[Federal Register: July 18, 2008 (Volume 73, Number 139)]
[Notices]
[Page 41318-41330]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy08-55]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XG36
Small Takes of Marine Mammals Incidental to Specified Activities;
Port of Anchorage Marine Terminal Redevelopment Project, Anchorage,
Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), notification is hereby given that NMFS
has issued an Incidental Harassment Authorization (IHA), to the Port of
Anchorage (herein after ``Port'') and the U.S. Department of
Transportation Maritime Administration (herein after ``MARAD'') to take
small numbers of marine mammals, by Level B harassment, incidental to
the first year of construction of its Marine Terminal Redevelopment
Project (herein after ``Project'') at the Port, Anchorage, Alaska.
DATES: Effective from July 15, 2008 - July 14, 2009.
ADDRESSES: A copy of the IHA, application, and Environmental
Assessment (EA) prepared for this action are available by writing to
Michael Payne, Chief, Permits, Conservation, and Education Division,
Office of Protected Resources (OPR), National Marine Fisheries Service,
1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning
the contact listed here (FOR FURTHER INFORMATION CONTACT) or online at:
http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in
this notice may be viewed, by appointment, during regular business
hours, at the aforementioned address.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly or Jolie Harrison, Office
of Protected Resources, NMFS, (301) 713-2289.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional, taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) if certain findings are made and regulations are issued or, if
the taking is limited to harassment, notice of a proposed authorization
is provided to the public for review.
Authorization for incidental takings may be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for certain subsistence uses,
and if the permissible methods of taking and requirements pertaining to
the mitigation, monitoring and reporting of such taking are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as: an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
Under 50 CFR 216.104(b) of NMFS' implementing regulations for the
MMPA, NMFS must publish in the Federal Register a notice of a proposed
IHA or a notice of receipt for a request for the implementation of
regulations governing the incidental taking. Information gathered
during the associated comment period is considered by NMFS in
developing, if appropriate, IHAs and regulations governing the issuance
of Letters of Authorizations (LOAs) for the proposed activity.
Summary of Request
On February 20, 2008, NMFS received a complete application from
the Port and MARAD requesting a one-year IHA to take, by Level B
harassment, up to 34 Cook Inlet beluga whales (Delphinapterus leucas),
20 harbor seals (Phoca vitulina), 20 harbor porpoises (Phocoena
phocoena), and 20 killer whales (Orcinus orca) incidental to the
Project. The content and proposed mitigation in the application was a
result of numerous discussions between the applicants and NMFS.
Harassment to marine mammals could result from exposure to noise from
pile driving. While dredging and use of other heavy machinery (tugs,
dump scowls, barge mounted hydraulic excavators or clamshell equipment)
are also associated with the Project, these activities are not expected
to result in harassment as marine mammals, in particular beluga whales.
NMFS prepared an EA for the proposed action which thoroughly
analyzes and discusses potential impacts on marine mammals and their
habitat from the Project. Harassment from pile driving associated with
the Project may result in short-term, mild to moderate behavioral and
physiological responses. Anticipated behavioral reactions of marine
mammals include altered headings, fast swimming, changes in dive,
surfacing, respiration, and feeding patterns, and changes in
vocalizations. Physiological impacts are expected to be mild stress
responses. However, NMFS has determined harassment would be limited to
Level B, will result in a negligible impact to affected marine mammal
species or stocks, and will not have an unmitigable adverse impact on
the availability of such species or stock for the taking for
subsistence purposes.
Specified Activities
A detailed description of the Project can be found in the
application and the NMFS prepared EA. However, for purposes of this
notice, a summary of activities is provided. According to the
[[Page 41319]]
application, the Project is designed to upgrade and expand the Port by
replacing aging and obsolete structures and provide additional dock and
backland areas. Located on the east bank of Knik Arm in upper Cook
Inlet, the 129-acre port is operating at or above sustainable practical
capacity. The expansion of the Port is necessary to adequately support
the economic growth of Anchorage and the state of Alaska through 2025.
The port currently serves 80 percent of Alaska's populated area, and it
handles over 90 percent of consumer goods sold within the Alaskan
Railroad distribution area (the Alaska Railroad runs from Seward
through Anchorage, Denali, and Fairbanks to North Pole, with spurs to
Whittier and Palmer (locally known as ``The Railbelt'').
According to the application, the existing dock can no longer be
widened nor salvaged due to its advanced age and state of disrepair.
The dock supporting the three cranes today was completed in 1961. Its
projected life expectancy was 25-30 years; therefore, a new port is in
order. Construction necessitates use of impact and vibratory pile
drivers to install open cell sheet, 36 inch steal, and H- piles to
construct the waterfront bulkhead structure that will facilitate
increased dock space and the fendering system. In-water pile driving
would occur between April- October, annually, until the new port is
completed (2012). The new dock face will include 7,430 ft (2,265 m) of
vertical sheet pile wharf and 470 ft (143 m) for a dry barge berth;
however, the entire sheet pile wall will extend 9,893 ft (3,015 m)
parallel to the shore. The completed marine terminal will include seven
modern dedicated ship berths; two dedicated barge berths; rail access;
modern shore-side facilities; equipment to accommodate cruise
passengers, cement bulk, roll on/roll off and load on/load off cargo,
containers, general cargo, Stryker Brigade Combat Team deployments,
general cargo on barges, and petroleum, oils, and lubricants; and
additional land area to support expanding military and commercial
operations.
Installation of the sheet pile is a multi-phased process and
requires the use of impact and vibratory pile driving. The process is
as follows: (1) a template defining the curvature and shape of the cell
face is placed on the ocean floor in the correct location; (2) the
template is secured in place using up to four temporary pipe-piles,
approximate driving time for each pile is 5 minutes; (3) adjacent sheet
piles are then placed and ``stabbed'' over approximately half of the
template, less if tidal currents are high at the time. Stabbing
involves driving the pile a nominally short distance at reduced hammer
energy to set the bottom of the pile deep enough into the soil to hold
it in place while the next adjacent pile is started. Stabbing depths
would be less than five feet, at reduced vibratory hammer energy; (4)
once a pile-group is ``set'' on the template, the piles are driven in a
stair-step method advancing one pile five feet, then moving the hammer
to the next pile, advancing that pile five feet, moving to the next and
so on. This process is repeated at 5-foot intervals without resting
until all the sheet piles are at design depth. Advancing the sheet pile
in increments reduces driving strain on the interlocks and provides
better vertical placement control; (5) the next sheet pile-group is
then ``set'' on the template with reduced energy in the adjacent
location and the process repeated; and (6) tail walls that are driven
in-water may similarly be driven in groups as well. During the
``stabbing'' process, the Port has indicated that shut-down is not
practicable. If the sheet pile wall is not secured in the ground before
ceasing pile driving, it could easily break free, especially during
periods of stronger currents. A free-floating sheet pile is both
dangerous to the construction workers and could become a navigational
hazard. Therefore, mitigation measures would apply to all pile driving
operations except during the stabbing phase when a low, reduced energy
vibratory hammer is used.
The Port has indicated that approximately 550 hours of impact pile
driving and 368 hours of vibratory pile driving will occur during the
IHA timeframe. Using the best scientific data available, NMFS has
determined that Level A harassment could occur if a pinniped or
cetacean is exposed to sound levels at or above 190 and 180 dB re 1
micro Pascal, respectively. For pulsed sounds, such as impact pile
driving, exposure to sound levels at or above 160 dB re 1 micro Pascal
(but below Level A harassment thresholds) could result in Level B
harassment. For continuous noise (non-pulsed), such a vibratory pile
driving, the Level B harassment threshold is 120 dB re 1 micro Pascal.
Based on an acoustic study conducted at the Port in October 2007, it is
expected that average sound levels of impact driving will be
approximately 177 dB re 1 micro Pascal at 19m in the frequency range of
100-15,000 Hz and vibratory pile driving sounds will be approximately
162 dB re 1 micro Pascal at 20m in the frequency range of 400-2,500 Hz.
Further empirical data were collected to identify Level A and Level B
harassment isopleths (Figure 1). For impact pile driving, the 190, 180,
and 160 dB re 1 micro Pascal isopleths are approximately 10m, 20m, and
350m from the pile hammer. Vibratory driving isopleths for 190 and 180
dB re 1 micro Pascal are both less than 10m, and 120 dB re 1 micro
Pascal is 800m from the pile hammer. For comparative purposes, the
distance across the Arm from the Port to Port MacKenzie (on the west
side of Knik Arm) is approximately 4.88 km. The distance to the west
bank directly across the Arm from the Port is approximately 4.17 km.
