[Federal Register Volume 85, Number 129 (Monday, July 6, 2020)]
[Notices]
[Pages 40250-40266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14376]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA252]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Construction of Two Liquefied 
Natural Gas Terminals, Texas

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

ACTION: Notice; issuance of incidental harassment authorizations.

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SUMMARY: Pursuant to the Marine Mammal Protection Act (MMPA), NMFS has 
hereby issued an incidental harassment authorization (IHA) to Rio 
Grande LNG LLC (Rio Grande) and, separately, Annova LNG Common 
Infrastructure (Annova), authorizing the take of small numbers of 
marine mammals incidental to the construction of two liquefied natural 
gas (LNG) terminals in the Brownsville Ship Channel (BSC), Texas.

DATES: The Rio Grande IHA is effective July 1, 2020 through June 31, 
2021. The Annova IHA is effective March 1, 2021 through February 28, 
2022.

ADDRESSES: Electronic copies of the application, IHAs, and 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 below.

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

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the 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 the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    On August 20, 2019, NMFS received a request from Rio Grande for an 
IHA to take marine mammals incidental to pile driving associated with 
the construction of a LNG terminal in the BSC. Rio Grande submitted a 
revised application on November 21, 2019 that was deemed adequate and 
complete on December 19, 2019. Rio Grande's request is for take of a 
small number of three species of marine mammals, by Level B harassment 
only. Neither Rio Grande nor NMFS expects serious injury or mortality 
to result from these activities and NMFS has not authorized it.
    Separately, on June 27, 2019, NMFS received a request from Annova 
for an IHA to take marine mammals incidental to pile driving associated 
with the construction of a LNG terminal in the BSC. Annova submitted a 
revised application on February 28, 2020 that was deemed adequate and 
complete on March 2, 2020. Annova's request is for take of a small 
number of three species of marine mammals, by Level B harassment only. 
Neither Annova nor NMFS expects serious injury or mortality to result 
from this activity and NMFS has not authorized it.

Description of Specified Activity

Overview

    Rio Grande and Annova are each planning to construct an LNG 
terminal in the BSC, Texas. The purpose of each project is to construct 
and operate an LNG terminal for purposes of international export. The 
LNG terminals would be located across from each other on opposite banks 
of the BSC. Both projects require pile driving and

[[Page 40251]]

removal. Rio Grande will install 12 42-48-inch (in) piles and remove 5 
small timber piles over 8 days. Annova will install and remove 16 24-in 
temporary piles and install 4 96 impermanent breasting dolphin piles 
over 16 days. Due to the nature of the activities and potential 
presence of dolphins in the BSC, both applicants have requested 
authorization to take marine mammals incidental to pile driving and 
removal and NMFS has issued such authorization.

Dates and Duration

    Rio Grande's IHA is effective July 1, 2020 through June 30, 2021. 
Pile driving would be limited to daylight hours; however, other 
project-related activities may occur at any time. Pile driving and 
removal would occur for no more than 8 days.
    Annova's IHA is effective March 1, 2021 through February 28, 2022. 
Pile driving would be limited to daylight hours; however, other 
project-related activities may occur at any time. Pile driving and 
removal would occur for no more than 16 days.

Specific Geographic Region

    The projects would be constructed with the BSC which is located in 
the southernmost portion of the Lower Laguna Madre system. We provided 
a complete description of Laguna Madre and the BSC in our notice of 
proposed IHA. Please see that notice for details of the specific 
geographic region and maps.

Detailed Description of Specific Activity

Rio Grande
    Rio Grande plans to construct a natural gas liquefaction facility 
and liquefied natural gas (LNG) export terminal (Terminal) in Cameron 
County, Texas, along the north embankment of the Brownsville Ship 
Channel (BSC) (Figure 1). The purpose of the project is to develop, 
own, operate, and maintain a natural gas pipeline system to access 
natural gas from the Agua Dulce Hub and an LNG export facility in south 
Texas to export 24.5 million metric tons (27 million U.S. tons) per 
annum of natural gas that provides an additional source of firm, long-
term, and competitively priced LNG to the global market.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN06JY20.004


[[Page 40252]]


BILLING CODE 3510-22-C
    The terminal would be located on approximately 3.04 square 
kilometers (km\2\) (750.4 acres) of a 3.98-km2 (984.2-acre) parcel of 
land along the northern shore of the BSC in Cameron County, Texas, 
approximately 16 km (9.8 statute mi) east of Brownsville and about 3.5 
km (2.2 mi) west of Port Isabel (see Figure 1). The Terminal, which is 
currently expected to begin operations in late 2023, would have a 
minimum 20-year life span (which could be extended to a 50-year life 
span). It would receive natural gas via a proposed Pipeline System, 
which would connect the Terminal to the existing infrastructure near 
the natural gas Agua Dulce hub interconnection in Nueces County. All 
pipeline work is conducted on land and there are no potential impacts 
on marine mammals from this work; therefore, pipeline work will not be 
discussed further.
    The terminal site includes the following major facilities: Six 
liquefaction trains; four full-containment LNG storage tanks; docking 
facilities for two LNG vessels, turning basin, and material offloading 
facility (MOF); LNG truck loading facilities with four loading bays; 
and Pipeline System's Compressor Station 3, a metering site, and the 
interconnection to the Pipeline System. In-water pile driving 
associated with construction of the LNG Loading and Vessel Berthing 
Area, turning basin, MOF, and Tug Berth have the potential to harass 
marine mammals. Rio Grande would also remove existing navigation 
markers. We describe these construction activities below.

LNG Loading and Vessel Berthing Area

    Two LNG vessel loading berths would be constructed along the south-
central boundary of the Terminal to accommodate simultaneous loading of 
two LNG vessels (see Figure 2). The berths would be recessed into the 
Terminal property so that loading LNG vessels, separated by 76 m (250 
ft), would not encroach on the navigable channel boundaries of the BSC. 
Construction of the loading berths would require dredging to a depth of 
up to -14 m (43 ft plus 2 ft allowable overdepth) mean lower low water 
(MLLW) (-13-m [43 ft] plus -0.6 m [2 ft] of allowable overdepth). No 
pile driving in-water is associated with this part of the project.

Turning Basin

    A 457.2-m (1,500-foot) diameter turning basin would be constructed 
to the east of the LNG vessel loading berths to accommodate turning 
maneuvers of the LNG vessels calling on the Terminal. LNG vessels would 
be escorted into the BSC and turning basin via tug boats, rotated in 
the turning basin, and then placed adjacent to a loading berth with the 
bow facing downstream (i.e., eastward). The turning basin would be 
partially recessed into the terminal site, but the area of the turning 
basin would encroach on the navigable channel of the BSC such that 
channel transit would be temporarily precluded until the LNG vessels 
were moored at the berth. As with the loading berths, the turning basin 
would be dredged to a depth of up to -13.1 m (-43 ft plus 2 ft 
allowable overdepth). The navigable channel is maintained at -12.8 m (-
42 ft) MLLW and would be deepened to -15.8 m (-52 ft) plus 0.6 m (2 ft) 
allowable overdepth and an additional 0.6 m (2 ft) for advanced 
maintenance dredging. An in-water Private Aid to Navigation (PATON) 
consisting of two steel 48-in pipe piles would be installed just 
outside of the footprint of the turning basin.

MOF and Tug Basin

    Rio Grande would construct a MOF along the western extent of the 
Terminal site, adjacent to the BSC. The MOF would primarily be used 
during construction for marine delivery of bulk materials and larger or 
prefabricated equipment as an alternative to road transportation; 
however, it would be maintained for the life of the terminal for 
periodic delivery of bulk materials. The MOF, which would require a 
dredged depth of up to -7.6 m (-25 ft) MLLW plus 0.6 m (2 ft) advanced 
maintenance allowance, would be constructed of a steel sheet pile 
bulkhead on land. Fencing would be placed around the MOF to control 
access and separate it from the adjacent wetlands on the west side of 
the terminal site; access would be through the western LNG terminal 
entrance. The MOF would be capable of berthing two barges 
simultaneously. Rio Grande anticipates that 880 barges would deliver 
materials to the MOF during the first 5 years of construction, although 
deliveries would continue as needed for the remainder of construction 
and into operations. Bulk materials delivered to the MOF would include 
the crushed sand or stone necessary for concrete fabrication. Ten 42-in 
piles would be installed in-water at the tug berth to support 
construction.

