[Federal Register Volume 87, Number 143 (Wednesday, July 27, 2022)]
[Notices]
[Pages 45084-45086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16138]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC124


Taking Marine Mammals Incidental to the Hampton Roads Bridge 
Tunnel Expansion Project in Norfolk, Virginia

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

ACTION: Notice of issuance of modified letters of authorization.

-----------------------------------------------------------------------

SUMMARY: On January 28, 2022, NMFS received a request from the Hampton 
Roads Connector Partners (HRCP) to modify Letters of Authorization 
(LOA) that were issued to HRCP on April 2, 2021, as part of incidental 
take regulations. These regulations govern the unintentional taking of 
marine mammals incidental to construction activities associated with 
the Hampton Roads Bridge Tunnel Expansion Project (HRBT) in Norfolk, 
Virginia, over the course of 5 years (2021-2026). The modification is 
due to design updates which decrease the number of piles installed, 
require fewer hours of pile installation, and reduce the number of pile 
driving days. Prescribed mitigation measures were modified to reflect 
the change in design. We have determined that the modification will not 
result in an increase in take that would exceed the limits authorized 
under the original LOA. Therefore, the total amount of authorized 
taking remains the same.

DATES: This modified LOA is effective through April 1, 2026.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued modified LOA, may be 
obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of 
problems accessing these documents, please call the contact listed 
above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine 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).

Summary of Request and Analysis

    On November 19, 2019, NMFS received an application from HRCP 
requesting authorization for take of marine mammals incidental to 
construction activities related to a major road transport 
infrastructure project along the existing I-64 highway in Virginia, 
consisting of roadway improvements, trestle bridges, and bored tunnels 
crossing Hampton Roads between Norfolk and Hampton. On October 7, 2020 
(85 FR 63256), NMFS published a notice of receipt (NOR) of HRCP's 
application in the Federal Register, requesting comments and 
information related to the request. The proposed rule was subsequently 
published in the Federal Register on January 8, 2021 (86 FR 1588) and 
requested comments and information from the public. A final rule and 
associated regulations were published in the Federal Register on April 
2, 2021 (86 FR 17458; 50 CFR part 217, subpart W--Taking And Importing 
Marine Mammals Incidental to Hampton Roads Connector Partners 
Construction at Norfolk, Virginia).

[[Page 45085]]

    On January 28, 2022, HRCP notified NMFS of their request for 
modification of the LOA. Following receipt of the original LOA, HRCP 
has implemented and adhered to the prescribed suite of mitigation and 
monitoring measures which provide the means of effecting the least 
practicable adverse impact on the affected species or stocks and their 
habitat.
    Preliminary designs for South Island included the installation of 
numerous 24-inch and 30-inch steel pipe piles as Settlement Reduction 
and Deep Foundation piles to support the island expansion and tunnel 
approach structure. It was anticipated that these piles would be driven 
in open water prior to filling for island creation. However, during 
design optimization, the contractor has opted to advance a design 
alternative utilizing a filled cofferdam. The construction activities 
will include permanent installation of the cofferdam walls in open 
water. The cofferdam walls, and associated splash walls, will be 
constructed with a combination of steel sheet and steel pipe piles up 
to 60-inches in size.
    The modification eliminated the following piles from the existing 
design plan:
     50, 30-inch steel pipe, concrete-filled Deep Foundation 
piles;
     394, 24-inch steel pipe Settlement Reduction piles; and
     448 panels of sheet piles from the South Island Expansion.
    Instead, HRCP plans to install the following in-water piles:
     100 sheet pile panels at the South Island Expansion 
Cofferdam;
     21, 40-inch steel piles at the South Island Expansion 
Cofferdam;
     250, steel pipe piles 52-inches to 60-inches in size at 
the South Island Expansion Splash/Sea Wall and Cofferdam; and
     12, 24-inch concrete square permanent piles at the South 
Island Trestle Abutment.
    The change in design plan requires the establishment and monitoring 
of appropriate shutdown zones and harassment zones for the new piles, 
which have been included in the modified LOA. Additionally, the 
shutdown zones and harassment zones related to the eliminated piles 
were removed from the modified LOA. These changes are illustrated in 
Tables 1 and 2 below.
    The revised action associated with the modified LOA entails fewer 
pile installations/removals with less total hours of driving time over 
fewer active driving days. Therefore, it is reasonable to predict that 
take of marine mammals would be fewer than were considered in our 
analysis conducted for the rule.
    The modification to the LOA is expected to decrease takes by Level 
A and Level B harassment by reducing both the duration and intensity of 
marine mammals' exposure to in-water sound at levels that could result 
in injury or behavioral impacts.
    Specifically, the Level B harassment zones associated with the 
installation of new piles and sheets are smaller than or equivalent to 
those of the piles being eliminated, as illustrated in Table 1 below. 
The modification would result in harassment zones that are smaller or 
equivalent to those in the original LOA, and fewer days of activity 
with the potential to cause harassment, which, together, would be 
expected to result in a reduction in the number of takes by Level B 
harassment. However, HRCP did not request and NMFS has not authorized 
any changes to the take numbers contained in the original LOA as a 
conservative measure to ensure that take limits are not exceeded.