[[Page 41320]]
[GRAPHIC] [TIFF OMITTED] TN18JY08.673
BILLING CODE 3510-22[nash]C
Marine Mammals and Habitat Affected by the Activity
Cook Inlet is utilized by several species of marine mammals;
however, upper Cook Inlet marine mammal species diversity is limited.
The Cook Inlet beluga whale is the most prevalent marine mammal in the
action area. Harbor seals, harbor porpoises, and killer whales are also
found in upper Cook Inlet but sporadically and in low density. While
Steller's sea lions (Eumetopias jubatus) are present in lower Cook
Inlet to some degree, there have been no reported sightings of this
species in Knik Arm. Only four Steller sea lions have been sighted
since 1999 in the Susitina Rive mouth area (Barbara Mahoney, personal
communications, June 20, 2008); therefore, Steller's sea lions are not
anticipated to be affected by the Project and will not be included in
any MMPA authorization for the proposed action nor considered in more
detail in this analysis. More information on Alaskan marine mammals can
be found at (http://www.fakr.noaa.gov/protectedresources.
Beluga Whales
A detailed description of Cook Inlet beluga whales can be found in
the application, EA, and the proposed IHA Federal Register notice (73
FR 14443, March 18, 2008) and summaries of status, distribution,
habitat use, and hearing are provided here. The Cook Inlet beluga whale
population is a discrete population comprised of approximately 375
individuals (NMFS, unpubl. data) as of 2008. This stock was listed as
depleted under the MMPA and was proposed for listing as endangered
under the ESA on April 20, 2007 (72 FR 19854). On April 22, 2008, NMFS
published a notice in the Federal Register announcing a 6-month
extension (to October 20, 2008 ) on the determination for listing the
Cook Inlet beluga whale DPS as endangered under the ESA (73 FR 21578).
In general, Cook Inlet beluga whales utilize Knik Arm during the
spring, summer, and fall months and retreat to lower, ice-free portions
of Cook Inlet during the winter. From April through November whales
concentrate at river mouths and tidal flat areas, moving in and out
with the tides (Rugh et al., 2000). In Knik Arm, beluga whales
generally are observed arriving in May and often use the area all
summer, feeding on the various salmon runs and moving with the tides.
There is more intensive use of Knik Arm in August and through the fall,
coinciding with the coho salmon run. Whales will gather in Eagle Bay
(approximately 16 km north of the Port) and elsewhere on the east side
of Knik Arm on the low tide. During high tides, beluga whales are
generally concentrated around prime feeding habitats in the upper
reaches of the Arm. No prime feeding habitats are located directly
around the Port.
Beluga whales frequently move in and out of deeper water and
between feeding, calving, and nursery areas throughout the mid and
upper Inlet. Open access to and between these areas is important. Knik
Arm, Turnagain Arm, Chickaloon River and the Susitna River delta areas
are used extensively. Besides localized prime foraging areas, it is
possible these sites provide for other biological needs such as calving
or molting but this has not been confirmed. Such use of habitat has
been reported elsewhere in Alaska, although there is not adequate
information to identify these calving and molting habitat attributes to
Knik Arm. Further, only the upper reaches of Knik Arm, beginning at
Eagle Bay, have been identified as prime foraging area, not the area
around the Port.
Opportunistic beluga whale sightings at or near the Port have been
reported for years to the NMFS Alaska Region (AKR) (NMFS, unpubl.
data). Sighting data have been collected by Port
[[Page 41321]]
authorities on land or crew aboard commercial vessels (e.g., tugs).
Although behavioral data were not collected for all sightings,
available reports indicate that traveling is the prevalent behavior of
beluga whales around the Port. Out of the 60 sightings that had
behavioral data associated with them, 47 groups, including individuals,
were reported traveling. Other behaviors noted included feeding (n=4),
possible feeding (n=2), transversing Knik Arm (n=3), and association
with vessels (n=4) where n is equal to the number of groups sighted.
Interestingly, two groups associated with vessels were highly vocal and
the crew reported vocalization resonating though the tug. Based on
these data, habitat use around the Port from April- October has been
determined to be primarily traveling. Whales are using this area as a
corridor to access the upper reaches of Knik Arm where fish runs are
prevalent in the summer months. Dedicated beluga whale surveys around
the Port have also indicated that the greatest use of habitat around
the Port is during or around low tide (Funk et al., 2005, Ramos et al.,
2006, Cornick and Kendall, 2007).
Beluga whales are characterized as mid-frequency odontocetes but
are able to hear an unusually wide range of frequencies, covering most
natural and man-made sounds. The hearing frequency range of this
species is believed to be between 40 Hz-150 kHz with keen hearing at
10-100 kHz. Above 100 kHz, sensitivity drops off very quickly (Au,
1993), and below 16 kHz the decrease in sensitivity is more gradual at
approximately 10 dB per octave (White et al., 1978; Awbrey et al.,
1988). Peak sensitivity range of this species is outside of most
industrial sounds but studies have shown that beluga whales can hear
and react to such low frequency noise, dependent upon intensity (i.e.,
decibels). However, masking of their high frequency communication and
echolocation signals is likely limited when exposed to lower frequency
sounds (Thomas et al., 1990). In addition, beluga whales are well
adapted to change frequencies and intensities of their own calls to
compensate for masking effects (Au et al., 1985, Lesege et al., 1999,
Scheifele et al., 2005).
Harbor Seals
Harbor seals are not listed as ``depleted'' under the MMPA or
listed as ``threatened'' or ``endangered'' under the ESA. Harbor seals
haul out on rocks, reefs, beaches, and drifting glacial ice, and feed
in marine, estuaries, and occasionally fresh waters (Bigg 1969, 1981).
In Alaska, commonly eaten prey include walleye, pollock, Pacific cod,
capelin, eulachon, Pacific herring, salmon, octopus, and squid. They
are generally non-migratory, with local movements associated with such
factors as tides, weather, season, food availability, and reproduction;
however, some long-distance movements have been recorded from tagged
animals with juveniles traveling farther than adults (Lowry et al.
2001). The major haul-out sites for harbor seals are located in Lower
Cook Inlet with the closest identified harbor seal haul-out site to the
Port approximately 25 miles south along Chickaloon Bay in the southern
portion of Turnagain Arm. However, harbor seals have been observed
occasionally around the Port. In 2004-2005, 22 harbor seal sightings
were reported over a 13-month period comprising of 14,000 survey hours.
From these surveys, it is estimated that harbor seals occur in a
density of approximately 1.7 animals per month in Knik Arm (LGL unpubl.
data).
Pinniped hearing is dependent upon the medium (i.e., air or water)
in which they receive the sound. Most pinniped species have essentially
flat audiograms from 1 kHz to 30 50 kHz with thresholds between 60 and
85 dB re 1 micro Pascal. At frequencies below 1 kHz, thresholds
increase with decreasing frequency (Kastak and Schusterman, 1998), that
is, the sound must be louder in order to be heard. Harbor seals in-
water and in-air display significant disparities between hearing
capabilites with hearing 25 30 dB better underwater than in air (Kastak
and Schusterman, 1994).
Harbor Porpoise
Harbor porpoises are found within Cook Inlet but in low abundance,
especially in Knik Arm. Currently, the population estimate for the Gulf
of Alaska harbor porpoise stock is 41,854 with a minimum population
estimate of 34,740 (Angliss and Outlaw, 2006). However, density of
harbor porpoise in Cook Inlet is only 7.2 per 1000 square kilometers
(Dahlheim et al., 2000). The highest monthly count in upper Cook Inlet
between April and October is 18 (Ramos et al., 2006). Interactions with
fisheries and entanglement in gear is the prime anthropogenic cause of
mortality for this stock (mean annual mortality of 67.8) (Angliss and
Outlaw, 2006). Harbor porpoises are not killed for subsistence reasons.
