87 FR 200 pgs. 63037-63041 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Parallel Thimble Shoal Tunnel Project in Virginia
Type: NOTICEVolume: 87Number: 200Pages: 63037 - 63041
Pages: 63037, 63038, 63039, 63040, 63041Docket number: [RTID 0648-XC413]
FR document: [FR Doc. 2022-22620 Filed 10-17-22; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC413]
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Parallel Thimble Shoal Tunnel Project in Virginia
AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Notice; request for comments on proposed renewal incidental harassment authorization (IHA).
SUMMARY:
NMFS received a request from Chesapeake Tunnel Joint Venture (CTJV) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to the Parallel Thimble Shoal Tunnel Project (PTST) in Virginia Beach, Virginia. These activities are nearly identical to those covered in the current authorization, and include a subset of the initial work. Pursuant to the Marine Mammal Protection Act, prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
DATES:
Comments and information must be received no later than November 2, 2022.
ADDRESSES:
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, and should be submitted via email to ITP.Hotchkin@noaa.gov.
Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments, including all attachments, must not exceed a 25-megabyte file size. Attachments to comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying information ( e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT:
Cara Hotchkin, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the original application, renewal request, and supporting documents (including NMFS Federal Register notices of the original proposed and final authorizations, and the previous IHA), as well as a list of the references cited in this document, may be obtained online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) prohibits the "take" of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, an incidental harassment authorization is issued.
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other "means of effecting the least practicable adverse impact" on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to here as "mitigation measures"). Monitoring and reporting of such takings are also required. The meaning of key terms such as "take," "harassment," and "negligible impact" can be found in section 3 of the MMPA (16 U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
[top] NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial authorization, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the
1. A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA).
2. The request for renewal must include the following:
• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor ( e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take).
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
3. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with relevant comments on the initial IHA, have been considered in the development of this proposed IHA renewal, and a summary of agency responses to applicable comments is included in this notice. NMFS will consider any additional public comments prior to making any final decision on the issuance of the requested renewal, and agency responses will be summarized in the final notice of our decision.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( i.e., the issuance of an IHA) with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA 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 the IHA request.
History of Request
On November 16, 2021, NMFS issued an IHA to CJTV to take marine mammals incidental to the Parallel Thimble Shoal Tunnel Project in Virginia Beach, Virginia (86 FR 67024, November 24, 2021), effective from November 16, 2021 through November 15, 2022. On August 24, 2022, NMFS received an application for the renewal of that initial IHA. As described in the application for renewal IHA, the activities for which incidental take is requested are nearly identical to, and a subset of, those covered in the initial authorization. The project has experienced delays and a portion of the work covered in the initial IHA will not be completed by the time it expires. As required, the applicant also provided a preliminary monitoring report which confirms that the applicant has implemented the required mitigation and monitoring, and which also shows that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted.
Description of the Specified Activities and Anticipated Impacts
CTJV's planned activities include construction associated with the PTST project. Specifically, the location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the initial IHA. The precise details of the work planned under the renewal IHA are nearly identical to that described in the initial IHA; the planned work includes a subset of the initial activities, as well as some additional work that involves additional piles of identical type and driving methods as initially proposed. Details of the additional work are described below. The project consists of the construction of a two-lane parallel tunnel to the west of the existing Thimble Shoal Tunnel, connecting Portal Islands Nos. 1 and 2 of the Chesapeake Bay Bridge Tunnel (CBBT) facility which extends across the mouth of the Chesapeake Bay near Virginia Beach, Virginia. The PTST project will address existing constraints to regional mobility based on current traffic volume along the facility. Planned construction associated with the initial IHA included the driving of 764 piles over 252 days as shown below:
• 722 36-inch steel pipe piles;
• 42 42-inch steel pipe piles.
Of these planned activities, under the initial IHA CTJV installed a total of 423 36-inch pipe piles and 26 42-inch pipe piles, a total of 449 piles. The remaining 16 42-inch piles have been eliminated from the construction plan due to a change in design. This change includes the use of 163 additional 36-inch piles instead of the originally requested 42-inch piles. Remaining piles will be installed using impact driving, vibratory driving and drilling with down-the-hole (DTH) hammers. Some piles will be removed via vibratory hammer. Accounting for work conducted under the initial IHA and the design change resulting in an increase in total piles, CTJV plans to drive 462 piles over an estimated 206 days under this proposed renewal IHA.
The anticipated impacts are identical to those described in the initial IHA. NMFS anticipates the take of the same five species of marine mammal (harbor seal, gray seal, bottlenose dolphin, harbor porpoise, and humpback whale) by Level A and Level B harassment incidental to underwater noise resulting from construction associated with the proposed activities.