Removal of Existing Navigation Aids

    Rio Grande plans to relocate one of the USCG fixed navigation aids 
in the BSC waterway. Pile driving would include in-water removal of 
five 12-in-diameter timber piles at the existing navigation aid 
location using a vibratory hammer. A double bubble curtain would be 
deployed during all vibratory hammer operations to reduce noise 
generated by the hammer. The new navigation aid would be installed on 
land near the shoreline. All five piles would be removed on the same 
day at a rate of one pile removed every 20 minutes.
    In total, Rio Grande would install 12 piles associated with the 
marine facilities and remove five existing 12-in timber, navigation 
piles. (Table 1).

                                                              Table 1--In-Water Pile Driving and Removal Activities for Rio Grande
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                                                                                                              Source level  (dB) \1\
                  Area                         Pile size/type                  Method            ------------------------------------------------  Piles per day     Duration       Total piles
                                                                                                        SEL             RMS            Peak                           (days)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PATON at the LNG Berth.................  48-in (steel) \2\........  Vibratory...................           161.2           161.2             n/a               1               2               2
                                                                    Impact......................           179.7           191.6           205.5
Removal of USCG Navigation Aid.........  12-in (timber)...........  Vibratory...................       \3\ 145.0       \3\ 145.0             n/a           \5\ 5           \5\ 1               5
Tug Berth..............................  42-in (steel) \4\........  Vibratory...................           161.2           161.2             n/a               2               5              10
                                                                    Impact......................           179.7           191.6           205.5
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\1\ Source levels presented here account for use of a bubble curtain; therefore, they represent a 7decible (dB) reduction from unattenuated source levels.
\2\ 48-in pile source levels (SL) represent a -7 dB reduction from median values presented in Austin et al. (168.2 dB rms measured at 10 m (vibratory) and, for impact driving pile IP5,
  estimated SL of 198.6 dB rms at 10 m and 186.7 dB SEL and 212.5 dB peak measured at 11 m.
\3\ The 145 dB SL represents a -7dB reduction from 152 dB; 152 dB represents the highest root mean square (RMS) value measured at 16 m during removal of timber piles at Port Townsend
  (Laughlin, 2011).
\4\ Rio Grande conservatively applied 48-in pile IP5 source levels measured at the Port of Alaska (Austin et al. 2016) to 42-in pile source level estimate.
\5\ Rio Grande's application indicates pile removal of the five 12-in timber piles would occur at a rate of one pile per day for five days. The applicant later clarified this was a mistake in
  interpreting the engineer's intent and that all five piles would be removed on the same day.


[[Page 40253]]

Rock Armoring at the MOF

    East of the MOF, channel embankments and the top slope of the 
shoreline (to a depth of -0.6 m [-2 ft] MLLW) would be graded to a 1:3 
slope, stabilized with bedding stone overlain by geotextile fabric, and 
then covered with riprap (i.e., rock armoring) (see Section 1.3.2 in 
Rio Grande's application for further discussion of dredging 
activities). In the marine berths and turning basin, where vessel 
activity could erode the underwater channel slopes, the shoreline would 
be dredged to a 1:3 slope and stabilized with riprap to a depth of -
13.1 m (-43 ft) MLLW. The rock armoring would extend to the top of the 
slope at elevation +1.8 m (+6 ft) North American Vertical Datum of 1988 
and would tie in to the MOF bulkhead. The installation of rock armor 
does not generate in-water noise levels to the extent harassment is 
anticipated; therefore, this activity will not be discussed further.

Dredging

    Rio Grande would dredge the berthing areas and turning basin to a 
depth of -13.1 m (-43 ft) MLLW, with a -0.6 m (-2 foot) allowable over-
dredge. The sides of the berthing areas and turning basin would be 
contoured at a 1:3 slope. The MOF would be excavated and dredged to a 
depth of -7.6 m (-25 ft) MLLW plus 0.6 m (2 ft) advanced maintenance 
allowance), to allow barges and shallow-draft vessels to directly 
offload bulk materials at the Terminal site. Rio Grande would install 
rock armoring to provide scour protection from propeller wash on the 
slope parallel to the shoreline. About 476,317.7 m\3\ (623,000 cubic 
yards (yd\3\)) of material would be excavated along the shoreline and 
outside the federally maintained BSC by land-based equipment for the 
construction of the berthing areas, turning basin, and MOF. This 
material would be directly placed at the Terminal site for fill. An 
additional 29,817.6 m\3\ (39,000 yd\3\) of material would be dredged 
from the MOF using a mechanical dredge from the shoreline. 
Approximately 4.6 million m\3\ (6.1 million yd\3\) of material would be 
dredged from the berths and turning basin using water-based equipment. 
Material would be dredged using a hydraulic dredge and temporary 
pipeline and placed at a U.S. Army Corps of Engineers (USACE)-approved 
dredged-material-placement area. The placement area will be on the 
southern shoreline. Although the temporary dredge material pipeline 
will cross the BSC, it will be completely submerged and will rest on 
the bottom of the BSC while dredging activities take place. NMFS does 
not anticipate harassment to marine mammals from dredging nor is it 
likely the presence of the pipeline would be perceived as a barrier to 
dolphins. Therefore, harassment from dredging by Rio Grande is not 
anticipated nor is authorized, and this activity is not discussed 
further.

Annova

    Annova plans to site, construct, and operate facilities necessary 
to liquefy and export natural gas along the south bank of the BSC 
(Figure 2). The purpose of the Project is to operate a mid-scale 
natural gas liquefaction facility along the South Texas Gulf Coast for 
exporting LNG to international markets via LNG carriers through United 
States and international waters. The terminal will include a new LNG 
export facility with a nameplate capacity of 6.0 million metric tons 
per annum (6.6 million U.S. tons) and a maximum output at optimal 
operating conditions of 6.95 million metric tons (7.66 million U.S. 
tons) per year of LNG for export. The project site is located on a 2.96 
km\2\ (731-acre) property adjacent to the BSC on land owned by the 
Brownsville Navigation District (BND). The property, located at 
approximate mile marker 8.2 on the south bank of the BSC, has direct 
access to the Gulf of Mexico via the Brazos Santiago Pass.

[[Page 40254]]

[GRAPHIC] [TIFF OMITTED] TN06JY20.005

    Natural gas will be delivered to the facility via a third-party 
intrastate pipeline. The natural gas delivered to the site via the feed 
gas pipeline will be treated, liquefied, and stored on-site in two 
single-containment LNG storage tanks, each with a net capacity of 
approximately 160,000 m\3\ (42.3 million gallons). The LNG will be 
pumped from the storage tanks to the marine facilities, where it will 
be loaded onto LNG

[[Page 40255]]

carriers at the berthing dock using cryogenic piping.
    The facilities for the Project include the following major 
components: Gas pretreatment facilities; liquefaction facilities (six 
liquefaction trains and six approximately 72,000-horsepower electric 
motor-driven compressors); two LNG storage tanks; boil-off gas handling 
system; flare system; marine facilities; control, administration, and 
support buildings; an access road; fencing and barrier wall; and 
utilities (power, water, and communication). Similar to Rio Grande, in-
water work with the potential to cause harassment to marine mammals 
includes construction of the marine facilities.
    The marine facilities will include a 457 m (1,500-ft) diameter 
turning basin and widened channel approach areas to the turning basin 
(see Figure 2). LNG carriers will dock on the loading platform at the 
south side of the turning basin. The marine facilities include the 
following components: Loading platform and berth for one LNG carrier, 
including turning basin and access areas along the BSC; cryogenic 
pipelines and vapor return lines; aids to navigation; MOF, mooring and 
breasting dolphins; and tug berth area.
    The project involves installation and removal of 16 temporary 24-in 
diameter steel piles and installation of four 96-in diameter steel 
breasting dolphin piles (see Table 2). The 16 temporary steel piles 
will provide support during installation of the breasting dolphins 
(four temporary piles for each breasting dolphin). Each temporary pile 
will be installed using a vibratory and impact hammer. Installation of 
the temporary piles will occur in stages, initially with a vibratory 
hammer followed by an impact hammer. Once installation of the breasting 
dolphin piles is complete, all temporary piles will be removed using a 
vibratory hammer.