Harbor porpoise have the highest upper-frequency limit of all
odontocetes studied. They have a hearing range of 250 Hz-180 kHz with
maximum sensitivity between 16-140 kHz. There is no available data on
high frequency cetacean reactions to pulse sounds (e.g., impact pile
driving); however, numerous studies have been conducted in the field
(Culik et al., 2001; Olesiuk et al., 2002; Johnston, 2002) and
laboratory (Kastelein et al., 1995, 1997, 2000) for non-pulse sounds.
The results of these studies demonstrate the harbor porpoise are quite
sensitive to a wide range of human sounds at very low exposure levels:
approximately 90 - 120dB re: 1microPa. However, most of these studies
involved acoustic harassment devices (e.g., pingers) in the range of 10
kHz which is 6-7 kHz greater than most industrial sounds, including
pile driving.
Killer whales
Killer whales in the Gulf of Alaska are divided into two ecotypes:
resident and transient. Transients, or mammal-eating killer whales, are
the only ecotype believed to occur in upper Cook Inlet. Killer whales
are more common in lower Cook Inlet (at least 100 sightings from 1975
to 2002), but in the upper Inlet, north of Kalgin Island, sightings are
infrequent (18 sightings have been noted from 1976-2003) (Sheldon et
al. 2003). Most observed killer whale/beluga whale interactions were in
the upper Inlet; however, killer whale predation on beluga whales in
Cook Inlet appears to be random and does not appear to be an
influential factor on beluga distribution (Hobbs et al., 2006).
However, a decrease in killer whale seal and sea lion prey in the Gulf
of Alaska could result in killer whales moving from the southern
portion of the Inlet to the northern portion in search of beluga prey.
The hearing of killer whales is well developed and this species
exhibits complex underwater communication structure. They have hearing
ranges of 0.05 to 100 kHz, which is lower than many other odontocetes.
Peak sensitivity is around 15 kHz. Mammal-eating killer whales (i.e.
transients) limit their vocal communication and often travel in
silence. This is in contrast to the very vocal fish eating (i.e.,
resident) killer whale pods who are constantly vocalizing. The
difference for this behavior is that fish do not possess the advanced
hearing capabilities as the target marine mammals, who can hear or
eavesdrop on mammal eating killer whale calls and escape from being
prey (Deecke et al., 2005).
Habitat
Knik Arm is comprised of narrow channels flanked by large tidal
benches composed of sand, mud, or gravel depending on location. Tides
in Cook Inlet are semidiurnal, with two unequal high and low tides per
tidal day (tidal
[[Page 41322]]
day = 24 h 50 min). The mean diurnal tidal range varies from roughly 6
m (19 ft) at Homer to about 9.5 m (30 ft) at Anchorage (Moore et al.
2000). Because of Knik Arm's predominantly shallow depths and narrow
widths, tides here are greater than in the main body of Cook Inlet. The
range of tides at Anchorage is extreme at about 29 feet and the
observed extreme low water is 6.4 feet below mean low low water (MLLW)
(KABATA 2007). Maximum current speeds in Knik Arm, observed during
spring ebb tide, exceed 7 knots (12 feet/second). These extreme
physical characteristics of Knik Arm increase ambient sound level.
The habitat directly affected from the Project is the 135 acres of
intertidal and subtidal wetlands filled to become useable land and
facilitate the bulkhead structure and fendering systems of the dock. In
addition, noise will be emitted into the waters surrounding the Port
which will lead to some degree of temporary habitat degradation. With
respect to habitat analysis, NMFS considered the impact elimination and
degradation of this area would have to marine mammals (see Impacts to
Habitat). That is, would the elimination and degradation of habitat
impact the biological or physical environment to the extent that is
would have an impact on marine mammals directly in the form of acoustic
harassment, and indirectly, in the form of reducing availability of
prey?
Potential Effects of Activities on Marine Mammals
Marine mammals use sound for vital life functions, and introducing
sound into their environment could be disrupting to those behaviors.
Sound (hearing and vocalization/ echolocation) serves 4 main functions
for odontocetes (toothed whales and dolphins). These functions include
(1) providing information about their environment; (2) communication;
(3) enabling remote detection of prey; and (4) enabling detection of
predators. Sounds and non-acoustic stimuli will be generated and
emitted into the aquatic environment by vehicle traffic, vessel
operations, roadbed construction, and vibratory and impact pile
driving. The distances to which these sounds are audible depend on
source levels, ambient noise levels, and sensitivity of the receptor
(Richardson et al., 1995). The Federal Register notice for the proposed
IHA and the EA discuss in detail the potential impacts to marine
mammals from exposure to pile driving.
The implementation of the Project would result in the loss of
intertidal and subtidal habitat used by marine mammals and exposure to
loud noise could result in behavioral and mild physiological changes in
marine mammals. Based on the activities described in the application,
NMFS has determined that only in-water pile driving is likely to result
in an adverse affect to marine mammals. Based on the best available
science, as described in the EA, marine mammals exposed to pile driving
noise at and above NMFS determined harassment thresholds, have the
potential to undergo mild to moderate short term behavioral and
physiological reactions. Anticipated behavioral reactions of marine
mammals include altered headings, fast swimming, changes in dive,
surfacing, respiration, and feeding patterns, and changes in
vocalizations. Short-term stress response could include increase in
stress hormone levels (e.g. norepinephrine, epinephrine, and dopamine).
Beluga whales are expected to become accustomed to pile driving noise
(Gisiner, 1998); however, they may slightly alter habitat usage so that
the middle or west side of Knik Arm, where noise from pile driving
would attenuate to baseline background levels, would be used more
frequently as a migratory route to the northern feeding grounds.
While dredging and fill compaction would also result in noise
emittance into the environment, sound levels are not expected to result
in harassment of marine mammals. Dredging has been occurring at the
Port for decades and marine mammals, specifically beluga whales, have
become habituated to this activity as indicated by their observed
interaction with dredges and other commercial vessels (NMFS unpubl.
data). Fill compaction requires the use of a vibratory pile driver;
however, absorption of sound by the fill and sheet pile wall would
reduce sound levels below harassment level thresholds. Because Cook
Inlet is an already noisy environment (ambient levels around 115-133 dB
(Blackwell 2004)), and with habituation likely and the required
mitigation measures described below, NMFS believes harassment to marine
mammals, including beluga whales, from pile driving will have a
negligible impact on the affected species or stock of marine mammals.
Several aspects of the planned monitoring and mitigation measures
for this project are designed to detect marine mammals occurring near
pile driving and to avoid the chance of them being exposed to sound
levels which could result in injury or mortality (see Mitigation
section). NMFS does not expect Level A harassment to occur.
Number of Marine Mammals Affected
NMFS has authorized the take, by Level B harassment only, of 34
Cook Inlet beluga whales, 20 harbor seals, 20 harbor porpoises, and 20
killer whales over the course of the 1- year IHA. Because potential
harassment to the Cook Inlet beluga whales was a concern, the Port was
required, under mitigation in their initial U.S. Army Corps of
Engineers (USACE) permit, as recommended by NMFS, to obtain three years
of sighting data around the Port prior to construction. Data were
collected during all months pile driving would take place (April-
October) and included information on beluga whale abundance, group size
and composition, behavior, presence related to tidal cycle, and use of
the area by commercial vessels (Funk et al., 2005, Ramos et al., 2006,
Cornick and Kendall 2007). These data were then complied to calculate
estimated monthly densities and expected monthly take based on pile
driving hours (Table 1). A more detailed derivation of take numbers can
be found in the application and EA prepared by NMFS for this action.
While the calculated take estimate for beluga whales (21 for both
impact and vibratory pile driving combined) is less than those
authorized, take numbers were slightly inflated to compensate for
natural ecology and behavior of beluga whales (e.g., large group size).
[[Page 41323]]
Table 1. Calculated expected take from pile driving activities at the Port of Anchorage from July 15, 2008 to July 14, 2009.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Port of Anchorage Take Table - 2008/2009 IHA
---------------------------------------------------------------------------------------------------------------------------------------------------------
Area within Area within
Vibratory Avg. Whales/ 160 dB Expected 120 dB Expected
Month Impact Hours Hours hr/km\2\ Impact Take Vibratory Take
nearshore* (350m) (impact) (800m) (vibratory)
--------------------------------------------------------------------------------------------------------------------------------------------------------
April 86 58 0.014 0.192 0.230 1.0048 0.809
May 60 39 0.006 0.192 0.064 1.0048 0.218
June 60 39 0.011 0.192 0.125 1.0048 0.423
July 86 58 0.004 0.192 0.066 1.0048 0.231
August 86 58 0.062 0.192 1.031 1.0048 3.633
September 86 58 0.043 0.192 0.718 1.0048 2.529
October 86 58 0.020 0.192 0.335 1.0048 1.179
Total* 550 368 ............ ............ 8 ............ 13
--------------------------------------------------------------------------------------------------------------------------------------------------------
*The total number of authorized take is calculated by rounding up each take per month (e.g., a take of 0.230 animals in April is equal to 1 take).
