[Federal Register Volume 89, Number 128 (Wednesday, July 3, 2024)]
[Proposed Rules]
[Pages 55180-55215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14162]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240621-0172]
RIN 0648-BM74


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to U.S. Navy Repair and Replacement of 
the Q8 Bulkhead at Naval Station Norfolk

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

ACTION: Proposed rule, request for comment.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for 
authorization to take marine mammals incidental to the Q8 Bulkhead 
repair and replacement project at Naval Station (NAVSTA) Norfolk in 
Norfolk, Virginia over the course of 5-years (i.e., 2025-2029) (the 
Project). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
proposing regulations to govern that take, and requests comments on the 
proposed regulations. Agency responses will be included in the notice 
of the final decision.

DATES: Comments and information must be received no later than August 
2, 2024.

ADDRESSES: A copy of the Navy's application and any supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navys-construction-activities-q8-bulkhead-naval-station.
    In case of problems accessing these documents, please call the 
contact listed below (see FOR FURTHER INFORMATION CONTACT).
    Submit all electronic public comments via the Federal e-Rulemaking 
Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2024-0055 
in the Search box. Click on the ``Comment'' icon, complete the required 
fields, and enter or attach your comments.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public records and will generally be posted for public viewing on 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401 or [email protected].

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory Action

    This proposed rule would establish a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take of marine mammals incidental to the Navy's construction activities 
including pile driving at NAVSTA Norfolk.
    We received an application from the Navy requesting 5-year 
regulations and authorization to take multiple species of marine 
mammals. Take would occur by Level B harassment, incidental to impact 
and vibratory pile driving. Please see Background below for definitions 
of harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional, taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to 5-years if,

[[Page 55181]]

after notice and public comment, the agency makes certain findings and 
issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Proposed Mitigation 
section), as well as monitoring and reporting requirements. Section 
101(a)(5)(A) of the MMPA, and the implementing regulations at 50 CFR 
part 216 subpart I, provide the legal basis for issuing this proposed 
rule containing 5-year regulations, and for any subsequent letters of 
authorization (LOAs). As directed by this legal authority, this 
proposed rule contains mitigation, monitoring, and reporting 
requirements.

Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed 
rule regarding Navy construction activities. These measures include:
     Required monitoring of the construction areas to detect 
the presence of marine mammals before beginning construction 
activities;
     Shutdown of construction activities under certain 
circumstances to avoid injury of marine mammals; and
     Soft start for impact pile driving to allow marine mammals 
the opportunity to leave the area prior to beginning impact pile 
driving at full power.

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions Section 101(a). 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 proposed or, if the taking is limited to harassment, a 
notice of a proposed IHA is 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 (Section 101 
(5)(A)(i)(II)(aa)). The definitions of all applicable MMPA statutory 
terms cited above are included in the relevant sections below.

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 
regulations) with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (i.e., incidental harassment authorizations 
(IHAs) with no anticipated serious injury or mortality) of the 
Companion Manual for NAO 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has preliminarily determined that the 
issuance of the proposed regulations and LOA qualifies to be 
categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on 
final regulations and the final LOA.

Summary of Request

    On September 14, 2024, NMFS received a request from the Navy for 
authorization to take marine mammals incidental to repair and 
replacement of the Q8 Bulkhead at NAVSTA Norfolk in Norfolk, VA. 
Following NMFS' review of the application, the Navy submitted a revised 
version on December 18, 2024 and after review of that application a 
second revised version was submitted on January 16, 2024. The 
application was deemed adequate and complete on February 23, 2024. A 
notice of receipt of the Navy's application was published in the 
Federal Register on March 14, 2024 (89 FR 18605). No comments were 
received on the application during the 30-day comment period. Navy's 
request is for the take of four species by Level B harassment only. 
Neither Navy nor NMFS expect serious injury or mortality to result from 
this activity. The proposed regulations would be valid for 5 years 
(2025-2029).

Description of Proposed Activity

Overview

    The Navy proposes to repair and replace the Q8 bulkhead at NAVSTA 
Norfolk, originally constructed in 1957, that has failed in multiple 
locations, creating sinkholes and unsafe conditions. Work on the 
bulkhead would be conducted from Piers 12 and 14 to restore function of 
this Navy dock system. Vibratory and impact hammers would be used for 
pile removal and installation. Sounds produced from these pile removal 
and installation activities may result in the incidental take of marine 
mammals by Level B harassment in the form of behavioral harassment. The 
Q8 bulkhead consists of an approximately 2,583 feet (ft) (787.30 meters 
(m) long anchored concrete sheet pile wall, beginning 400-ft (121.92 m) 
south of Pier 12 and terminating 1,024 ft (312.12 m) north of Pier 14 
(the Project Area). The Project would occur at NAVSTA Norfolk in 
Norfolk, Virginia near the mouth of the James River. Work would be 
conducted over 212 non-consecutive days to complete the proposed pile 
removal and installation activities.

Dates and Duration

    The proposed regulations would be valid for a period of 5 years 
(2025-2029). The specified activities may occur at any time during the 
5-year period of validity of the proposed regulations. The Navy expects 
pile removal and driving activities for the entire Project to occur 
during approximately 212 non-consecutive days over three phases each of 
which would take a year to complete, with the greatest amount of work 
occurring during Phase III (year 3) (approximately 204 days). However, 
in the event of unforeseen delays, the Project may occur over the full 
5-year duration of this proposed rule. The Navy plans to conduct all 
work during daylight hours.

Specific Geographic Region

    The Q8 bulkhead at NAVSTA Norfolk is located at the confluence of 
the Elizabeth River, James River, Nansemond River, LaFeyette River, 
Willoughby Bay, and Chesapeake Bay (figure 1). The water depth of the 
proposed action area can vary from six ft (1.83 m) to 50 ft (15.24 m) 
when measured at mean low water. The station is home to 59 ships 
(including five aircraft carriers), 187 aircraft, 18

[[Page 55182]]

aircraft squadrons, and 326 tenant commands. Waterfront structures 
include 13 large piers, numerous small piers, and bulkheads.
    Anthropogenic sound is a significant contributor to the ambient 
acoustic environment surrounding NAVSTA Norfolk, as it is located in 
close proximity to shipping channels as well as several Port of 
Virginia facilities with frequent vessel traffic that altogether have 
an annual average of 1,788 vessel calls (Port of Virginia, 2021). Other 
sources of human-generated underwater sound not specific to naval 
installations include sounds from commercial and recreational vessel 
traffic. Additionally, on average, maintenance dredging of the 
navigation channel occurs every 2-years (USACE and Port of Virginia, 
2018).
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Detailed Description of the Specified Activity

    The proposed Project at NAVSTA Norfolk would involve the repair and 
replacement of the Q8 bulkhead. Excavation of the shoreside portion 
existing bulkhead would occur to expose the existing concrete relieving 
platform for inspection, to facilitate removal and replacement of 
existing stormwater outfall pipes and catch basins, and to accommodate 
installation of a new tie-back rod system. Once the replacement of the 
stormwater outfall pipes and catch basins are completed the pile 
removal and installation activities would begin in three phases. The 
new sheet piles would be installed outboard of the existing sheet pile 
wall and concrete and composite fender piles would be installed 
incrementally along the span of the bulkhead. Pile removal and 
installation activities over the three phases are presented below in 
table 1. Once construction is complete the previously excavated fill 
material would be placed in a similar location to allow for repaving of 
the shoreward area of the bulkhead. In-water construction activities, 
include pile removal and installation and are described in detail 
below:
    Pile Removal--Vibratory hammers are expected to be used to remove 
piles; however, a direct pull method or clamshell device may be used to 
remove piles. These three pile removal methods are described below. 
Take is not expected to occur for direct pull and clamshell removal 
methods; therefore, they will not be described past what is provided 
below nor included in the analysis presented in this rulemaking:
     Vibratory Extraction--This method uses a barge-mounted 
crane with a vibratory driver to remove all pile types. The vibratory 
driver is a large mechanical device (5-16 tons) suspended from a crane 
by a cable and positioned on top of a pile. The pile is then loosened 
from the sediments by activating the driver and slowly lifting up on 
the driver with the aid of the crane. Once the pile is released from 
the sediments, the crane continues to raise the driver and pull the 
pile from the sediment. The driver is typically shut off once the pile 
is loosened from the sediments. The pile is then pulled from the water 
and placed on a barge. Vibratory extraction usually takes between less 
than one minute (for timber piles) to 30 minutes per pile depending on 
the pile size, type, and substrate conditions;
     Clamshell--In cases where use of a vibratory driver is not 
possible (e.g., when the pile may break apart from clamp force and 
vibration), a clamshell apparatus may be lowered from the crane in 
order to remove pile stubs. A clamshell is a hinged steel apparatus 
that operates similar to a set of steel jaws. The bucket is lowered 
from a crane and the jaws grasp the pile stub as the crane pulls 
upward. The use and size of the clamshell bucket would be minimized to 
reduce the potential for generating turbidity during removal; and
     Direct Pull--Piles may be removed by wrapping the piles 
with a cable or chain and pulling them directly from the sediment with 
a crane. In some cases, depending on access and location, piles may be 
cut at or below the mudline.
    Pile Installation--Pile installation would occur using both 
vibratory and impact hammers. Vibratory hammers install piles by 
vibrating them and allowing the weight of the hammer to push them into 
the sediment. Impact hammers operate by repeatedly dropping a heavy 
piston onto a pile to drive the pile into the substrate. Concrete piles 
and composite piles would be installed using an impact or vibratory 
hammer. Steel sheet piles would be installed only using a vibratory 
hammer.
    Table 1 provides the estimated construction schedule and production 
rates for the proposed construction activities considered for this 
proposed rulemaking beginning with Phase I. Each phase of the 
construction would occur over a 1-year period for a total of 3-years. 
Some Project elements will use only one method of pile installation 
while others may use two methods (e.g., impact hammer or vibratory 
hammer and impact hammer), but all pile driving methods have been 
analyzed. The method of installation will be determined by the 
construction crew

[[Page 55184]]

once demolition and installation has begun.
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    Concurrent Activities--In order to maintain Project schedules, it 
is likely that multiple pieces of equipment would operate at the same 
time within the Project Area. Table 2 provides a summary of the 
possible equipment combinations by phase where a maximum of four pieces 
of in-water equipment may be occurring simultaneously. As mentioned 
above, the method of installation, and whether concurrent pile driving 
scenarios will be implemented, will be determined by the construction 
crew once the Project has begun. Therefore, the total take estimate 
reflects the highest amount for a given activity during the proposed 
Project.

