. Therefore, an oil spill from LDPI or
its pipeline could affect seals. Any oil spilled under the ice also has
the potential to directly contact seals. The most relevant data of
pinnipeds exposed to oil is from the Exxon Valdez oil spill (EVOS).
The largest documented impact of a spill, prior to the EVOS, was on
young seals in January in the Gulf of St. Lawrence (St. Aubin, 1990).
Intensive and long-term studies were conducted after the EVOS in
Alaska. There may
[[Page 24947]]
have been a long-term decline of 36 percent in numbers of molting
harbor seals at oiled haulout sites in Prince William Sound following
EVOS (Frost et al., 1994a). However, in a reanalysis of those data and
additional years of surveys, along with an examination of assumptions
and biases associated with the original data, Hoover-Miller et al.
(2001) concluded that the EVOS effect had been overestimated. Harbor
seal pup mortality at oiled beaches was 23% to 26%, which may have been
higher than natural mortality, although no baseline data for pup
mortality existed prior to EVOS (Frost et al., 1994a).
Adult seals rely on a layer of blubber for insulation, and oiling
of the external surface does not appear to have adverse
thermoregulatory effects (Kooyman et al., 1976, 1977; St. Aubin, 1990).
However, newborn seal pups rely on their fur for insulation. Newborn
ringed seal pups in lairs on the ice could be contaminated through
contact with oiled mothers. There is the potential that newborn ringed
seal pups that were contaminated with oil could die from hypothermia.
Further, contact with oil on the external surfaces can potentially
cause increased stress and irritation of the eyes of ringed seals
(Geraci and Smith, 1976; St. Aubin, 1990). These effects seemed to be
temporary and reversible, but continued exposure of eyes to oil could
cause permanent damage (St. Aubin, 1990). Corneal ulcers and abrasions,
conjunctivitis, and swollen nictitating membranes were observed in
captive ringed seals placed in crude oil-covered water (Geraci and
Smith, 1976), and in seals in the Antarctic after an oil spill (Lillie,
1954).
Marine mammals can ingest oil if their food is contaminated. Oil
can also be absorbed through the respiratory tract (Geraci and Smith,
1976; Engelhardt et al., 1977). Some of the ingested oil is voided in
vomit or feces but some is absorbed and could cause toxic effects
(Engelhardt, 1981). When returned to clean water, contaminated animals
can depurate this internal oil (Engelhardt, 1978, 1982, 1985). In
addition, seals exposed to an oil spill are unlikely to ingest enough
oil to cause serious internal damage (Geraci and St. Aubin, 1980,
1982).
Since ringed seals are found year-round in the U.S. Beaufort Sea
and more specifically in the project area, an oil spill at any time of
year could potentially have effects on ringed seals. However, they are
more widely dispersed during the open-water season. Spotted seals are
unlikely to be found in the project area during late winter and spring.
Therefore, they are more likely to be affected by a spill in the summer
or fall seasons. Bearded seals typically overwinter south of the
Beaufort Sea. However, some have been reported around Northstar during
early spring (Moulton et al., 2003b).
Oil Spill Cleanup Activities
Oil spill cleanup activities could increase disturbance effects on
either whales or seals, causing temporary disruption and possible
displacement (BOEM, 2018). General issues related to oil spill cleanup
activities are discussed earlier in this section for cetaceans. In the
event of a large spill contacting and extensively oiling coastal
habitats, the presence of response staff, equipment, and the many
aircraft involved in the cleanup could (depending on the time of the
spill and the cleanup) potentially displace seals. If extensive cleanup
operations occur in the spring, they could cause increased stress and
reduced pup survival of ringed seals. Oil spill cleanup activity could
exacerbate and increase disturbance effects on subsistence species,
cause localized displacement of subsistence species, and alter or
reduce access to those species by hunters. On the other hand, the
displacement of marine mammals away from oil-contaminated areas by
cleanup activities would reduce the likelihood of direct contact with
oil. Impacts to subsistence uses of marine mammals are discussed later
in this document (see the ``Impact on Availability of Affected Species
or Stock for Taking for Subsistence Uses'' section).
Potential Take From Oil Spills
Hilcorp did not request, and NMFS is not proposing to authorize,
take of marine mammals incidental to oil spills. Should an oil spill
occur and marine mammals are killed, injured, or harassed by the spill,
the ``taking'' would be unauthorized. However, NMFS is including
mitigation and reporting measures within these proposed regulations to
minimize risk to marine mammals. Should an oil spill occur at the drill
site and that oil enter the marine environment such that marine mammals
are at risk of exposure, NMFS is proposing to include a mitigation
measure that Hilcorp notify NMFS immediately and cease drilling until
NMFS can assess the severity of the spill and potential impacts to
marine mammals. Should the pipeline leak, crude oil transport via the
pipeline would also cease immediately until the pipeline is repaired.
In the case of any spill, Hilcorp would immediately initiate
communication and response protocol per its Oil Spill Response Plan.
Finally, Hilcorp must maintain the frequency of oil spill response
training at no less than one two hour session per week.
Anticipated Effects on Marine Mammal Habitat
The footprint of the LPDI would result in permanent impacts to
habitats used directly by marine mammals; however, the footprint is
minimal compared to available habitat within Foggy Island Bay and,
further, few cetaceans use Foggy Island Bay. BOEM has also required
mitigation designed to reduce impacts to marine mammal habitat,
including water quality and habitat disturbance. For example, initial
island construction (fill placement phase) and pipeline installation/
backfill will occur in winter when fewer fish species are present and
when water currents are low, which will reduce total suspended solids
(TSS) distribution. In addition, island armoring will serve to reduce
erosion and the spread of silt or gravel over potential prey habitat.
However, increased turbidity and suspended solids resulting from
artificial island construction or exploratory drilling discharges could
have adverse impacts on water quality and, if increases persisted for
extended periods of time; these impacts would be localized but could be
long term (NOAA, 2016). If oil and gas industry operators comply with
the U.S. Environmental Protection Agency's Clean Water Act
requirements, then elevations in turbidity and concentrations of total
suspended solids resulting from exploratory drilling activity would not
result in unreasonable degradation of the marine environment (NOAA,
2016).
The proposed activities could also affect acoustic habitat (see
Auditory Masking discussion above), but meaningful impacts are unlikely
given the low usage of the area by marine mammals and limited pile
driving during open-water conditions (approximately 2 weeks). There are
no known foraging hotspots, or habitats of significant biological
importance to marine mammals present in the marine waters in Foggy
Island Bay. Migratory pathways for cetaceans exist outside the McClure
Island group; however, the majority of noise from the project would be
confined to Foggy Island Bay with low levels potentially propagating
outside of but close to the McClure Islands during vibratory pile
driving only (see Figure 5 in Appendix A of Hilcorp's application). In
addition, pile driving would not occur during the fall bowhead whale
migration (see Proposed Mitigation section); therefore, no impacts to
migratory habitats during use is anticipated during this time period.
[[Page 24948]]
Effects to Prey--Sound may affect marine mammals through impacts on
the abundance, behavior, or distribution of prey species (e.g.,
crustaceans, cephalopods, fish, zooplankton). Marine mammal prey varies
by species, season, and location and, for some, is not well documented.
Here, we describe studies regarding the effects of noise on known
marine mammal prey.
Fish utilize the soundscape and components of sound in their
environment to perform important functions such as foraging, predator
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009).
Depending on their hearing anatomy and peripheral sensory structures,
which vary among species, fishes hear sounds using pressure and
particle motion sensitivity capabilities and detect the motion of
surrounding water (Fay et al., 2008). The potential effects of noise on
fishes depends on the overlapping frequency range, distance from the
sound source, water depth of exposure, and species-specific hearing
sensitivity, anatomy, and physiology. Key impacts to fishes may include
behavioral responses, hearing damage, barotrauma (pressure-related
injuries), and mortality.
Fish react to sounds which are especially strong and/or
intermittent low-frequency sounds, and behavioral responses such as
flight or avoidance are the most likely effects. Short duration, sharp
sounds can cause overt or subtle changes in fish behavior and local
distribution. The reaction of fish to noise depends on the
physiological state of the fish, past exposures, motivation (e.g.,
feeding, spawning, migration), and other environmental factors.
Hastings and Popper (2005) identified several studies that suggest fish
may relocate to avoid certain areas of sound energy. Additional studies
have documented effects of pile driving on fish, although several are
based on studies in support of large, multiyear bridge construction
projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings,
2009). Several studies have demonstrated that impulse sounds might
affect the distribution and behavior of some fishes, potentially
impacting foraging opportunities or increasing energetic costs (e.g.,
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al.,
1992; Santulli et al., 1999; Paxton et al., 2017). However, some
studies have shown no or slight reaction to impulse sounds (e.g., Pena
et al., 2013; Wardle et al., 2001; Jorgenson and Gyselman, 2009). More
commonly, though, the impacts of noise on fish are temporary.
SPLs of sufficient strength have been known to cause injury to fish
and fish mortality. However, in most fish species, hair cells in the
ear continuously regenerate and loss of auditory function likely is
restored when damaged cells are replaced with new cells. Halvorsen et
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours
for one species. Impacts would be most severe when the individual fish
is close to the source and when the duration of exposure is long.
Injury caused by barotrauma can range from slight to severe and can
cause death, and is most likely to occur in fish with swim bladders.
Barotrauma injuries have been documented during controlled exposure to
impact pile driving (Halvorsen et al., 2012b; Casper et al., 2013).
The most likely impact to fish from pile driving activities at the
project areas would be temporary behavioral avoidance of the area. The
duration of fish avoidance of an area after pile driving stops is
unknown, but a rapid return to normal recruitment, distribution and
behavior is anticipated. In general, impacts to marine mammal prey
species are expected to be minor and temporary due to the expected
short daily duration of individual pile driving events and the
relatively small areas being affected.
The area likely impacted by the activities is relatively small
compared to the available habitat in inland waters in the region. Any
behavioral avoidance by fish of the disturbed area would still leave
significantly large areas of fish and marine mammal foraging habitat in
the nearby vicinity. As described in the preceding, the potential for
the LDPI to affect the availability of prey to marine mammals or to
meaningfully impact the quality of physical or acoustic habitat is
considered to be insignificant.
Estimated Take
This section provides an estimate of the number of incidental takes
proposed for authorization through this proposed rule, which will
inform both NMFS' consideration of ``small numbers'' and the negligible
impact determination.
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 primarily be by Level B harassment, as use
of pile hammers, drill rigs, and ice-based equipment (e.g., augers,
trucks) have the potential to result in disruption of behavioral
patterns for individual marine mammals. There is also some potential
for auditory injury (Level A harassment) to result during pile driving.
The proposed mitigation and monitoring measures are expected to
minimize the severity of such taking to the extent practicable.
No mortality or serious injury is anticipated as a result of
exposure to acoustic sources; however, mortality and serious injury of
ringed seals may occur from ice road construction, use, and maintenance
conducted after March 1, annually. Below we describe how we estimated
mortality and serious injury from ice road work followed by a detailed
acoustic harassment estimation method.
Mortality/Serious Injury (Ice Seals)
The only species with the potential to incur serious injury or
mortality during the proposed project are ringed seals during ice road
construction, use, and maintenance. Other ice seal species are not
known to use ice roads within the action area. As described in the
Description of Marine Mammals section, pregnant ringed seals establish
lairs in shorefast sea ice beginning in early March where pups are born
and nursed throughout spring (March through May).
As described in the Potential Effects of the Specified Activity on
Marine Mammals and Their Habitat section above, there have been only
three documented interactions with ringed seals despite over 20 years
of ice road construction on the North Slope; one mortality in 1998 and
two non-lethal interactions in 2018. All three animals involved were
seal pups in or near their lairs. The two recent interactions in 2018
led NMFS to work with the companies involved in the interactions,
including Hilcorp, to better understand the circumstances behind the
interactions and to develop a list of BMPs designed to avoid and
minimize potential harassment. Hilcorp has adopted these BMPs (see
Proposed Mitigation and Monitoring section); however, the potential for
mortality remains, albeit low. Because lairs can include both a pup and
its mother, but interactions with ringed seals are relatively uncommon,
NMFS is proposing to authorize the taking, by mortality or serious
injury, of two ringed seals over the course of five years of ice road
construction.
[[Page 24949]]
Acoustic Harassment
Generally speaking, 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. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the proposed 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 (e.g., 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 Level B harassment. NMFS predicts that marine mammals are
likely to be 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.
Hilcorp's Liberty Project includes the use of continuous, non-
impulsive (vibratory pile driving, drilling, auguring) and
intermittent, impulsive (impact pile driving) sources, and therefore
the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 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). Hilcorp's proposed activity includes the
use of impulsive (e.g., impact pile driving) and non-impulsive (e.g.,
vibratory pile driving, slope shaping, trenching) sources.
These thresholds are provided in Table 3. 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.
Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing Group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
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 to exceed 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 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. 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, which include source levels and transmission loss
coefficient.