The following documents are referenced in this notice and include important supporting information:
• Initial final IHA (86 FR 67024, November 24, 2021);
• Initial proposed IHA (86 FR 56902, October 13, 2021); and
[top] • 2021 IHA application, references cited, and previous public comments received (available at www.fisheries.noaa.gov/national/
Detailed Description of the Activity
The PTST project entails construction of a two lane parallel tunnel to the west of the existing Thimble Shoal Tunnel. In-water pile driving to create vessel moorings, temporary work trestles (Temporary dock on Portal Island 1, Roadway Trestle on Portal Island 1 and 2 and Omega Trestles on both Island to support Berm construction) and Support Of Excavation (SOE) walls on both islands will take place during the construction process. The 6,525 linear feet (ft.) (1,990 meters (m)) of new tunnel will be constructed with a top of tunnel depth/elevation of 100 ft. (30.5m) below Mean Low Water (MLW) within the width of the 1,000-ft (305 m)-wide navigation channel. Remaining proposed in-water activities to be covered under this Renewal include the following:
• Mooring Piles and Dolphins: 8 of 28 36-inch steel pipe piles remain to be installed at Portal Island No. 1. 16 of 16 36-inch steel pipe piles remain to be installed on Portal Island No. 2. Installation will be by vibratory hammer with a bubble curtain.
• Two engineered berms: A project design change has increased the number of piles installed on the East sides of both Portal Islands. On Portal Island No. 1 (East side), three 36-inch pipe piles remain to be installed. The number of 36-inch piles requested for this section has changed from 107 to 163 due to the project design change. On Portal Island No. 2 (East side), the number of requested 36-inch piles has changed from 134 to 201; no piles have yet been installed for this segment. There has been no change to the requested number of piles for the West side of either Portal Island. On the West side for Portal Island No. 1, 27 of 209 piles remain to be installed. On Portal Island No. 2 (West side) 188 of 204 36-inch steel pipe piles remain to be installed. Installation will be through impact and DTH methods with a specialized bubble curtain (see initial IHA application Appendix A).
• Two temporary Omega trestles: On Portal Island No. 1, all piles have been installed under the initial IHA. On Portal Island No. 2, a project design change has increased the number of requested 36-inch steel pipe piles from 24 to 37, and eliminated the need for 42-inch pipe piles. Nineteen of 37 36-inch steel pipe piles remain to be installed.
Some in-water construction activities would occur simultaneously. A detailed description of the construction activities for which authorization of take is proposed here may be found in the Federal Register notice of proposed IHA for the 2021 authorization (86 FR 56902, October 13, 2021). Location, timing ( e.g., seasonality), and nature of the pile driving operations, including the type and size of piles and the methods of pile driving, are identical to those analyzed in the initial IHA. The proposed IHA Renewal would be effective for a period of 1 year from the date of expiration of the initial IHA.
Description of Marine Mammals
A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the Federal Register notice for the proposed IHA for the initial authorization (86 FR 56902, October 13, 2021). Updated information regarding stock abundance was provided in the Federal Register notice announcing issuance of the initial IHA (86 FR 67024, November 24, 2021). NMFS has reviewed recent Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature. The 2021 Stock Assessment Report states that estimated abundance has decreased for the Western North Atlantic stock of harbor seals, from 75,834 (CV = 0.15) to 61,336 (CV = 0.08), based on an updated survey done in 2018.NMFS has preliminarily determined that neither this nor any other new information affects which species or stocks have the potential to be affected or the pertinent information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents for the initial IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which the authorization of take is proposed here may be found in the Notice of the Proposed IHA (86 FR 56902, October 13, 2021) for the initial authorization. NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature, and determined that neither this nor any other new information affects our initial analysis of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate take for the specified activity are found in the Federal Register notice for the proposed and final initial IHAs (86 FR 56902, October 13, 2021; 86 FR 67024, November 24, 2021). Specifically, the source levels and marine mammal occurrence data applicable to this authorization remain unchanged from the previously issued IHA. CTJV conducted approximately 50 percent of the planned work and has replaced all remaining 42-inch piles with additional 36-inch piles. The approximate total number of operational days for this proposed renewal IHA is lower than the initial IHA. However, because the take numbers developed for most species for which take is proposed for authorization involve qualitative elements and because the reduction in total days would not result in a substantive decrease in the take number for bottlenose dolphin ( i.e., the only species for which a density-based approach to estimating take is used), we carry forward the take numbers unchanged for this proposed renewal IHA. The stocks taken, methods of take, and types of take remain unchanged from the previously issued IHA, as do the number of takes, which are indicated below in Table 1.
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| Species | Stock | Level A takes | Level B takes |
|---|---|---|---|
| Humpback whale | Gulf of Maine | 12 | |
| Harbor porpoise | Gulf of Maine/Bay of Fundy | 5 | 7 |
| Bottlenose dolphin | WNA? 1 Coastal, Northern Migratory | 43,203 | |
| WNA Coastal, Southern Migratory | 43,203 | ||
| NNCES? 2 | 250 | ||
| Harbor seal | Western North Atlantic | 1,154 | 1,730 |
| Gray seal | Western North Atlantic | 16 | 24 |
| 1 ?Western North Atlantic; | |||
| 2 ?Northern North Carolina Estuarine System. | |||
Preliminary monitoring data from November 16, 2021 to August 1, 2022 indicate that significantly fewer animals than predicted have been observed at the PTST location. Table 2 indicates the number of animals of each species sighted and the number recorded within the respective estimated harassment zones.