[[Page 55185]]

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    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (see the Proposed Mitigation 
and Proposed Monitoring and Reporting sections).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, instead of reprinting the information. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website at: https://www.fisheries.noaa.gov/find-species.
    Table 3 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs) (Section 3 (19)(A). While no serious injury or mortality is 
anticipated or proposed to be authorized here, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species or stocks and other 
threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Atlantic SARs. All values presented in table 3 are the most 
recent available at the time of publication (including from the draft 
2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
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    As indicated above, all four species (with six managed stocks) in 
table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. All species that could 
potentially occur in the proposed action area are included in table 3-1 
of the IHA application. While

[[Page 55187]]

gray seals (Halichoerus grypus) have been documented in the area, the 
temporal and/or spatial occurrence of the species is such that take is 
not expected to occur, and it is not discussed further beyond the 
explanation provided here.
    Surveys conducted in the lower Chesapeake Bay have observed gray 
seals regularly near the mouth of the Bay (Rees et al., 2016; Jones et 
al. 2018; Jones & Rees, 2020, 2021, 2022). Although gray seals are 
present at the mouth of the Chesapeake Bay NMFS reviewed monitoring 
reports from the Hampton Roads Bridge-Tunnel Expansion Project IHA (85 
FR 48153, August 10, 2020) and the Navy Pier 3 IHA (87 FR 15945, March 
21, 2022) and there were no gray seals observed during either of those 
projects (Hampton Roads Connector Partners 2023; W.F. Magann 
Corporation 2023). Therefore, take is not expected for these species 
and they are not discussed further in this document.

Humpback Whale

    In the winter months, humpback whales from waters off New England, 
Canada, Greenland, Iceland, and Norway, migrate to mate and calve 
primarily in the West Indies, where spatial and genetic mixing among 
these groups occurs. NMFS defines a humpback whale stock on the basis 
of feeding location (i.e., Gulf of Maine). However, our reference to 
humpback whales in this document refers to any individual of the 
species that are found in the species geographic region. These 
individuals may be from the same breeding population (e.g., West Indies 
breeding population of humpback whales) but visit different feeding 
areas.
    Prior to 2016, humpback whales were listed under the ESA as an 
endangered species worldwide. Following a 2015 global status review 
(Bettridge et al., 2015), NMFS established 14 Distinct Population 
Segments (DPSs) with different listing statuses (81 FR 62259, September 
8, 2016) pursuant to the ESA. Humpback whales in the Project Area are 
expected to be from the West Indies DPS, which consists of the whales 
whose breeding range includes the Atlantic margin of the Antilles from 
Cuba to northern Venezuela, and whose feeding range primarily includes 
the Gulf of Maine, eastern Canada, and western Greenland. This DPS is 
not ESA listed. Bettridge et al., (2003) estimated the size of the West 
Indies DPS at 12,312 (95 percent confidence interval 8,688-15,954) 
whales in 2004-05, which is consistent with previous population 
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; 
Smith et al., 1999) and the increasing trend for the West Indies DPS 
(Bettridge et al., 2015).
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida. This 
event was declared an unusual mortality event (UME) in 2017. A portion 
of the whales have shown evidence of pre-mortem vessel strike; however, 
this finding is not consistent across all whales examined, and 
additional research is needed. Since May 3, 2024, 221 Atlantic humpback 
whales have been subject to the active UME. Additional information is 
available at:  https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2024-humpback-whale-unusual-mortality-event-along-atlantic-coast.
    Humpback whales are most likely to occur near the mouth of the 
Chesapeake Bay and coastal waters of Virginia Beach between January and 
March; however, they could be found in the area year-round, based on 
shipboard sighting and stranding data (Barco and Swingle, 2014; 
Aschettino et al., 2015; 2016; 2017; 2018). Photo-identification data 
support the repeated use of the mid-Atlantic region by individual 
humpback whales. Results of the vessel surveys show site fidelity in 
the survey area for some individuals and a high level of occurrence 
within shipping channels--an important high-use area by both the Navy 
and commercial traffic (Aschettino et al., 2015; 2016; 2017; 2018). 
Nearshore surveys conducted in early 2015 reported 61 individual 
humpback whale sightings, and 135 individual humpback whale sightings 
in late 2015 through May 2016 (Aschettino et al., 2016). Subsequent 
surveys confirmed the occurrence of humpback whales in the nearshore 
survey area: 248 individuals were detected in 2016-2017 surveys 
(Aschettino et al., 2017), 32 individuals were detected in 2017-2018 
surveys (Aschettino et al., 2018), and 80 individuals were detected in 
2019 surveys (Aschettino et al., 2019). Sightings in the Hampton Roads 
area in the vicinity of NAVSTA Norfolk were reported in nearshore 
surveys and through tracking of satellite-tagged whales in 2016, 2017 
and 2019. The numbers of whales detected, most of which were juveniles, 
reflect the varying level of survey effort and changes in survey 
objectives from year to year, and do not indicate abundance trends over 
time. Recent monitoring reports from the Hampton Roads Bridge-Tunnel 
Expansion Project and the Pier 3 Navy Construction Project did not 
observe any humpback whales near the project sites. Monitoring for the 
Hampton Roads Bridge-Tunnel Expansion Project spanned from September 
2020 through July 2021 (over a 197-day period) and monitoring for the 
Pier 3 Navy Construction Project spanned from August 2022 to December 
2022 (i.e., over a 45-day period) (Hampton Roads Connector Partners 
2023; W.F. Magann Corporation 2023).

Bottlenose Dolphin

    Along the U.S. East Coast and northern Gulf of Mexico, the 
bottlenose dolphin stock structure is well studied. There are currently 
54 management stocks identified by NMFS in the western North Atlantic 
and Gulf of Mexico, including oceanic, coastal, and estuarine stocks 
(Hayes et al., 2017; Waring et al., 2015, 2016).
    Bottlenose dolphins inhabiting nearshore coastal and estuarine 
waters between New York and Florida may be a separate species from 
their offshore counterparts (Costa et al., 2022). The offshore form is 
larger in total length and skull length and has wider nasal bones than 
the coastal form. Both inhabit waters in the western North Atlantic 
Ocean and Gulf of Mexico (Curry and Smith, 1997; Hersh and Duffield, 
1990; Mead and Potter, 1995) along the U.S. Atlantic coast. The coastal 
species of bottlenose dolphin is continuously distributed along the 
Atlantic coast south of Long Island, New York, around the Florida 
peninsula, and along the Gulf of Mexico coast. This type typically 
occurs in waters less than 25 meters deep (Waring et al., 2015). The 
range of the offshore bottlenose dolphin includes waters beyond the 
continental slope (Kenney, 1990), and offshore bottlenose dolphins may 
move between the Gulf of Mexico and the Atlantic (Wells et al., 1999).
    Two coastal stocks are likely to be present in the Project Area: 
(1) the Western North Atlantic Northern Migratory Coastal stock; and 
(2) the Western North Atlantic Southern Migratory Coastal stock. 
Additionally, the Northern North Carolina Estuarine System stock may 
occur in the Project Area.
    Bottlenose dolphins are the most abundant marine mammal along the 
Virginia coast and within the Chesapeake Bay, typically traveling in 
groups of 2-15 individuals, but occasionally in groups of over 100 
individuals (Engelhaupt et al., 2014; 2015; 2016). Bottlenose dolphins 
of the Western North Atlantic Northern Migratory Coastal stock winter 
along the coast of North Carolina and migrate as far north as Long 
Island, New York, in the summer. They are rarely found north of North 
Carolina in the winter (NMFS, 2018). The Western North

[[Page 55188]]

Atlantic Southern Migratory Coastal stock occurs in waters of southern 
North Carolina from October to December, moving south during winter 
months and north to North Carolina during spring months. During July 
and August, the Western North Atlantic Southern Migratory Coastal stock 
is presumed to occupy coastal waters north of Cape Lookout, North 
Carolina, to the eastern shore of Virginia (NMFS, 2018). It is possible 
that these animals also occur inside the Chesapeake Bay and in 
nearshore coastal waters. The North Carolina Estuarine System stock 
dolphins may also occur in the Chesapeake Bay during July and August 
(NMFS, 2018).
    Vessel surveys conducted along coastal and offshore transects from 
NAVSTA Norfolk to Virginia Beach in most months from August 2012 to 
August 2015 reported bottlenose dolphins throughout the survey area, 
including the vicinity of NAVSTA Norfolk (Engelhaupt et al., 2014; 
2015; 2016). The final results from this project confirmed earlier 
findings that bottlenose dolphins are common in the study area, with 
highest densities in the coastal waters in summer and fall months. 
However, bottlenose dolphins do not completely leave this area during 
colder months, with approximately 200-300 individuals still present in 
winter and spring months, which is commonly referred to as the 
Chesapeake Bay resident dolphin population (Engelhaupt et al., 2016). 
During monitoring of Pier 3 Navy Construction Project, 18 bottlenose 
dolphins were observed over 45 days of construction (W.F. Magann 
Corporation 2023). Over the 197 days of construction a total of 94 
bottlenose dolphins were observed during the Hampton Roads Bridge-
Tunnel Expansion Project (Hampton Roads Connector Partners 2023). For 
both projects bottlenose dolphins were the only marine mammal observed 
while conducting monitoring activities.

Harbor Porpoise

    Harbor porpoises inhabit cool temperate-to-subpolar waters, often 
where prey aggregations are concentrated (Watts and Gaskin, 1985). 
Thus, they are frequently found in shallow waters, most often near 
shore, but they sometimes move into deeper offshore waters. Harbor 
porpoises are rarely found in waters warmer than 63 degrees Fahrenheit 
(17 degrees Celsius) (Read 1999) and closely follow the movements of 
their primary prey, Atlantic herring (Gaskin 1992).
    In the western North Atlantic, harbor porpoise range from 
Cumberland Sound on the east coast of Baffin Island, southeast along 
the eastern coast of Labrador to Newfoundland and the Gulf of St. 
Lawrence, then southwest to about 34 degrees North on the coast of 
North Carolina (Waring et al., 2016). During winter (January to March), 
intermediate densities of harbor porpoises can be found in waters off 
New Jersey to North Carolina, and lower densities are found in waters 
off New York to New Brunswick, Canada (Waring et al., 2016). Harbor 
porpoises sighted off the mid-Atlantic during winter include porpoises 
from other western North Atlantic populations (Rosel et al., 1999). 
There does not appear to be a temporally coordinated migration or a 
specific migratory route to and from the Bay of Fundy region (Waring et 
al., 2016). During the fall (October to December) and the spring (April 
to June), harbor porpoises are widely dispersed from New Jersey to 
Maine, with lower densities farther north and south (LaBrecque et al., 
2015).
    Based on stranding reports, passive acoustic recorders, and 
shipboard surveys, harbor porpoise occur in coastal waters primarily in 
winter and spring months, but there is little information on their 
presence in the Chesapeake Bay. They do not appear to be abundant in 
the NAVSTA Norfolk area in most years, but this is confounded by wide 
variations in stranding occurrences over the past decade. There were no 
harbor porpoise observed during construction activities for the Pier 3 
Navy Construction Project or the Hampton Roads Bridge-Tunnel Expansion 
Project (Hampton Roads Connector Partners 2023; W.F. Magann Corporation 
2023).