In shallow water noise propagation is highly dependent on the
properties of the bottom and the surface, among other things.
Parameters such as depth and the bottom properties can vary with
distance from the source. There is a low-frequency cut-off related to
the water depth, below which energy is transferred directly into the
sea floor. Overall, the transmission loss in shallow water is a
combination of cylindrical spreading effects, bottom interaction
effects at lower frequencies and scattering losses at high frequencies.
To estimate ensonfied area, Hilcorp used the parabolic equation (PE)
modelling algorithm RAMGeo (Collins, 1993) to calculate the
transmission loss between the source and the receiver (SLR, 2017). The
full modeling report, including details on modeling methodology and
procedure and ensonification area figures, can be found in the
Underwater and Airborne Noise Modelling Report attached as Appendix A
in Hilcorp's application. We provide a summary here.
RAMGeo is an efficient and reliable PE algorithm for solving range-
[[Page 24950]]
dependent acoustic problems with fluid seabed geo-acoustic properties.
The noise sources were assumed to be omnidirectional and modelled as
point sources. In practice many sources are directional, this
assumption is conservative. To estimate Level A harassment and Level B
harassment threshold distances, Hilcorp first obtained one-third octave
source spectral levels via reference spectral curves with their
subsequent corrections based on their corresponding overall source
levels. Table 4 contains estimated source levels and Appendix B in
Hilcorp's acoustic modeling report contains source spectrum shape used
in the model (SLR, 2018).
Table 4--Estimated Source Levels and Duration
--------------------------------------------------------------------------------------------------------------------------------------------------------
Underwater source levels (db
re: 1 [micro]Pa)
Activity -------------------------------- Airborne (db re: 20[micro]Pa) Number of Max. duration per day
Ice-covered Open-water piles per day
season season
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pipeline installation (trucks on ice, 169.6-179.1 N/A 74.8-78 @100 m................. N/A 12 hrs.
backhoe, ditchwitch).
Sheet pile--vibratory................... 221 185 81 @100 m...................... 20 2.5 hrs.\1\
Sheet pile--impact...................... 235.7 210 93 @160 m...................... .............. 40 min.\2\
Conductor pipe--vibratory............... .............. .............. ............................... 16 2.5 hrs (proxy from sheet
piles).
Conductor pipes/foundation piles--impact 171.7 196 ............................... .............. 2 hrs.\3\
Slope shaping/armoring.................. n/a 167 64.7 @100 m.................... n/a 9.6 hrs.
Drilling and production................. 170.5 151 80 @200 m...................... n/a 24 hrs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Estimated based on 20 piles per day, 7.5 min per pile.
\2\ Average duration estimate is 20 min per day.
\3\ Hilcorp estimates 440-6,300 strikes per day.
Hilcorp relied on operational data from Northstar construction
activities to estimate LDPI construction activity methods and
durations. Greene et al. (2008) indicates impact pile driving at
Northstar was required only to finish off each pile after vibratory
driving it into the frozen material of old Seal Island. Since Liberty
will be a newly constructed gravel island, driving sheet piles should
be easier than was the case at Northstar. Impact sheet pile driving
therefore may not be required at Liberty and is included in the
application as a precaution. Hilcorp assumed approximately 2 minutes
and 100 strikes per pile with a maximum of 20 piles installed per day.
Blackwell et al. (2004a) observed impact pipe driving at Northstar. On
most days, one conductor pipe was driven in a day over a period of 5 to
8.5 hours. The longest day of observation was 10.5 hours in which time
two pipes were driven. The observation period each day included all
pipe driving time, but driving was never continuous during the entire
observation period. Hilcorp applied a correction factor to the
Northstar duration, assuming pipe driving at the LDPI would actually
occur for 20 percent of the total installation time logged at
Northstar.
The scenarios with theoretical potential for PTS onset are slope
shaping, vibratory driving, and impact pile driving and pipe driving
during the open water season. Hilcorp did not model distances to PTS
thresholds during ice-covered conditions because no cetaceans are
present in the region during this time and noise levels are expected to
attenuate very rapidly under ice conditions. Hilcorp did not request,
nor does NMFS anticipate, take by Level A harassment (PTS) during
island construction conducted under ice conditions. The following
discussion on PTS potential is limited to the open-water season.
Table 5 summarizes Hilcorp's modeled distances to NMFS PTS
thresholds using the maximum durations identified above (see also
Tables 16 through 18 in Appendix A of Hilcorp's application for shorter
durations). We note marine mammals would have to be extremely close to
the island during slope shaping and pile driving for an extended period
of time to potentially incur PTS. We find these durations at distance
are highly unlikely and have concluded the potential for PTS from slope
shaping and vibratory pile driving for any marine mammal hearing group
does not exist. Table 6 summarizes distances and ensonified areas to
NMFS Level B harassment thresholds during ice-covered and open water
conditions.
Table 5--Radial Distances to NMFS Level A Harassment Thresholds and Ensonified Area During the Open-Water Season
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Activity (duration) and distance to threshold (ensonified area)
Marine mammal hearing group ------------------------------------------------------------------------------------------------------------------------------------------------------------
(species) Slope shaping (9.6 hrs) Vibratory sheet piling (2.5 hrs) Impact sheet piling (40 min) Impact pipe driving (2 hrs)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Low frequency cetaceans (bowhead, <10 m (0 km\2\)....................... 50 m (164 ft)........................ 1,940 (11.8 km\2\)................... 87 m (2.38 km\2\)
gray whales).
Mid frequency cetaceans (belugas).. n/a................................... <10 m (0 km\2\)...................... 60 m (0.01 km\2\).................... 27 m (0.002 km\2\)
Phocid Pinnipeds (bearded, ringed, <10 m (0 km\2\)....................... 20 m (66 ft)......................... 526 m (0.87 km\2\)................... 240 m (0.18 km\2\)
spotted seals).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 24951]]
Table 6--Radial Distances to NMFS Level B Harassment Thresholds and Ensonified Area
----------------------------------------------------------------------------------------------------------------
Ice-covered Open water \1\
----------------------------------------------------------------
Activity Underwater Airborne noise
noise--ice- Min (m) Median (m) Max (m)
covered (m)
----------------------------------------------------------------------------------------------------------------
Ice road construction and 170 n/a n/a n/a <15
maintenance....................
Pipeline construction........... 210 n/a n/a n/a <15
Sheet pile driving--vibratory... 390 12,000 14,800 17,500 15
Sheet pile driving--impact...... 90 1,700 2,050 2,250 100
Conductor pipe/foundation pile 11 300 315 400 100
driving--impact................
Slope shaping/armoring.......... n/a 880 1,160 1,260 <15
Helicopter (take-off/landing)... n/a n/a n/a n/a 67
Drilling and Production......... 230 20 55 85 30
----------------------------------------------------------------------------------------------------------------
\1\ Open water results are minimum, median and maximum distance to the appropriate noise threshold across all
depths calculated in the direction of maximum noise propagation from the source, away from shore. Median
distances were used to estimate ensonified areas and take calculations.
Marine Mammal Occurrence
Each fall and summer, NMFS and BOEM conduct an aerial survey in the
Arctic, the Aerial Survey of Arctic Marine Mammals (ASAMM) surveys. The
goal of these surveys is to document the distribution and relative
abundance of bowhead, gray, right, fin and beluga whales and other
marine mammals in areas of potential oil and natural gas exploration,
development, and production activities in the Alaskan Beaufort and
northeastern Chukchi Seas. Traditionally, only fall surveys were
conducted but then, in the summer of 2012 (mid-July), the first
dedicated summer survey effort began in the ASAMM Beaufort Sea study
area. Hilcorp used these ASAMM surveys as the data source to estimate
seasonal densities of cetaceans (bowhead, gray and beluga whales) in
the project area. The ASAMM surveys are conducted within blocks that
overlay the Beaufort and Chukchi Seas oil and gas lease sale areas
offshore of Alaska (Figure 6-1 in Hilcorp's application), and provide
sighting data for bowhead, gray, and beluga whales during summer and
fall months. During the summer and fall, NMFS observed for marine
mammals on effort for 7,990 km and 9,244 km, respectively, from 2011
through 2016. Data from those surveys are used for this analysis. We
note the location of the proposed LDPI project is in ASAMM survey block
1; the inshore boundary of this block terminates at the McClure Island
group. It was not until 2016 that on-effort surveys began inside the
McClure Island group (i.e., Foggy Island Bay) since bowhead whales, the
focus of the surveys, are not likely to enter the bay. During ASAMM
surveys in Foggy Island Bay, no marine mammals have been observed.
Therefore, the density estimates provided here are an overestimate
because they rely on offshore surveys where marine mammals are
concentrated.
Bowhead Whale
Summer and fall bowhead whale densities were calculated using the
results from ASAMM surveys from 2011 through 2017. The surveys provided
sightings and effort data by month and season (summer and fall), as
well as each survey block (Clarke et al., 2012, 2013a, 2014, 2015,
2017). Bowhead whale densities were calculated in a two-step approach;
they first calculated a sighting rate of whales per km, then they
multiplied the transect length by the effective strip width using the
modeled species-specific effective strip width for an aero commander
aircraft calculated by Ferguson and Clarke (2013). Where the effective
strip width is the half-strip width, it must be multiplied by 2 in
order to encompass both sides of the transect line. Thus whale density
was calculated as follows: Whales per km\2\ = whales per kilometer/(2 x
the effective strip width). The effective strip width for bowhead
whales was calculated to be 1.15 km (CV=0.08). Table 7 contains pooled
data from 2011 through 2017 Block 1 ASAMM surveys and resulting
densities.
The resulting densities are expected to be overestimates for the
LDPI analysis because data is based on sighting effort outside the
barrier islands, and bowhead and gray whales rarely occur within the
barrier islands, while belugas also are found in higher abundance
outside of Foggy Island Bay.
Table 7--Bowhead Whale Sighting Data From 2011 Through 2017 and Resulting Densities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transect Number of
Year Season Month effort (km) whale sighted Whale/km Whale/km\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011................................. Summer.................. Jul-Aug................ 346 1 0.003 0.001
Fall.................... Sept-Oct............... 1,476 24 0.016 0.007
2012................................. Summer.................. Jul-Aug................ 1,493 5 0.003 0.001
Fall.................... Sept-Oct............... 1,086 14 0.013 0.006
2013................................. Summer.................. Jul-Aug................ 1,582 21 0.013 0.006
Fall.................... Sept-Oct............... 1,121 21 0.019 0.008
2014................................. Summer.................. Jul-Aug................ 1,393 17 0.012 0.005
Fall.................... Sept-Oct............... 1,538 79 0.051 0.022
2015................................. Summer.................. Jul-Aug................ 1,262 15 0.012 0.005
Fall.................... Sept-Oct............... 1,663 17 0.010 0.004
2016................................. Summer.................. Jul-Aug................ 1,914 74 0.039 0.017
Fall.................... Sept-Oct............... 2,360 19 0.008 0.004
2017................................. Summer.................. Jul-Aug................ 3,003 8 0.003 0.001
[[Page 24952]]
Fall.................... Sept-Oct............... 1,803 85 0.047 0.020
------------------------------------------------------------------------------------------------------------------
Total............................ Summer 10,993 141 \1\ 0.012 \1\ 0.005
Fall 11,047 259 \1\ 0.023 \1\ 0.0010
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Value represents average, not total, across all years per relevant season.
Gray Whales
Gray whales are rare in the project area and ASAMM aerial survey
block 1. From 2011 through 2017 only two gray whales have been observed
during ASAMM block 1 surveys despite over 21,000 miles of trackline
effort, for a resulting density of zero (Table 8). However, a group of
baleen whales comprised of both bowhead and gray whales was observed
during industry marine mammal surveys in Foggy Island Bay in 2008.
Therefore, Hilcorp has requested, and NMFS proposes to authorize, take,
by Level B harassment, of two gray whales annually during the effective
period of the proposed regulations on the chance gray whales enter the
ensonified zone during LDPI activities.