                                                                Table 2--In-Water Pile Driving and Removal Activities for Annova
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                                                                                                              Source level  (dB) \1\
                  Area                         Pile size/type                  Method            ------------------------------------------------  Piles per day     Duration       Total piles
                                                                                                        SEL             RMS            Peak                           (days)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Breasting Dolphin (temporary)..........  24-in (steel)............  Vibratory \1\...............           165.0           165.0             n/a               4           \3\ 8              16
                                                                    Impact \2\..................           171.0           187.0           200.0
Breasting Dolphins (permanent).........  96-in (steel)............  Vibratory \1\...............           180.0           180.0             n/a             0.5           \4\ 8               4
                                                                    Impact \2\..................           188.0           198.0           213.0
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Vibratory driving and removal source levels do not account for use of a bubble curtain. Proxy source levels are from 24-in sheet piles and 72-in pipe piles. Source: Caltrans (2015), Table
  I.2-2.
\2\ Source levels for impact driving are a -7fB reduction from the unattenuated source levels in Caltrans (2015) Table I.2.I. Unattenuated source levels are: 178 dB re 1 [micro]Pa\2\-s at 10
  m, 194 dB re 1 [micro]Pa at 10 m, and 207 dB re 1 [micro]Pa at 10 m for 24-in piles and 195 dB re 1 [micro]Pa\2\-s at 10 m, 205 dB re 1 [micro]Pa at 10 m, and 220 dB re 1 [micro]Pa at 10 m
  for 96-in piles.
\3\ Includes four days for installation and four days for removal.
\4\ Four of the eight days include both vibratory and impact hammering; the remaining four days include impact hammering only.

Dredging

    Annova will dredge the marine berth using a hydraulic cutter 
dredge. The berth will be dredged to the final design depth of -13.7 m 
(-45 ft) mean lower low water, plus 0.9 m (3 ft) for advance 
maintenance and over depth, with side slopes at a ratio of 3:1 where 
sheet piling is not used. Material removed by land-based excavation 
will be used for on-site fill where possible or placed on the Project 
site to support landscaping and final grading. Annova plans to use the 
existing Dredged Material Placement Area (DMPA) 5A or 5B, located just 
west of the Project site, to dispose of dredged material not used as 
fill on-site. Dredged material will be moved to the DMPA through an 
approximately 2.6 km (1.6-mi)-long, floating dredged material pipeline 
that will be temporarily anchored along the south shore of the BSC. The 
dredged material pipeline will be marked with navigation lights and 
reflective signs and monitored to ensure the safety of area traffic. 
Dredging for the marine berth is estimated to occur in two, 10-hour 
shifts, six days per week. Noise from dredging is not anticipated to 
harass marine mammals and the dredge material pipeline will not cross 
the BSC, avoiding potential impacts (e.g., entrapment) to marine 
mammals. Therefore, dredging will not be discussed further.
    The required mitigation, monitoring, and reporting measures for Rio 
Grande and Annova are described in detail later in this document 
(please see Mitigation and Monitoring and Reporting) and the IHAs which 
are posted online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations.

Comments and Responses

    A notice of NMFS' proposal to issue the IHAs was published in the 
Federal Register on May 8, 2020 (85 FR 27365). That notice described, 
in detail, Rio Grande and Annova's proposed activities, the marine 
mammal species that may be affected by the activities, the anticipated 
effects on marine mammals and their habitat, proposed amount and manner 
of take, and proposed mitigation, monitoring and reporting measures. 
During the 30-day public comment period, NMFS received a comment letter 
from the Marine Mammal Commission (Commission) and a member of the 
public. Both letters may be accessed online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations.
    Comment 1: The Commission recommended that NMFS (1) have its 
experts in underwater acoustics and bioacoustics review and finalize as 
soon as possible, its recommended proxy source levels for impact pile 
driving of the various pile types and sizes, (2) compile and analyze 
the source level data for vibratory pile driving of the various pile 
types and sizes in the near term, and (3) ensure action proponents use 
consistent and appropriate proxy source levels in all future 
rulemakings and proposed IHAs.
    Response: NMFS concurs with the Commission's recommendation and has 
prioritized these efforts.
    Comment 2: If NMFS applies source level data from Austin et al. 
(2016), the Commission recommends that NMFS ensure that the sound 
level, as well as the distance at which the measurement was taken, is 
correct and consistent in all future rulemakings and proposed 
incidental harassment authorizations.
    Response: The Commission recommends consistent source levels are 
applied; however, we do not agree this is necessary. The Commission 
compared source levels from the Port of Alaska (POA) Petroleum and 
Cement Terminal IHA and is concerned we did not apply identical source 
levels here. In their application, the POA averaged median source level 
values from two 48-in unattenuated piles (IP1 and IP5) during the POA 
Test Pile Program. The

[[Page 40256]]

Commission failed to recognize that Rio Grande actually applied the 
higher source level of the two unattenuated piles to both 42-in and 48-
in piles. NMFS considered this approach conservative and acceptable; 
therefore, NMFS did not adjust the 42-in and 48-in source levels for 
Rio Grande. NMFS did, however, correct the SL distance measurement for 
SEL and peak levels to 11m, not 10m for the final IHA. The resulting 
change to the Level A harassment isopleth is negligible and (from 18.5 
m to 20.3 m). There is no change to the Level B harassment isopleth as 
the RMS values in Austin et al (2016) are modeled at 10 m.
    Comment 3: The Commission recommends that NMFS use the loudest [72-
in pile proxy] source level of 180 dB re 1[mu]Parms at 10 m 
[for the installation of 96-in piles] rather than the typical source 
level of 170 dB re 1 [mu]Parms at 10 m from Table I.2-2 in 
Caltrans (2015).
    Response: We have accepted the Commission's recommendation for this 
particular project but note future decisions regarding appropriate 
proxy levels will be considered on a case-by-case basis. As 
acknowledged by the Commission, this results in no change to the Level 
B harassment zones given the narrow channel. Application of the 180dB 
rms source level does slightly extend the calculated Level A harassment 
isopleth (from 1.2 m to 5.4 m) when considering the full 20 minutes of 
vibratory pile driving per day; however, the Level A harassment 
isopleth remains less than 20 m shutdown zone for this activity. 
Therefore, the recommendation does not result in any change to Annova's 
IHA.
    Comment 4: The Commission again recommends that NMFS (1) refrain 
from using a 7-dB reduction factor and (2) consult with acousticians, 
including those at the University of Washington-Applied Physics 
Laboratory, regarding the appropriate source level reduction factor to 
use to minimize near-field (<100 m) and far-field (>100 m) effects on 
marine mammals or use the data NMFS has compiled regarding source level 
reductions at 10 m for near-field effects and assume no source level 
reduction for far-field effects for all relevant rulemakings and 
proposed IHAs.
    Response: NMFS disagrees with the Commission regarding this issue, 
and does not adopt the recommendation. NMFS has previously outlined our 
rationale for the bubble curtain source level reduction factor (e.g., 
84 FR 64833, November 25, 2019; 84 FR 28474, June 19, 2019) in response 
to a similar comment from the Commission. NMFS will additionally 
provide a detailed explanation of its decision within 120 days, as 
required by section 202(d) of the MMPA.
    Comment 5: The Commission recommends that NMFS revise its standard 
condition for ceasing in-water heavy machinery activities to include 
movement of the barge to the pile location and positioning of the pile 
on the substrate, as well as the other activity examples, in all draft 
and final incidental take authorizations involving pile driving and 
removal.
    Response: The Commission's recommendation is not fully practicable 
and is unnecessary for the following reasons. Barges are pushed by 
tugs. A tug pushing a barge is not able to cease entirely; it must 
maintain control of the barge and steerage capabilities. The draft IHAs 
already contain a measure that indicates vessels must reduce speeds in 
the presence of a marine mammal which is the more appropriate way to 
address any concerns from interaction with barges and vessels. With 
respect to other activities, the condition included in the draft IHAs 
provide examples and is not limited to those specifically identified. 
Because any machinery to lift and place piles is considered ``heavy 
machinery'', the placement of the pile is already covered in this 
measure. The condition remains as presented in the draft IHAs.
    Comment 6: The Commission recommends that NMFS include in the final 
authorizations for Rio Grande and Annova the requirement that work must 
occur only during daylight hours.
    Response: NMFS does not concur and does not adopt the 
recommendation. Both applicants have indicated they intent to conduct 
pile driving and removal activities during daylight hours only. 
However, if work needs to extend into the night, work may only be 
conducted under conditions where there is full visibility of the 
shutdown zone. Condition 4(d)(ii) in each IHA requires that pile 
driving and removal must cease if the shutdown zone is not visible.
    Comment 7: The Commission recommends that an additional protected 
species observer (PSO) be deployed at the western edge of the Level B 
harassment zones from the outset of the projects to ensure that 
dolphins entering the Level B harassment zones from either end of the 
BSC would be detected.
    Response: The Commission provided this comment during informal 
correspondence with NMFS and we responded with rationale for why we 
were not requiring a third PSO for either project unless the trigger 
identified in the proposed IHA was met (i.e., the applicant reached 75 
percent of takes). The Commission's letter did not acknowledge our 
prior response on this topic. In summary, NMFS does not require the 
entire Level B harassment monitoring area be covered and there is 
already a requirement that the applicants extrapolate take from any 
area that is not able to be monitored in their final report. There will 
be a PSO positioned at the pile driving site and a second PSO on the 
eastern (seaward) edge of the Level B harassment zone. As described in 
the notice of proposed IHAs, dolphins travel the BSC, primarily using 
the tides. Because dolphins travel up and down the BSC, they are likely 
to be documented by the PSOs on site and reasonable extrapolation of 
takes are possible with the two required PSOs. Adding a third PSO at 
the onset of the pile driving for the project to cover the entire 
monitoring zone is not necessary and we have not included it. The 
trigger to add a third PSO if 75 percent of takes are reached remains 
in the IHAs.
    Comment 8: The Commission recommends that NMFS require Rio Grande 
and Annova to keep a daily running tally of the total Level B 
harassment takes, based on both observed and extrapolated takes, to 
ensure timely implementation of measures to avoid exceeding authorized 
take limits.
    Response: We agree that Rio Grande and Annova must ensure they do 
not exceed authorized takes but do not concur with the recommendation. 
NMFS is not responsible for ensuring that an applicant does not operate 
in violation of an issued IHA.
    Comment 9: The Commission recommends that NMFS refrain from issuing 
renewals for any authorization and instead use its abbreviated Federal 
Register notice process, which is similarly expeditious and fulfills 
NMFS's intent to maximize efficiencies. If NMFS continues to propose to 
issue renewals, the Commission recommends that it (1) stipulate that a 
renewal is a one-time opportunity (a) in all Federal Register notices 
requesting comments on the possibility of a renewal, (b) on its web 
page detailing the renewal process, and (c) in all draft and final 
authorizations that include a term and condition for a renewal and, (2) 
if NMFS declines to adopt this recommendation, explain fully its 
rationale for not doing so.
    Response: NMFS does not fully agree with the Commission and, 
therefore, does not adopt the Commission's recommendation. However, we 
have identified that the renewal process is a one-time opportunity in 
Federal