Harbor Seal

    The Western North Atlantic stock of harbor seals occurs in the 
Project Area. Harbor seal distribution along the U.S. Atlantic coast 
has shifted in recent years, with an increased number of seals reported 
from southern New England to the mid-Atlantic region (DiGiovanni et 
al., 2011; Hayes et al., 2021). Regular sightings of seals in Virginia 
have become a common occurrence in winter and early spring (Costidis et 
al., 2019). Winter haulout sites for harbor seals have been documented 
in the Chesapeake Bay at the Chesapeake Bay Bridge Tunnel (CBBT), on 
the Virginia Eastern Shore, and near Oregon Inlet, North Carolina 
(Waring et al., 2016; Rees et al., 2016; Jones et al., 2018).
    Harbor seals regularly haul out on rocks around the portal islands 
of the CBBT and on mud flats on the nearby southern tip of the Eastern 
Shore from December through April (Rees et al., 2016; Jones et al., 
2018). Seals captured in 2018 on the Eastern Shore and tagged with 
satellite-tracked tags that lasted from 2 to 5 months spent at least 60 
days in Virginia waters before departing the area. All tagged seals 
returned regularly to the capture site while in Virginia waters, but 
individuals utilized offshore and Chesapeake Bay waters to different 
extents (Ampela et al., 2019). The area that was utilized most heavily 
was near the Eastern Shore capture site, but some seals ranged into the 
Chesapeake Bay. To supplement this information, there were no harbor 
seals observed during construction activities for the Pier 3 Navy 
Construction Project or the Hampton Roads Bridge-Tunnel Expansion 
Project (Hampton Roads Connector Partners 2023; W.F. Magann Corporation 
2023).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in table 4.

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[GRAPHIC] [TIFF OMITTED] TP03JY24.116

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
The Estimated Take of Marine Mammals section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take of Marine Mammals section, and the Proposed Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and whether those impacts are reasonably expected to, or reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.

Description of Sound Sources

    The marine soundscape is comprised of both ambient and 
anthropogenic sounds. Ambient sound is defined as the all-encompassing 
sound in a given place and is usually a composite of sound from many 
sources both near and far. The sound level of an area is defined by the 
total acoustical energy being generated by known and unknown sources. 
These sources may include physical (e.g., waves, wind, precipitation, 
earthquakes, ice, atmospheric sound), biological (e.g., sounds produced 
by marine mammals, fish, and invertebrates), and anthropogenic sound 
(e.g., vessels, dredging, aircraft, construction).
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    In-water construction activities associated with the Project would 
include vibratory pile driving and removal and impact pile driving. The 
sounds produced by these activities fall into one of two general sound 
types: (1) impulsive; and (2) non-impulsive. Impulsive sounds (e.g., 
explosions, gunshots, sonic booms, impact pile driving) are typically 
transient, brief (i.e., less than 1 second), broadband, and consist of 
high peak sound pressure with rapid rise time and rapid decay (ANSI 
1986; NIOSH 1998; ANSI 2005; NMFS 2018). Non-impulsive sounds (e.g., 
aircraft, machinery operations such as drilling or dredging, vibratory 
pile driving, and active sonar systems) can be broadband, narrowband or 
tonal, brief or prolonged (continuous or intermittent), and typically 
do not have the high peak sound pressure with raid rise/decay time that 
impulsive sounds do (ANSI 1995; NIOSH 1998; NMFS 2018). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward 1997 in Southall et al., 2007).
    Impact hammers operate by repeatedly dropping a heavy piston onto

[[Page 55190]]

a pile to drive the pile into the substrate. Sound generated by impact 
hammers is characterized by rapid rise times and high peak levels, a 
potentially injurious combination (Hastings and Popper 2005). Vibratory 
hammers install piles by vibrating them and allowing the weight of the 
hammer to push them into the sediment. The vibrations produced also 
cause liquefaction of the substrate surrounding the pile, enabling the 
pile to be extracted or driven into the ground more easily. Vibratory 
hammers produce significantly less sound than impact hammers. Peak 
sound pressure levels (SPLs) may be 180 dB or greater but are generally 
10 to 20 dB lower than SPLs generated during impact pile driving of the 
same-sized pile (Oestman et al., 2009). Rise time is slower, reducing 
the probability and severity of injury, and sound energy is distributed 
over a greater amount of time (Nedwell and Edwards 2002; Carlson et 
al., 2005).
    The likely or possible impacts of the Navy's proposed activity on 
marine mammals could involve both non-acoustic and acoustic stressors. 
Potential non-acoustic stressors could result from the physical 
presence of the equipment and personnel; however, any impacts to marine 
mammals are expected to be primarily acoustic in nature and no takes 
specifically attributed to non-acoustic stressors are expected to 
occur. Acoustic stressors include effects of heavy equipment operation 
during pile driving and removal.

Acoustic Impacts

    The introduction of anthropogenic noise into the aquatic 
environment from pile driving is the primary means by which marine 
mammals may be harassed from the Navy's specified activity. In general, 
animals exposed to natural or anthropogenic sound may experience 
physical and psychological effects, ranging in magnitude from none to 
severe (Southall et al., 2007 and Southall et al. 2021). In general, 
exposure to pile driving noise has the potential to result in auditory 
threshold shifts and behavioral reactions (e.g., avoidance, temporary 
cessation of foraging and vocalizing, changes in dive behavior). 
Exposure to anthropogenic noise can also lead to non-observable 
physiological responses such an increase in stress hormones. Additional 
noise in a marine mammal's habitat can mask acoustic cues used by 
marine mammals to carry out daily functions such as communication and 
predator and prey detection. The effects of pile driving noise on 
marine mammals are dependent on several factors, including, but not 
limited to, sound type (e.g., impulsive vs. non-impulsive), the 
species, age and sex class (e.g., adult male vs. mom with calf), 
duration of exposure, the distance between the pile and there animal, 
received levels, behavior at time of exposure, and previous history 
with exposure (Wartzok et al., 2004; Southall et al., 2007). Here we 
discuss physical auditory effects (threshold shifts) followed by 
behavioral effects and potential impacts on habitat.
    NMFS defines a noise-induced threshold shift (TS) as a change, 
usually an increase, in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2018). The amount of 
threshold shift is customarily expressed in dB. A TS can be permanent 
or temporary. As described in NMFS (2018), there are numerous factors 
to consider when examining the consequence of TS, including, but not 
limited to, the signal temporal pattern (e.g., impulsive or non-
impulsive), likelihood an individual would be exposed for a long enough 
duration or to a high enough level to induce a TS, the magnitude of the 
TS, time to recovery (seconds to minutes or hours to days), the 
frequency range of the exposure (i.e., spectral content), the hearing 
and vocalization frequency range of the exposed species relative to the 
signal's frequency spectrum (i.e., how an animal uses sound within the 
frequency band of the signal; e.g., Kastelein et al., 2014), and the 
overlap between the animal and the source (e.g., spatial, temporal, and 
spectral).
    Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent, 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2018). Available data from 
humans and other terrestrial mammals indicate that a 40 dB threshold 
shift approximates PTS onset (see Ward et al., 1958, 1959; Ward 1960; 
Kryter et al., 1966; Miller 1974; Ahroon et al., 1996; Henderson et 
al., 2008). PTS levels for marine mammals are estimates (with the 
exception of a single study unintentionally inducing PTS in a harbor 
seal (Kastak et al., 2008)), and there are no empirical data measuring 
PTS in marine mammals largely due to the fact that, for various ethical 
reasons, experiments involving anthropogenic noise exposure at levels 
inducing PTS are not typically pursued or authorized (NMFS 2018).
    Temporary Threshold Shift (TTS)--TTS is a temporary, reversible 
increase in the threshold of audibility at a specified frequency or 
portion of an individual's hearing range above a previously established 
reference level (NMFS 2018). Based on data from cetacean TTS 
measurements (see Southall et al., 2007), a TTS of six dB is considered 
the minimum threshold shift clearly larger than any day-to-day or 
session-to-session variation in a subject's normal hearing ability 
(Schlundt et al., 2000; Finneran et al., 2000, 2002). As described in 
Finneran (2015), marine mammal studies have shown the amount of TTS 
increases with cumulative sound exposure level (SELcum) in an 
accelerating fashion. At low exposures with lower SELcum, the amount of 
TTS is typically small and the growth curves have shallow slopes. At 
exposures with higher SELcum, the growth curves become steeper and 
approach linear relationships with the noise SEL.
    Depending on the degree (elevation of threshold in dB), duration 
(i.e., recovery time), and frequency range of TTS, and the context in 
which it is experienced, TTS can have effects on marine mammals ranging 
from discountable to serious (similar to those discussed in auditory 
masking, below). For example, a marine mammal may be able to readily 
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal 
is traveling through the open ocean, where ambient noise is lower and 
there are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during a time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts. We note that reduced hearing sensitivity as 
a simple function of aging has been observed in marine mammals, as well 
as humans and other taxa (Southall et al., 2007), so we can infer that 
strategies exist for coping with this condition to some degree, though 
likely not without cost.
    Currently, TTS data only exist for four species of cetaceans (i.e., 
bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor 
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis)) 
and five species of pinnipeds exposed to a limited number of sound 
sources (i.e., mostly tones and octave-band noise) in laboratory 
settings (Finneran 2015). TTS was not observed in trained spotted 
(Phoca largha) and ringed (Pusa hispida) seals exposed to impulsive 
noise at levels matching previous predictions of TTS onset (Reichmuth 
et al., 2016). In general, harbor seals and harbor porpoises have a 
lower TTS onset than other measured

[[Page 55191]]

pinniped or cetacean species (Finneran 2015). Additionally, the 
existing marine mammal TTS data come from a limited number of 
individuals within these species. No data are available on noise-
induced hearing loss for mysticetes. For summaries of data on TTS in 
marine mammals or for further discussion of TTS onset thresholds, 
please see Southall et al. (2007), Finneran and Jenkins (2012), 
Finneran (2015), and table 5 in NMFS (2018).
    Installing piles for this Project requires a combination of impact 
pile driving and vibratory pile driving. For this Project, these 
activities would not occur at the same time and there would be pauses 
in activities producing the sound during each day. Given these pauses 
and that many marine mammals are likely moving through the ensonified 
area and not remaining for extended periods of time, the potential for 
TS declines.