Based on low sighting rates of other marine mammals around the
Port, the number of other marine mammals that could be harassed from
Project activities cannot be derived mathematically. Instead NMFS has
estimated take to authorize a small number of takes, relative to the
population size, for harbor seals (20), harbor porpoises (20), and
killer whales (20).
Impacts to Habitat
As stated, NMFS considered habitat impacts in terms of marine
mammal use and how the Project would affect marine mammal prey
availability. The elimination of 135 acres of intertidal and subtidal
habitat due to Port expansion would result in habitat loss and changes
in this portion of Knik Arm. A new, extended dock face would replace
existing acres of shallow slow moving water with deeper faster moving
water across a sheer sheet pile face; however, models show current
speed would not increase significantly. While these sheltered areas of
slower moving water where juvenile fish tend to be more abundant would
be eliminated, habitats with similar characteristics exist in other
areas of Knik Arm. The clearer water microhabitats in the intertidal
area that allow for visual feeding would be reduced but Houghton et al.
(2005a,b) identified that these patches of clear water are random and
also exist in the middle of the Arm. The concrete top deck of the
extended dock would shade these naturally turbid waters which could
further limit visual feeding opportunities for marine mammal prey;
however, as shown in observations during the fish studies conducted at
the Port, other waters surrounding the Port provide clear, less turbid
waters in which feeding can take place.
Otoliths for juvenile Chinook salmon sampled between Cairn Point
and Point Woronzof showed that 80-85 percent of the fish were of
hatchery origin (interpolated from Table 12 of Houghton et al., 2005a).
This suggests that waters in this portion of upper Cook Inlet are very
important to the hatchery produced Chinook salmon smolts from Ship
Creek. The remaining 15-20 percent of the fish was not of hatchery
origin suggesting that the area within the Project footprint also
provides important habitat for wild Chinook, likely including fish from
other Knik Arm tributaries. However, habitats in other portions of Knik
Arm have the same or similar attributes which make them important
nursery, rearing, and feeding areas (Houghton et al., 2005a,b).
Furthermore, Ship Creek is stocked and would be continually
replenished, minimizing impact to prey availability. Due to the natural
ecology of the fish in Knik Arm (i.e., using habitats other than those
to be filled), mitigation measures set in place by the USACE permit,
and the fact that Ship Creek is stocked yearly, abundance and survival
rates of fish are expected to be high and therefore availability of
those fish as beluga whale prey would not be significantly negatively
impacted.
Effects on Subsistence Needs
Alaska Natives who reside in communities on or near Cook Inlet and
some hunters who live in other Alaska towns and villages continue to
subsistence harvest beluga whales. Until 1999, subsistence harvest of
beluga whales was unregulated, which is believed to be the major reason
for the recent beluga whale population decline. Since 1999, mandatory
and voluntary moratoriums have been enacted prohibiting or minimizing
take of beluga whales for subsistence needs. Since 2001, five beluga
whales have been taken with none of those whales taken in 2006 or 2007.
Scientists predicted that the beluga whale population would recover
after the unregulated hunts ceased and a managed hunt was enacted.
While the Cook Inlet beluga population appears to be on the increase
since the lowest population estimate in 2006 when the population was
estimated at 278 whales, this was only 2 years ago; therefore, a trend
in recovery can not be discerned. While NMFS acknowledges that there
are factors working against the recovery of the Cook Inlet beluga whale
population in a manner scientists have yet to understand, NMFS is
confident that, given mitigation, the small amount of harassment that
whales could potentially be exposed to from the Project will not have
an unmitigable adverse impact on the availability of beluga whales for
subsistence uses. More information on use of beluga whales for
subsistence purposes and proposed management plans can be found in the
Cook Inlet Beluga Whale Subsistence Harvest Draft Supplemental
Environmental Impact Statement (NMFS 2007).
Comments and Responses
On March 18, 2008, NMFS published in the Federal Register a notice
of a proposed IHA for the Port and MARAD's request to take marine
mammals incidental to the Project and requested comments regarding this
request (73 FR 14443). During the 30-day public comment period, NMFS
received comments from the Marine Mammal Commission (Commission); the
Center for Biological Diversity (CBD) on behalf of the CBD, Trustees
for Alaska, and Cook Inlet Keeper; and the Kenaitze Indian Tribe. The
Commission and CBD provided comments on seven
[[Page 41324]]
major topics: (1) take numbers; (2) NMFS negligible impact
determination; (3) specified activities; (4) cumulative impacts; (5)
mitigation; (6) ESA requirements; and (7) NEPA requirements. Because
comments provided by the Commission and CBD on these topics were
similar, they are addressed here by category. Other comments and those
submitted by the Kenaitze Indian Tribe are also addressed here.
Take Numbers
The Commission believes that the manner in which takes are
distributed among the population could be significant, that is, a
single animal harassed 34 times could have different impacts than if 34
animals were harassed one time;
CBD states that NMFS' ``small numbers'' definition is
conflated with ``negligible impact'' and that NMFS conducts its
analysis according to this ``invalid standard''; CBD argues that ``the
Project would expose 12-14% of the population of Cook Inlet beluga
whales (identified as 278 animals) to noise which could cause
harassment and this level of take could not be considered small'';
``NMFS's estimate that 34 belugas may be harassed under
the requested IHA in the first year is based on the assumption that
sounds below 160 dB re 1 microPa (rms) do not constitute harassment for
any cetacean; ``for example, [in a recent IHA for oil and
gas exploration,] NMFS imposed a 120 dB safety zone for aggregations of
bowhead whales based on its finding that 'bowhead whales apparently
show some avoidance in areas of seismic sounds at levels lower than 120
dB'; and NMFS acknowledged in an IHA for the National
Science Foundation ``that belugas can be displaced at distances of up
to 20 km from a sound source'' and
``given louder sources of noise are planned in subsequent
years of the Project, over the life of the proposed regulations well
over half and perhaps the entire beluga population is likely to be
exposed to harassment level sounds.''
Response: Based on beluga behavior and group dynamics, NMFS does
not believe that either of the extremes provided by the Commission are
likely to occur. Instead, it is probable that takes will be distributed
somewhat evenly among exposed individuals with the possibility that
some individuals may be taken slightly fewer or more times than others.
Beluga whales are not all individually identifiable and it is
impossible to determine exactly how many times each and every
individual is potentially harassed. However, due to beluga whale
coloration disparities among different age classes, observers can
identify how many times adults, juveniles, and calves are around the
Port and have entered into the harassment zones.
NMFS no longer relies on its regulatory definition, which was found
to be invalid by a U.S. District Court. Instead, NMFS addresses ``small
numbers'' in terms of relative to the species or stock size. CBD's
argument that NMFS can not make a small numbers determination since 12
percent of the population could be taken is faulty as CBD uses an
outdated Cook Inlet beluga whale population estimate (i.e., 278) when
the current population estimate is actually 375 whales. Therefore, 9
percent of the population could potentially be harassed under the IHA,
which is small relative to the population size. CBD is also incorrect
in the statement that the estimate of the number of beluga whales
authorized to be taken was derived based on the assumption that
exposure to sounds at or above 160 dB re 1 micro Pascal constitute a
``take.'' NMFS estimated take numbers based on potential exposure to
both pulse (i.e., impact pile driving) and continuous (i.e., vibratory
pile driving) noise, which is discussed thoroughly in both the proposed
IHA Federal Register notice (73 FR 14443) and the Port's application.
NMFS has implemented a 160 dB and 120 dB re 1 micro Pascal harassment
zone for impact and vibratory pile driving, respectively. NMFS used
three years of monitoring data to predict beluga whale density around
the Port and then estimated potential take based on both the 160 dB and
120 dB re 1 micro Pascal isopleths. A detailed description of how take
was mathematically estimated can be found in the EA and the
application. NMFS slightly inflated the number of whales authorized to
be taken to account for realistic occurrences such as large groups;
therefore, CBD is incorrect is stating the take numbers were
underestimated.