[[Page 40257]]

Register notices requesting comments, draft and final authorizations, 
and have updated our web page. Regarding the remainder of the 
recommendations, NMFS will provide a detailed explanation of its 
decision within 120 days, as required by section 202(d) of the MMPA.
    Comment 10: A member of the public provided a letter that included 
concerns about various aspects of the project and other existing 
conditions in Laguna Madre including operational impacts of the project 
(e.g., discharges of thermal water from the regasification process, LNG 
tanker water ballast), impacts to sea turtles, habitat impacts from 
recreational and commercial fishing, safety of storage of chemicals,
    Response: These concerns are outside the scope of the one-year IHAs 
that authorize harassment to marine mammals from pile driving.
    Comment 11: A member of the public claims take by Level A 
harassment may occur given that animals forage and calve within the BSC 
and must pass the project sites given the dead-end nature of the canal.
    Response: Level A harassment equates to injury of a marine mammal. 
This could occur through non-auditory and auditory pathways. NMFS 
conducted a complete analysis of the potential for auditory injury 
(i.e., permanent thresholds shift (PTS)) and the commenter did not 
provide reason that this analysis may be incorrect. The IHAs also 
contain a 10 m shutdown distance for heavy equipment to prevent 
physical injury and that vessels must slow in the presence of marine 
mammals to reduce the already low risk of vessel interaction resulting 
in injury. Therefore, the mechanism by which the commenter believes 
injury may occur is unclear. NMFS has fully evaluated the potential for 
Level A harassment and has found that taking by Level A harassment is 
not reasonably anticipated and is not authorizing it.
    Comment 12: A member of the public believes the renewal process is 
vague and requested more information on how NMFS plans to review 
reports for consideration of renewal, how long that review process will 
need, and from who or whom reports will be generated.
    Response: NMFS' website about the renewal process, including 
criteria, is available on our website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. The criteria for renewal are also 
contained within the draft and final IHAs.
    Comment 13: A member of the public had concerns that NMFS did not 
address cumulative impacts to dolphins from other stressors, including, 
but not limited to, fishing and an additional proposed LNG facility in 
the BSC.
    Response: The MMPA requires NMFS to consider impacts from the 
specified activity contained within an IHA application. Existing 
stressors to marine mammals (e.g., current estimated rates of mortality 
and serious injury from commercial and recreational fishing) are 
included in our baseline analysis and consideration of the status of 
the stock. Cumulative impacts from other stressors are considered under 
the National Environmental Policy Act (NEPA) and are evaluated within 
the permitting agency's (in this case the Federal Regulatory Energy 
Commission) Environmental Impact Statements for the two projects which 
can be found at https://www.ferc.gov/industries/gas/enviro/eis/2019.asp.
    Comment 15: A member of the public requested NMFS require Rio 
Grande and Annova to use a double bubble curtain on all impact and 
vibratory pile driving and removal.
    Response: Applicants typically propose using a bubble curtain for 
impact pile driving only as this method of pile installation is louder 
than vibratory driving and produces sharp rise times, which has a 
higher potential for causing auditory impairments (i.e., temporary 
threshold shift (TTS) and PTS). Rio Grande conservatively proposed 
using a double bubble curtain on all impact and vibratory pile driving 
and removal. Annova proposed to use the double bubble curtain on all 
impact pile driving which is the typical case. The duration of 
vibratory driving for Annova is short, the pile driving would occur 
within a basin confined on three sides which reduces noise propagation 
into the BSC, and vibratory driving produces low source levels without 
rapid rise times relative to impact pile driving. For these reasons, 
NMFS is not requiring Annova use a bubble curtain during vibratory pile 
driving. The use of a double bubble curtain during all impact driving 
is required for both Rio Grande (as well as vibratory driving and 
removal, as proposed by the applicant) and Annova.
    Comment 16: A member of the public urged NMFS to require PSOs for 
Rio Grande and Annova to engage and coordinate with local experts to 
work with, collaborate, and coordinate dolphin monitoring, 
observations, and data intake and documentation and requested more 
information on the training and/or certification regimens for the PSOs 
that they must undertake to be approved and qualified.
    Response: NMFS cannot require an applicant to hire or work with 
local experts without commitment from both parties and the commenter 
did not identify any specific local experts. NMFS does; however, list 
PSO qualification requirements, including training and experience, in 
the IHAs. NMFS also requires PSOs contact the Marine Mammal Stranding 
Network should any injured or deceased marine mammals be observed. The 
IHAs also require that PSOs are independent and have no other project-
related duties.

Changes From the Proposed IHA to Final IHA

    There were no changes between the proposed IHAs and final IHAs: The 
description of specified activities, amount and type of authorized 
take, by species, and all mitigation, monitoring and reporting measures 
contained within the proposed IHAs were carried forward to the final 
IHAs. We made some adjustments to information contained within the 
analysis based on comments from the Commission; however, as described 
in the Comments and Responses section above, these changes did not 
result in any changes to the IHAs.

Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by Rio 
Grande and Annova's proposed projects, including brief introductions to 
the species and relevant stocks as well as available information 
regarding population trends and threats, and information regarding 
local occurrence, were provided in the Federal Register notice for the 
proposed IHAs (85 FR 27365; May 8, 2020). Please refer to the proposed 
IHAs Federal Register notice for these descriptions and the summary in 
Table 3 below.