Behavioral Effects

    Exposure to noise from pile driving and removal also has the 
potential to behaviorally disturb marine mammals. Available studies 
show wide variation in response to underwater sound; therefore, it is 
difficult to predict specifically how any given sound in a particular 
instance might affect marine mammals perceiving the signal. If a marine 
mammal does react briefly to an underwater sound by changing its 
behavior or moving a small distance, the impacts of the change are 
unlikely to be significant to the individual, let alone the stock or 
population. However, if a sound source displaces marine mammals from an 
important feeding or breeding area for a prolonged period, impacts on 
individuals and populations could be significant (e.g., Lusseau and 
Bejder, 2007; Weilgart, 2007; NRC, 2005; Southall et al., 2021).
    Disturbance may result in: (1) changing durations of surfacing and 
dives, number of blows per surfacing, or moving direction and/or speed; 
(2) reduced/increased vocal activities; (3) changing/cessation of 
certain behavioral activities (e.g., socializing or feeding); (4) 
visible startle response or aggressive behavior (e.g., tail/fluke 
slapping or jaw clapping); (5) avoidance of areas where sound sources 
are located. Pinnipeds may increase their haul out time, possibly to 
avoid in-water disturbance (Thorson and Reyff, 2006). Behavioral 
responses to sound are highly variable and context-specific, and any 
reactions depend on numerous intrinsic and extrinsic factors (e.g., 
species, state of maturity, experience, current activity, reproductive 
state, auditory sensitivity, time of day), as well as the interplay 
between those factors (e.g., Richardson et al., 1995; Wartzok et al., 
2003; Southall et al., 2007, Southall et al. 2021; Weilgart, 2007; 
Archer et al., 2010). Behavioral reactions can vary not only among 
individuals but also within exposures of an individual, depending on 
previous experience with a sound source, context, and numerous other 
factors (Ellison et al., 2012; Southall et al., 2021), and can vary 
depending on characteristics associated with the sound source (e.g., 
whether it is moving or stationary, number of sources, distance from 
the source). In general, pinnipeds seem more tolerant of, or at least 
habituate more quickly to, potentially disturbing underwater sound than 
do cetaceans, and generally seem to be less responsive to exposure to 
industrial sound than most cetaceans. For a review of studies involving 
marine mammal behavioral responses to sound, see: Southall et al., 
2007; Gomez et al., 2016; and Southall et al., 2021.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al., 
2007). A determination of whether foraging disruptions incur fitness 
consequences would require information on or estimates of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal.
    In 2021, the Navy monitored construction activities at Pier 3 
during pile driving activities from August through December. That 
project was in roughly the same location as the Q8 bulkhead. Four 
detections of 35 bottlenose dolphins occurred over 45 total days of 
construction. All 35 of the bottlenose dolphins that were observed were 
in estimated Level B harassment zones and occurred just in the month of 
August (W.F. Magann Corporation 2023). The I-64 Hampton Roads Bridge-
Tunnel Expansion Project pile driving occurred from January through 
December of 2023 over 234 days. During that work, 94 bottlenose 
dolphins were observed entering harassment zones (92 in estimated Level 
B harassment zones and two in estimated Level A harassment zones) 
(Hampton Roads Connector Partners 2023). During both of these projects, 
the only marine mammals observed were bottlenose dolphins and no 
visible signs of disturbance were noted for any of the dolphins. Given 
the similarities in activities and habitat and the fact the same 
species are involved, we expect similar behavioral responses of marine 
mammals to the specified activity. That is, disturbance, if any, is 
likely to be temporary and localized (e.g., small area movements).
    Airborne Acoustic Effects--Although pinnipeds are known to haul-out 
regularly on man-made objects (e.g., the CBBT), we believe that 
incidents of take resulting solely from airborne sound are unlikely due 
to the sheltered proximity between the proposed Project Area and these 
haulout sites (i.e., over 16 miles (26 km)). There is a possibility 
that an animal could surface in-water, but with head out, within the 
area in which airborne sound exceeds relevant thresholds and thereby be 
exposed to levels of airborne sound that we associate with harassment, 
but any such occurrence would likely be accounted for in our estimate 
of incidental take from underwater sound. Therefore, authorization of 
incidental take resulting from airborne sound for pinnipeds is not 
warranted, and airborne sound is not discussed further here. Cetaceans 
are not expected to be exposed to airborne sounds that would result in 
harassment as defined under the MMPA.

Marine Mammal Habitat Effects

    The Navy's construction activities could have localized, temporary 
impacts on marine mammal habitat by increasing in-water sound pressure 
levels and slightly decreasing water quality. However, since the focus 
of the proposed action is pile driving, no net habitat loss is expected 
as the new Q8 bulkhead would be immediately seaward of the existing 
bulkhead or would encapsulate the existing bulkhead. Construction 
activities are of short duration and would likely have temporary 
impacts on marine mammal habitat through increases in underwater 
sounds. Increased noise levels may affect the acoustic habitat and 
adversely affect marine mammal prey in the vicinity of the Project Area 
(see discussion below). During pile driving activities, elevated levels 
of underwater noise would ensonify the Project Area where both fishes 
and marine mammals may occur and could affect foraging success. 
Additionally, marine mammals may avoid the area during construction,

[[Page 55192]]

however displacement due to noise is expected to be temporary and is 
not expected to result in long-term effects to the individuals or 
populations. The area likely impacted by the Project is relatively 
small compared to the available habitat in the surrounding waters of 
the Chesapeake Bay.
    Temporary and localized reduction in water quality will occur 
because of in-water construction activities as well. Most of this 
effect will occur during the installation and removal of piles when 
bottom sediments are disturbed. The installation of piles will disturb 
bottom sediments and may cause a temporary increase in suspended 
sediment in the Project Area. In general, turbidity associated with 
pile installation is localized to an approximately 25-ft (7.6 m) radius 
around the pile (Everitt et al., 1980). Cetaceans are not expected to 
be close enough to the pile driving areas to experience effects of 
turbidity, and any pinnipeds could avoid localized areas of turbidity. 
Therefore, we expect the impact from increased turbidity levels to be 
discountable to marine mammals and do not discuss it further.
    In-Water Construction Effects on Potential Foraging Habitat--The 
proposed activities would not result in permanent impacts to habitats 
used directly by marine mammals except for the actual footprint of the 
new Q8 bulkhead. The total seafloor area affected by pile installation 
and removal is a very small area that is not known to be of particular 
importance compared to the vast foraging area available to marine 
mammals in the Project Area and lower Chesapeake Bay. Pile extraction 
and installation may have impacts on benthic invertebrate species 
primarily associated with disturbance of sediments that may cover or 
displace some invertebrates. The impacts will be temporary and highly 
localized, and no habitat will be permanently displaced by 
construction. Therefore, it is expected that impacts on foraging 
opportunities for marine mammals due to the construction of the Q8 
bulkhead would be minimal.
    It is possible that avoidance by potential prey (i.e., fish) in the 
immediate area may occur due to temporary loss of this foraging 
habitat. The duration of fish avoidance of this area after pile driving 
stops is unknown, but we anticipate a rapid return to normal 
recruitment, distribution, and behavior. Any behavioral avoidance by 
fish of the disturbed area would still leave large areas of fish and 
marine mammal foraging habitat in the nearby vicinity in the Project 
Area and lower Chesapeake Bay.
    Effects on Potential Prey--Sound may affect marine mammals through 
impacts on the abundance, behavior, or distribution of prey species 
(e.g., fish). Marine mammal prey varies by species, season, and 
location. Here, we describe studies regarding the effects of noise on 
known marine mammal prey.
    Fish utilize the soundscape and components of sound in their 
environment to perform important functions such as foraging, predator 
avoidance, mating, and spawning (e.g., Zelick et al., 1999; Fay, 2009). 
Depending on their hearing anatomy and peripheral sensory structures, 
which vary among species, fish hear sounds using pressure and particle 
motion sensitivity capabilities and detect the motion of surrounding 
water (Fay et al., 2008). The potential effects of noise on fishes 
depend on the overlapping frequency range, distance from the sound 
source, water depth of exposure, and species-specific hearing 
sensitivity, anatomy, and physiology. Key impacts to fishes may include 
behavioral responses, hearing damage, pressure-related injuries (i.e., 
barotrauma), and mortality.
    Fish react to sounds which are especially strong and/or 
intermittent low-frequency sounds, and behavioral responses such as 
flight or avoidance are the most likely effects. Short duration, sharp 
sounds can cause overt or subtle changes in fish behavior and local 
distribution. The reaction of fish to noise depends on the 
physiological state of the fish, past exposures, motivation (e.g., 
feeding, spawning, migration), and other environmental factors. 
Hastings and Popper (2005) identified several studies that suggest fish 
may relocate to avoid certain areas of sound energy. Additional studies 
have documented effects of pile driving on fish, although several are 
based on studies in support of large, multiyear bridge construction 
projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 
2009). Several studies have demonstrated that impulse sounds might 
affect the distribution and behavior of some fishes, potentially 
impacting foraging opportunities or increasing energetic costs (e.g., 
Fewtrell and McCauley, 2012; Pearson et al., 1992; Skalski et al., 
1992; Santulli et al., 1999; Paxton et al., 2017). However, some 
studies have shown no or slight reaction to impulse sounds (e.g., Pena 
et al., 2013; Wardle et al., 2001; Jorgenson and Gyselman, 2009; Cott 
et al., 2012).
    SPLs of sufficient strength have been known to cause injury to fish 
and fish mortality. However, in most fish species, hair cells in the 
ear continuously regenerate and loss of auditory function likely is 
restored when damaged cells are replaced with new cells. Halvorsen et 
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours 
for one species. Impacts would be most severe when the individual fish 
is close to the source and when the duration of exposure is long. 
Injury caused by barotrauma can range from slight to severe and can 
cause death and is most likely for fish with swim bladders. Barotrauma 
injuries have been documented during controlled exposure to impact pile 
driving (Halvorsen et al., 2012b; Casper et al., 2013).
    The most likely impact to fish from pile driving activities in the 
Project Area would be temporary behavioral avoidance of the area. The 
duration of fish avoidance of an area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution and 
behavior is anticipated.
    The area impacted by the Project is relatively small compared to 
the available habitat in the remainder of the Project Area and the 
lower Chesapeake Bay, and there are no areas of particular importance 
that would be impacted by this Project. Any behavioral avoidance by 
fish of the disturbed area would still leave significantly large areas 
of fish and marine mammal foraging habitat in the nearby vicinity. As 
described in the preceding, the potential for the Navy's construction 
to affect the availability of prey to marine mammals or to meaningfully 
impact the quality of physical or acoustic habitat is considered to be 
insignificant.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
proposed for authorization, which will inform both NMFS' consideration 
of ``small numbers,'' and the negligible impact determinations.
    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) (16 U.S.C. 1362(18)(A)(i)-
(ii)).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for

[[Page 55193]]

individual marine mammals resulting from exposure to sounds emitted 
from pile driving. Based on the nature of the activity and the 
anticipated effectiveness of the mitigation measures (i.e., shutdown 
zones) discussed in detail below in the Proposed Mitigation section, 
Level A harassment is neither anticipated nor proposed to be 
authorized.
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized for this activity. Below we 
describe how the proposed take numbers are estimated.
    For acoustic impacts, 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) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the proposed take estimates.