| Total sightings | Within Level A zone | Within Level B zone | |
|---|---|---|---|
| Humpback whale | 2 | 0 | 0 |
| Harbor porpoise | 0 | 0 | 0 |
| Bottlenose dolphin | 419 | 0 | 166 |
| Harbor seal | 11 | 0 | 4 |
| Gray seal | 0 | 0 | 0 |
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures included as requirements in this authorization are identical to those included in the Federal Register notice announcing the issuance of the initial IHA (86 FR 67024, November 24, 2021), and the discussion of the least practicable adverse impact included in that document remains accurate. The following measures are proposed for this renewal:
• 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;
• Conduct training between construction supervisors and crews and the marine mammal monitoring team and relevant CTJV staff prior to the start of all pile driving and DTH activity and when new personnel join the work, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood;
• 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;
• CTJV will establish and implement the shutdown zones indicated in Table 3. 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 typically vary based on the activity type and marine mammal hearing group;
• Employ Protected Species Observers (PSOs) and establish monitoring locations as described in the Marine Mammal Monitoring Plan and Section 5 of the initial IHA. The Holder must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions. For all pile driving and removal, at least one PSO must be used. The PSO will be stationed as close to the activity as possible;
• The placement of the PSOs during all pile driving and removal and DTH activities will ensure that the entire shutdown zone is visible during pile installation. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone will not be visible ( e.g., fog, heavy rain), pile driving and removal must be delayed until the PSO is confident marine mammals within the shutdown zone could be detected;
• Monitoring must take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine the shutdown zones clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made;
• 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;
• CTJV must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three 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; and
[top] • Use a bubble curtain during impact and vibratory pile driving and DTH in water depths greater than 3 m and ensure that it is operated as necessary to achieve optimal performance, and that no reduction in performance may be attributable to faulty deployment. At a minimum, CTJV must adhere to the following performance standards: The bubble curtain must distribute air bubbles around 100 percent of the piling circumference for the full depth of the water column. The lowest bubble ring must be in contact with the substrate for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent substrate contact. No parts of the ring or other objects shall prevent full substrate contact. Airflow to the bubblers must be balanced around the circumference of
| Method and piles/day | Low-frequency cetaceans | Mid-frequency cetaceans | High- frequency cetaceans | Phocids |
|---|---|---|---|---|
| DTH (3/day) | 1230 | 50 | 200 | 150 |
| DTH (6/day) | 1950 | 70 | 200 | 150 |
| Impact (4/day) | 1010 | 40 | 200 | 150 |
| Impact (6/day) | 1320 | 50 | 200 | 150 |
| Vibratory (4/day) | 20 | 10 | 20 | 10 |
| Impact + DTH | Use zones for each source alone | |||
| DTH + Vibratory | 1230 | 50 | 200 | 150 |
| Impact + Vibratory | 1320 | 50 | 200 | 150 |
| Impact + DTH + DTH | 1320 | 50 | 200 | 150 |
| DTH + DTH+ Vibratory | 1950 | 70 | 200 | 1050 |
| DTH + Vibratory + Impact | 1320 | 50 | 200 | 710 |
| Impact + Impact + DTH | Use zones for each source alone |
Public Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (86 FR 56902, October 13, 2021) and solicited public comments on both our proposal to issue the initial IHA for CTJV's construction activities and on the potential for a renewal IHA, should certain requirements be met.
A single public comment was received and addressed in the notice announcing the issuance of the initial IHA (86 FR 67024, 24 November 2021) and did not specifically pertain to the renewal of the 2021 IHA.
Preliminary Determinations
The construction activities proposed by CTJV are nearly identical to those analyzed in the initial IHA, as are the method of taking and the effects of the action. The planned number of days of activity will be reduced given the completion of a substantial portion (approximately 50 percent) of the originally planned work. Additionally, the work at Portal Island No. 1 is nearly complete, with an estimated 11 days of work remaining. This significantly reduces the likelihood of three drills operating concurrently for the duration of the Renewal period, thus reducing the number of days where the largest impact zones would be present. The potential effects of CTJV's activities are limited to Level A and Level B harassment in the form of auditory injury and behavioral disturbance. In analyzing the effects of the activities in the initial IHA, NMFS determined that CTJV's activities would have a negligible impact on the affected species or stocks and that the authorized take numbers of each species or stock were small relative to the relevant stocks ( e.g., less than one-third of the abundance of all stocks). The mitigation measures and monitoring and reporting requirements as described above are identical to the initial IHA.
NMFS has preliminarily concluded that there is no new information suggesting that our analysis or findings should change from those reached for the initial IHA. Based on the information and analysis contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; (4) CTJV's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action, and; (5) appropriate monitoring and reporting requirements are included.
Endangered Species Act
Section 7(a)(2) of the 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.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to issue a renewal IHA to CTJV for conducting pile driving activities at the Thimble Shoal Tunnel in Virginia Beach, Virginia between 16 November 2022 and 15 November 2023, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed and final initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the proposed renewal IHA, and any other aspect of this notice. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.
Dated: October 13, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries Service.
[FR Doc. 2022-22620 Filed 10-17-22; 8:45 am]
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