In referring to NMFS' IHA that acknowledged displacement of beluga
whales up to 20 km from the sound source, CBD fails to consider the
science of sound and its propagation characteristics underwater (e.g.,
sound type, source level, water depth, and other factors contributing
to sound propagation and marine mammal harassment potential. Therefore,
their arguments regarding impacts to marine mammals from noise as well
as Level A harassment potential are flawed and unsupported. The NSF
report CBD refers to in its comments concerns beluga whale responses to
seismic surveys employing large moving ships operating an 8 airgun
array configured as a four-G gun cluster with a total discharge volume
of 840 in3 and a four Bolt airgun cluster with a total discharge volume
of 2000 in3. The source output from that array was from 246 253 dB re 1
micro Pascal and Level B harassment sounds were expected to range from
4-7 kms. To compare potential reactions from that survey, or other
seismic surveys, to stationary pile driving, which does not have a
sound source level close to seismic survey output, is erroneous.
NMFS is unaware where the CBD obtained information that ``louder
sources of noise are planned in subsequent years of the project''. The
Port has not indicated that louder sound would be emitted into the
environment in subsequent years. In fact, the Port has identified that
impact pile driving hours will likely be reduced in subsequent years
and be replaced by vibratory pile driving; therefore, sound levels will
actually likely be reduced in future years as sound source level using
an impact hammer is louder than a vibratory hammer. The Port must
employ impact pile driving to obtain depths at which vibratory methods
are not possible and once the piles are at this depth they will switch
to vibratory methods.
Negligible Impact
The Commission and CBD both argue that NMFS can not make a
negligible impact determination because the ``baseline status'' of the
Cook Inlet beluga whale population is ``tenuous'' and ``is already
having a more than negligible impact on this stock'';
The Commission argues that because this population of
beluga whales is ``dangerously low'', ``any increase in the level of
disturbance experience by beluga whales in an important feeding area -
regardless of how small the increase may be in and of itself- would
have more than a negligible impact on the population of chances of
recovery'';
CBD argues that NMFS has no scientific justification for
its Level A harassment thresholds, citing to two marine mammal
stranding events where seismic surveys were occurring and where
received sound levels ``were likely lower than 180 dB.''
Response: NMFS' responsibility under section 101(a)(5)(d) of the
MMPA is to authorize, subject to conditions as the Secretary may
specify, the incidental but not intentional taking by harassment of
small numbers of marine mammals of a species or population stock by US
citizens while engaging in
[[Page 41325]]
a specified activity should the Secretary find, among other things,
that such harassment will have a negligible impact on such species or
sock. If such determination is made, there is no requirement that NMFS
must deny an authorization request simply because the population is
endangered or declining. NMFS acknowledges that the current status of
the Cook Inlet beluga whale is below optimal levels, as it has been
proposed for listing as endangered under the ESA, and that a variety of
factors, including a previously unregulated subsistence harvest,
coastal development, and introduction of anthropogenic noise into their
environment, have been identified as potential factors contributing to
the recent population decline, although no one factor has been
identified as the sole cause. However, to comply with the MMPA and
implementing regulations, NMFS is required to evaluate specific
activities in relation to a species status, however small it may be,
and make a finding as to whether the activity will have a negligible
impact on that species or stock. Incidental take authorizations are not
denied simply because a species is listed, proposed to be listed, or
the population is in a deleterious state. NMFS determined, after
careful review of the Project construction activities, beluga whale and
fish monitoring studies, physical habitat models, background and pile
driving acoustic studies, and a comprehensive review of literature
regarding marine mammals and noise, that the Project will not result in
an increased disturbance to marine mammals or their habitat such that
would result in more than a negligible impact to the stock.
Justification for these determinations can be found throughout Chapter
4 of the EA prepared by NMFS for this action.
NMFS has published several times in Federal Register notices that
the evidence linking marine mammal strandings and seismic surveys
remains tenuous at best (e.g., 73 FR 40512, July 15, 2008). No marine
mammal strandings in the Arctic have been associated with exposure to
seismic activity. Further, CBD provides no support for its assertion
that the marine mammals involved in the referenced stranding events
were exposed to sounds lower than 180 dB. Finally, this IHA does not
involve authorization of harassment related to seismic activities. As
explained in response to comments included in the ``take numbers''
category above, direct comparison of expected marine mammal reactions
to exposure from pile driving to seismic surveys would be difficult to
make.
Based on the best available scientific literature investigating
reactions of marine mammals to anthropogenically introduced sound and
obtainable, unpublished data, anticipated reactions of beluga whales to
pile driving sound are expected to be short term and behavioral and/or
physiological (i.e., stress response) in nature. Mild to moderate
behavioral reactions of marine mammals, including beluga whales, could
involve short-term altered headings, fast swimming, changes in dive,
surfacing, respiration, and feeding patterns, and changes in
vocalization frequency and strength. As pile driving continues
throughout the season and over the years, beluga whales are expected to
habituate to these sounds as they have done for ship traffic. Further,
given that travel is the primary behavior in the action area and that
the west side of Knik Arm is approximately 4,170 m directly across from
the Port, the width of the Arm marine mammals would be able to utilize
where sound propagation from pile driving is below Level B harassment
levels would be 3,820 m and 3,370 m for impact and vibratory pile
driving, respectively. Based on these factors, and given that strict
mitigation would be set in place (see Mitigation section), NMFS has
made a finding that such activities will have a negligible impact on
the Cook Inlet beluga whale stock.
Specified Activities
Comments were received regarding NMFS obligation to
specify all activities which could potentially result in harassment to
marine mammals, specifically beluga whales.
Response: NMFS considered all activities identified as components
of the Project and if each of the activities would result in harassment
to marine mammals. Activities considered were: (1) pile driving, (2)
dredging, (3) fill compaction, and (4) habitat destruction in terms of
reducing availability of prey to marine mammals. As stated, pile
driving is the only activity considered to result in potential
harassment of marine mammals. While NMFS acknowledges that dredging
releases sound into the environment, dredging has been occurring in the
area for decades and beluga whales that utilize the area around the
Port are most likely habituated to dredging operations as they have
been seen interacting with these vessels on their own accord. Vibratory
driving is required for fill compaction; however, the low source level
of the hammer, combined with the fill and steel wall absorption
capabilities, will reduce much of the sound levels below NMFS
harassment threshold levels. Finally, based on habitat attributes,
modeling studies, and required mitigation that the Port would abide by
under their USACE permit, NMFS determined that fill and noise from pile
driving would not result in decreased availability of prey for marine
mammals. Justification for these determinations can be found in the EA.
The IHA also contains a mitigation measure that restricts dredging and
all heavy machinery operations if an animal comes within 50 m of the
equipment to avoid the small chance of physical injury.
Mitigation
Comments argue that the proposed IHA Federal Register
notice mentions several types of activities that may take marine
mammals, nevertheless, the notice only proposed mitigation measures
related to pile driving and any IHA and needs to address mitigation
measures for every type of activity that might result in a take;
``NMFS seems to be accepting as a given that only the very
limited mitigation measures proposed by the POA will be applied''; and
``NMFS could require that pile driving only be allowed
during the winter months when beluga whales are less likely to be in
the area.''
Response: According to the MMPA section 101(a)(5)(D)(ii), an IHA
shall prescribe, where applicable, permissible methods of taking by
harassment pursuant to such activity, and other means of effecting the
least practicable impact on such species or stock and its habitat. NMFS
has discretion in prescribing appropriate mitigation for a specified
activity. As stated in response to comment 3, NMFS does not identify
activities other than pile driving as potentially resulting in
acoustic-based harassment to marine mammals; in addition NMFS also
implemented a 50 m safety shut down when marine mammals approach heavy
machinery to prevent injury. The Port's complete application was a
result of numerous discussions with NMFS and therefore already
incorporated many of NMFS suggested mitigation measures. In addition,
NMFS has imposed additional mitigation measures (e.g., calf shut down)
to minimize impacts from pile driving. A detailed list of these
mitigation measures can be found in this notice and Chapter 4 of the
EA. CBD's comments do not acknowledge all mitigation measures
identified in the proposed IHA Federal Register notice. NMFS also notes
that discussion with the Port about pile driving during
[[Page 41326]]
winter, a the period of lowest habitat use around the Port by beluga
whales, occurred, but due to dangerous drifting ice conditions and
frozen ground, it is not practicable to carry out pile driving in
winter.