Table 8--Gray Whale Sighting Data From 2011 Through 2017 and Resulting Densities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transect Number of
Year Season Month effort (km) whales sighted Whale/km Whale/km\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011................................. Summer.................. Jul-Aug................ 346 0 0.000 0.000
Fall.................... Sept-Oct............... 1,476 0 0.000 0.000
2012................................. Summer.................. Jul-Aug................ 1,493 0 0.000 0.000
Fall.................... Sept-Oct............... 1,086 0 0.000 0.000
2013................................. Summer.................. Jul-Aug................ 1,582 0 0.000 0.000
Fall.................... Sept-Oct............... 1,121 0 0.000 0.000
2014................................. Summer.................. Jul-Aug................ 1,393 0 0.000 0.000
Fall.................... Sept-Oct............... 1,538 1 0.001 0.000
2015................................. Summer.................. Jul-Aug................ 1,262 0 0.000 0.000
Fall.................... Sept-Oct............... 1,663 0 0.000 0.000
2016................................. Summer.................. Jul-Aug................ 1,914 1 0.001 0.000
Fall.................... Sept-Oct............... 2,360 0 0.000 0.000
2017................................. Summer.................. Jul-Aug................ 3,003 0 0.001 0.000
Fall.................... Sept-Oct............... 1,803 0 0.000 0.000
------------------------------------------------------------------------------------------------------------------
Total............................ Summer 10,993 1 0 0.000
Fall 11,047 1 0 0.000
--------------------------------------------------------------------------------------------------------------------------------------------------------
Beluga Whales
As with the large whales, beluga whale presence is anticipated to
be higher outside the barrier islands. Sighting data collected during
industry marine mammal surveys in Foggy Island Bay (as described in the
Description of Marine Mammals section) are used to estimate likelihood
of presence when deriving final proposed take numbers; however, these
data were not collected in a manner that allows for a derivation of
density inside the bay or integration into the ASAMM survey data. The
ASAMM surveys were recently extended into Foggy Island Bay; however, no
beluga whales or any other cetaceans were observed while within the
Bay. Table 9 presents block 1 ASAMM survey data and resulting densities
for beluga whales. We note the 2012 and 2013 ASAMM reports stratified
beluga whale sightings by depth rather than by survey block. Because
the final beluga whale take numbers presented in this proposed rule are
adjusted based on expected presence in the entire bay based on marine
mammal monitoring by industry in Foggy Island Bay, NMFS did not pursue
investigating the raw data further and believe the values here are a
reasonable and conservative representation of density in survey block 1
based on comparison to other ASAMM survey year sighting rates where
sightings by blocks are available.
Table 9--Beluga Whale Sighting Data From 2011 Through 2017 and Resulting Densities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transect Number of
Year Season Month effort (km) whales sighted Whale/km Whale/km\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2011................................. Summer.................. Jul-Aug................ 346 0 0.000 0.000
Fall.................... Sept-Oct............... 1,476 0 0.000 0.000
2012................................. Summer.................. Jul-Aug................ 5,001 47 0.009 0.008
Fall.................... Sept-Oct............... 4,868 5 0.001 0.001
2013................................. Summer.................. Jul-Aug................ 4,270 75 0.018 0.014
Fall.................... Sept-Oct............... 3,372 2 0.001 0.0005
2014................................. Summer.................. Jul-Aug................ 1,393 13 0.009 0.008
Fall.................... Sept-Oct............... 1,538 9 0.006 0.005
[[Page 24953]]
2015................................. Summer.................. Jul-Aug................ 1,262 37 0.029 0.024
Fall.................... Sept-Oct............... 1,663 3 0.002 0.001
2016................................. Summer.................. Jul-Aug................ 1,914 349 0.182 0.148
Fall.................... Sept-Oct............... 2,360 15 0.006 0.005
2017................................. Summer.................. Jul-Aug................ 3,003 4 0.001 0.001
Fall.................... Sept-Oct............... 1,803 0 0.000 0.000
------------------------------------------------------------------------------------------------------------------
Total............................ Summer 17,189 521 0 0.029
Fall 17,080 34 0 0.002
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ringed Seals
Limited data are available on ringed seal densities in the southern
Beaufort Sea during the winter months; however, ringed seals winter
ecology studies conducted in the 1980s (Kelly et al., 1986, Frost and
Burns, 1989) and surveys associated with the Northstar development
(Williams et al., 2001) provide information on both seal ice-structure
use (where ice structures include both breathing holes and subnivean
lairs), and on the density of ice structures.
Kelly et al. (1986) found that in the southern Beaufort Sea and
Kotzebue Sound, radio-tagged seals used between 1 and at least 4
subnivean lairs. The distances between lairs was up to 4 km (10 mi),
with numerous breathing holes in-between (Kelly et al., 1986). While
Kelly et al. (1986) calculated the average number of lairs used per
seal to be 2.85, they also suggested that this was likely to be an
underestimate. To estimate winter ringed seal density within the
project area, the average ice structure density of 1.45/km\2\ was
divided by the average number of ice structures used by an individual
seal of 2.85 (SD=2.51; Kelly et al., 1986). This results in an
estimated density of 0.510 ringed seals/km\2\ during the winter months.
This density is likely to be overestimated due to Kelly et al. (1986)'s
suggestion that their estimate of the average number of lairs used by a
seal was an underestimate (the denominator used).
For spring ringed seal densities, aerial surveys flown in 1997
through 2002 over Foggy Island Bay and west of Prudhoe Bay during late
May and early June (Frost et al., 2002, Moulton et al., 2002b,
Richardson and Williams, 2003), when the greatest percentage of seals
have abandoned their lairs and are hauled out on the ice (Kelly et al.,
2010), provides the best available information on ringed seal
densities.
Because densities were consistently very low where water depth was
less than 3 m (and these areas are generally frozen solid during the
ice-covered season) densities have been calculated where water depth
was greater than 3 m deep (Moulton et al., 2002a, Moulton et al.,
2002b, Richardson and Williams, 2003). Based on the average density of
surveys flown 1997 to 2002, the uncorrected average density of ringed
seals during the spring is expected to be 0.548 ringed seals/km\2\.
Because the number of seals is expected to be much lower during the
open water season, we estimated summer (open-water) ringed seal density
to be 50 percent of the spring densities, resulting in an estimated
density of 0.27 ringed seals/km\2\. Ringed seals remain in the water
through the fall and in to the winter, however, due to the lack of
available data on fall densities within the LDPI action area we have
assumed the same density of ringed seals as in the summer; 0.27 ringed
seals/km\2\ (see Hilcorp's application and NMFS (2018) for more data
details).
Bearded Seals
Industry monitoring surveys for the Northstar development during
the spring seasons in 1999 (Moulton et al., 2000), 2000 (Moulton et
al., 2001), 2001 (Moulton et al., 2002a), and 2002 (Moulton et al.,
2003) counted 47 bearded seals (annual mean of 11.75 seals during an
annual mean of 3,997.5 km\2\ of effort); these data were insufficient
to calculate a reliable density estimate in each year, no other on
bearded seal presence were available. Annual reports (Richardson, 2008)
for years 2000 through 2002 include similar figures. A winter and
spring density using the four years of Northstar development data
equates to 0.003 bearded seals per km\2\.
For the open-water season (summer and fall), bearded seal density
was calculated as a proportion of the ringed seal summer density based
on the percentage of pinniped sightings during monitoring surveys in
1996 (Harris et al., 2001), 2008 (Aerts et al., 2008, Hauser et al.,
2008), and 2012 (HDR, 2012). During these surveys, 63 percent were
ringed seals, 17 percent were bearded seals and 20 percent were spotted
seals. Thus, the density of bearded seals during the open water season
(summer and fall) was calculated as 17 percent of the ringed seal
density of 0.27 seals/km\2\. This results in an estimated summer
density for bearded seals of 0.05 seals/km\2\.
Spotted Seals
Given their seasonal distribution and low numbers in the nearshore
waters of the central Alaskan Beaufort Sea, no spotted seals are
expected in the action area during late winter and spring, but a few
individuals could be expected during the summer or fall. Using the same
monitoring data described in the bearded seal section above, spotted
seal density during the open water season (summer and fall) was
calculated as 20 percent of the ringed seal summer density estimate
(0.27 seals/km\2\) in the LDPI Project Area. This results in an
estimated density of 0.05 seals/km\2\.
A summary of marine mammal densities used to estimate exposures is
provided, by season and species, in Table 10.
Table 10--Summary of Marine Mammal Densities
----------------------------------------------------------------------------------------------------------------
Winter (Nov- Spring (Apr- Summer (Jul- Fall (Sept-
Species Stock Mar) Jun) Aug) Oct)
----------------------------------------------------------------------------------------------------------------
Bowhead whale................. Western Arctic.. 0 0 0.006 0.009
[[Page 24954]]
Gray whale.................... Eastern N 0 0 0 0
Pacific.
Beluga whale.................. Beaufort Sea.... 0 0 0.029 0.002
Ringed seal................... Alaska.......... 0.51 0.548 0.27 0.27
Bearded seal.................. Alaska.......... 0.003 0.003 0.05 0.05
Spotted seal.................. Alaska.......... 0 0 0.05 0
----------------------------------------------------------------------------------------------------------------
Exposure Estimates
To quantitatively assess exposure of marine mammals to noise from
the various activities associated with the Liberty Project, Hilcorp
used the median range to which Level A harassment and Level B
harassment thresholds were reached for ice road construction and
maintenance, island construction, vibratory and impact sheet pile
driving, impact conductor pipe driving, slope shaping, drilling, and
production. Hilcorp considered the potential for take on any given day
based on the largest Level B harassment zone for that day.
For each species, exposure estimates were calculated in a multi-
step process. On any given day of the year, the expected take for that
day per species was calculated as: Density x ensonified area (of the
largest Level B harassment zone for that day). Results were then summed
for the year to provide total exposure estimates per species.
In some cases, however, the calculated densities alone do not
reflect the full potential of exposure. For example, beluga whale
densities are quite low; however, previous marine mammal surveys in
Foggy Island Bay have identified the potential for them to be there in
greater numbers than reflected based on NMFS survey data alone. In
other cases, the potential for exposure is almost discountable (e.g.,
calculated gray whale takes are zero) but given they could appear in
Foggy Island Bay, Hilcorp has requested take authorization. Hilcorp
also requested take authorization for bowhead whales despite the lack
of project-related noise above NMFS harassment thresholds extending
much beyond the McClure Islands (e.g., see Figure 02 in Appendix D of
Hilcorp's application) where bowheads are more likely to be found. As
described in the Marine Mammal Occurrence section, we used density
based on surveys conducted outside of the McClure Islands; therefore,
Hilcorp has likely overestimated potential take. However, given the
sensitivities surrounding this species in the Arctic, we believe a
precautionary approach is appropriate here to conservatively assess the
potential effects on the stock and subsistence use.
Bowhead, gray, and beluga whales have the potential to be present
and exposed to noise during the open-water season. Work during ice
conditions (e.g., pipeline installation, ice road construction) does
not have the potential to harass cetaceans because they are not present
in the action area. Hilcorp anticipates conducting a maximum of 15 days
of open-water pile driving and could conduct slope shaping throughout
the summer. The method described above was used to estimate take, by
Level B harassment, in year 1 when the LDPI would be constructed.
There is a very low potential for large whale Level A harassment
(PTS) from the specified activities given the rarity of bowhead and
gray whales entering Foggy Island Bay. However, in an abundance of
caution, Hilcorp has requested, and NMFS proposes to authorize, limited
Level A harassment takes per year of each species potentially exposed
to impact pile driving noise (Table 11). Group size was considered in
Level B harassment take requests in cases where sighting data and group
size indicate potential for a greater amount of take than calculated
based on density (e.g., beluga whale take request is higher than
calculated take estimate). A small amount of the Level B harassment
exposures were allocated to Level A harassment for the first year of
work (i.e., pile driving during open water).
For seals, a straight density estimate was used following the
method described above. In assessing the calculated results; there was
no need to adjust take numbers for Level B harassment.
The amount and manner of take Hilcorp requested, and NMFS proposes
to authorize, for each species is summarized in Table 11 below. In
addition to the takes listed below, Hilcorp requests, and NMFS is
proposing to authorize, a total of two ringed seal mortalities over the
life of the proposed regulations incidental to ice road construction,
use, and maintenance.
Table 11--Annual and Total Amount of Proposed Take Incidental to Hilcorp's LDPI Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species (stock)
-----------------------------------------------------------------------------------------------
Year Bowhead (W Beluga Ringed seal Bearded seal Spotted seal
Arctic) Gray (ENP) (Beaufort) (AK) (AK) (AK)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 2 2 10 5 2 2
2....................................................... 0 0 0 0 0 0
3....................................................... 0 0 0 0 0 0
4....................................................... 0 0 0 0 0 0
5....................................................... 0 0 0 0 0 0
-----------------------------------------------------------------------------------------------
Total Level A harassment............................ 2 2 10 5 2 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level B harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 6 1 40 336 58 58
[[Page 24955]]
2....................................................... 1 1 20 8 1 1
3....................................................... 1 1 20 22 1 1
4....................................................... 1 1 20 18 1 1
5....................................................... 1 1 20 17 1 1
-----------------------------------------------------------------------------------------------
Total Level B harassment............................ 10 5 120 401 62 62
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed Mitigation
In order to issue an IHA under Section 101(a)(5)(A) and (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.
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, as
well as subsistence uses. 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.
The mitigation measures presented here are a product of Hilcorp's
application, recommendations from the Arctic peer review panel
(available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act), NMFS'
recommendations, and public comments on the Federal Register Notice of
Receipt.