Acoustic Thresholds

    NMFS recommends the use of 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--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 or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the state of the receiving animals (e.g., 
hearing, motivation, experience, demography, life stage, depth) and can 
be difficult to predict (e.g., Southall et al., 2007, 2021, Ellison et 
al., 2012). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS generally predicts that marine 
mammals are likely to be behaviorally harassed in a manner considered 
to be Level B harassment when exposed to underwater anthropogenic noise 
above root-mean-squared pressure received levels (RMS SPL) of 120 dB 
(referenced to one micropascal (re one [mu]Pa)) for continuous (e.g., 
vibratory pile driving) and above RMS SPL 160 dB re one [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources. Generally speaking, Level B harassment take 
estimates based on these behavioral harassment thresholds are expected 
to include any likely takes by TTS as, in most cases, the likelihood of 
TTS occurs at distances from the source less than those at which 
behavioral harassment is likely. TTS of a sufficient degree can 
manifest as behavioral harassment, as reduced hearing sensitivity and 
the potential reduced opportunities to detect important signals (i.e., 
conspecific communication, predators, and prey) may result in changes 
in behavior patterns that would not otherwise occur.
    The Navy's activity includes the use of continuous (e.g., vibratory 
pile driving and removal) and impulsive (e.g., impact pile driving) 
sources, and therefore the RMS SPL thresholds of 120 and 160 dB re one 
[mu]Pa are applicable.
    These thresholds are provided in table 5 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP03JY24.117

BILLING CODE 3510-22-C

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    The sound field in the Project Area is the existing background 
noise plus additional construction noise from the proposed Project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the Project (i.e., impact pile driving and 
vibratory pile driving and removal). The maximum underwater area 
ensonified above the thresholds for individual activities of behavioral 
harassment referenced above is 93.5 km\2\ (36.1 mi\2\) and would 
consist of an area reaching the opposite shoreline of the river (see 
figures 6.6, 6.8, and 6.10 in the Navy's application for the Incidental 
Take Authorization for the Q8 bulkhead Project). The maximum 
(underwater) area ensonified above the thresholds for concurrent 
activities of behavioral harassment referenced above is 97.9 km\2\ 
(37.8 mi\2\) and would consist of a similar area reaching the opposite 
shoreline of the river as individual activities (see figures 6.11-6.16 
in the Navy's application). Additionally, vessel traffic and other 
commercial and industrial activities in the Project Area may contribute 
to elevated background noise levels which may mask sounds produced by 
the Project.
    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth,

[[Page 55195]]

water depth, water chemistry, and bottom composition and topography. 
The general formula for underwater TL is:

TL = B * Log10 (R1/R2),

where

TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(i.e., free-field) environment not limited by depth or water surface, 
resulting in a 6-dB reduction in sound level for each doubling of 
distance from the source (20*log[range]). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of three dB in sound 
level for each doubling of distance from the source (10*log[range]). A 
practical spreading value of 15 is often used under conditions, such as 
the Project site, where water increases with depth as the receiver 
moves away from the shoreline, resulting in an expected propagation 
environment that would lie between spherical and cylindrical spreading 
loss conditions. Practical spreading loss is assumed here.
    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes place. In order to calculate 
the distances to the Level A harassment and the Level B harassment 
sound thresholds for the methods and piles being used in this Project, 
the Navy and NMFS used acoustic monitoring data from other locations to 
develop proxy source levels for the various pile types, sizes, and 
methods. The Project includes vibratory and impact installation of 
prestressed concrete and composite piles and vibratory removal of 
existing concrete piles. Steel sheet piles to make up the wall of the 
bulkhead would be installed with vibratory hammers. Source levels for 
each pile size and driving method for individual activities are 
presented in table 6. For concurrent activities where two noise sources 
have overlapping sound fields, there is potential for higher sound 
levels than for non-overlapping sources because the isopleth of one 
sound source encompasses the sound source of another isopleth. In such 
instances, the sources are considered additive and combined using the 
rules of decibel addition. For addition of two simultaneous sources, 
the difference between the two sound source levels is calculated, and: 
(1) if that difference is between zero and one dB, three dB are added 
to the higher sound source level; (2) if the difference is between two 
or three dB, two dB are added to the highest sound source level; (3) if 
the difference is between four to nine dB, one dB is added to the 
highest sound source level; and (4) with differences of 10 dB or more, 
there is no addition. Source levels for each pile size and vibratory 
driving for concurrent activities are presented in table 7.
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    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources impact or vibratory pile driving and removal, the 
optional User Spreadsheet tool predicts the distance at which, if a 
marine mammal remained at that distance for the duration of the 
activity, it would be expected to incur PTS. Inputs used in the 
optional User Spreadsheet tool, and the resulting estimated isopleths, 
are reported below. For concurrent activities where combined impact and 
vibratory hammer scenarios shown in table 10, the estimated Level A 
isopleth distances reflect the impact driving activity and the 
estimated Level B isopleth distances reflect the combined vibratory 
source levels for that activity.
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BILLING CODE 3510-22-C
    The maximum distance to the Level A harassment threshold during 
construction would be during the impact driving of 18-inch (in) 
concrete piles during Phase III of individual activities (i.e., 64.0 m 
for humpback whale) and during the concurrent vibratory extraction of 
18-in concrete piles, vibratory installation of 56-in steel sheet 
piles, and impact install 18-in concrete piles for concurrent 
activities of Phase I (i.e., 5.4 m for bottlenose dolphin; 89.8 m for 
harbor porpoises; and 36.9 m for pinnipeds). Given these relatively 
small isopleths, if a marine mammal enters the shutdown zone during 
impact pile driving it is expected that the construction activity would 
be shut down before any marine mammal would incur PTS. Therefore, no 
take by Level A harassment is expected during the construction 
activities associated with the Q8 bulkhead. The largest calculated 
Level B harassment isopleth extends out to 18,478 m, which would result 
from concurrent pile driving of the scenarios presented in table 9. The 
largest Level B harassment zone of 18,478 m is not an attainable 
observable distance in all directions, but in some areas the distance 
is smaller due to the zone being cut off by landmasses. The Level B 
harassment zone will be monitored to the maximum extent possible.

Marine Mammal Occurrence and Take Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations. We describe how the information 
provided is synthesized

[[Page 55201]]

to produce a quantitative estimate of the take that is reasonably 
likely to occur and proposed for authorization.

Humpback Whale

    Humpback whales occur in the mouth of the Chesapeake Bay and 
nearshore waters of Virginia during winter and spring months. Several 
satellite tagged humpback whales were detected west of the Chesapeake 
Bay Bridge Tunnel, including two individuals with locations near NAVSTA 
Norfolk and Joint Expeditionary Base Little Creek (Aschettino et al., 
2017). Group size was not reported in these surveys; however, most 
whales detected were juveniles. Although two individuals were detected 
in the vicinity of the proposed Project Area during shipboard surveys 
conducted in 2020, there is no evidence that they lingered for multiple 
days (Aschettino, 2020). Because no density estimates are available for 
the species in this area, the Navy estimated, and NMFS concurs, that 
one potential sighting of an average size group (i.e., two individuals) 
could occur every 60 days of pile driving. Therefore, given the number 
of Project days expected in each year (table 1), NMFS is proposing to 
authorize a total of 16 takes by Level B harassment of humpback whale 
over the 5-year authorization, with no more than four takes by Level B 
harassment in a given year.
    The largest Level A harassment zone for low-frequency cetaceans 
extends approximately 64 m from the source during impact pile driving 
of the 18-in concrete piles (table 9). The Navy plans to shut down if a 
humpback whale is sighted within any of the Level A harassment zones 
for all activities. Therefore, NMFS is not proposing to authorize take 
by Level A harassment of humpback whales.

Bottlenose Dolphins

    The expected number of bottlenose dolphins in the Project Area was 
estimated using inshore seasonal densities provided in Engelhaupt et 
al. (2016) from vessel line-transect surveys near NAVSTA Norfolk and 
adjacent areas near Virginia Beach, Virginia, from August 2012 through 
August 2015. This density includes sightings inshore of the Chesapeake 
Bay from NAVSTA Norfolk west to the Thimble Shoals Bridge and is the 
most representative density for the Project Area. To calculate 
potential Level B harassment takes of bottlenose dolphin, NMFS 
conservatively multiplied the density of 1.38 dolphin/km\2\ (from 
Engelhaupt et al., 2016) by the largest Level B harassment isopleth for 
each activity (tables 9 and 10), and then by the number of days 
associated with that activity (table 1). For example, to calculate 
Level B harassment takes associated with work at the Q8 bulkhead in 
Phase I for the vibratory removal of 18-in concrete piles, NMFS 
multiplied the density (i.e., 1.38 dolphins/km\2\) by the Level B 
harassment zone for that activity (i.e., 43.3 km\2\) by the 
proportional number of pile driving days for that activity (i.e., 24 
days) for a total of 1,437 Level B harassment takes for that activity 
during Phase I. Takes by Level B harassment were calculated for both 
individual pile driving activities and concurrent pile driving 
activities, as authorized takes are conservatively based on the 
scenario that produces more takes by Level B harassment (table 11). 
Therefore, NMFS proposes to authorize 14,191 takes by Level B 
harassment of bottlenose dolphin across all 5 years, with no more than 
6,168 takes in a given year.
    The largest Level A harassment zone for mid-frequency cetaceans 
extends approximately 5.4 m from the source during concurrent 
activities during Phase I (table 10). A minimum shutdown zone of 10 m 
would be established for all construction activities. The Navy plans to 
shut down all activities if a bottlenose dolphin is sighted within the 
shutdown zones for mid-frequency cetaceans. Therefore, NMFS is not 
proposing to authorize take by Level A harassment of bottlenose 
dolphins.