Cumulative Impacts
Both the Commission and CBD claim that the Port's
application is largely confined to looking at the immediate effects of
construction and NMFS' has a responsibility to responsibility to
consider cumulative impacts of the Project. The CBD states `` NMFS must
consider these effects together with all other activities that affect
these species, stocks and local populations, other anthropogenic risk
factors such as oil and gas and other industrial development, climate
change, and the cumulative effect of these activities over time.'' For
example, the Commission links dredging and other Port development
activities to increased sedimentation to which organic chemical may be
absorbed by beluga whale prey and suggests it would be important to
monitor contaminant availability, exposure, effects, and levels in the
environment.
Response: Section 101(a)(5)(D) of the MMPA allows citizens of the
United States to take by harassment, small numbers of marine mammals
incidental to a specified activity (other than commercial fishing)
within a specified geographical region if NMFS is able to make certain
findings. NMFS must issue an incidental harassment authorization if the
taking will have a negligible impact on the species or stock(s), will
not have an unmitigable adverse impact on the availability of the
species or stock(s) for subsistence uses, and if the permissible
methods of taking and requirements pertaining to the mitigation,
monitoring, and reporting of such takings are set forth. Under the
MMPA, NMFS cannot issue an IHA if a negligible impact determination is
not made for the specified activity.
Pursuant to NEPA, NMFS is required to analyze the potential
environmental effects of its actions. As part of the NEPA analysis
(e.g., an EIS or EA), NMFS is required to consider the direct, indirect
and cumulative impacts resulting from the proposed action along with a
reasonable range of alternatives, including the proposed action. To
comply with NEPA, NMFS investigated the potential for cumulative
impacts in its EA. NMFS gave careful consideration to a number of
issues and sources of information and assessed the cumulative impacts
from past, present, and reasonably foreseeable actions in upper Cook
Inlet and the effects of climate change in the context of the specified
activity and impacts to marine mammals. NMFS recognizes that climate
change is a concern for the sustainability of the entire Arctic
ecosystem and has reviewed the available literature and stock
assessment reports to support its negligible impact determination and
finding of no significant impact. While NMFS acknowledges there is some
uncertainty in the specific factors which have inhibited the Cook Inlet
beluga whale population recovery, NMFS has determined that, via
animals' natural reactions to avoidance of and habituation to loud
sounds, the maintenance of a harassment free migration route to prime
feeding ground, and comprehensive mitigation set in place for the
Project, issuance of an IHA will result in a negligible impact to
marine mammals. Any future coastal development projects, oil/gas and
alternative energy exploration, or extraction activities in Arctic
waters and permit reviews would be subject to similar analyses to
determine how they may individually and cumulatively affect marine
mammals.
The Port of Anchorage is a highly industrialized area and has been
in operation for decades. Maintenance of the Port requires routine
dredging. Despite dredging and other Port activities, to date analyses
of Cook Inlet beluga samples have found contaminant loads lower or
equal to the other Alaska beluga whale populations (with the exception
of copper levels, for which the toxicological implications are unknown)
(Becker, 2000). Based on these samples, there is no evidence that
dredging and Port activities will result in a higher contaminant risk.
ESA Requirements
Both the Commission and CBD provided comments concerning
NMFS requirements, under the ESA, to initiate a conference under
Section 7 and its implementing regulations and that the proposed action
is likely to jeopardize the continued existence of Cook Inlet beluga
whales, and
The CBD argues that NMFS should refrain from issuing any
take authorization until the ESA listing process is complete and
consultation under Section 7 is undertaken.
Response: Both the Commission and CBD hint that a jeopardy
conclusion would be reached if a conference opinion or Section 7
consultation was carried out; however, they provided no analysis to
justify this statement. The ESA provides some protection for species
which are proposed, but not yet listed, to be threatened or endangered.
Section 7(a)(4) and 50 CFR 402.10 require an action agency to
``confer'' with the Secretary when their actions are likely to
jeopardize the continued existence of any species proposed to be listed
under Section 4. The statute does not require a conference simply if
the affected species is proposed to be listed as threatened or
endangered, only if such action is likely to jeopardize. During the
public comment period for the issuance of the USACE permit, NMFS AKR
provided numerous comments and suggested, among other things, beluga
whale mitigation measures. The USACE incorporated these suggested
measures into their permit and therefore the NMFS AKR concurred that
the action of the USACE (i.e., authorization to carry out Port
construction activities) is not likely to jeopardize the continued
existence of the Cook Inlet beluga whale; therefore a conference
opinion was not deemed necessary. Because the impacts associated with
NMFS' IHA are part of those already considered by the USACE (and NMFS
has required additional mitigation in its IHA), NMFS OPR has determined
that issuance of an IHA is also not likely to jeopardize the continued
existence of the Cook Inlet beluga whale. If listed, Section 7
consultation may be required for this action and future rulemaking.
NEPA Requirements
The MMC takes issue with NMFS' preliminary negligible
impact determination in its proposed IHA FR, given the fact that NMFS
had indicated it was going to prepare its own EA because additional
analysis was needed over and above the Port's and MARAD's EA. MMC
believes this is inconsistent with NEPA;
The CBD argues that NMFS must make the EA available for
public comment, an EIS should have been prepared, and direct and
indirect impacts from the Project should be analyzed in an EIS; and
The CBD states that the proposed IHA will likely affect
Steller sea lions; therefore, a Section 7 consultation must be
initiated.
Response: NMFS' MMPA preliminary negligible impact determination
was based on the Port's MMPA IHA application, which included NMFS'
recommended mitigation from preliminary discussions; NMFS' review of
that application for completeness; supplemental information from the
Port; and discussions with NMFS' AKR. The information from these
sources was sufficient for NMFS to make its preliminary determination
of negligible impact under the MMPA. With respect
[[Page 41327]]
to NMFS' NEPA responsibilities, NMFS determined additional NEPA
analyses were necessary beyond the Port's EA; however, there is no
requirement that NMFS complete an EA at the time it proposes its
action. NMFS has prepared its EA and made a Finding of No Significant
Impact.
Neither NEPA nor the CEQ regulations explicitly require circulation
of a draft EA for public comment prior to finalizing the EA. The
federal courts have upheld this conclusion, and in one recent case the
Ninth Circuit squarely addressed the question of public involvement in
the development of an EA. In Bering Strait Citizens for Responsible
Resource Development v. U.S. Army Corps of Engineers (9th Cir. 2008),
the court held that the circulation of a draft EA is not required in
every case; rather, federal agencies should strive to involve the
public in the decision-making process by providing as much
environmental information as is practicable prior to completion of the
EA so that the public has a sufficient opportunity to weigh in on
issues pertinent to the agency's decision-making process. In the case
of the Port's MMPA IHA issuance, NMFS involved the public in the
decision-making process by publishing its notice of a proposed IHA for
a 30-day notice and comment period and also notified the public of the
availability of the Port's MMPA application and other NEPA documents
written for the Project and the Knik Arm Crossing (73 FR 14443, March
18, 2008). The IHA application and FR notice contained information
relating to the project and specifically requested information from the
public. For example, the application and FR notice includes a project
description, its location, environmental matters such as species and
habitat to be affected by project construction, and measures designed
to minimize adverse impacts to the environment. NMFS also incorporated,
where appropriate, additional measures to reduce impacts to marine
mammals resulting from the Project. The EA for this action is available
at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
While Steller sea lions are commonly seen in Lower Cook Inlet;
their presence in upper Cook Inlet is rare. There have been only two
opportunistic sightings of Steller sea lions in upper Cook Inlet since
1999 (Barbara Mahoney, email correspondence, June 20, 2008). Both
sightings, comprising a total of four individuals, were near the mouth
of the Susitna River. No Steller sea lions sightings have been reported
around the Port or elsewhere in Knik Arm. As such, NMFS believes its
issuance of the IHA will have no effect on Steller sea lions.