[[Page 40258]]



                                             Table 3--Marine Mammals Potentially Present In the Action Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        ESA/ MMPA  status;   Stock abundance  (CV,
             Common name                  Scientific name               Stock             strategic  (Y/N)     Nmin, most recent       PBR     Annual  M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Bottlenose dolphin..............  Tursiops truncatus.....  Laguna Madre...........  N,Y                 unknown \4\...........        UND        0.4
                                                               Western Coastal GoM....  N,N                 20,161 (0.17, 17,491,         175        0.6
                                                                                                             2012).
    Atlantic spotted dolphin........  Stenella frontalis.....  Northern GoM...........  N,N                 37,611 (0.28, unk,         Undet.         42
                                                                                                             2004).
    Rough-toothed dolphin...........  Steno bredanensis......  Northern GoM...........  N,N                 624 (0.99, 311, 2009)         2.5    \6\ 1.2
                                                                                                             \5\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\4\ The abundance estimate reported in the latest stock assessment report for common bottlenose dolphin Gulf of Mexico Bay, Sound, and Estuary stocks is
  80 animals. However, this estimate is considered outdated as it is based on surveys from 1992-1993 (Blaylock and Hoggard 1994). Recent photo-
  identification surveys by Piwetz and Whitehead (2019) in Lower Laguna Madre identified 109 individuals; however, the authors note even this estimate
  is lower than a minimum population estimate.
\5\ This abundance estimate is reported in the latest stock assessment report for rough-toothed dolphins in the Northern Gulf of Mexico stock (Hayes et
  al. 2018). This estimate is considered outdated (more than 8 years old) and is based on surveys from 2009 (Garrison 2016). It does not include
  continental shelf waters and does not correct for unobserved animals. Data combined from 1992-2009 resulted in an estimate of 4,853 (CV=0.19) (Roberts
  et al. 2016).
\6\ Total human M/SI considers the mean annual M/SI from fishery observer related interactions from 2010-2014 and two stranded animals with signs of
  human-caused mortality (i.e., 0.8 + 0.4).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    We provided discussion of the potential effects of the specified 
activity on marine mammals and their habitat in our Federal Register 
notice of proposed IHAs (84 FR 63618; November 18, 2018). Therefore, we 
do not reprint the information here but refer the reader to that 
document. That document included a summary and discussion of the ways 
that components of the specified activities may impact marine mammals 
and their habitat, as well as general background information on sound. 
The Estimated Take section later in this document includes a 
quantitative analysis of the number of individuals that are authorized 
to be taken by these activities. The Negligible Impact Analysis and 
Determination section considers the content of this section and the 
material it references, the Estimated Take section, and the Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks.

Estimated Take

    This section provides the means by which the number of incidental 
takes authorized in the IHAs were derived, for authorization through 
these IHAs, which will inform both NMFS' consideration of ``small 
numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to pile driving and removal. Based on the 
nature of the activity and the anticipated effectiveness of the 
mitigation measures (i.e., shutdowns)--discussed in detail below in the 
Mitigation section, Level A harassment is neither anticipated nor 
authorized. Given the scope of work considered, no mortality or serious 
injury is anticipated or is authorized for this activity. The projects 
do have the potential to cause Level B (behavioral) harassment of 
dolphins within the BSC and we have authorized it. Below we describe 
how the Level B harassment take is estimated.
    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 take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and

[[Page 40259]]

the practical need to use a threshold based on a factor that is both 
predictable and measurable for most activities, NMFS uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS predicts that marine mammals are likely to 
be behaviorally harassed in a manner we consider Level B harassment 
when exposed to underwater anthropogenic noise above received levels of 
120 dB re 1 [mu]Pa (rms) for continuous (e.g., vibratory pile-driving, 
drilling) and above 160 dB re 1 [mu]Pa (rms) for intermittent (e.g., 
impact pile driving) sources.
    Both Rio Grande and Annova's activities include the use of 
continuous (vibratory pile driving and removal) and intermittent 
(impact pile driving) sound sources; therefore, the 120 and 160 dB re: 
1 [mu]Pa (rms) 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). Both Rio Grande and Annova's activities 
include the use of impulsive (impact pile driving) and non-impulsive 
(vibratory pile driving and removal) sources.
    These thresholds are provided in the Table 5. 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 4--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 of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [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.
    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources such as pile 
driving, NMFS User Spreadsheet predicts the distance at which, if a 
marine mammal remained at that distance the whole duration of the 
activity, it would incur PTS. Inputs used in the User Spreadsheet to 
calculate Level A harassment threshold isopleths for impact and 
vibratory pile driving are presented in Table 5 and 6, respectively.

                     Table 5--Inputs Into NMFS PTS User Spreadsheet for Impact Pile Driving
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Input parameters                                Rio Grande......................              Annova
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used..........................                      E.1) Impact pile driving
----------------------------------------------------------------------------------------------------------------
Source Level (SELs-s).........................  179.7...........................             171             188
Source Level (SPLpk)..........................  205.5...........................             200             213
----------------------------------------------------------------------------------------------------------------
Weighting Factor Adjustment (kHz).............                                  2
----------------------------------------------------------------------------------------------------------------
Number of piles per day.......................  1 (48-in), 2 (42-in)............               4             0.5
Number of strikes per pile....................  400.............................             675           2,700
----------------------------------------------------------------------------------------------------------------
Propagation (xLogR)...........................                                 15

[[Page 40260]]

 
Distance of source level measurement (m)......                    11 (Rio Grande), 10 (Annova)
----------------------------------------------------------------------------------------------------------------


                    Table 6--Inputs into NMFS PTS User Spreadsheet for Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
                                                  Rio Grande                               Annova
         Input parameters          -----------------------------------------------------------------------------
                                      12-in piles      48-in and 42-in             24-in               96-in
----------------------------------------------------------------------------------------------------------------
Source Level (RMS SPL) \1\........             145  161.2................  165..................             180
Number of piles per day...........               5  1 (48-in), 2 (42-in).  4....................             N/A
Duration to drive or remove a               \2\ 20  24...................  10 (install), 45               \4\ 20
 single pile (minutes).                                                     (remove) \3\.
----------------------------------------------------------------------------------------------------------------
Propagation (xLogR)...............                                       15
----------------------------------------------------------------------------------------------------------------
Distance from source level                      16  10...................  10...................              10
 measurement (m).
----------------------------------------------------------------------------------------------------------------
\1\ Source levels for Rio Grande account for a -7db bubble curtain reduction from unattenuated source levels.
\2\ We note Rio Grande's application indicated it would take 480 minutes to remove each 12-in pile and 1 pile
  would be removed per day. Upon request from NMFS, the applicant later clarified this time reflected the
  removal of all five piles, including when the hammer would not be operating. The actual hammer operation time
  per pile is 20 minutes and all 5 piles would be removed in a single day.
\3\ We note Annova's application indicated it would take 60 minutes to remove each 24-in pile but the applicant
  later clarified this included time when the hammer would not be operating and that actual hammer time would
  be, at most, 45 minutes.
\4\ Annova is installing 0.5 piles per day. Total vibratory pile driving duration per day to install this 0.5
  pile is 20 minutes.

    The results of the User Spreadsheet are presented in Table 7. These 
distances represent the distance at which a dolphin would have to 
remain for the entire duration considered in the calculation and may be 
unrealistic (e.g., NMFS does not anticipate a dolphin would remain at 
18 m for the entire time it takes to install two 42-in piles with an 
impact hammer). In all cases, the peak Level A harassment threshold is 
not reached. For these reasons, the potential for Level A harassment 
take from all pile driving and removal is very small and the applicants 
are required to shutdown pile driving should a marine mammal enter the 
Level A harassment zones.