Harbor Porpoise

    Harbor porpoises are known to occur in the coastal waters near 
Virginia Beach (Hayes et al., 2019). Density data for this species 
within the Project vicinity do not exist or were not calculated because 
sample sizes were too small to produce reliable estimates of density. 
Harbor porpoise sighting data collected by the Navy near NAVSTA Norfolk 
and Virginia Beach from 2012 to 2015 (Engelhaupt et al. 2014; 2015; 
2016) did not produce enough sightings to calculate densities. One 
group of two harbor porpoises was seen during spring 2015 (Engelhaupt 
et al. 2016). Elsewhere in their range, harbor porpoises typically 
occur in groups of two to three individuals (Carretta et al. 2001; 
Smultea et al. 2017).
    Due to there being no density estimates for the species in the 
Project Area, the Navy conservatively estimated one exposure of two 
porpoises for every 60 days of pile driving. Total pile driving days 
for Phase I would be 74 days, Phase II would be 37 days, and Phase III 
would be 101 days. Takes by Level B harassment were calculated for both 
individual pile driving activities and concurrent pile driving 
activities, as authorized takes are conservatively based on the 
scenario that produced the larger exposure estimate (table 11). Using 
the above methodology, NMFS calculated an exposure estimate of eight 
incidents of take for harbor porpoises.
    NMFS does not expect any Level A harassment of harbor porpoise 
during this Project. The largest Level A harassment zone for high-
frequency cetaceans extends approximately 89.8 m from the source during 
concurrent activities during Phase I (table 10). The Navy plans to shut 
down all activities if a harbor porpoise is sighted within the shutdown 
zones for high-frequency cetaceans. Therefore, NMFS is not proposing to 
authorize take by Level A harassment of harbor porpoise.

Harbor Seal

    The expected number of harbor seals in the Project Area was 
estimated using systematic land- and vessel-based survey data for in-
water and hauled out seals collected by the U.S. Navy at the CBBT rock 
armor and portal islands from 2014 through 2019 (Jones et al., 2020). 
The average daily seal count from the field season ranged from eight to 
23 seals, with an average of 13.6 harbor seals across all the field 
seasons.
    NMFS expects that harbor seals are likely to be present from 
November to April and, consistent with other recent projects (88 FR 
31633, May 18, 2023; 87 FR 15945, March 31, 2022; 86 FR 24340; May 6, 
2021, and 86 FR 17458; April 2, 2021), NMFS calculated take by Level B 
harassment by multiplying 13.6 seals by the maximum number of pile 
driving days expected to occur from November through April. Therefore, 
we expect the total number of takes by Level B harassment for harbor 
seals to be 2,882.
    NMFS does not expect any Level A harassment of harbor seals during 
this Project. The largest Level A harassment zone for phocids extends 
approximately 36.9 m from the source during concurrent activities 
during Phase I (table 10). The Navy plans to shut down all activities 
if a harbor porpoise is sighted within the shutdown zones for phocids. 
Therefore, NMFS is not proposing to authorize take by Level A 
harassment of harbor seals.
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BILLING CODE 3510-22-C

Proposed 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. 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, NMFS 
considers 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 (e.g., 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.
    In addition to the measures described later in this section, the 
Navy will employ the following mitigation measures:
     The Navy will conduct briefings between construction 
supervisors and crews, the marine mammal monitoring team, and Navy 
staff prior to the start of all pile driving activity and when new 
personnel join the work, to explain responsibilities, communication 
procedures, marine mammal monitoring protocol, and operational 
procedures;
     If a marine mammal comes within 10 m of construction 
activities, including in-water heavy machinery work, operations shall 
cease and vessels shall reduce speed to the minimum level required to 
maintain steerage and safe working conditions;
     Pile driving activity must be halted upon observation of 
either a species for

[[Page 55204]]

which incidental take is not authorized or a species for which 
incidental take has been authorized but the authorized number of takes 
has been met, entering or is within the harassment zone.
    The following mitigation measures apply to the Navy's in-water 
construction activities.
    Establishment of Shutdown Zones--The Navy will establish shutdown 
zones for all pile driving and removal activities. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
the activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area). Shutdown zones 
will vary based on the activity type and marine mammal hearing group 
(tables 12 and 13).
    Protected Species Observers (PSOs)--The placement of PSOs during 
all pile driving and removal activities (described in the Proposed 
Monitoring and Reporting section) will ensure that the entire shutdown 
zone is visible. A minimum of two PSOs would be used during all 
activities.
    Monitoring for Level A and B Harassment--The Navy will monitor the 
Level B harassment zones (i.e., areas where SPLs are equal to or exceed 
the 160 dB rms threshold for impact pile driving, and the 120 dB rms 
threshold during vibratory pile driving and removal) to the extent 
practicable, and all of the Level A harassment zones and shutdown 
zones, during all pile driving days. Monitoring zones provide utility 
for observing by establishing monitoring protocols for areas adjacent 
to the shutdown zones. Monitoring zones enable observers to be aware of 
and communicate the presence of marine mammals in the Project Area 
outside the shutdown zone and thus prepare for a potential cessation of 
activity should the animal enter the shutdown zone.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving/removal of 
30 minutes or longer occurs, PSOs will observe the shutdown and 
monitoring zones for a period of 30 minutes. Pile driving may commence 
following 30 minutes of observation when the determination is made that 
the shutdown zones are clear of marine mammals. If a marine mammal is 
observed within the shutdown zones listed in table 12 or table 13, pile 
driving activity must be delayed or halted. If pile driving is delayed 
or halted due to the presence of a marine mammal, the activity may not 
commence or resume until either the animal has voluntarily exited and 
been visually confirmed beyond the shutdown zones or 15 minutes have 
passed without re-detection of the animal. If work ceases for more than 
30 minutes, the pre-activity monitoring of the shutdown zones will 
commence. A determination that the shutdown zone is clear must be made 
during a period of good visibility (i.e., the entire shutdown zone and 
surrounding waters must be visible to the naked eye).
    Soft Start--Soft start procedures are used to provide additional 
protection to marine mammals by providing warning and/or giving marine 
mammals a chance to leave the area prior to the hammer operating at 
full capacity. For impact pile driving, contractors will be required to 
provide an initial set of three strikes from the hammer at reduced 
energy, followed by a 30-second waiting period, then two subsequent 
reduced-energy strike sets. Soft starts will 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.
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BILLING CODE 3510-22-C
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
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.

Proposed 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 while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the

[[Page 55207]]

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 activity; 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.

Visual Monitoring

    Marine mammal monitoring during pile driving and removal must be 
conducted by qualified, NMFS approved PSOs, in accordance with the 
following:
     PSOs must be independent of the activity contractor (e.g., 
employed by a subcontractor) and have no other assigned tasks during 
monitoring periods;
     At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization;
     Other PSOs may substitute other relevant experience, 
education (i.e., a degree in biological science or related field), or 
training for prior experience performing the duties of a PSO during 
construction activity pursuant to a NMFS-issued incidental take 
authorization;
     PSOs must be approved by NMFS prior to beginning any 
activity subject to this proposed rulemaking; and
     A lead observer or monitoring coordinator must be 
designated. The lead observer must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization.
    PSOs must have the following additional qualifications:
     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: (1) the number and species 
of marine mammals observed; (2) dates and times when in-water 
construction activities were conducted; (3) dates, times, and reason 
for implementation of mitigation (or why mitigation was not implemented 
when required); and (4) 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.
    Given the configuration of the harassment zones, which vary 
depending on the pile type/size and the pile driver type (tables 9 and 
10), it is assumed that two PSO would be sufficient to monitor the 
zones for impact drivers, and three to four PSOs would be sufficient to 
monitor the zones for vibratory drivers given the proposed placement of 
the observers in the vicinity of the Project Area. However, additional 
monitors may be added if warranted by the level of marine mammal 
activity in the area. PSOs will be placed at the best vantage point(s) 
practicable (figure 3) to monitor for marine mammals and implement 
shutdown/delay procedures when applicable by calling for the shutdown 
by the pile driver operator. PSOs would be deployed on the Green Mile 
Fishing Pier during vibratory driving of piles when monitoring zones 
are exceptionally large.
    Monitoring will be conducted 30 minutes before, during, and after 
all in water construction activities. In addition, observers shall 
record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving 
activities include the time to install or remove a single pile or 
series of piles, as long as the time elapsed between uses of the pile 
driving equipment is no more than 30 minutes.

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Acoustic Monitoring

    The Navy will implement in situ acoustic monitoring efforts to 
measure SPLs from in-water construction activities for pile types and 
methods that have not been previously collected at NAVSTA Norfolk 
(table 14). The Navy will collect and evaluate acoustic sound recording 
levels during pile driving activities. The Navy would collect data on 
10 percent of the number of total piles driven for each pile type. 
Hydrophones would be placed at locations 33 ft from the noise source 
and, where the potential for Level A (PTS onset) harassment exists, at 
a second representative monitoring location that is a distance of 20 
times the depth of water at the pile location, to the maximum extent 
practicable. For the pile driving events acoustically measured, 100 
percent of the data will be analyzed. Please see the Navy's Acoustic 
Monitoring Plan and section 13.2 in the application for additional 
detail.

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    Environmental data shall be collected and will include, but will 
not be limited to, the following: (1) wind speed and direction; (2) air 
temperature; (3) humidity; (4) surface water temperature; (5) water 
depth; (6) wave height; (7) weather conditions; and (8) other factors 
that could contribute to influencing underwater sound levels (e.g., 
aircrafts, boats, etc.).

Reporting

    The Navy is required to submit an annual report on all activities 
and marine mammal monitoring results to NMFS within 90 days following 
the end of each construction year. Additionally, a draft comprehensive 
5-year summary report must be submitted to NMFS within 90 days of the 
end of the Project. The annual reports will include an overall 
description of work completed, a narrative regarding marine mammal 
sightings, and associated PSO data sheets. Specifically, the report 
must include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including: (a) how many and what type of piles were 
driven or removed and the method (i.e., impact or vibratory); and (b) 
the total duration of time for each pile (vibratory driving) or number 
of strikes for each pile (impact driving);
     PSO locations during marine mammal monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    Upon observation of a marine mammal the following information must 
be reported:
     Name of PSO who sighted the animal(s) and PSO location and 
activity at the time of the sighting;
     Time of the sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
     Distance and bearing of each observed marine mammal 
relative to the pile being driven or removed for each sighting;
     Estimated number of animals (min/max/best estimate);
     Estimated number of animals by cohort (e.g., adults, 
juveniles, neonates, group composition, etc.);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
     Number of marine mammals detected within the harassment 
zones, by species; and
     Detailed information about implementation of any 
mitigation (e.g., shutdowns and delays), a description of specified 
actions that ensured, and resulting changes in behavior of the 
animal(s), if any.
    The acoustic monitoring report must contain the informational 
elements described in the Acoustic Monitoring Plan and, at minimum, 
must include:
     Hydrophone equipment and methods: (1) recording device, 
sampling rate, distance (m) from the pile where recordings were made; 
and (2) the depth of water and recording device(s);
     Type and size of pile being driven, substrate type, method 
of driving during recordings (e.g., hammer model and energy), and total 
pile driving duration;
     Whether a sound attenuation device is used and, if so, a 
detailed description of the device used and the duration of its use per 
pile;
     For impact pile driving: (1) number of strikes and strike 
rate; (2) depth of substrate to penetrate; (3) pulse duration and mean, 
median, and maximum sound levels (dB re: one [mu]Pa): (4) root mean 
square sound pressure level (SPLrms); and (5) cumulative sound exposure 
level (SELcum), peak sound pressure level (SPLpeak), and single-strike 
sound exposure level (SELs-s); and
     For vibratory driving/removal: (1) duration of driving per 
pile; and (2) mean, median, and maximum sound levels (dB re: one 
[mu]Pa): SPLrms, SELcum (and timeframe over which the sound is 
averaged).
    If no comments are received from NMFS within 30 days, the draft 
reports will constitute the final reports. If comments are received, a 
final report addressing NMFS' comments must be submitted within 30 days 
after receipt of comments. All PSO datasheets and/or raw sighting data 
must be submitted with the draft marine mammal report.