The following comments were provided by the Kenaitze Indian Tribe:
``We are opposed to the issuance of a one-year Incidental
Harassment Authorization for the Port of Anchorage. The Cook Inlet is
critical habitat for marine mammals, specifically beluga whales, harbor
porpoise, killer whales, and harbor seals. Kenaitze and the Cook Inlet
Marine Mammal Council (CIMMC) have requested the beluga be placed on
the ESA in an effort to save this endangered species. CIMMC, which
comprise of the seven tribes of the Cook Inlet, along with the Eskimo
whalers who reside in the Cook Inlet, are restricted to one and a half
beluga per year, i.e., one beluga whale one year and two beluga whales
the next year. Our use does not comprise of want and waste'';
``The Kenaitze Indian Tribe questions the feasibility of
the port of Anchorage expansion project, because there is a deep-water
port in Whittier that does not have the silting problems as the Cook
Inlet's Port of Anchorage. The deep-water port of Whittier has easy
access to Anchorage via the Rail Road and/or tunnel access for trucking
goods. The Port of Anchorage's estimated cost of construction is
$700,000, with no guarantees that it will not silt up again and cause
more problems and money. During World War II the engineer built the
Whittier Port because they also recognized the problems that would be
incurred by building a port in Anchorage and because Whittier is close
and accessible to Anchorage;'' and
``The damage that will be incurred to the marine mammals
and environment is not worth the expense of the proposed re-
construction of the Port of Anchorage.''
Response: NMFS acknowledges the comments provided by the Kenaitze
Indian Tribe; however, these comments are outside the scope of the NMFS
jurisdiction when considering issuance of an incidental take
authorization. Impacts to the availability of Cook Inlet beluga whales
for subsistence hunting are addressed in this FR notice and the EA
prepared for issuance of the Port's IHA. NMFS has determined that
issuance of the IHA will not have an unmitigable adverse impact on the
availability of marine mammals, including beluga whales, for taking for
subsistence uses.
Mitigation Measures
Mitigation measures outlined in the IHA application and proposed
Federal Register notice were a result of numerous discussions between
the applicants, the USACE, and NMFS. In addition, during NMFS' analysis
of the proposed action, it implemented additional measures to further
ensure that the Project would not result in more than a negligible
impact to Cook Inlet beluga whales. Sound deterrent/minimization
techniques such as bubble curtains were considered for mitigation;
however, due to the strong current in Knik Arm (up to 11.2ft (3.4 m)/
sec) these techniques would be inefficient. The Port has stated that
they will work with pile driving contractors to learn of and implement
new sound attenuation minimization techniques that would be applicable
to the harsh Knik Arm environment. If such technology becomes
available, NMFS may re-evaluate the potential impacts to marine mammals
and adjust take numbers and mitigation accordingly, and consider these
measures for future requests for incidental take authorizations. The
following mitigation, monitoring, and reporting measures are required
under the IHA:
Scheduling of construction activities during low use period of beluga
whales around the Port- Tidal Restrictions
As discussed in Chapter 3 of the EA, tides have been shown to be an
important physical characteristic in determining beluga movement within
Knik Arm. Most beluga whales are expected to be foraging well north of
the Port during the flood and high tide. However, these northern areas
are exposed during the ebb and low tide; therefore, animals move south
toward Eagle Bay and sometimes as far south as the Knik Arm entrance to
avoid being stranded on mudflats. Based on the beluga whale monitoring
studies conducted at the Port since 2005, beluga whale sightings often
varied significantly with tide height at and around the Port (Funk et
al., 2005, Ramos et al., 2005, Markowitz and McGuire, 2007). Beluga
whales were most often sighted during the period around low tide and as
the tide flooded, beluga whales typically moved into the upper reaches
of the Arm. Opportunistic sighting data also support that highest
beluga whale use near the Port is around low tide (NMFS, unpubl. data).
Due to this tidally influenced habitat use, impact pile driving,
excluding work when the entire pile is out of the water due to
shoreline elevation or tidal stage, shall not occur within two hours of
either side of each low tide (i.e., from two hours before low tide
until two hours after low tide). For example, if low tide is at 1 p.m.,
impact pile driving will not occur from 11 am to 3 pm.
[[Page 41328]]
Vibratory pile driving will be allowed to commence/continue during this
time because its characteristics (continuous sound type and lower
source level) are expected to elicit less overt behavioral reactions.
Establishment of safety zones and shut-down requirements
NMFS acknowledges that shut-down of reduced energy vibratory pile
driving during the ``stabbing'' phase, as described in Chapter 1 of the
EA, of sheet pile installation may not be possible due to concerns the
sheet pile may break free and result in a safety and navigational
hazard. Therefore, the following shut-down requirements apply to all
pile driving except during the ``stabbing'' phase of the installation
process.
Safety Zones
In October, 2007, the Port contracted an outside company to
determine reliable estimates of distances for 190 (pinniped injury
threshold), 180 (cetacean injury threshold), 160 (impact pile driving
behavioral harassment threshold) and 120 dB (vibratory pile driving
behavioral harassment threshold) isopleths from impact and vibratory
pile driving. From this study, it has been determined that these
isopleth distances are 10, 20, 350, and 800 m, respectively. Although
the 190 and 180dB isopleths are within 20m for both types of pile
driving, NMFS is establishing a conservative 200m mandatory shut-down
safety zone which would require the Port to shut-down anytime a marine
mammal enters this zone.
Shut-Down for Large Groups
To reduce the chance of the Port reaching or exceeding authorized
take and to minimize harassment to beluga whales, if a group of more
than five beluga whales is sighted within the relevant Level B
harassment isopleth, shut-down is required.
Shut-down for Calves
Marine mammal calves are likely more susceptible to loud
anthropogenic noise than juveniles or adults; therefore, presence of
calves within the harassment isopleths will require shut-down. If a
calf is sighted approaching a harassment zone, any type of pile driving
will cease and not be resumed until the calf is confirmed to be out of
the harassment zone and on a path away from such zone. If a calf or the
group with a calf is not re-sighted within 15 minutes, pile driving may
resume.
Heavy machinery shut-downs
For other in-water heavy machinery operations other than pile
driving, if a marine mammal comes within 50 m of operations will cease
and vessels will slow to a reduced speed while still maintaining
control of the vessel and safe working conditions. Such operations
include Port operated water based dump-scows (barges capable of
discharging material through the bottom), standard barges, tug boats to
position and move barges, barge mounted hydraulic excavators or
clamshell equipment used to place or remove material.
Exceedence of Take
If maximum authorized take is reached or exceeded for the year, any
beluga entering into the Level B harassment isopleths will trigger
mandatory shut-down.
Use of Impact Pile Driving
In-water piles will be driven with a vibratory hammer to the
maximum extent possible (i.e., until a desired depth is achieved or to
refusal) prior to using an impact hammer.
Soft start to pile driving activities
A ``soft start'' technique will be used at the beginning of each
pile installation to allow any marine mammal that may be in the
immediate area to leave before pile driving reaches full energy. The
soft start requires contractors to initiate noise from vibratory
hammers for 15 seconds at reduced energy followed by 1-minute waiting
period. The procedure will be repeated two additional times. If an
impact hammer is used, contractors will be required to provide an
initial set of three strikes from the impact hammer at 40 percent
energy, followed by a one minute waiting period, then two subsequent 3
strike sets (NMFS, 2003). If any marine mammal is sighted within the
200 m safety zone prior to pile-driving, or during the soft start, the
hammer operator (or other authorized individual) will delay pile-
driving until the animal has moved outside the 200 m safety zone.
Furthermore, if any marine mammal is sighted within a Level B
harassment zone prior to pile driving, operations will be delayed until
the animals move outside the zone in order to avoid take exceedence.
Pile-driving will resume only after a qualified observer determines
that the marine mammal has moved outside the 200m safety or Level B
harassment zone, or after 15 minutes have elapsed since the last
sighting of the marine mammal within the safety zone.
In-water pile driving weather delays
Adequate visibility is essential to beluga whale monitoring and
determining take numbers. Pile driving will not occur when weather
conditions restrict clear, visible detection of all waters within the
Level B harassment zones or 200 m safety zone. Such conditions that can
impair sightability and require in-water pile driving delays include,
but are not limited to, fog and a rough sea state.
Notification of Commencement and Marine Mammal Sightings
The Port shall formally notify the NMFS AKR and OPR prior to the
seasonal commencement of pile driving and would provide weekly
monitoring reports once pile driving begins. The Port shall establish a
long-term, formalized marine-mammal sighting and notification procedure
for all Port users, visitors, tenants, or contractors prior to and
after construction activities. The notification procedure shall clearly
identify roles and responsibilities for reporting all marine mammal
sightings. The Port will forward documentation of all reported marine
mammal sightings to the NMFS.