   Table 1--Changes to Modified LOA Level B Harassment Zones for Different Pile Sizes and Types and Methods of
                                        Installation With No Attenuation
----------------------------------------------------------------------------------------------------------------
                                                                                      Level B
        Modification action              Construction            Pile type         isopleth (m),      # Days
                                          component                                unattenuated
----------------------------------------------------------------------------------------------------------------
                                         Vibratory Hammer--South Island
----------------------------------------------------------------------------------------------------------------
Eliminated........................  Deep Foundation Piles  30-in steel piles,             13,594               9
                                                            concrete filled.
Eliminated........................  Settlement Reduction   24-in steel piles....           5,412              66
                                     Piles.
----------------------------------------------------------------------------------------------------------------
                                       DTH Pile Installation--South Island
----------------------------------------------------------------------------------------------------------------
Eliminated........................  Deep Foundation Piles  30-in steel piles,             11,659               9
                                                            concrete filled.
----------------------------------------------------------------------------------------------------------------
                                          Impact Hammer--North Trestle
----------------------------------------------------------------------------------------------------------------
Included..........................  Cofferdam............  52- to 60-inch steel            2,154              13
                                                            piles.
Included..........................  Cofferdam............  40-inch steel piles..           3,981              21
Included..........................  Trestle Abutment.....  24-inch concrete                  117              12
                                                            square piles.
----------------------------------------------------------------------------------------------------------------


                   Table 2--Changes to Modified LOA Shutdown Zones With Attenuation and With No Attenuation for All Authorized Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Number     Cetaceans--shutdown zones (m)
                                                                               piles    ---------------------------------
Modification action       Method        Pile size/type     Strikes/pile      installed                                    Pinnipeds--shutdown    # Days
                                                                            or removed/      LF         MF         HF          zones (m)
                                                                                day
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     No Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eliminated.........  Down-the-Hole     30-in Pipe,      36,000 strikes....            6      1,950         70        100            15/35              9
                      Installation.     Steel,
                                        concrete
                                        filled.
Included...........  Impact            40-inch Pipe,    200 strikes.......            3      1,320         50        100            15/35              2
                      Installation.     Steel.
Included...........  ................  52- to 60-inch   200 strikes.......            3        970         35        100            15/35             13
                                        Pipe, Steel.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 45086]]

 
                                                                    With Attenuation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eliminated.........  Impact            30-in Pipe,      20 strikes........            6        135         10         50               25             85
                      Installation.     Steel,
                                        concrete
                                        filled.
Included...........  ................  40-inch Pipe,    200 strikes.......            3        450         20        100               25              5
                                        Steel.
Included...........  ................  52- to 60-inch   200 strikes.......            3        330         20        100               25             71
                                        Pipe, Steel.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    While the new Level A harassment zones associated with impact 
driving under the modified LOA (Table 2) are larger in some instances 
than the injury zones that were established under the original LOA, 
there are significantly fewer days of in-water installation planned for 
the modification (91 days) compared to the original LOA (151 days). 
Therefore, take of marine mammals by Level A harassment would be 
expected to be reduced. Additionally, HRCP plans to eliminate 
installation of 50 30-inch steel pipe, concrete-filled piles that were 
planned to be installed using down-the-hole (DTH) methods. As shown 
above, these piles have the largest Level A harassment zones of any of 
the piles that would have been driven under the original LOA. 
Elimination of these DTH installations in the original LOA also 
supports a conclusion that, overall, expected Level A harassment events 
will be reduced under the modified LOA.
    Of note, marine mammal monitoring during in-water construction up 
to January 2022 has recorded two potential takes by Level A harassment 
since the start of LOA construction in July 2021. HRCP was authorized 
3,359 Level A harassment takes split between the 5 years of the LOA and 
five authorized species. The modifications to the mitigation and 
monitoring requirements, which include establishing new shutdown and 
harassment zones for 40-inch steel piles and 52- to 60-inch pipe piles, 
create a reasonable likelihood of more effectively accomplishing the 
goals of the mitigation and monitoring, pursuant to the adaptive 
management provisions set forth in the preamble in the final rule (see 
``Mitigation'' and ``Monitoring and Reporting'' sections of the final 
rule (86 FR 17458; April 2, 2021), for a detailed description of the 
mitigation and monitoring measures and the goals of the measures).
    In summary, the modifications would result in a decrease in the 
total number of active hours of installation/removal by 855 hours and a 
decrease in the total number of days of in-water installation/removal 
by 60 days at South Island. The number of sheet piles required would 
decrease from 448 to 100, while the number of steel pipe piles would 
decrease from 901 to 271. Given these modifications and the associated 
decreases in hours and days of installation/removal and number of 
piles, as well as the reduced impacts and resulting take, all of which 
fall within the scope of the rule, we have determined that the modified 
shutdown zones have a reasonable likelihood of more effectively 
reducing potential adverse impacts to marine mammals and would provide 
the means of effecting the least practicable adverse impact on the 
affected species or stocks and their habitat.
    The described modification of the LOA does not alter the original 
scope of activity analyzed or the impact analysis in a manner that 
materially affects the basis for the original findings under the final 
rule, both annually and over the 5 year period of effectiveness. 
Accordingly, we have determined that the take authorized in this LOA 
will have a negligible impact on the affected species or stocks and, 
separately, that the take will be of small numbers.

Authorization

    NMFS has issued a modified LOA to HRCP authorizing the take of 
marine mammals for the reasons described above, for the potential 
harassment of small numbers of marine mammals incidental to 
construction activities associated with the Hampton Roads Bridge Tunnel 
Expansion Project provided the mitigation, monitoring and reporting 
requirements of the rulemaking are incorporated.

    Dated: July 22, 2022.
Shannon Bettridge,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-16138 Filed 7-26-22; 8:45 am]
BILLING CODE 3510-22-P