                    Table 7--Level A Harassment Isopleths and Corresponding Ensonified Areas
----------------------------------------------------------------------------------------------------------------
                                                                                                   Level A area
                Pile type                         Hammer type            Level A isopleth (m)         (km\2\)
----------------------------------------------------------------------------------------------------------------
                                                   Rio Grande
----------------------------------------------------------------------------------------------------------------
42-in...................................  Vibratory.................  0.5.......................           <0.01
                                          Impact....................  20.3......................           <0.01
48-in-diameter steel tube piles.........  Vibratory.................  0.3.......................           <0.01
                                          Impact....................  12.8......................           <0.01
12-in-diameter timber piles.............  Vibratory.................  0.1.......................           <0.01
----------------------------------------------------------------------------------------------------------------
                                                     Annova
----------------------------------------------------------------------------------------------------------------
24-in...................................  Vibratory.................  0.3 (install) 0.9 (remove)           <0.01
                                          Impact....................  10.9......................
92-in...................................  Vibratory.................  5.4.......................           <0.01
                                          Impact....................  93.5......................            0.04
----------------------------------------------------------------------------------------------------------------

    To estimate the area ensonified to the Level B harassment 
thresholds, a basic calculation that incorporated the source levels 
provided in Table 8 and a practical spreading loss model was used to 
estimate distances to the respective intermittent (160 dB rms) and 
continuous (120 dB rms) thresholds. However, the width of the BSC is 
relatively narrow (approximately 300 m wide); therefore, the Level B 
harassment areas were clipped to account for land. Table 8 provides the 
calculated Level B harassment isopleths and area accounting for land.

                    Table 8--Level B Harassment Distances and Areas for Rio Grande and Annova
----------------------------------------------------------------------------------------------------------------
                                           Pile size  (source level dB   Isopleth distance   Level B  harassment
               Hammer type                             rms)                     (m)           area  (km\2\) \1\
----------------------------------------------------------------------------------------------------------------
                                                   Rio Grande
----------------------------------------------------------------------------------------------------------------
Impact...................................  42- and 48-in..............                1,278                 1.06

[[Page 40261]]

 
Vibratory................................  42- and 48-in..............                5,580                 4.85
                                           12-in......................                  743                 0.62
----------------------------------------------------------------------------------------------------------------
                                                     Annova
----------------------------------------------------------------------------------------------------------------
Impact...................................  24-in......................                  631                 0.56
                                           96-in......................                3,415              \2\ 1.0
Vibratory................................  24-in......................               10,000              \2\ 1.0
                                           96-in......................               21,544              \2\ 1.0
----------------------------------------------------------------------------------------------------------------
\1\ Ensonified areas are truncated by land. See Figures 4-6 in both Rio Grande and Annova's applications.
\2\ Although radii to Level B harassment isopleths are similar between applications, Annova's pile driving will
  take place setback from the shoreline inside a berthing area (currently on land but will be dug out- see
  Figures 4-6 in Annova's application) versus Rio Grande's pile driving which will be conducted along the
  current shoreline. The nature of the work creates much smaller ensonified areas for Annova.

Take Calculation and Estimation

    The abundance, distribution and density of marine mammals in Laguna 
Madre is poorly understood. Therefore, while the harassment areas 
described above are important for planning mitigation (e.g., shutdown 
to avoid Level A harassment) and monitoring, they are not part of the 
take estimate calculations. For both applicants, we have considered 
other quantitative information (e.g., group size and sighting rates) as 
well as behavior to estimate take.

Bottlenose Dolphins

    For bottlenose dolphins, both applicants first estimated density in 
the Laguna Madre using the number of individuals reported in Piwetz and 
Whitehead (2019), which was 109 dolphins. We note this is not an 
abundance estimate of the Laguna Madre stock as Piwetz and Whitehead 
(2019) conducted the surveys in a limited area of the lower Laguna 
Madre and the authors note the non-asymptotic nature of the photo-
identification discovery curve (accumulation curve) indicates that the 
sampling effort has not yet identified all, or even most, of the 
individuals that use this region. Regardless, both applicants used 
habitat data layers from Finkbeiner et al. (2009) to estimate the area 
of the Laguna Madre, removing the layers that were not dolphin habitat 
(e.g., land, emergent marsh, and mangroves), which resulted in a 1,938 
km\2\ area. Separately, they estimated the area of the BSC at 27 km\2\, 
for a total area of 1,965 km\2\. Using these inputs, both applicants 
calculated a density of 0.055 dolphins/km\2\ (109/1,965=0.055). NMFS 
believes this approach is an underestimate since the surveys in Piwetz 
and Whitehead (2019) were confined to the lower Laguna Madre. 
Therefore, we applied the 109 animals to the survey area in the study. 
The report did not provide the survey area (only the combined area 
covered for all five days) but a rudementary GIS exercise yielded an 
approximate survey area of 140 km\2\. This results in a density of 0.76 
dolphins/km\2\.
    When considering a density-based approach to calculate potential 
take, NMFS typically recommends the following equation: density x area 
x pile driving days. Using this equation and the NMFS-derived survey 
area of 140 km\2\, the resulting total take estimate for Rio Grande is 
approximately 29 ((0.76 dolphins/km\2\ x 4.85 km\2\ x 7 days) + (0.76 
dolphins/km\2\ x 0.62 km\2\ x 1 day) and approximately 12 for Annova 
(0.76 dolphins/km\2\ x 1.0 km\2\ x 16 days).
    While these calculations would be appropriate for more open water 
areas, the results are not realistic for the context of these projects. 
First, dolphins travel up and down the BSC therefore the potential for 
them to be exposed to pile driving noise is somewhat independent of the 
harassment zone sizes as all zones cross the entire width of the 
channel they are likely to travel into these zones on any given day 
(i.e., that all dolphins traveling the BSC will eventually pass the 
terminal sites and therefore have equal chances for exposure). Second, 
Rio Grande is conducting less work on fewer days than Annova. Given the 
likely daily occurrence for dolphins to be within the BSC, it is 
unrealistic to assume Rio Grande has the potential to have more than 
double the instances of take than Annova. For this reason, NMFS 
determined the resulting take based on density is not realistic and has 
instead estimated take based on sighting rates which considers an 
important parameter--the number of hours of pile driving.
    To derive a more realistic take estimate, NMFS considered the 
Piwetz and Whitehead (2019) data and the amount of pile driving 
proposed by each applicant. Piwetz and Whitehead (2019) observed 109 
dolphins over 26.72 hours of survey effort, resulting in an average of 
4.1 dolphins/hour. Rio Grande anticipates installing 12 piles and 
removing 5 piles over approximately 11.3 hours. Given the number of 
dolphins/hour, this results in a total take estimate of 46 (4.1 
dolphins per hour x 11.3 hours). Annova anticipates installing 20 piles 
and removing 16 of those 20 piles over approximately 15 hours. Given 
the number of dolphins/hour, this results in a total take estimate of 
62 takes (4.1 dolphins per hour x 15 hours). This amount of take more 
closely reflects the potential for both applicants to harass animals 
and allows for an adequate amount of take when considering another 
important parameter- group size. The average expected group size of 
dolphins in the BSC is 4.5 dolphins (Piwetz and Whitehead, 2019). The 
amount of bottlenose dolphin take authorized for Rio Grande and Annova 
is presented in Table 9 and 10, respectively.

Rough-Toothed and Atlantic Spotted Dolphins

    It is unlikely that rough-toothed dolphins or Atlantic spotted 
dolphins will occur in the BSC as these species typically inhabit 
coastal and offshore waters. We note that neither of these species were 
observed during opportunistic and planned surveys in 2016 through 2019 
(Ronje et al., 2018; Piwetz and Whitehead 2019). However, because there 
is a small risk that these animals may be exposed to project-related 
noise if they do enter the BSC during pile driving (e.g., a stranding 
event or other abnormal behavior), both Rio Grande and Annova have each 
requested take equating to the average group size of these species 
(Maze-Foley and Mullin 2006). These mean group

[[Page 40262]]

sizes are 14 rough-toothed dolphins and 26 Atlantic spotted dolphins 
(Table 9 and 10).