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the LOA 
(if issued) and the regulations (e.g., an injury, serious injury, or 
mortality) the Navy shall report the incident to Office of Protected 
Resources, NMFS, and the Greater Atlantic Region New England/Mid-

[[Page 55210]]

Atlantic Stranding Coordinator. The report must include the following 
information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with the Navy to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Navy would not be able 
to resume their activities until notified by NMFS.
    In the event that the Navy discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
the Navy would immediately report the incident to the Office of 
Protected Resources, NMFS, and the Greater Atlantic Region New England/
Mid-Atlantic Stranding Coordinator. The report would include the same 
information identified in the paragraph above. Activities would be able 
to continue while NMFS reviews the circumstances of the incident. NMFS 
would work with the Navy to determine whether modifications in the 
activities are appropriate.
    In the event that the Navy discovers an injured or dead marine 
mammal and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Navy would report the incident 
to the Office of Protected Resources, NMFS, and the NMFS Greater 
Atlantic Region New England/Mid-Atlantic Stranding Coordinator, within 
24 hours of the discovery. The Navy would provide photographs, video 
footage (if available), or other documentation of the stranded animal 
sighting to NMFS and the Marine Mammal Stranding Network.

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 impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), 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' 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 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, this introductory discussion of our analysis 
applies to all the species listed in table 3, given that many of the 
anticipated effects of this Project on different marine mammal stocks 
are expected to be relatively similar in nature. Where there are 
meaningful differences between species or stocks, or groups of species, 
in anticipated individual responses to activities, impact of expected 
take on the population due to differences in population status, or 
impacts on habitat, they are described independently in the analysis 
below.
    Construction activities associated with the Project, 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 from underwater sounds generated by pile driving 
and removal. Potential takes could occur if marine mammals are present 
in zones ensonified above the thresholds for Level B harassment, 
identified above, while activities are underway.
    Level A harassment is unlikely considering the small Level A 
harassment zones (tables 9 and 10) and corresponding shutdown zones 
(tables 12 and 13) where activities would cease if animals were present 
in those zones. Also, pile driving and removal activities are of 
relatively short duration and an animal would have to remain within the 
area estimated to be ensonified above the Level A harassment threshold 
for multiple hours to incur PTS. This is highly unlikely given marine 
mammal movement throughout the area, especially for small, fast-moving 
species such as small cetaceans and pinnipeds. Therefore, NMFS is not 
proposing to authorize take by Level A harassment during any portion of 
the Navy's activities.
    The nature of activities included in the Navy's pile driving 
Project precludes the likelihood of serious injury or mortality. For 
all species and stocks, take will occur within a limited, confined area 
(i.e., immediately surrounding NAVSTA Norfolk in the Chesapeake Bay 
area) of the stock's range. Level B harassment will be reduced to the 
level of least practicable adverse impact through use of mitigation 
measures described herein. Furthermore, the number of individuals 
expected to be taken is extremely small relative to the stock abundance 
for all species.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, decreased foraging 
(if such activity were occurring), or avoidance (e.g., Thorson and 
Reyff 2006; Hampton Roads Connector Partners 2023; W.F. Magann 
Corporation 2023). Individual animals, even if taken multiple times, 
will most likely move away from the sound source and be temporarily 
displaced from the areas of pile driving, although even this reaction 
has been observed primarily only in association with impact pile 
driving. The pile driving activities analyzed here are similar to, or 
less impactful than, numerous other construction activities conducted 
along both Atlantic and Pacific coasts, which have taken place with no 
known long-term adverse consequences from behavioral harassment. 
Furthermore, many Projects similar to this one are also believed to 
result in multiple takes of individual animals without any documented 
long-term adverse effects. Level B harassment will be minimized through 
use of mitigation measures described herein and, if take does occur the 
impacts would be expected to be minimal, particularly as the Project is 
located on a busy waterfront with high

[[Page 55211]]

amounts of vessel traffic and other ambient noise.
    A UME has been declared for humpback whales in the U.S. Atlantic. 
However, we do not expect authorized takes to exacerbate or compound 
upon these ongoing UMEs. As noted previously, no injury, serious 
injury, or mortality is expected or authorized, and the impact of Level 
B harassment takes of humpback whale will be minimized through the 
incorporation of the mitigation measures. The UME does not yet provide 
cause for concern regarding population-level impacts. Despite the UME, 
the relevant population of humpback whales (the West Indies breeding 
population, or DPS) remains healthy.
    The Project is also not expected to have significant adverse 
effects on affected marine mammals' habitats. The Project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; however, 
because of the short duration of the activities and the relatively 
small area of the habitat that may be affected (with no known 
particular importance to marine mammals), 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 preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect any of the species 
or stocks through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     The intensity of anticipated takes by Level B harassment 
is relatively low for all stocks;
     The specified activity and associated ensonified areas are 
very small relative to the overall habitat ranges of all species and do 
not include habitat areas of special significance, including any 
pinniped haulouts;
     The lack of anticipated significant or long-term negative 
effects to marine habitat;
     The presumed efficacy of the mitigation measures in 
reducing the effects of the taking incidental to the specified 
activity; and
     Monitoring reports from similar work in the Chesapeake Bay 
have documented little to no effect on individuals of the same species 
impacted by similar activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
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 maximum number of individuals 
taken in any year 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 maximum annual 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.
    The maximum annual take NMFS proposes to authorize for the four 
marine mammal stocks is below one-third of the estimated stock 
abundance for all species except for the western north Atlantic (WNA) 
southern coastal migratory stock and the WNA northern coastal migratory 
stock of bottlenose dolphins (see table 11).
    There are three bottlenose dolphin stocks that could occur in the 
Project Area. Therefore, the largest estimated annual take by Level B 
harassment of 6,712 bottlenose dolphin would likely be split among the 
northern migratory coastal stock, the southern migratory coastal stock, 
and the northern North Carolina estuarine stock (NNCES). Based on the 
stocks' respective occurrence in the area, NMFS estimates that there 
would be no more than 200 takes from the NNCES stock during each phase 
of construction, representing 24 percent of that population, with the 
remaining takes split evenly between the northern and southern coastal 
migratory stocks. Based on the consideration of various factors as 
described below, we have preliminarily determined that the number of 
individuals taken will comprise less than one-third of the best 
available population abundance estimate of either coastal migratory 
stock. Detailed descriptions of the stocks' ranges have been provided 
in the Description of Marine Mammals in the Area of Specified 
Activities section.
    Both the WNA northern migratory stock and the WNA southern 
migratory stock have expansive ranges and they are the only dolphin 
stocks thought to make broad scale, seasonal migrations in coastal 
waters of the WNA. Given the large ranges associated with these two 
stocks, it is unlikely that large segments of either stock would 
approach the Project Area and enter into the Chesapeake Bay. The 
majority of both stocks are likely to be found widely dispersed across 
their respective habitat ranges and unlikely to be concentrated in or 
near the Chesapeake Bay.
    Furthermore, the Chesapeake Bay and nearby offshore waters 
represent the boundaries of the ranges of each of the two coastal 
stocks during migration. The WNA northern migratory stock is found 
during warm water months from coastal Virginia, including the 
Chesapeake Bay and Long Island, New York. The stock migrates south in 
the late summer and fall. During cold water months, dolphins may be 
found in coastal waters from Cape Lookout, North Carolina, to the North 
Carolina/Virginia border. During January-March, the WNA southern 
migratory stock appears to move as far south as northern Florida. From 
April-June, the stock moves back north to North Carolina. During the 
warm water months of July-August, the stock is presumed to occupy the 
coastal waters north of Cape Lookout, North Carolina, to Assateague, 
Virginia, including the Chesapeake Bay. There is likely some overlap 
between the stocks during spring and fall migrations, but the extent of 
overlap is unknown.
    In summary and as described above, the following factors primarily 
support our determination regarding the incidental take of small 
numbers of the affected stocks of a species or stock:
     The maximum annual take of marine mammal stocks proposed 
for authorization comprises less than three percent of any stock 
abundance (with the exception of the three bottlenose dolphin stocks);
     Potential bottlenose dolphin takes in the Project Area are 
likely to be allocated among three distinct stocks;
     Bottlenose dolphin stocks in the Project Area have 
extensive ranges and it would be unlikely to find a high percentage of 
the individuals of any one stock concentrated in a relatively small 
area such as the Project Area or the Chesapeake Bay;

[[Page 55212]]

     The Chesapeake Bay represents the migratory boundary for 
each of the specified dolphin stocks and it would be unlikely to find a 
high percentage of any stock concentrated at such boundaries; and
     Many of the takes would likely be repeats of the same 
animals, including from a resident population of the Chesapeake Bay.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Request for Information

    NMFS requests that interested persons submit comments, information, 
and suggestions concerning the Navy's request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare a final rule and make final determinations on 
whether to issue the requested authorization. This proposed rule and 
supporting documents provide all environmental information relating to 
our proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have 
significant economic impact on a substantial number of small entities. 
The U.S. Navy is the sole entity that would be subject to the 
requirements in these proposed regulations, and the Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Because of this certification, a regulatory 
flexibility analysis in not required and none has been prepared.
    This proposed rule does not contain a collection-of-information 
requirement subject to the provisions of the Paperwork Reduction Act 
(PRA) because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

    Acoustics, Administrative practice and procedure, Construction, 
Endangered and threatened species, Marine mammals, Mitigation and 
monitoring requirements, Reporting requirements, Wildlife.

     Dated: June 24, 2024.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, NOAA proposes to amend 50 
CFR part 217 as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 217 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Add subpart X to read as follows

Subpart X--Taking and Importing Marine Mammals Incidental to Navy 
Construction of the Q8 Bulkhead Repair and Replacement Project at 
Naval Station Norfolk at Norfolk, Virginia

Sec.
217.230 Specified activity and geographical region.
217.231 Effective dates.
217.232 Permissible methods of taking.
217.233 Prohibitions.
217.234 Mitigation requirements.
217.235 Requirements for monitoring and reporting.
217.236 Letters of Authorization.
217.237 Renewals and modifications of Letters of Authorization.