Construction Mitigation Measures
Hilcorp will aim to construct the island, including completing all
pile driving, during the ice-covered season (as was done for
Northstar). Should an ice seal be observed on or near the LDPI by any
Hilcorp personnel, the sighting will be reported to Hilcorp's
Environmental Specialist. No construction activity should occur within
10 m of an ice seal and any vehicles used should use precaution and not
approach any ice seal within 10 m.
During the open-water season, the following mitigation measures
apply: Hilcorp will station two protected species observers (PSOs) on
elevated platforms on the island during all pile driving in open-water
conditions (see Proposed Monitoring and Reporting for more details).
Marine mammal monitoring shall take place from 30 minutes prior to
initiation of pile driving activity through 30 minutes post-completion
of pile driving activity. Pre-activity monitoring shall be conducted
for 30 minutes to ensure that the shutdown zone is clear of marine
mammals, and pile driving may commence when observers have declared the
shutdown zone (which equates to the Level A harassment zone in Table 5)
is clear of marine mammals. In the event of a delay or shutdown of
activity resulting from marine mammals in the shutdown zone, animals
shall be allowed to remain in the shutdown zone (i.e., must leave of
their own volition) and their behavior shall be monitored and
documented.
If a marine mammal is approaching a Level A harassment zone and
pile driving has not commenced, pile driving shall be delayed. Pile
driving may not commence or resume until either the animal has
voluntarily left and been visually confirmed beyond the shutdown zone;
15 minutes have passed without subsequent detections of small cetaceans
and pinnipeds; or 30 minutes have passed without subsequent detections
of large cetaceans. NMFS may adjust the shutdown zones pending review
and approval of an acoustic monitoring report (see Monitoring and
Reporting).
Hilcorp will use soft start techniques when impact pile driving.
Soft start requires contractors to provide an initial set of strikes at
reduced energy, followed by a thirty-second waiting period, then two
subsequent reduced energy strike sets. A soft start must be implemented
at the start of each day's impact pile driving and at any time
following cessation of impact pile driving for a period of thirty
minutes or longer.
In the unlikely event a low frequency cetacean (bowhead or gray
whale) approaches or enters the Level A harassment zone, pile driving
would be shut down. If a mid-frequency cetacean (beluga) or pinniped
(seal) enters the Level A harassment zone during pile driving, Hilcorp
proposes to complete setting the pile (which takes ten to fifteen
minutes from commencement) but not initiate additional pile driving of
new piles until the marine mammal has left and is on a path away from
the Level A harassment zone. Hilcorp would not commence pile driving if
any species is observed approaching or within the Level A harassment
zone during the pre-construction monitoring period.
If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
takes are met, is observed approaching or within the monitoring zone
(which equates to the Level B harassment zone in Table 6),
[[Page 24956]]
pile driving and removal activities must shut down immediately using
delay and shut-down procedures. Activities must not resume until the
animal has been confirmed to have left the area or the observation time
period, as indicated in above, has elapsed.
Hilcorp shall install the pipeline during the ice-covered season,
thereby minimizing noise impacts to marine mammals as noise does not
propagate well in ice and cetaceans are not present in the action area
during winter.
Proposed Mitigation for Ice Road Construction, Maintenance, and Use
During ice road construction, Hilcorp would follow several BMPs
recently developed through a collaborative effort with NMFS. These BMPs
are informed by the best available information on how ice roads are
constructed and maintained and ice seal lairing knowledge. They are
designed to minimize disturbance and set forth a monitoring and
reporting plan to improve knowledge. The complete BMP document is
available on our website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
The ice road BMPs are applicable to construction and maintenance of
Liberty sea ice roads and sea ice trails in areas where water depth is
greater than 10 feet (ft) (the minimum depth required to establish
ringed seal lairs) as well as any open leads in the sea ice requiring a
temporary bridge during the ice road season. They are organized into
the following categories: (1) Wildlife training; (2) general BMPs
implemented throughout the ice road season; (3) BMPs to be implemented
prior to March 1st; (4) BMPs to be implemented after March 1; and (4)
reporting. We refer the reader to the complete BMP document on our
website but provide a summary of provisions here.
Timing--Hilcorp will construct sea ice roads as early as possible
(typically December 1 through mid-February) so that the entire corridor
is disturbed prior to March 1, the known onset of lairing season.
Blading and snow blowing of ice roads/trails will be limited to the
previously disturbed and delineated areas to the extent safe and
practicable. Snow will be plowed or blown from the ice surface so as to
preserve the safety and integrity of the ice surface for continued use.
After March 1, annually, blading and snow blowing of ice roads will
be limited to the previously disturbed ice road/shoulder areas to the
extent safe and practicable. However, when safety requires a new ice
trail to be constructed after March 1st, construction activities such
as drilling holes in the ice to determine ice quality and thickness,
will be conducted only during daylight hours with good visibility.
Ringed seal structures will be avoided by a minimum of 150 ft during
ice testing and new trail construction.
Personnel--Hilcorp will employ a NMFS-approved, trained
environmental field specialist who will serve as the primary ice seal
monitor and main point of contact for any ice seal observations made by
other Hilcorp staff, employees, or contractors. This person shall be in
charge of conducting monitoring surveys every other day while the ice
road is being actively used. The specialist will also be responsible
for alerting all crew to ice seal sightings and reporting to the
appropriate officials.
Training--Prior to initiation of annual sea ice road activities,
all project personnel associated with ice road construction or use
(i.e., construction workers, surveyors, vehicle drivers security
personnel, and the environmental team) will receive annual training on
these BMPs. Annual training also includes reviewing the company's
Wildlife Interaction Plan which has been modified to include reference
to the BMPs and reporting protocol. In addition to the BMPs, other
topics in the training may include ringed seal reproductive ecology
(e.g., temporal and spatial lairing behavior, habitat characteristics,
potential disturbance effect, etc.) and summary of applicable laws and
regulatory requirements including, but not limited to, MMPA incidental
take authorization requirements.
General BMPs To Be Implemented Throughout Season--Hilcorp would
establish ice road speed limits, delineate the roadways with highly
visible markers (to avoid vehicles from driving off roadway where ice
seals may be more likely to lair), and clearly mark corners of rig
mats, steel plates, and other materials used to bridge sections of
hazardous ice (to allow for easy location of materials when removed,
minimizing disturbance to potentially nearby ice seals). Construction,
maintenance or decommissioning activities associated with ice roads and
trails will not occur within 150 ft of the observed ring seal, but may
proceed as soon as the ringed seal, of its own accord, moves farther
than 150 ft distance away from the activities or has not been observed
within that area for at least 24 hours. All personnel would be
prohibited from closely approaching any seal and would be required to
report all seals sighted within 150 ft of the center of the ice road to
the designated Environmental Specialist.
Once the new ice trail is established, tracked vehicle operation
will be limited to the disturbed area to the extent practicable and
when safety of personnel is ensured. If an ice road or trail is being
actively used under daylight conditions with good visibility, a
dedicated observer (not the vehicle operator) will conduct a survey
along the sea ice road/trail to observe if any ringed seals are within
500 ft of the roadway corridor.
Mitigation for Subsistence Uses of Marine Mammals or Plan of
Cooperation
Regulations at 50 CFR 216.104(a)(12) further require incidental
take authorization (ITA) applicants conducting activities that take
place in Arctic waters to provide a Plan of Cooperation (POC) or
information that identifies what measures have been taken and/or will
be taken to minimize adverse effects on the availability of marine
mammals for subsistence purposes. A plan must include the following:
A statement that the applicant has notified and provided
the affected subsistence community with a draft plan of cooperation;
A schedule for meeting with the affected subsistence
communities to discuss proposed activities and to resolve potential
conflicts regarding any aspects of either the operation or the plan of
cooperation;
A description of what measures the applicant has taken
and/or will take to ensure that proposed activities will not interfere
with subsistence whaling or sealing; and
What plans the applicant has to continue to meet with the
affected communities, both prior to and while conducting the activity,
to resolve conflicts and to notify the communities of any changes in
the operation.
Hilcorp submitted a POC to NMFS, dated April 18, 2018, which
includes all the required elements included in the aforementioned
regulations (available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act). The
POC documents Hilcorp's stakeholder engagement activities, which began
in 2014 for this project, with subsistence communities within the North
Slope Region including Nuiqsut, Barrow and Kaktovik, the closest
villages to the Project Area. The POC includes a description of the
project, how access to the Project Area will occur, pipeline and island
construction techniques, and drilling operations. The plan also
describes the ongoing community outreach cooperation and coordination
[[Page 24957]]
and measures that will be implemented by Hilcorp to minimize adverse
effects on marine mammal subsistence. The POC is a living document and
will be updated throughout the LDPI review and permitting process. As
such, Hilcorp intends to maintain open communication with all
stakeholders throughout the Liberty permitting and development process.
In addition, Hilcorp, along with several other North Slope Industry
participants, has entered into a Conflict Avoidance Agreement (CAA)
with the AEWC for all North Slope oil and gas activities to minimize
potential interference with bowhead subsistence hunting. By nature of
the measures, the mitigation described above also minimizes impacts to
subsistence users and is not repeated here. Additional mitigation
measures specific to subsistence use include:
Avoid impact pile driving during the Cross Island bowhead
whale hunt which usually occurs from the last week of August through
mid-September;
Schedule all non-essential boat, hovercraft, barge, and
air traffic to avoid conflicting with the timing of the Cross Island
bowhead hunt; and
Adhere to all communication and coordination measures
described in the POC.
During the comment period on BOEM's EIS for this project and our
NOR announcing receipt of Hilcorp's application, the AEWC submitted
comments pertaining to potential effects on subsistence use. The AEWC
indicated Hilcorp's continued participation in the Open Water Season
CAA and the Good Neighbor Policy (GNP), along with its willingness to
work with the Nuiqsut Whaling Captains to mitigate subsistence harvest
concerns are central to the AEWC's support for the Liberty Project.
Further, recommendations from the peer-review panel recommended the
existing POC and CAA should be renewed and implemented annually to
ensure that project activities are coordinated with the North Slope
Borough and Alaska Native whaling captains. Therefore, in addition to
the activity specific mitigation measures above, NMFS is requiring
Hilcorp to abide by the POC, and remain committed to the GNP throughout
the life of the regulations. In addition, Hilcorp has committed to
following the CAA.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed 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, and on the availability of such species or stock for
subsistence uses.
Proposed Monitoring and Reporting
In order to issue an LOA for an activity, Section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of the authorized taking. NMFS' MMPA
implementing regulations further describe the information that an
applicant should provide when requesting an authorization (50 CFR
216.104(a)(13)), including the means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and the level of taking or impacts on populations of marine
mammals.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of significant interactions with marine mammal
species in action area (e.g., animals that came close to the vessel,
contacted the gear, or are otherwise rare or displaying unusual
behavior);
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 important physical components of marine
mammal habitat); and
Mitigation and monitoring effectiveness.
Marine Mammal Monitoring During the Open-Water Season
Hilcorp shall employ NMFS approved PSOs and conduct marine mammal
monitoring per the Marine Mammal Monitoring Plan, dated February 12,
2019. Two PSOs will be placed on either side of the island where pile/
pipe-driving or slope shaping activities are occurring. For example,
one PSO would be placed on the side where construction activities are
taking place and the other placed on the opposite side to provide
complete observer coverage around the island. PSO stations will be
moved around the island as needed during construction activities to
provide full coverage. PSOs will be switched out such that they will
observe for no more than 4 hours at a time and no more than 12 hours in
a 24-hour period.
A third island-based PSO will work closely with an aviation
specialist to monitor the Level B harassment zone during all open-water
pile and pipe driving using an unmanned aircraft system (UAS). This
third PSO and the UAS pilot will be located on the island. UAS
monitoring will also be used during slope shaping, which may occur in
open water intermittently until August 31 the first year the proposed
regulations are valid. Should foundation piles be installed the
subsequent year, the requirement for UAS will be dependent upon the
success of the program in the previous year and results of any
preliminary acoustic analysis during year 1 construction (e.g., impact
driving conductor pipes). Should UAS not be deemed effective and
construction is ongoing during the open-water season, a vessel-based
PSO shall observe the monitoring zone during pile and pipe driving.
During the open-water season, marine mammal monitoring will take
place from 30 minutes prior to initiation of pile and pipe driving
activity through 30 minutes post-completion of pile driving activity.
Pile driving may commence when observers have declared the shutdown
zone clear of marine mammals. In the event of a delay or shutdown of
activity resulting from marine mammals in the shutdown zone, animals
must be allowed to remain in the shutdown zone (i.e., must leave of
their own volition) and their behavior must be monitored and
documented.
During the ice-covered season, in addition to ice road monitoring
(see below), Hilcorp personnel will report any ice seal sightings on or
near the LDPI to Hilcorp's Environmental Specialist.