                 Table 9--Authorized Take for Rio Grande
------------------------------------------------------------------------
                                                     Level B  harassment
            Species                     Stock                take
------------------------------------------------------------------------
Bottlenose dolphin.............  Laguna Madre......                   46
                                 Western Gulf of
                                  Mexico Coastal.
Rough-toothed dolphin..........  N Gulf of Mexico..                   14
Atlantic spotted dolphin.......  N Gulf of Mexico..                   26
------------------------------------------------------------------------


                  Table 10--Authorized Take for Annova
------------------------------------------------------------------------
                                                     Level B  harassment
            Species                     Stock                take
------------------------------------------------------------------------
Bottlenose dolphin.............  Laguna Madre......                   62
                                 Western Gulf of
                                  Mexico Coastal.
Rough-toothed dolphin..........  N. Gulf of Mexico.                   14
Atlantic spotted dolphin.......  N Gulf of Mexico..                   26
------------------------------------------------------------------------

Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    Both Rio Grande and Annova are required to enact similar mitigation 
measures to ensure the least practicable adverse impact on marine 
mammals. Because dolphins are present within the Laguna Madre year-
round, we are not proposing any in-water work windows.
    Each IHA would contain the following mitigation measures:
    For in-water construction, heavy machinery activities other than 
pile driving, if a marine mammal comes within 10 m, Rio Grande and 
Annova must cease operations and reduce vessel speed to the minimum 
level required to maintain steerage and safe working conditions. This 
measure is designed to prevent physical injury from in-water equipment.
    Rio Grande and Annova are required to conduct briefings for 
construction supervisors and crews, the monitoring team, and staff 
prior to the start of all pile driving activity, and when new personnel 
join the work, in order to explain responsibilities, communication 
procedures, the marine mammal monitoring protocol, and operational 
procedures.
    Two PSOs must be stationed on land, barge, boat, or dock with full 
view of the shutdown zones (Table 11) and with direct view of the 
opposite shoreline to observe for marine mammals within the Level B 
harassment zone. If a marine mammal is observed within or approaching 
the shutdown zone, the PSOs will call for a shutdown.

                        Table 11--Shutdown Zones
------------------------------------------------------------------------
                                                                Shutdown
              Applicant                         Pile            zone (m)
------------------------------------------------------------------------
Rio Grande..........................  All piles..............         20
Annova..............................  24-in..................         20
96-in...............................  100....................
------------------------------------------------------------------------

    Marine mammal monitoring must take place from 30 minutes prior to 
initiation of pile 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 (Table 11), their behavior must be monitored and 
documented until they leave of their own volition, at which point the 
activity may begin or they have not been re-sighted within 15 minutes.
    If a marine mammal is entering or is observed within an established 
shutdown zone (Table 11), pile driving must be halted or delayed. Pile 
driving may not commence or resume until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
or 15 minutes have passed without subsequent detections.
    Should environmental conditions deteriorate such that marine 
mammals within the entire shutdown zone would not be visible (e.g., 
fog, heavy rain), pile driving and removal must be delayed until the 
PSO is confident marine

[[Page 40263]]

mammals within the shutdown zone could be detected.
    Rio Grande and Annova must 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 30-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 30 
minutes or longer.
    Rio Grande and Annova have stated that they will conduct all pile 
driving during daylight hours, and both applicants are required to 
employ a double bubble curtain during all impact pile driving and 
operate it in a manner consistent with the following performance 
standards: The bubble curtain must distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column; 
the lowest bubble ring must be in contact with the mudline for the full 
circumference of the ring, and the weights attached to the bottom ring 
shall ensure 100 percent mudline contact. No parts of the ring or other 
objects shall prevent full mudline contact; and air flow to the 
bubblers must be balanced around the circumference of the pile. Rio 
Grande will operate a double bubble curtain during all vibratory pile 
driving and removal and we have accounted for its use in our analysis. 
Therefore, Rio Grande must also operate this double bubble curtain 
during vibratory driving and removal.
    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 
(Table 8), 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 15 
minutes has elapsed without a subsequent sighting.
    In the case that 75 percent of the authorized take is met and two 
or more piles are left to be installed to complete the project, Rio 
Grande and Annova would implement additional monitoring and mitigation 
to ensure the authorized take is not exceeded. If this trigger is met, 
an additional PSO would be positioned at the western edge of the Level 
B harassment zone.
    Based on our evaluation of the measures proposed by the applicants 
and contained within the IHAs, NMFS has determined that the measures 
provide the means effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.
    Marine mammal monitoring before, during, and after pile driving and 
removal must be conducted by NMFS-approved PSOs who are independent and 
have a degree in biological sciences or related training/field 
experience. NMFS considers the following qualifications when reviewing 
potential PSO's curriculum vitae: Ability to conduct field observations 
and collect data according to assigned protocols, experience or 
training in the field identification of marine mammals, including the 
identification of behaviors, sufficient training, orientation, or 
experience with the construction operation to provide for personal 
safety during observations, 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 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. 
Rio Grande and Annova must submit each PSO's curriculum vitae for 
approval by NMFS prior to the onset of pile driving.
    Each IHA holder must submit a draft report on all marine mammal 
monitoring conducted under their IHA within 90 calendar days of the 
completion of marine mammal monitoring. A final report must be prepared 
and submitted within 30 days following resolution of comments on the 
draft report from NMFS.
    The marine mammal report must contain information related to 
construction activities, weather conditions, the number of marine 
mammals observed, by species, relative to the pile location (e.g., 
distance and bearing), description of any marine mammal behavior 
patterns during observation, including direction of travel and 
estimated time spent within the Level A harassment and Level B 
harassment zones during pile driving and removal, if pile driving or 
removal was occurring at time of sighting, age and sex class, if 
possible, of all marine mammals observed, PSO locations during marine 
mammal monitoring, detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any, an extrapolation of the estimated takes by Level B harassment 
based on the number of observed exposures within the Level B harassment 
zone and the percentage of

[[Page 40264]]

the Level B harassment zone that was not visible. Rio Grande and Annova 
must also submit all PSO datasheets and/or raw sighting data to NMFS.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the IHA-holder must 
immediately cease the specified activities and report the incident to 
NMFS and the Southeast Marine Mammal Stranding Network. If the death or 
injury was clearly caused by the specified activity, the IHA-holder 
must immediately cease the specified activities until NMFS is able to 
review the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the IHA. The IHA-holder must not resume their activities until 
notified by NMFS. Reporting information must include information about 
the event, species, animal condition and behavior, and if possible, 
photographs.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, our analysis below applies to the issuance of 
an IHA to Rio Grande and, separately, issuance of an IHA to Annova, as 
both projects include construction of an LNG terminal in the same area 
of the BSC.
    Pile driving activities associated with both projects, as outlined 
previously, have the potential to disturb or displace marine mammals. 
Specifically, the specified activities may result in take, in the form 
of Level B harassment (behavioral disturbance) incidental to underwater 
sounds generated from pile driving. Harassment could occur if dolphins 
are present in relatively close proximity (1-5 km\2\) to pile driving 
and removal.
    No Level A harassment, serious injury or mortality is anticipated 
given the nature of the activities and measures designed to avoid the 
potential of injury (e.g., PTS) to marine mammals. The potential for 
these outcomes is minimized through the construction method and the 
implementation of the planned mitigation measures. Rio Grande and 
Annova would utilize a double bubble curtain during all impact pile 
driving while Rio Grande has also committed to using the double bubble 
curtain during vibratory driving and removal. Specifically, vibratory 
and impact hammers will be the primary methods of installation. Piles 
will first be installed using vibratory pile driving. Vibratory pile 
driving produces lower SPLs than impact pile driving. The rise time of 
the sound produced by vibratory pile driving is slower, reducing the 
probability and severity of injury. Impact pile driving produces short, 
sharp pulses with higher peak levels and much sharper rise time to 
reach those peaks. When impact pile driving is used, implementation of 
soft start and shutdown zones significantly reduces any possibility of 
injury. Given sufficient ``notice'' through use of soft starts (for 
impact driving), marine mammals are expected to move away from a sound 
source; thereby, lowering received sound levels.
    The activities by Rio Grande and Annova are localized and of 
relatively short duration (8 and 16 days, respectively). The project 
area is also very limited in scope spatially (confined to a small area 
of the BSC). Localized (confined to the BSC) and short-term noise 
exposures produced by project activities may cause short-term 
behavioral modifications in dolphins. Surveys in the lower Laguna Madre 
indicate dolphin behavior is generally dominated by socializing, 
traveling (often in the direction of tidal movement), and foraging 
(Ronje et al., 2018; Piwetz and Whitehead, 2019). Dolphins were also 
observed foraging behind active commercial shrimp trawlers in the BSC 
as far as the Brownsville Fishing Harbor (Ronje et al. 2018). During 
another survey, commercial fishing trawlers were observed actively 
operating and 31 percent (n = 5) of groups were observed foraging 
behind trawlers or directly off the stern taking advantage of discarded 
bycatch (Piwetz and Whitehead, 2019).
    Another Texas waterway similar to the BSC, the Galveston Ship 
Channel, has been a hot spot for dolphin research in Texas. Dolphins 
regularly use the GSC to forage (57 percent of observed behavioral 
states) and socialize (27 percent), and or traveling (5 percent) 
(Piwetz, 2019). The author found when boats were present, the 
proportion of time dolphins spent socializing and foraging was 
significantly less than expected by chance. Swimming speeds increased 
significantly in the presence of small recreational boats, dolphin-
watching tour boats, shrimp trawlers, and when tour boats and shrimp 
trawlers were both present. We would expect animals in the BSC to 
respond similarly (e.g., decreased foraging and socializing) to pile 
driving. However, the activities considered in these IHAs (pile 
driving) would be stationary in nature and no vessels would be actively 
approaching dolphins nor would dolphins likely be attracted to pile 
driving as they are to shrimp trawls.
    In general, effects on individuals that are taken by Level B 
harassment will likely be limited to temporary reactions such as 
avoidance, increased swimming speeds, and decreased socializing and 
foraging behaviors. We would anticipate swim speeds would increase as 
dolphins move closer to the pile driving location (similar to how they 
react to vessels); however, this would move them quickly past the 
terminal and pre-pile driving exposure behavior would likely return 
quickly. Foraging and socializing behaviors may cease; however, these 
behaviors would also resume shortly thereafter. Level B harassment will 
be reduced to the level of least practicable adverse impact through use 
of mitigation measures described herein.
    The project also is not expected to have significant adverse 
effects on affected marine mammal habitat. Marine mammal habitat 
quality within the BSC varies. There is little development along the 
shoreline until the Brownsville Fishing Harbor, located approximately 8 
km west of the project sites, when the BCS becomes commercial/
industrial. Dolphin habitat in the BSC would be temporarily, indirectly 
impacted during the brief duration of pile driving for