Sec.  217.230  Specified activity and geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy) 
and those persons it authorizes or funds to conduct activities on its 
behalf for the taking of marine mammals that occurs in the areas 
outlined in paragraph (b) of this section and that occurs incidental to 
construction activities related to the repair and replacement of the Q8 
bulkhead at Naval Station Norfolk at Norfolk, Virginia.
    (b) The taking of marine mammals by the Navy may be authorized in a 
Letter of Authorization (LOA) only if it occurs at Naval Station 
Norfolk, Norfolk, Virginia.


Sec.  217.231  Effective Dates

    Regulations under this subpart are effective from January 1, 2025, 
through December 31, 2029.


Sec.  217.232  Permissible methods of taking.

    Under an LOA issued pursuant to Sec. Sec.  216.106 and 217.236 of 
this chapter, the Holder of the LOA (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.230(b) by harassment associated with 
construction activities related to the repair and replacement of the Q8 
bulkhead, provided the activity is in compliance with all terms, 
conditions, and requirements of the regulations in this subpart and the 
applicable LOA.


Sec.  217.233  Prohibitions

    (a) Except for the takings contemplated in Sec.  217.232 and 
authorized by a LOA issued under Sec. Sec.  216.106 and 217.236 of this 
chapter, it is unlawful for any person to do any of the following in 
connection with the activities described in Sec.  217.230:
    (1) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
and 217.236 of this chapter;
    (2) Take any marine mammal not specified in such LOA;
    (3) Take any marine mammal specified in such LOA in any manner 
other than as specified;
    (4) Take a marine mammal specified in such LOA after NMFS 
determines such taking results in more than a negligible impact on the 
species or stocks of such marine mammal; or

[[Page 55213]]

    (5) Take a marine mammal specified in such LOA after NMFS 
determined such taking results in an unmitigable adverse impact on the 
species or stock of such marine mammal for taking for subsistence uses.


Sec.  217.234  Mitigation requirements.

    (a) When conducting the activities identified in Sec.  217.230(a), 
the mitigation measures contained in this subpart and any LOA issued 
under Sec. Sec.  216.106 and 217.236 of this chapter must be 
implemented by the Navy. These mitigation measures include:
    (1) A copy of any issued LOA must be in the possession of the Navy, 
supervisory construction personnel, lead protected species observers 
(PSOs), and any other relevant designees of the Navy operating under 
the authority of the LOA at all times that activities subject to the 
LOA are being conducted;
    (2) The Navy must ensure that construction supervisors and crews, 
the monitoring team, and relevant Navy staff are trained prior to the 
start of activities subject to any issued LOA, so that 
responsibilities, communication procedures, monitoring protocols, and 
operational procedures are clearly understood. New personnel joining 
during the Project must be trained prior to commencing work;
    (3) The Navy, construction supervisors and crews, and relevant Navy 
staff must avoid direct physical interaction with marine mammals during 
construction activity. If a marine mammal comes within 10 m of such 
activity, operations must cease and vessels must reduce speed to the 
minimum level required to maintain steerage and safe working 
conditions, as necessary to avoid direct physical interaction;
    (4) The Navy must employ PSOs and establish monitoring locations as 
described in the NMFS-approved Marine Mammal Monitoring Plan. The Navy 
must monitor the Project Area to the maximum extent possible based on 
the required number of PSOs, required monitoring locations, and 
environmental conditions;
    (5) For all pile driving activities, the Navy shall implement 
shutdown zones with radial distances as identified in a LOA issued 
under Sec.  217.236. If a marine mammal is observed entering or within 
the shutdown zone, such operations must be delayed or halted.
    (6) Monitoring must take place from 30 minutes prior to initiation 
of a pile driving activity (i.e., pre-start clearance monitoring) 
through 30 minutes post-completion of a pile driving activity.
    (7) Pre-start clearance monitoring must be conducted during periods 
of visibility sufficient for the lead PSO to determine that the 
shutdown zones are clear of marine mammals. Pile driving may commence 
following 30 minutes of observation when the determination is made that 
the shutdown zones are clear of marine mammals.
    (8) If a marine mammal is observed entering or within the shutdown 
zones, pile driving activity must be delayed or halted.
    (9) If pile driving is delayed or halted due to the presence of a 
marine mammal, the activity may not commence or resume until either the 
animal has voluntarily exited and been visually confirmed beyond the 
shutdown zone or 15 minutes have passed without re-detection of the 
animal.
    (10) Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone.
    (11) The Navy 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.


Sec.  217.235  Requirements for monitoring and reporting.

    (a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS 
for approval in advance of construction. Marine mammal monitoring must 
be conducted in accordance with the conditions in this section and the 
NMFS-approved Marine Mammal Monitoring Plan.
    (b) Monitoring must be conducted by qualified, NMFS-approved PSOs, 
in accordance with the following conditions:
    (1) PSOs must be independent of the activity contractor (e.g., 
employed by a subcontractor) and have no other assigned tasks during 
monitoring periods;
    (2) At least one PSO must have prior experience performing the 
duties of an observer during construction activity pursuant to a NMFS-
issued incidental take authorization;
    (3) Other observers may substitute other relevant experience, 
education (i.e., degree in biological science or related field), or 
training for prior experience performing the duties of an observer 
during construction activity pursuant to a NMFS-issued incidental take 
authorization;
    (4) One observer must be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience performing 
the duties of a PSO during construction activity pursuant to a NMFS-
issued incidental take authorization;
    (5) Observers must be approved by NMFS prior to beginning any 
activity subject to any issued LOA;
    (6) For all pile driving activities, a minimum of two observers 
shall be stationed at the best vantage points practicable. One of these 
observers must be positioned to monitor for marine mammals and 
implement shutdown/delay procedures.
    (7) The Navy shall monitor the harassment zones to the maximum 
extent practicable and the entire shutdown zones. The Navy shall 
monitor at least a portion of the Level B harassment zone on all pile 
driving days.
    (8) The Navy shall conduct hydroacoustic data collection in 
accordance with an Acoustic Monitoring Plan that must be approved by 
NMFS in advance of construction.
    (9) The shutdown/monitoring zones may be modified with NMFS' 
approval following NMFS' acceptance of an acoustic monitoring report.
    (10) The Navy must submit a draft monitoring report to NMFS within 
90 calendar days of the completion of each construction year. A draft 
comprehensive five-year summary report must also be submitted to NMFS 
within 90 days of the end of the Project. The reports must detail the 
monitoring protocol and summarize the data recorded during monitoring. 
Final annual reports and the final comprehensive report must be 
prepared and submitted within 30 days following resolution of any NMFS 
comments on the draft report. If no comments are received from NMFS 
within 30 days of receipt of the draft report, the report must be 
considered final. If comments are received, a final report addressing 
NMFS comments must be submitted within 30 days after receipt of 
comments. The reports must at minimum contain the informational 
elements described below (as well as any additional information 
described in the Marine Mammal Monitoring Plan), including:
    (i) Dates and times (begin and end) of all marine mammal 
monitoring;
    (ii) Construction activities occurring during each daily 
observation period, including the number and type of piles

[[Page 55214]]

that were driven or removed and by what method (i.e., impact or 
vibratory), total duration of driving time for each pile (vibratory) 
and number of strikes for each pile (impact);
    (iii) PSO locations during marine mammal monitoring;
    (iv) Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
    (v) Upon observation of a marine mammal, the following information:
    (A) Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
    (B) Time of sighting;
    (C) Identification of the animal(s) (e.g., genus/species, lowest 
possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
    (D) Distance and location of each observed marine mammal relative 
to the pile being driven for each sighting;
    (E) Estimated number of animals (min/max/best estimate);
    (F) Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
    (G) Animal's closest point of approach and estimated time spent 
within the harassment zone;
    (H) Description of any marine mammal behavioral observations (e.g., 
observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
    (vii) Number of marine mammals detected within the harassment 
zones, by species; and
    (viii) Detailed information about implementation of any mitigation 
(e.g., shutdown and delays), a description of specific actions that 
ensued, and resulting changes in behavior of the animal(s), if any.
    (11) The Holder must submit all PSO data electronically in a format 
that can be queried such as a spreadsheet or database (i.e., digital 
images of data sheets are not sufficient).
    (12) The Navy must report hydroacoustic data collected as required 
by a LOA issued under Sec. Sec.  216.106 of this chapter and 217.236 
and as discussed in the Navy's Acoustic Monitoring Plan approved by 
NMFS.
    (13) In the event that personnel involved in the construction 
activities discover an injured or dead marine mammal, the Navy shall 
report the incident to the Office of Protected Resources (OPR), NMFS, 
and to the Greater Atlantic Region New England/Mid-Atlantic Regional 
Stranding Coordinator as soon as feasible. If the death or injury was 
clearly caused by the specified activity, the Navy 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 
authorization. The Navy must not resume their activities until notified 
by NMFS. The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Condition of the animal(s) (including carcass condition if 
the animal is dead);
    (iv) Observed behaviors of the animal(s), if alive;
    (v) If available, photographs or video footage of the animal(s); 
and
    (vi) General circumstances under which the animal was discovered.


Sec.  217.236  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Navy must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, the Navy may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Navy must 
apply for and obtain a modification of the LOA as described in Sec.  
217.236.
    (e) The LOA must set forth the following information:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA must be based on a determination that the 
level of taking must be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.237  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.236 for the activity identified in Sec.  217.230(a) may be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations; and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting that do not change the findings made for the regulations or 
result in no more than a minor change in the total estimated number of 
takes (or distribution by species or years), NMFS may publish a notice 
of proposed LOA in the Federal Register, including the associated 
analysis of the change, and solicit public comment before issuing the 
LOA.
    (c) A LOA issued under Sec. Sec.  216.106 of this chapter and 
217.236 for the activity identified in Sec.  217.230(a) may be modified 
by NMFS under the following circumstances:
    (1) NMFS may modify (including augment) the existing mitigation, 
monitoring, or reporting measures (after consulting with Navy regarding 
the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the goals of 
the mitigation and monitoring set forth in the preamble for these 
regulations;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in a LOA:
    (A) Results from Navy's monitoring from previous years;
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs; and
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
must publish a

[[Page 55215]]

notice of proposed LOA in the Federal Register and solicit public 
comment;
    (2) If NMFS determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in a LOA issued pursuant to Sec.  216.106 of this 
chapter and Sec.  217.236, a LOA may be modified without prior notice 
or opportunity for public comment. Notification would be published in 
the Federal Register within 30 days of the action.


Sec.  Sec.  217.238-217.239   [Reserved]

[FR Doc. 2024-14162 Filed 7-2-24; 8:45 am]
BILLING CODE 3510-22-P