Acoustic Monitoring During the Open-Water Season
Hilcorp will conduct acoustic monitoring of island construction
activities during the open-water season in accordance with its Acoustic
[[Page 24958]]
Monitoring Plan available on our website. In summary, Hilcorp proposes
to annually conduct underwater acoustic monitoring during the open
water season (July through the beginning of October) using Directional
Autonomous Seafloor Acoustic Recorders (DASARs). One or more DASARs
will be deployed at a pre-determined GPS location(s) away from the
LDPI. Each DASAR will be connected by a ground line to an anchor on the
seafloor. At the end of the open water season, the DASAR will be
retrieved by dragging grappling hooks on the seafloor, perpendicular to
and over the location of the ground line, as defined by the GPS
locations of the anchor and DASAR. All activities conducted during the
open water season will be monitored. Goals of the acoustic monitoring
plan are to characterize LDPI construction and operation noises,
ambient sound levels, and verify (or amend) modeled distances to NMFS
harassment thresholds. Recorder arrangement will be configured each
year based on the anticipated activities for that season and the
modelled sound propagation estimates for the relevant sources.
Hilcorp's acoustic monitoring plan can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
Marine Mammal Monitoring During Ice Road Construction, Maintenance and
Use
Hilcorp has prepared a comprehensive ice seal monitoring and
mitigation plan via development of a BMP document which is available at
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Hilcorp would be required to
implement these BMPs; we provide a summary here but encourage the
public to review the full BMP document.
Seal surveys will be conducted every other day during daylight
hours. Observers for ice road activities need not be trained PSOs, but
they must have received the species observation training and understand
the applicable sections of Hilcorp's Wildlife Management Plan. In
addition, they must be capable of detecting, observing and monitoring
ringed seal presence and behaviors, and accurately and completely
recording data. Observers will have no other primary duty than to watch
for and report observations related to ringed seals during this survey.
If weather conditions become unsafe, the observer may be removed from
the monitoring activity.
Construction, maintenance or decommissioning activities associated
with ice roads and trails will not occur within 150 ft of the observed
ring seal, but may proceed as soon as the ringed seal, of its own
accord, moves farther than 150 ft distance away from the activities or
has not been observed within that area for at least 24 hours. Transport
vehicles (i.e., vehicles not associated with construction, maintenance
or decommissioning) may continue their route within the designated
road/trail without stopping.
If a ringed seal structure (i.e., breathing hole or lair) is
observed within 150 ft of the ice road/trail, the location of the
structure will be reported to the Environmental Specialist who will
then carry out a notification protocol. A qualified observer will
monitor the structure every six hours on the day of the initial
sighting to determine whether a ringed seal is present. Monitoring for
the seal will occur every other day the ice road is being used unless
it is determined the structure is not actively being used (i.e., a seal
is not sighted at that location during monitoring).
Monitoring Plan Peer Review
The MMPA requires that monitoring plans be independently peer
reviewed where the proposed activity may affect the availability of a
species or stock for taking for subsistence uses (16 U.S.C.
1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing
regulations state, upon receipt of a complete monitoring plan, and at
its discretion, NMFS will either submit the plan to members of a peer
review panel for review or within 60 days of receipt of the proposed
monitoring plan, schedule a workshop to review the plan (50 CFR
216.108(d)).
NMFS established an independent peer review panel (PRP) to review
Hilcorp's 4MP for the proposed LDPI project in Foggy Island Bay. NMFS
provided the PRP with Hilcorp's ITA application and monitoring plan and
asked the panel to answer the following questions:
1. Will the applicant's stated objectives effectively further the
understanding of the impacts of their activities on marine mammals and
otherwise accomplish the goals stated above? If not, how should the
objectives be modified to better accomplish the goals above?
2. Can the applicant achieve the stated objectives based on the
methods described in the plan?
3. Are there technical modifications to the proposed monitoring
techniques and methodologies proposed by the applicant that should be
considered to better accomplish their stated objectives?
4. Are there techniques not proposed by the applicant (i.e.,
additional monitoring techniques or methodologies) that should be
considered for inclusion in the applicant's monitoring program to
better accomplish their stated objectives?
5. What is the best way for an applicant to present their data and
results (formatting, metrics, graphics, etc.) in the required reports
that are to be submitted to NMFS (i.e., 90-day report and comprehensive
report)?
The PRP met in May 2018 and subsequently provided a final report to
NMFS containing recommendations that the panel members felt were
applicable to Hilcorp's monitoring plans. The PRP concluded the
objectives for both the visual and acoustic monitoring are appropriate,
and agrees that the objective of real-time mitigation of potential
disturbance of marine mammals would be met through visual monitoring.
The PRP's primary recommendations and comments are summarized and
addressed below. The PRP's full report is available on our website at
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
The PRP recommended Hilcorp consult with biologists at the NMFS
Marine Mammal Laboratory and other scientists and users familiar with
the use and limitations of UAS technology for studying marine mammals
at sea regarding appropriate protocols and procedures for the proposed
project. Hilcorp has worked, and will continue to work, with NMFS to
develop a safe, effective UAS monitoring program.
The PRP noted marine mammal monitoring would not be conducted
during the ice-covered season. Since the PRP met, Hilcorp has developed
a marine mammal monitoring plan that would be enacted during ice-
covered months along the ice roads and ice trails. These roads lead up
to the LDPI; therefore, marine mammal monitoring would occur during the
ice-covered season and occur at the LDPI. NMFS has also included a
provision that should ice seals be observed on or near the LDPI, they
shall be reported to Hilcorp's Environmental Specialist and no
personnel shall approach or operate equipment within 10 m of the seal.
The PRP was concerned no acoustic monitoring would be conducted
during the winter months and recommended Hilcorp deploy multiple
acoustic recorders during ice-covered periods to obtain data on both
presence of marine
[[Page 24959]]
mammals and sound levels generated during pile driving activities.
Hilcorp is not proposing to deploy long-term bottom mounted hydrophones
but will collect measurements using hand-held hydrophones lowered in a
hole drilled through the ice.
The PRP also encouraged Hilcorp to consider deployment of
additional acoustic recorders during the open-water season
approximately 15 km northwest of the project area to facilitate a
broader, multi-year approach to analyzing the effect of sound exposure
on marine mammals by various LDPI and non-LDPI sources. The deployment
of multiple recorders would provide a measure of redundancy and avoid
the risk of losing all of the season's data if the recorders are lost
or malfunction. Hilcorp is proposing to position multiple recorders
simultaneously to record sound levels at multiple ranges from the
project activities. Data recorded during times with no project
activities, if such times exist, will be analyzed for ambient sound
level statistics. The recorder arrangement will be configured each year
based on the anticipated activities for that season.
The PRP recommended that the existing POC and CAA be renewed and
implemented annually to ensure that project activities are coordinated
with the North Slope Borough and Alaska Native whaling captains.
Hilcorp is required to implement the POC and has agreed to implement a
CAA with the AEWC.
Reporting
General--A draft report would be submitted to NMFS within 90 days
of the completion of monitoring for each year the regulations are
valid. The report will include marine mammal observations pre-activity,
during-activity, and post-activity during pile driving days, and will
also provide descriptions of any behavioral responses to construction
activities by marine mammals and a complete description of all
mitigation shutdowns and the results of those actions and an
extrapolated total take estimate based on the number of marine mammals
observed during the course of construction. A final report must be
submitted within 30 days following resolution of comments on the draft
report. Hilcorp would also submit a comprehensive annual summary report
covering all activities conducted under the incidental take regulations
no more than 90 days after the regulations expire.
Ice Road Reporting
On an annual basis, Hilcorp will also submit a draft report to NMFS
AKR and OPR compiling all ringed seal observations within 90 days of
decommissioning the ice road and ice trails. The report will include
information about activities occurring at time of sighting, ringed seal
age class and behavior, and actions taken to mitigate disturbance. In
addition the report will include an analysis of the effectiveness of
the BMPs recently developed in coordination with NMFS and any proposed
updates to the BMPs or Wildlife Management Plan as a result of the
encounter. A final report shall be prepared and submitted within thirty
days following resolution of comments on the draft report from NMFS.
NMFS is also proposing to require Hilcorp to submit more immediate
reports should a marine mammal be unexpectantly killed or seriously
injured by the specified activity or a dead or injured marine mammal is
observed by a PSO or Hilcorp personnel. These are standard measures
required by NMFS; details on reporting timelines and information can be
found in the proposed regulations.
LDPI Construction and Operation Reporting
Each day of marine mammal monitoring, PSOs will complete field
sheets containing information NMFS typically requires for pile driving
and construction activities. The full list of data is provided in
Hilcorp's Marine Mammal Monitoring and Mitigation Plan and in the
proposed regulations below. Data include, but are not limited to,
information on daily activities occurring, marine mammal sighting
information (e.g., species, group size, and behavior), manner and
amount of take, and any mitigation actions taken. Data in these field
sheets will be summarized and Hilcorp will provide a draft annual
report to NMFS no later than 90 days post marine mammal monitoring
efforts. Hilcorp would also submit an annual acoustic monitoring report
no later than 90 days after acoustic recorders are recovered each
season. The acoustic monitoring reports shall contain measured dB rms,
SEL and peak values as well as ambient noise levels, per the Acoustic
Monitoring Plan and as described below in the proposed regulations.
Hilcorp will also submit to NMFS a draft final report on all marine
mammal monitoring conducted under the proposed regulations no later
than ninety calendar days of the completion of marine mammal and
acoustic monitoring or sixty days prior to the issuance of any
subsequent regulations, if necessary, for this project, whichever comes
first. A final report shall be prepared and submitted within thirty
days following resolution of comments on the draft report from NMFS.
Negligible Impact Analysis and Determination
Introduction
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'' by mortality, serious injury, and Level A harassment or Level
B harassment, we consider other factors, such as the likely nature of
any behavioral responses (e.g., intensity, duration), the context of
any such responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of 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' 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, and
specific consideration of take by M/SI previously authorized for other
NMFS research activities).
Serious Injury and Mortality
NMFS is proposing to authorize a very small number of serious
injuries or mortalities that could occur incidental to ice road
construction, use, and maintenance. We note here that the takes from
ice road construction, use, and maintenance enumerated below could
result in non-serious injury, but their worst potential outcome
(mortality) is analyzed for the purposes of the negligible impact
determination.
In addition, we discuss here the connection, and differences,
between the legal mechanisms for authorizing incidental take under
section 101(a)(5) for activities such as LDPI construction
[[Page 24960]]
and operation, and for authorizing incidental take from commercial
fisheries. In 1988, Congress amended the MMPA's provisions for
addressing incidental take of marine mammals in commercial fishing
operations. Congress directed NMFS to develop and recommend a new long-
term regime to govern such incidental taking (see MMC, 1994). The need
to develop a system suited to the unique circumstances of commercial
fishing operations led NMFS to suggest a new conceptual means and
associated regulatory framework. That concept, PBR, and a system for
developing plans containing regulatory and voluntary measures to reduce
incidental take for fisheries that exceed PBR were incorporated as
sections 117 and 118 in the 1994 amendments to the MMPA. In
Conservation Council for Hawaii v. National Marine Fisheries Service,
97 F. Supp.3d 1210 (D. Haw. 2015), which concerned a challenge to NMFS'
regulations and LOAs to the Navy for activities assessed in the 2013--
2018 HSTT MMPA rulemaking, the Court ruled that NMFS' failure to
consider PBR when evaluating lethal takes in the negligible impact
analysis under section 101(a)(5)(A) violated the requirement to use the
best available science.
PBR is defined in section 3 of 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 (OSP) and, although not controlling, can
be one measure considered among other factors when evaluating the
effects of M/SI on a marine mammal species or stock during the section
101(a)(5)(A) process. OSP is defined in section 3 of the MMPA as the
number of animals which will result in the maximum productivity of the
population or the species, keeping in mind the carrying capacity of the
habitat and the health of the ecosystem of which they form a
constituent element. Through section 2, an overarching goal of the
statute is to ensure that each species or stock of marine mammal is
maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal
from a stock that will allow that stock to equilibrate within OSP at
least 95 percent of the time, and is the product of factors relating to
the minimum population estimate of the stock (Nmin), the
productivity rate of the stock at a small population size, and a
recovery factor. Determination of appropriate values for these three
elements incorporates significant precaution, such that application of
the parameter to the management of marine mammal stocks may be
reasonably certain to achieve the goals of the MMPA. For example,
calculation of the minimum population estimate (Nmin)
incorporates the level of precision and degree of variability
associated with abundance information, while also providing reasonable
assurance that the stock size is equal to or greater than the estimate
(Barlow et al., 1995), typically by using the 20th percentile of a log-
normal distribution of the population estimate. In general, the three
factors are developed on a stock-specific basis in consideration of one
another in order to produce conservative PBR values that appropriately
account for both imprecision that may be estimated, as well as
potential bias stemming from lack of knowledge (Wade, 1998).