Public Outreach
The Port will erect and maintain whale-notification signage in the
waterfront viewing areas near the Ship Creek Public Boat Launch and
within the secured Port entrance that is visible to all Port users.
This signage will provide information on the beluga whale and
notification procedures for reporting beluga whale sightings to the
NMFS. The Port will consult with the NMFS to establish the signage
criteria.
Monitoring
Marine mammal monitoring will be conducted by trained, dedicated
observers at the Port during all times in-water pile driving is taking
place and thirty minutes before pile driving commences to ensure no
marine mammals are within the Level B harassment or shut down zones.
All marine mammal sightings will be documented on NMFS approved marine
mammal sighting sheets.
Marine Mammal Monitoring
Monitoring for marine mammals will take place concurrent with all
pile driving activities and 30 minutes prior to pile driving
commencement. One to two trained observer(s) will be placed at the Port
at the best advantage point(s) practicable to monitor for marine
mammals and will implement shut-down/delay procedures when applicable.
The observer(s) will have no
[[Page 41329]]
other construction related tasks while conducting monitoring. Each
observer will be properly trained in marine mammal species detection,
identification and distance estimation and will be equipped with
binoculars. At time of each sighting, the pile hammer operator must be
immediately notified that there are beluga whales in the area, their
location and direction of travel, and if shut-down is necessary.
Prior to the start of seasonal pile driving activities, the Port
will require construction supervisors and crews, the marine mammal
monitoring team, the acoustical monitoring team (described below), and
all project managers to attend a briefing on responsibilities of each
party, defining chains of command, discussing communication procedures,
providing overview of monitoring purposes, and reviewing operational
procedures regarding beluga whales. During in-water construction
activities, the Port shall ensure that construction contractors
delegate supervisory responsibility to include on-site construction
personnel to observe, record, and report marine mammal sightings and
response actions taken, to include shut-down or delay.
In addition to the Port's trained marine mammal observers
responsible for monitoring the harassment zones and calling for shut-
down, an independent beluga whale monitoring team, consisting of one to
two land based observers, shall report on (1) the frequency at which
beluga whales are present in the project footprint; (2) habitat use,
behavior, and group composition near the Port and correlate those data
with construction activities; and (3) observed reactions of beluga
whales in terms of behavior and movement during each sighting. It is
likely that these observers will monitor for beluga whales 8 hours per
day/ 4 days per week but scheduling may change. These observers will
work in collaboration with the Port to immediately communicate any
presence of beluga whales or other marine mammals in the area prior to
or during pile driving. The Port will keep this monitoring team
informed of all schedules for that day (e.g., beginning vibratory pile
driving at 0900 for 2 hours) and any changes throughout the day.
Acoustic Monitoring
The Port will carry out a one-time acoustic monitoring study upon
commencement of seasonal in-water pile driving. This study will confirm
or identify harassment isopleths for all types of piles used, including
open-cell sheet piles and 36-inch steel piles, and sound propagation
levels during the ``stabbing'' process, as this phase operates at
reduced energy. The acoustic study proposal shall be approved by NMFS
prior to the start of seasonal in-water pile driving.
In addition, the Port will also install hydrophones (or employ
other effective methodologies to the maximum extent possible) necessary
to detect and localize passing whales and to determine the proportion
of beluga whales missed from visual surveys. This study will be
coordinated with the concurrent beluga whale monitoring program to
correlate construction and operationally generated noise exposures with
beluga whale presence, absence, and any altered behavior observed
during construction and operations.
Reporting
The Port is responsible for submitting monthly marine mammal
monitoring reports that include all Port observer marine mammal
sightings sheets from the previous month. The sighting sheets have been
approved by NMFS and require the following details, if able to be
determined: group size, group composition (i.e., adult, juvenile,
calf); behavior, location at time of first sighting and last sighting;
time of day first sighted, time last sighted; approach distance to pile
driving hammer; and note if shut-down/delay occurred and for how long.
If shut-down or delay is not implemented, an explanation of why will be
provided (e.g., outside of harassment zone, entered harassment zone but
shut-down restriction requirements not met (e.g., no beluga whale
calves, small group, ``stabbing'' phase). In addition, the report will
note what type of pile driving and other activities were occurring at
and during time of each sighting and location of each observer. The
monthly report, due to NMFS OPR and AKR no later than the 5th of each
month, will include all sighting sheets from the previous month. The
one-time acoustic monitoring study report will be due to NMFS 45 days
from completion of the sound study. The independent beluga whale
monitoring team shall supply their monthly reports to NMFS; however, a
timeframe for submitting these reports is not specified. The
independent beluga whale monitoring team will submit their reports to
NMFS as they are prepared.
Endangered Species Act
A Section 7 consultation under the ESA is not required for the
proposed action as no endangered or threatened marine mammals or other
listed species occur within the Project area; therefore, none will be
affected by the proposed action. However, NMFS has proposed to list the
Cook Inlet beluga whale stock as an endangered under the MMPA. The ESA
provides some protection for species which are proposed to be listed as
threatened or endangered. Section 7(a)(4) requires an action agency to
``conference'' with NMFS when its action is likely to jeopardize the
continued existence of a species proposed for listing. NMFS AKR
provided numerous comments and mitigation suggestions to the USACE
regarding issuance of permit POA-2003-502-N which allows the Port to
undertake Project activities. The NMFS AKR concurred with the USACE
decision, as described in their EA, that the Project is not likely to
jeopardize the continued existence of beluga whales; therefore, a
conference opinion was not necessary. Because the impacts associated
with the MMPA IHA are part of those already considered by the USACE and
AKR, and this IHA imposes additional mitigation, NMFS OPR has
determined that issuance of this IHA, which authorizes harassment to
marine mammals, would also not jeopardize the continued existence of
the Cook Inlet beluga whale stock; therefore, a conference is not
necessary.
NMFS notes that the determination on listing the Cook Inlet beluga
whale is scheduled to be made by October 20, 2008 (73 FR 21578, April
22, 2008). If listed, consultation may be required for this action.
National Environmental Policy Act
NMFS has, through NOAA Administrative Order (NAO) 216-6,
established agency procedures for complying with NEPA and the
implementing regulations issued by the Council on Environmental
Quality. While the Port and MARAD and the USACE developed EAs
identifying impacts to the affected human environment from the Project,
NMFS also prepared its own EA. This EA focuses on potential impacts to
marine mammals from the Project. This EA supports NMFS' determination
that the Project, alone and in combination with other activities, will
not have a significant impact of the affected environment.
Conclusions
NMFS has issued an IHA to the Port and MARAD for the take of marine
mammals incidental to the Port's Marine Terminal Redevelopment Project
over a one-year period. The issuance of this IHA is contingent upon
adherence to the previously mentioned mitigation, monitoring, and
reporting requirements.
[[Page 41330]]
NMFS has determined that pile driving could potentially result in
harassment to marine mammals but such harassment will have a negligible
impact on affected marine mammals and stocks. Therefore NMFS has
authorized the taking of 34 beluga whales, 20 harbor seals, 20 harbor
porpoises, and 20 killer whales. While behavioral modifications may be
made by these species to avoid the resultant acoustic stimuli, when the
natural reaction of marine mammals to loud sound, the already noisy
background noise level of Knik Arm, habituation of beluga whales, and
the required mitigation and monitoring are taken into consideration,
NMFS does expect any long-term, significant alterations to marine
mammal behavior that could impact vital life functions or decrease
reproduction rates. Mitigation measures set forth in the USACE permit
will minimize impact to habitat and therefore the effect on
availability of prey for marine mammals. The activity will not have an
unmitigable adverse impact on the availability of marine mammals for
subsistence hunting. Mitigation measures are set in place to ensure no
injury or mortality would occur. A conservative injury safety zone,
shut down requirements, and soft-starts methods, in combination with
diligent monitoring, will minimize adverse impacts.
Authorization
As a result of these determinations, NMFS has issued an IHA to the
Port of Anchorage and the U.S. Department Maritime Administration,
provided the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated.
Dated: July 15, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. E8-16489 Filed 7-17-08; 8:45 am]
BILLING CODE 3510-22-S