[[Page 40265]]

both projects. Direct impacts to dolphin habitat would not occur during 
Annova's construction as the site is currently uplands. For Rio Grande, 
direct impacts to foraging habitat would be minimal and temporary in 
nature during pile driving, primarily consisting of increased 
turbidity. Dredging would permanently deepen the channel at the Rio 
Grande terminal location; however, the entire BSC is a man-made canal 
that is dredged. The activities may cause some fish to leave the area 
of disturbance, thus temporarily impacting marine mammal foraging 
opportunities in a limited portion of the foraging range. However, 
because of the short duration of the activities, the relatively small 
area of the habitat that may be affected, the impacts to marine mammal 
habitat are not expected to cause significant or long-term negative 
consequences.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from the proposed 
activities are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No Level A harassment, mortality is anticipated or 
authorized;
     The anticipated incidents of Level B harassment consist 
of, at worst, temporary modifications in behavior that would not result 
in fitness impacts to individuals;
     The specified activity and ensonification area is very 
small (1-5 km\2\) relative to the overall habitat ranges of all species 
and does not include habitat areas of special significance;
     The presumed efficacy of the mitigation measures in 
reducing the effects of the specified activity to the level of least 
practicable adverse impact; and
     The impacts to marine mammal habitat would be temporary in 
nature, primarily increased turbidity and noise.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from Rio 
Grande's specified activities and, separately, Annova's specified 
activities, 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 Sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness 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. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    For coastal stocks (bottlenose, Atlantic spotted, and rough-toothed 
dolphins) the amount of authorized take is less than one percent of the 
population. There is no population estimate available for the Laguna 
Madre stock of bottlenose dolphins. Two studies investigating dolphins 
in Lower Laguna Madre yielded approximately 60 in 2016 (Ronje et al., 
2018) and 109 individuals in 2018 and 2019 (Piwetz and Whitehead, 
2019). However, these surveys were very limited in space with respect 
to the stock range and the numbers reflect identified individuals. More 
specifically, Ronje et al. (2018) limited their survey to the extreme 
lower portion of Lower Laguna Madre while Piwetz and Whitehead (2019) 
acknowledge the non-asymptotic nature of the discovery curve 
(accumulation curve) indicates that the sampling effort has not yet 
identified all, or even most, of the individuals that use this region 
(presumably referring to lower Laguna Madre). The entire Laguna Madre 
stock range include upper and lower Laguna Madre.
    To estimate potential abundance, we looked for comparative 
ecosystems to estimate potential population size and trends in 
abundance estimates for other Gulf of Mexico BSE stocks. The Indian 
River Lagoon (IRL) in Florida is similar in configuration and length to 
Laguna Madre but is approximately half the size (539 km\2\ versus 
1137km\2\). Similar to Laguna Madre, there are no recent stock 
estimates for the IRL; however, seasonal aerial surveys spanning the 
IRL from 2002 and 2003 yielded a range of 362 (CV =0.29) to 1316 
(CV=0.24) with an overall mean abundance of 662 dolphins (Hayes et al., 
2016). For those Gulf of Mexico BSEs that have been more intensively 
studied in recent years, the trend demonstrates these BSEs support much 
larger stocks of bottlenose dolphins than previously believed. For 
example, the abundance estimates for the Barataria Bay, Mobile Bay, and 
Mississippi Sound stocks based on older data were estimated at 138, 
122, and 901 animals, respectively (Hayes et al., 2017). More recent 
surveys and analysis now estimate those stocks at 2,306, 1,393, and 
3,046 dolphins, respectively. For these reasons, it is reasonable to 
assume the entire Laguna Madre similarly supports several hundred to 
thousand animals.
    Finally, dolphins within the BSC have been documented as following 
the tides and shrimp trawls making their way back to the fleet docks 
which are located west of the terminal sites (Ronje et al., 2018). 
Because the BSC is a dead-end canal, dolphins traveling past the 
terminal sites in a westward direction must re-transit past the 
terminal sites to exit the BSC. This is likely to occur on the same day 
given the tides. While it is not possible to determine if pile driving 
would be occurring as animals are transiting both west and east of the 
terminal sites on any given day, it is possible some animals may be 
exposed to pile driving on more than one occasion on any given day 
(e.g., if pile driving is occurring in the morning and then several 
hours later, after a tide change). Therefore, the number of individual 
dolphins actually harassed may be less than the amount of take 
authorized.
    In summary, surveys in Laguna Madre have been limited to lower 
Laguna Madre and the authors acknowledge the limitations of their 
studies for purposes of estimating stock size, the IRL (a lagoon 
similar in configuration and proximity to ocean waters as the BSC but 
approximately half the surface water area) supports hundreds to over 
1,000 animals, and trends of older stock estimates compared to more 
recent data for other Gulf of Mexico BSE stocks. For these reasons, it 
is likely the Laguna Madre stock estimate is, at minimum, several 
hundred animals. Further, the number of individuals taken may be less 
than the amount of take authorized. Therefore, for the Laguna Madre 
stock of bottlenose dolphins, we find that the total taking may 
reasonably be expected to represent less than one-third of the total 
likely population abundance.
    Based on the analysis contained herein of the proposed activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals relative to the population size of the affected species 
or stocks may be taken incidental to Rio Grande's proposed activities 
and, separately, incidental to Annova's proposed activities.

[[Page 40266]]

Endangered Species Act

    Incidental take of ESA-listed species from the specified activities 
is not expected or authorized. Therefore, NMFS determined that formal 
consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    These actions are consistent with categories of activities 
identified in Categorical Exclusion B4 (IHAs with no anticipated 
serious injury or mortality) of the Companion Manual for NOAA 
Administrative Order 216-6A, which do not individually or cumulatively 
have the potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion. 
Accordingly, the issuance of the IHAs has been categorically excluded 
from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued IHAs to both 
Rio Grande and Annova authorizing the take, by Level B harassment only, 
of small numbers of marine mammals provided the mitigation, monitoring, 
and reporting requirements included in those IHAs are adhered to.
    The IHAs can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

    Dated: June 29, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-14376 Filed 7-2-20; 8:45 am]
BILLING CODE 3510-22-P