Congress called for PBR to be applied within the management
framework for commercial fishing incidental take under section 118 of
the MMPA. As a result, PBR cannot be applied appropriately outside of
the section 118 regulatory framework without consideration of how it
applies within the section 118 framework, as well as how the other
statutory management frameworks in the MMPA differ from the framework
in section 118. PBR was not designed and is not used as an absolute
threshold limiting commercial fisheries. Rather, it serves as a means
to evaluate the relative impacts of those activities on marine mammal
stocks. Even where commercial fishing is causing M/SI at levels that
exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the
commercial fishing context under section 118, NMFS may develop a take
reduction plan, usually with the assistance of a take reduction team.
The take reduction plan will include measures to reduce and/or minimize
the taking of marine mammals by commercial fisheries to a level below
the stock's PBR. That is, where the total annual human-caused M/SI
exceeds PBR, NMFS is not required to halt fishing activities
contributing to total M/SI but rather utilizes the take reduction
process to further mitigate the effects of fishery activities via
additional bycatch reduction measures. In other words, under section
118 of the MMPA, PBR does not serve as a strict cap on the operation of
commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the
impacts of incidental take from activities other than commercial
fisheries, using it as the sole reason to deny (or issue) incidental
take authorization for those activities would be inconsistent with
Congress's intent under section 101(a)(5), NMFS' long-standing
regulatory definition of ``negligible impact,'' and the use of PBR
under section 118. The standard for authorizing incidental take for
activities other than commercial fisheries under section 101(a)(5)
continues to be, among other things that are not related to PBR,
whether the total taking will have a negligible impact on the species
or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to
make the negligible impact finding or authorize incidental take through
multi-year regulations, nor does its companion provision at
101(a)(5)(D) for authorizing non-lethal incidental take under the same
negligible-impact standard. NMFS' MMPA implementing regulations state
that take has a negligible impact when it does not ``adversely affect
the species or stock through effects on annual rates of recruitment or
survival''--likewise without reference to PBR. When Congress amended
the MMPA in 1994 to add section 118 for commercial fishing, it did not
alter the standards for authorizing non-commercial fishing incidental
take under section 101(a)(5), implicitly acknowledging that the
negligible impact standard under section 101(a)(5) is separate from the
PBR metric under section 118. In fact, in 1994 Congress also amended
section 101(a)(5)(E) (a separate provision governing commercial fishing
incidental take for species listed under the ESA) to add compliance
with the new section 118 but retained the standard of the negligible
impact finding under section 101(a)(5)(A) (and section 101(a)(5)(D)),
showing that Congress understood that the determination of negligible
impact and application of PBR may share certain features but are, in
fact, different.
Since the introduction of PBR in 1994, NMFS had used the concept
almost entirely within the context of implementing sections 117 and 118
and other commercial fisheries management-related provisions of the
MMPA. Prior to the Court's ruling in Conservation Council for Hawaii v.
National Marine Fisheries Service and consideration of PBR in a series
of section 101(a)(5) rulemakings, there were a few examples where PBR
had informed agency deliberations under other MMPA sections and
programs, such as playing a role in the issuance of a few scientific
research permits and subsistence takings. But as the Court found when
reviewing examples of past PBR consideration in Georgia Aquarium v.
Pritzker, 135 F. Supp. 3d 1280 (N.D. Ga.
[[Page 24961]]
2015), where NMFS had considered PBR outside the commercial fisheries
context, ``it has treated PBR as only one `quantitative tool' and [has
not used it] as the sole basis for its impact analyses.'' Further, the
agency's thoughts regarding the appropriate role of PBR in relation to
MMPA programs outside the commercial fishing context have evolved since
the agency's early application of PBR to section 101(a)(5) decisions.
Specifically, NMFS' denial of a request for incidental take
authorization for the U.S. Coast Guard in 1996 seemingly was based on
the potential for lethal take in relation to PBR and did not appear to
consider other factors that might also have informed the potential for
ship strike in relation to negligible impact (61 FR 54157; October 17,
1996).
The MMPA requires that PBR be estimated in SARs and that it be used
in applications related to the management of take incidental to
commercial fisheries (i.e., the take reduction planning process
described in section 118 of the MMPA and the determination of whether a
stock is ``strategic'' as defined in section 3), but nothing in the
statute requires the application of PBR outside the management of
commercial fisheries interactions with marine mammals. Nonetheless,
NMFS recognizes that as a quantitative metric, PBR may be useful as a
consideration when evaluating the impacts of other human-caused
activities on marine mammal stocks. Outside the commercial fishing
context, and in consideration of all known human-caused mortality, PBR
can help inform the potential effects of M/SI requested to be
authorized under 101(a)(5)(A). As noted by NMFS and the U.S. Fish and
Wildlife Service in our implementation regulations for the 1986
amendments to the MMPA (54 FR 40341, September 29, 1989), the Services
consider many factors, when available, in making a negligible impact
determination, including, but not limited to, the status of the species
or stock relative to OSP (if known); whether the recruitment rate for
the species or stock is increasing, decreasing, stable, or unknown; the
size and distribution of the population; and existing impacts and
environmental conditions. In this multi-factor analysis, PBR can be a
useful indicator for when, and to what extent, the agency should take
an especially close look at the circumstances associated with the
potential mortality, along with any other factors that could influence
annual rates of recruitment or survival.
When considering PBR during evaluation of effects of M/SI under
section 101(a)(5)(A), we first calculate a metric for each species or
stock that incorporates information regarding ongoing anthropogenic M/
SI from all sources into the PBR value (i.e., PBR minus the total
annual anthropogenic mortality/serious injury estimate in the SAR),
which is called ``residual PBR.'' (Wood et al., 2012). We first focus
our analysis on residual PBR because it incorporates anthropogenic
mortality occurring from other sources. If the ongoing human-caused
mortality from other sources does not exceed PBR, then residual PBR is
a positive number, and we consider how the anticipated or potential
incidental M/SI from the activities being evaluated compares to
residual PBR using the framework in the following paragraph. If the
ongoing anthropogenic mortality from other sources already exceeds PBR,
then residual PBR is a negative number and we consider the M/SI from
the activities being evaluated as described further below.
When ongoing total anthropogenic mortality from the applicant's
specified activities does not exceed PBR and residual PBR is a positive
number, as a simplifying analytical tool we first consider whether the
specified activities could cause incidental M/SI that is less than 10
percent of residual PBR (the ``insignificance threshold,'' see below).
If so, we consider M/SI from the specified activities to represent an
insignificant incremental increase in ongoing anthropogenic M/SI for
the marine mammal stock in question that alone (i.e., in the absence of
any other take) will not adversely affect annual rates of recruitment
and survival. As such, this amount of M/SI would not be expected to
affect rates of recruitment or survival in a manner resulting in more
than a negligible impact on the affected stock unless there are other
factors that could affect reproduction or survival, such as Level A
and/or Level B harassment, or other considerations such as information
that illustrates the uncertainty involved in the calculation of PBR for
some stocks. In a few prior incidental take rulemakings, this threshold
was identified as the ``significance threshold,'' but it is more
accurately labeled an insignificance threshold, and so we use that
terminology here, as we did in the AFTT Proposed (83 FR 10954; March
13, 2017) and Final Rules (83 FR 57076; November 14, 2018). Assuming
that any additional incidental take by Level A or Level B harassment
from the activities in question would not combine with the effects of
the authorized M/SI to exceed the negligible impact level, the
anticipated M/SI caused by the activities being evaluated would have a
negligible impact on the species or stock. However, M/SI above the 10
percent insignificance threshold does not indicate that the M/SI
associated with the specified activities is approaching a level that
would necessarily exceed negligible impact. Rather, the 10 percent
insignificance threshold is meant only to identify instances where
additional analysis of the anticipated M/SI is not required because the
negligible impact standard clearly will not be exceeded on that basis
alone.
Where the anticipated M/SI is near, at, or above residual PBR,
consideration of other factors (positive or negative), including those
outlined above, as well as mitigation is especially important to
assessing whether the M/SI will have a negligible impact on the species
or stock. PBR is a conservative metric and not sufficiently precise to
serve as an absolute predictor of population effects upon which
mortality caps would appropriately be based. For example, in some cases
stock abundance (which is one of three key inputs into the PBR
calculation) is underestimated because marine mammal survey data within
the U.S. EEZ are used to calculate the abundance even when the stock
range extends well beyond the U.S. EEZ. An underestimate of abundance
could result in an underestimate of PBR. Alternatively, we sometimes
may not have complete M/SI data beyond the U.S. EEZ to compare to PBR,
which could result in an overestimate of residual PBR. The accuracy and
certainty around the data that feed any PBR calculation, such as the
abundance estimates, must be carefully considered to evaluate whether
the calculated PBR accurately reflects the circumstances of the
particular stock. M/SI that exceeds PBR may still potentially be found
to be negligible in light of other factors that offset concern,
especially when robust mitigation and adaptive management provisions
are included.
In Conservation Council for Hawaii v. National Marine Fisheries
Service, which involved the challenge to NMFS' issuance of LOAs to the
Navy in 2013 for activities in the HSTT Study Area, the Court reached a
different conclusion, stating, ``Because any mortality level that
exceeds PBR will not allow the stock to reach or maintain its OSP, such
a mortality level could not be said to have only a `negligible impact'
on the stock.'' As described above, the Court's statement fundamentally
misunderstands the two terms and incorrectly indicates that these
concepts (PBR and ``negligible
[[Page 24962]]
impact'') are directly connected, when in fact nowhere in the MMPA is
it indicated that these two terms are equivalent.
Specifically, PBR was designed as a tool for evaluating mortality
and is defined as the number of animals that can be removed while
``allowing that stock to reach or maintain its OSP.'' OSP is defined as
a population that falls within a range from the population level that
is the largest supportable within the ecosystem to the population level
that results in maximum net productivity, and thus is an aspirational
management goal of the overall statute with no specific timeframe by
which it should be met. PBR is designed to ensure minimal deviation
from this overarching goal, with the formula for PBR typically ensuring
that growth towards OSP is not reduced by more than 10 percent (or
equilibrates to OSP 95 percent of the time). As PBR is applied by NMFS,
it provides that growth toward OSP is not reduced by more than 10
percent, which certainly allows a stock to ``reach or maintain its
OSP'' in a conservative and precautionary manner--and we can therefore
clearly conclude that if PBR were not exceeded, there would not be
adverse effects on the affected species or stocks. Nonetheless, it is
equally clear that in some cases the time to reach this aspirational
OSP level could be slowed by more than 10 percent (i.e., total human-
caused mortality in excess of PBR could be allowed) without adversely
affecting a species or stock through effects on its rates of
recruitment or survival. Thus even in situations where the inputs to
calculate PBR are thought to accurately represent factors such as the
species' or stock's abundance or productivity rate, it is still
possible for incidental take to have a negligible impact on the species
or stock even where M/SI exceeds residual PBR or PBR.
As noted above, PBR is helpful in informing the analysis of the
effects of mortality on a species or stock because it is important from
a biological perspective to be able to consider how the total mortality
in a given year may affect the population. However, section
101(a)(5)(A) of the MMPA indicates that NMFS shall authorize the
requested incidental take from a specified activity if we find that the
total of such taking i.e., from the specified activity will have a
negligible impact on such species or stock. In other words, the task
under the statute is to evaluate the applicant's anticipated take in
relation to their take's impact on the species or stock, not other
entities' impacts on the species or stock. Neither the MMPA nor NMFS'
implementing regulations call for consideration of other unrelated
activities and their impacts on the species or stock. In fact, in
response to public comments on the implementing regulations NMFS
explained that such effects are not considered in making negligible
impact findings under section 101(a)(5), although the extent to which a
species or stock is being impacted by other anthropogenic activities is
not ignored. Such effects are reflected in the baseline of existing
impacts as reflected in the species' or stock's abundance,
distribution, reproductive rate, and other biological indicators.
NMFS guidance for commercial fisheries provides insight when
evaluating the effects of an applicant's incidental take as compared to
the incidental take caused by other entities. Parallel to section
101(a)(5)(A), section 101(a)(5)(E) of the MMPA provides that NMFS shall
allow the incidental take of ESA-listed endangered or threatened marine
mammals by commercial fisheries if, among other things, the incidental
M/SI from the commercial fisheries will have a negligible impact on the
species or stock. As discussed earlier, the authorization of incidental
take resulting from commercial fisheries and authorization for
activities other than commercial fisheries are under two separate
regulatory frameworks. However when it amended the statute in 1994 to
provide a separate incidental take authorization process for commercial
fisheries, Congress kept the requirement of a negligible impact
determination for this one category of species, thereby applying the
standard to both programs. Therefore, while the structure and other
standards of the two programs differ such that evaluation of negligible
impact under one program may not be fully applicable to the other
program (e.g., the regulatory definition of ``negligible impact'' at 50
CFR 216.103 applies only to activities other than commercial fishing),
guidance on determining negligible impact for commercial fishing take
authorizations can be informative when considering incidental take
outside the commercial fishing context. In 1999, NMFS published
criteria for making a negligible impact determination pursuant to
section 101(a)(5)(E) of the MMPA in a notice of proposed permits for
certain fisheries (64 FR 28800; May 27, 1999). Criterion 2 stated If
total human-related serious injuries and mortalities are greater than
PBR, and fisheries-related mortality is less than 0.1 PBR, individual
fisheries may be permitted if management measures are being taken to
address non-fisheries-related serious injuries and mortalities. When
fisheries-related serious injury and mortality is less than 10 percent
of the total, the appropriate management action is to address
components that account for the major portion of the total. This
criterion addresses when total human-caused mortality is exceeding PBR,
but the activity being assessed is responsible for only a small portion
of the mortality. In incidental take authorizations in which NMFS has
recently articulated a fuller description of how we consider PBR under
section 101(a)(5)(A), this situation had not arisen, and NMFS'
description of how we consider PBR in the section 101(a)(5)
authorization process did not, therefore, include consideration of this
scenario. However, the analytical framework we use here appropriately
incorporates elements of the one developed for use under section
101(a)(5)(E) and because the negligible impact determination under
section 101(a)(5)(A) focuses on the activity being evaluated, it is
appropriate to utilize the parallel concept from the framework for
section 101(a)(5)(E).
Accordingly, we are using a similar criterion in our negligible
impact analysis under section 101(a)(5)(A) to evaluate the relative
role of an applicant's incidental take when other sources of take are
causing PBR to be exceeded, but the take of the specified activity is
comparatively small. Where this occurs, we may find that the impacts of
the taking from the specified activity may (alone) be negligible even
when total human-caused mortality from all activities exceeds PBR if
(in the context of a particular species or stock): The authorized
mortality or serious injury would be less than or equal to 10 percent
of PBR and management measures are being taken to address serious
injuries and mortalities from the other activities (i.e., other than
the specified activities covered by the incidental take authorization
under consideration). We must also determine, though, that impacts on
the species or stock from other types of take (i.e., harassment) caused
by the applicant do not combine with the impacts from mortality or
serious injury to result in adverse effects on the species or stock
through effects on annual rates of recruitment or survival.
As discussed above, however, while PBR is useful in informing the
evaluation of the effects of M/SI in section 101(a)(5)(A)
determinations, it is just one consideration to be assessed in
combination with other factors and is not determinative, including
because, as explained above, the accuracy and certainty of the data
used to calculate PBR for the species or stock must be
[[Page 24963]]
considered. And we reiterate the considerations discussed above for why
it is not appropriate to consider PBR an absolute cap in the
application of this guidance. Accordingly, we use PBR as a trigger for
concern while also considering other relevant factors to provide a
reasonable and appropriate means of evaluating the effects of potential
mortality on rates of recruitment and survival, while acknowledging
that it is possible to exceed PBR (or exceed 10 percent of PBR in the
case where other human-caused mortality is exceeding PBR but the
specified activity being evaluated is an incremental contributor, as
described in the last paragraph) by some small amount and still make a
negligible impact determination under section 101(a)(5)(A).
A stock-wide PBR is unknown since data is only available for the
Bering Sea. However, PBR for ringed seals in the Bearing Sea alone,
considering an Nmin of 5,100. Total annual mortality and
serious injury is 1,054 for an r-PBR of 4,046 (Muto et al., 2018),
which means that the insignificance threshold is 405. No mortality or
serious injury of ringed seals is currently authorized under any other
incidental take authorization issued pursuant to section 101(a)(5)(A)
of the MMPA. In the case of Liberty, the proposed authorized taking, by
mortality, of two ringed seals over the course of 5 years, which
equates to 0.4 mortality takes annually, is less than 10 percent r-PBR
when considering mortality and serious injuring caused by other
anthropogenic sources.
Harassment
Hilcorp requested, and NMFS proposes, to authorize take, by Level A
harassment and Level B harassment, of six species of marine mammals.
The amount of taking proposed to be authorized is low compared to
marine mammal abundance. Potential impacts of LDPI activities include
PTS, TTS, and behavioral changes due to exposure to construction and
operation noise. The potential for Level A harassment occurs during
impact pile driving. As discussed in the Potential Effects of the
Specified Activity on Marine Mammals and Their Habitat section, PTS is
a permanent shift in hearing threshold and the severity of the shift is
determined by a myriad of factors. Here, we expect cetaceans to incur
only a slightly elevated shift in hearing threshold because we do not
except them to be close to the source (especially large whales who
primarily stay outside the McClure Island group) and that impact pile
driving (the source with greatest potential to cause PTS) would only
occur for a maximum of 40 minutes per day. Therefore, the potential for
large threshold shifts in unlikely. Further, the frequency range of
hearing that may be impaired is limited to the frequency bands of the
source. Pile driving exhibits energy in lower frequencies. While low
frequency baleen whales are most susceptible to this, these are the
species that are unlikely to come very close to the source. Mid-
frequency cetaceans and phocids do not have best hearing within these
lower frequency bands of pile driving; therefore, the resulting impact
of any threshold shift is less likely to impair vital hearing. All
other noise generated from the project is expected to be low level from
activities such as slope-shaping and drilling and not result in PTS.
Cetaceans are infrequent visitors to Foggy Island Bay with primary
habitat use outside of the McClure Islands. Any taking within Foggy
Island Bay is not expected to impact reproductive or survival
activities as the bay is not known to contain critical areas such as
rookeries, mating grounds, or other areas of similar significance. Some
ringed seals do lair in Foggy Island Bay; however, the area impacted by
the project is small compared to available habitat. Further, to offset
impacts to reproductive behaviors by ringed seals (e.g., lairing,
pupping), Hilcorp would follow a number of ice road BMPs developed in
coordination with NMFS ringed seal experts. Hilcorp would also not
impact pile drive during the bowhead whale hunt, thereby minimizing
impacts to whales during peak migration periods (we note the peak
migratory pathway for bowhead whales is well outside the McClure
Islands). Finally, for reasons described above, the taking of two
ringed seals, by mortality, over the course of 5 years is not expected
to have impacts on the species' rates of recruitment and survival.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
Only two ringed seals are authorized to be taken by
mortality over 5 years;
Any PTS would be of a small degree;
The amount of takes, by harassment, is low compared to
population sizes;
The area ensonified by Hilcorp's activities does not
provide important areas and is a de minimis subset of habitat used by
and available to marine mammals;
Critical behaviors such as lairing and pupping by ringed
seals would be avoided and minimized through implementation of ice road
BMPs; and
Hilcorp would avoid noise-generating activities during the
bowhead whale hunt; thereby minimizing impact to critical behavior
(i.e., migration).
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
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)(A) of the MMPA for specified
activities. The MMPA does not define small numbers and so, in practice,
where estimated numbers are available, NMFS compares the number of
individuals taken to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals.
Additionally, other qualitative factors may be considered in the
analysis, such as the temporal or spatial scale of the activities.
The amount of total taking (i.e., Level A harassment, Level B
harassment, and, for ringed seals, mortality) of any marine mammal
stock over the course of 5 years, is less than one percent of any
population (Table 12).
Table 12--Amount of Proposed Authorized Take Relative to Population Estimates (Nbest)
----------------------------------------------------------------------------------------------------------------
Population Percent of
Species Stock estimate Total take population
----------------------------------------------------------------------------------------------------------------
Bowhead whale......................... Arctic.................. 16,820 12 <1
[[Page 24964]]
Gray whale............................ ENP..................... 20,990 7 <1
Beluga whale.......................... Beaufort Sea............ 39,258 130 <1
Ringed seal........................... Alaska.................. 170,000 406 <1
Bearded seal.......................... Alaska.................. 299,174 64 <1
Spotted seal.......................... Alaska.................. 423,625 64 <1
----------------------------------------------------------------------------------------------------------------
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals will be taken relative to the population
sizes of the affected species or stocks.
Impact on Availability of Affected Species for Taking for Subsistence
Uses
As described in the Marine Mammal section of the document, all
species potentially taken by Hilcorp's specified activities are key
subsistence species, in particular the bowhead whales and ice seals.
Hilcorp has proposed and NMFS has included several mitigation measures
to address potential impacts on the availability of marine mammals for
subsistence use. The AEWC provided comments during the public comment
period on the Notice of Receipt of Hilcorp's application and as a
member of the peer review panel. NMFS incorporated appropriate
mitigation to address AEWC's concerns, including requirements for
Hilcorp to remain a signatory to a follow protocols contained with the
POC. Hilcorp has also indicated they would abide by a CAA. In addition,
mitigation measures designed to minimize impacts on marine mammals also
minimize impacts to subsistence users (e.g., avoid impact pile driving
during the fall bowhead whale hunt). Hilcorp and NMFS have also
developed a comprehensive set of BMPs to minimize impacts to ice seals
during ice-covered months. In consideration of coordination with the
AEWC, Hilcorp's proposed work schedule (i.e., conducting the majority
of work in winter when bowhead whales are not present) and the
incorporation of several mitigation measures, we have preliminarily
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.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Hilcorp's LPDI construction and operational activities would contain an
adaptive management component.
The reporting requirements associated with this proposed rule are
designed to provide NMFS with monitoring data from the previous year to
allow consideration of whether any changes are appropriate. The use of
adaptive management allows NMFS to consider new information from
different sources to determine (with input from Hilcorp regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.
Endangered Species Act (ESA)
The bowhead whale, ringed seal, and bearded seal (Beringia DPS) are
listed under the ESA (Table 2). On July 31, 2018, NMFS Alaska Region
(AKR) issued a Biological Opinion to BOEM, Environmental Protection
Agency (EPA), and U.S. Army Corps of Engineers (USACE) for the
permitting of the LDPI Project in its entirety (mobilization to
decommissioning). The Biological Opinion concluded construction,
operation, and decommissioning of the LDPI would not jeopardize the
continued existence of the aforementioned species or adversely modify
critical habitat. OPR has requested consultation with NMFS Alaska
Regional Office under section 7 of the ESA on the promulgation of five-
year regulations and the subsequent issuance of LOAs to Hilcorp under
section 101(a)(5)(A) of the MMPA. This consultation will be concluded
prior to issuing any final rule.
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning Hilcorp's request and the proposed
regulations (see ADDRESSES). All comments will be reviewed and
evaluated as we prepare a final rule and make final determinations on
whether to issue the requested authorization. This notice and
referenced documents provide all environmental information relating to
our proposed action for public review.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Hilcorp is the sole entity that would be subject to the requirements in
these proposed regulations, and the Hilcorp is not a small governmental
jurisdiction, small organization, or small business, as defined by the
RFA. Because of this certification, a regulatory flexibility analysis
is not required and none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. This proposed rule
contains collection-of-information requirements subject to the
provisions of the PRA. These requirements have been approved by OMB
under control number 0648-0151
[[Page 24965]]
and include applications for regulations, subsequent LOAs, and reports.
List of Subjects in 50 CFR Part 218
Marine mammals, Wildlife, Endangered and threatened species,
Alaska, Oil and gas exploration, Indians, Reporting and recordkeeping
requirements, Administrative practice and procedure.
Dated: May 21, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is proposed
to be amended as follows:
PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Add subpart D to part 217 to read as follows:
Subpart D--Taking Marine Mammals Incidental to Construction and
Operation of the Liberty Drilling and Production Island
Sec.
217.30 Specified activity and specified geographical region.
217.31 Effective dates.
217.32 Permissible methods of taking.
217.33 Prohibitions.
217.34 Mitigation requirements.
217.35 Requirements for monitoring and reporting.
217.36 Letters of Authorization.
217.37 Renewals and modifications of Letters of Authorization.
217.38-217.39 [Reserved]
Subpart D--Taking Marine Mammals Incidental to Construction and
Operation of the Liberty Drilling and Production Island
Sec. 217.30 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Hilcorp LLC (Hilcorp)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
construction, maintenance, and operation of the Liberty Drilling and
Production Island (LDPI) and associated infrastructure.
(b) The taking of marine mammals by Hilcorp may be authorized in a
Letter of Authorization (LOA) only if it occurs within the Beaufort
Sea, Alaska.
Sec. 217.31 Effective dates.
Regulations in this subpart are effective from December 1, 2020,
through November 30, 2025.
Sec. 217.32 Permissible methods of taking.
Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.36, the Holder of the LOA (hereinafter ``Hilcorp'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.30(b) by mortality, serious injury, Level A
harassment, or Level B harassment associated with the LDPI construction
and operation activities, including associated infrastructure, provided
the activities are in compliance with all terms, conditions, and
requirements of the regulations in this subpart and the appropriate
LOA.
Sec. 217.33 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.32 and authorized
by a LOA issued under Sec. Sec. 216.106 of this chapter and 217.36, no
person in connection with the activities described in Sec. 217.30 may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 217.36;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in an unmitigable adverse impact on the species or
stock of such marine mammal for taking for subsistence uses.
Sec. 217.34 Mitigation requirements.
When conducting the activities identified in Sec. 217.30(a), the
mitigation measures contained in any LOA issued under Sec. 216.106 of
this chapter must be implemented. These mitigation measures shall
include but are not limited to:
(a) General conditions. (1) Hilcorp must renew, on an annual basis,
the Plan of Cooperation (POC), throughout the life of the regulations;
(2) A copy of any issued LOA must be in the possession of Hilcorp,
its designees, and work crew personnel operating under the authority of
the issued LOA;
(3) Hilcorp must conduct briefings for construction and ice road
supervisors and crews, and the marine mammal and acoustic monitoring
teams prior to the start of annual ice road or LDPI construction, and
when new personnel join the work, in order to explain responsibilities,
communication procedures, the marine mammal monitoring protocol, and
operational procedures;
(4) Hilcorp must allow subsistence hunters to use the LDPI for safe
harbor during severe storms, if requested by hunters;
(5) In the unanticipated event of an oil spill during LDPI
operational years, Hilcorp must notify NMFS of the spill within 48
hours, regardless of size, and implement measures contained within the
Liberty Oil Spill Response Plan; and
(6) Hilcorp must strive to complete pile driving and pipeline
installation during the ice-covered season.
(b) Ice road construction, maintenance, and operation. (1) Hilcorp
must implement the NMFS-approved Ice Road and Ice Trail Best Management
Practices (BMPs) and the Wildlife Action Plan. These documents may be
updated as needed throughout the life of the regulations, in
consultation with NMFS.
(2) [Reserved]
(c) Liberty Drilling Production Island Construction. (1) For all
pile driving, Hilcorp shall implement a minimum shutdown zone of a 10
meter (m) radius from piles being driven. If a marine mammal comes
within or is about to enter the shutdown zone, such operations shall
cease immediately;
(2) For all pile driving activity, Hilcorp shall implement shutdown
zones with radial distances as identified in any LOA issued under
Sec. Sec. 216.106 of this chapter and 217.36. If a marine mammal comes
within or is about to enter the shutdown zone, such operations must
cease immediately;
(3) Hilcorp must employ NMFS-approved protected species observers
(PSOs) and designate monitoring zones with radial distances as
identified in any LOA issued under Sec. Sec. 216.106 of this chapter
and 217.36. NMFS may adjust the shutdown zones pending review and
approval of an acoustic monitoring report (see Sec. 217.35
Requirements for Monitoring and Reporting);
(4) If a bowhead whale or other low frequency cetacean enters the
Level A harassment zone, pile or pipe driving must be shut down
immediately. If a beluga whale or pinniped enters the Level A
harassment zone while pile driving is ongoing, work may continue until
the pile is completed (estimated to require approximately 15-20
minutes), but additional pile driving must not be initiated until the
animal has left the
[[Page 24966]]
Level A harassment zone. During this time, PSOs must monitor the animal
and record behavior;
(5) If a marine mammal is approaching a Level A harassment zone and
pile driving has not commenced, pile driving shall be delayed. Pile
driving may not commence or resume until either the animal has
voluntarily left and been visually confirmed beyond the shutdown zone;
15 minutes have passed without subsequent detections of small cetaceans
and pinnipeds; or 30 minutes have passed without subsequent detections
of large cetaceans;
(6) If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
takes are met, is observed approaching or within the monitoring zone
(which equates to the Level B harassment zone), pile driving and
removal activities must shut down immediately using delay and shut-down
procedures. Activities must not resume until the animal has been
confirmed to have left the area or the observation time period, as
indicated in 217.34(c)(5), has elapsed;
(7) Hilcorp will use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
strikes at reduced energy, followed by a thirty-second waiting period,
then two subsequent reduced energy strike sets. A soft start must be
implemented at the start of each day's impact pile driving and at any
time following cessation of impact pile driving for a period of thirty
minutes or longer;
(8) No impact driving must occur during the Nuiqsut Cross Island
bowhead whale hunt. Hilcorp must coordinate annually with subsistence
users on the dates of these hunts; and
(9) Should an ice seal be observed on or near the LDPI by any
Hilcorp personnel, during construction or operation, the sighting must
be reported to Hilcorp's Environmental Specialist. No construction
activity should occur within 10 m of an ice seal and any vehicles used
should use precaution and not approach any ice seal within 10 m.
(d) Vessel restrictions. When operating vessels, Hilcorp must:
(1) Reduce vessel speed to 5 knots (kn) if a whale is observed with
500 m (1641 feet (ft)) of the vessel and is on a potential collision
course with vessel, or if a whale is within 275 m (902 ft) of whales,
regardless of course relative to the vessel;
(2) Avoid multiple changes in vessel direction;
(3) Not approach within 800 m (2,624 ft) of a North Pacific right
whale or within 5.6 km (3 nautical miles) of Steller sea lion rookeries
or major haulouts; and
(4) Avoid North Pacific right whale critical habitat or, if
critical habitat cannot be avoided, reduce vessel speed during transit.
Sec. 217.35 Requirements for monitoring and reporting.
(a) All marine mammal and acoustic monitoring must be conducted in
accordance to Hilcorp's Marine Mammal Mitigation and Monitoring Plan
(4MP). This plan may be modified throughout the life of the regulations
upon NMFS review and approval.
(b) Monitoring must be conducted by NMFS-approved PSOs, who must
have no other assigned tasks during monitoring periods. At minimum, two
PSOs must be placed on elevated platforms on the island during the
open-water season when island construction activities are occurring.
These observers will monitor for marine mammals and implement shutdown
or delay procedures when applicable through communication with the
equipment operator.
(c) One PSO will be placed on the side where construction
activities are taking place and the other placed on the opposite side
of the LDPI; both observers will be on elevated platforms.
(d) PSOs will rotate duties such that they will observe for no more
than 4 hours at a time and no more than 12 hours in a 24-hour period.
(e) An additional island-based PSO will work with an aviation
specialist to use an unmanned aircraft system (UAS) to detect marine
mammals in the monitoring zones during pile and pipe driving and slope
shaping. Should UAS monitoring not be feasible or deemed ineffective, a
boat-based PSO must monitor for marine mammals during pile and pipe
driving.
(f) During the open-water season, marine mammal monitoring must
take place from 30 minutes prior to initiation of pile and pipe driving
activity through 30 minutes post-completion of pile driving activity.
Pile driving may commence when observers have declared the shutdown
zone clear of marine mammals. In the event of a delay or shutdown of
activity resulting from marine mammals in the shutdown zone, animals
must be allowed to remain in the shutdown zone (i.e., must leave of
their own volition) and their behavior must be monitored and
documented.
(g) After island construction is complete but drilling activities
are occurring, a PSO will be stationed on the LDPI for approximately 4
weeks during the month of August to monitor for the presence of marine
mammals around the island in the monitoring zone.
(1) Marine mammal monitoring during pile driving and removal must
be conducted by NMFS-approved PSOs in a manner consistent with the
following:
(i) At least one observer must have prior experience working as an
observer;
(ii) Other observers may substitute education (degree in biological
science or related field) or training for experience;
(iii) Where a team of three or more observers are required, one
observer must be designated as lead observer or monitoring coordinator.
The lead observer must have prior experience working as an observer;
and
(iv) Hilcorp must submit PSO CVs for approval by NMFS prior to the
onset of pile driving;
(2) PSOs must have the following additional qualifications:
(i) Ability to conduct field observations and collect data
according to assigned protocols;
(ii) Experience or training in the field identification of marine
mammals, including the identification of behaviors;
(iii) Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
(iv) Writing skills sufficient to prepare a report of observations
including but not limited to the number and species of marine mammals
observed; dates and times when in-water construction activities were
conducted; dates, times, and reason for implementation of mitigation
(or why mitigation was not implemented when required); and marine
mammal behavior; and
(v) Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
(h) Hilcorp must deploy autonomous sound recorders on the seabed to
conduct underwater passive acoustic monitoring in the open water season
the first four years of the project such that island construction
activities, including pile driving, and drilling operations are
recorded. Acoustic monitoring will be conducted for the purposes of
sound source verification, to verify distances from noise sources at
which underwater sound levels reach thresholds for potential marine
mammal harassment.
(i) Hilcorp must submit incident and monitoring reports.
(1) Hilcorp must submit a draft annual marine mammal and acoustic
summary
[[Page 24967]]
report to NMFS not later than 90 days following the end of each
calendar year. Hilcorp must provide a final report within 30 days after
receipt of NMFS' comments on the draft report. The reports must
contain, at minimum, the following:
(i) Date and time that monitored activity begins or ends;
(ii) Description of construction activities occurring during each
observation period;
(iii) Weather parameters (e.g., wind speed, percent cloud cover,
visibility);
(iv) Water conditions (e.g., sea state, tide state);
(v) Species, numbers, and, if possible, sex and age class of marine
mammals;
(vi) Description of any observable marine mammal behavior patterns,
including bearing and direction of travel and distance from
construction activity;
(vii) Distance from construction activities to marine mammals and
distance from the marine mammals to the observation point;
(viii) Histograms of the perpendicular distance at which marine
mammals were sighted by the PSOs;
(ix) Description of implementation of mitigation measures (e.g.,
shutdown or delay);
(x) Locations of all marine mammal observations;
(xi) An estimate of the effective strip width of the island-based
PSOs and the UAS imagery; and
(xii) Sightings and locations of marine mammals associated with
acoustic detections.
(2) Annually, Hilcorp must submit a report within 90 days of ice
road decommissioning. The report must include the following:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics (i.e., adult or pup, behavior
(avoidance, resting, etc.));
(iii) Activities occurring during observation including equipment
being used and its purpose, and approximate distance to ringed seal(s);
(iv) Actions taken to mitigate effects of interaction emphasizing:
(A) Which BMPs were successful; (B) which BMPs may need to be improved
to reduce interactions with ringed seals; (C) the effectiveness and
practicality of implementing BMPs; (D) any issues or concerns regarding
implementation of BMPs; and (E) potential effects of interactions based
on observation data;
(v) Proposed updates (if any) to the NMFS-approved Wildlife
Management Plan(s) or the ice-road BMPs;
(vi) Reports should be able to be queried for information;
(3) Hilcorp must submit a final 5-year comprehensive summary report
to NMFS not later than 90 days following expiration of these
regulations and LOA.
(4) Hilcorp must submit acoustic monitoring reports per the
Acoustic Monitoring Plan.
(5) Hilcorp must report on observed injured or dead marine mammals.
(i) In the unanticipated event that the activity defined in Sec.
217.30 clearly causes the take of a marine mammal in a prohibited
manner, Hilcorp must immediately cease such activity and report the
incident to the Office of Protected Resources (OPR), NMFS, and to the
Alaska Regional Stranding Coordinator, NMFS. Activities must not resume
until NMFS is able to review the circumstances of the prohibited take.
NMFS will work with Hilcorp to determine what measures are necessary to
minimize the likelihood of further prohibited take and ensure MMPA
compliance. Hilcorp may not resume their activities until notified by
NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Description of the incident;
(C) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
(D) Description of all marine mammal observations in the 24 hours
preceding the incident;
(E) Species identification or description of the animal(s)
involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of the animal(s). Photographs may
be taken once the animal has been moved from the waterfront area.
(H) In the event that Hilcorp discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of decomposition), Hilcorp must immediately report the incident to OPR
and the Alaska Regional Stranding Coordinator, NMFS. The report must
include the information identified in paragraph (k)(5) of this section.
Activities may continue while NMFS reviews the circumstances of the
incident. NMFS will work with Hilcorp to determine whether additional
mitigation measures or modifications to the activities are appropriate.
(ii) In the event Hilcorp discovers an injured or dead marine
mammal and determines that the injury or death is not associated with
or related to the activities defined in Sec. 217.30 (e.g., previously
wounded animal, carcass with moderate to advanced decomposition,
scavenger damage), Hilcorp must report the incident to OPR and the
Alaska Regional Stranding Coordinator, NMFS, within 24 hours of the
discovery. Hilcorp must provide photographs or video footage or other
documentation of the stranded animal sighting to NMFS. Photographs may
be taken once the animal has been moved from the waterfront area.
Sec. 217.36 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, Hilcorp must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, Hilcorp may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, Hilcorp must
apply for and obtain a modification of the LOA as described in Sec.
217.37.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.
Sec. 217.37 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.36 for the activity identified in Sec. 217.30(a) shall be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include
[[Page 24968]]
changes to the activity or the mitigation, monitoring, or reporting
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section) that do not change the findings
made for the regulations or result in no more than a minor change in
the total estimated number of takes (or distribution by species or
years), NMFS may publish a notice of proposed LOA in the Federal
Register, including the associated analysis of the change, and solicit
public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.36 for the activity identified in Sec. 217.30(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with Hilcorp regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring
set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Hilcorp's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. Sec. 216.106
of this chapter and 217.36, an LOA may be modified without prior notice
or opportunity for public comment. Notice would be published in the
Federal Register within thirty days of the action.
Sec. Sec. 217.38-217.39 [Reserved]
[FR Doc. 2019-10965 Filed 5-28-19; 8:45 am]
BILLING CODE 3510-22-P