[Federal Register Volume 75, Number 127 (Friday, July 2, 2010)]
[Notices]
[Pages 38465-38467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16189]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XQ80
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to the Port of Anchorage Marine Terminal Redevelopment
Project
AGENCY: National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Notice of issuance of a Letter of Authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA),
as amended and implementing regulations, notification is hereby given
that the National Marine Fisheries Service (NMFS) has issued a Letter
of Authorization (LOA) to the Port of Anchorage (POA) and the U.S.
Department of Transportation Maritime Administration (MARAD), to take
four species of marine mammals incidental to the POA's Marine Terminal
Redevelopment Project (MTRP).
DATES: Effective July 15, 2010, through July 14, 2011.
ADDRESSES: The LOA and supporting documentation are available for
review by writing to P. Michael Payne, Chief, Permits, Conservation,
and Education Division, Office of Protected Resources, National Marine
Fisheries Service (NMFS), 1315 East-West Highway, Silver Spring, MD
20910-3225 or by telephoning one of the contacts listed below.
Documents cited in this notice may be viewed, by appointment, during
regular business hours, at the aforementioned address and at the Alaska
Regional Office, 222 West 7th Avenue, Anchorage, AK 99513.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly or Brian D. Hopper,
Office of Protected Resources, NMFS, (301) 713-2289.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
the National Marine Fisheries Service (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 regulations are issued. Under the MMPA, the term
``take'' means to harass, hunt, capture, or kill or to attempt to
harass, hunt, capture, or kill marine mammals.
Authorization may be granted for periods up to 5 years if NMFS
finds, after notification and opportunity for public comment, that the
taking will have a negligible impact on the species or stock(s) of
marine mammals and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses. In
addition, NMFS must prescribe regulations that include permissible
methods of taking and other means of effecting the least practicable
adverse impact on the species and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species for subsistence
uses. The regulations must include requirements for monitoring and
reporting of such taking.
Regulations governing the taking of Cook Inlet beluga whales
(Delphinapterus leucas), harbor porpoises (Phocoena phocoena), killer
whales (Orcinus orca), and harbor seals (Phoca vitulina), by Level B
harassment, incidental to in-water pile driving were issued on July 15,
2009 (74 FR 35136), and remain in effect until July 14, 2014. These
regulations may be found in 50 CFR 217 subpart U. For detailed
information on this action, please refer to that document. These
regulations include mitigation, monitoring, and reporting requirements
for the incidental take of marine mammals during the specified
activity.
Summary of Request
On April 23, 2010, NMFS received a request for an LOA renewal
pursuant to the aforementioned regulations that would authorize, for a
period not to exceed 1 year, take of marine mammals, by Level B
harassment only, incidental to the POA MTRP. In compliance with the
2009 LOA, POA and MARAD submitted an annual report on POA construction
activites, covering the period of July 15 through December 31, 2009.
The report also covers the period of January 1 through July 15, 2009,
pursuant to the U.S. Army Corps of Engineers' reporting requirement
under their permit issued under Section 10 of the Rivers and Harbors
Act and Section 404 of the Clean Water Act. The report can be found on
the NMFS website at
[[Page 38466]]
http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
Summary of Activity and Monitoring Under the 2009 LOA
During the reporting period covered by the 2009 LOA, in-water
construction activities were conducted in the North Extension and Barge
Berth areas. In-water construction and construction monitoring for the
2009 season ended on December 14, 2009, when ice formation and poor
visibility impeded further activity. These activities were within the
scope of those analyzed in the final rule and included in the 2009 LOA.
On-site POA Monitoring
As required by the 2009 LOA, the POA and MARAD established safety
and harassment zones at the project site, which were monitored for the
presence of marine mammals before, during, and after in-water pile
driving. If the applicable safety and harassment zones were not visible
because of fog, poor light, darkness, sea state, or any other reason,
in-water construction activities were shut down until the area was once
again visible. From July 15 to December 14, 2009, 45 pile driving
shutdowns were documented due to marine mammal sightings. The peak
month for shutdowns and delays during the 2009 construction season was
August, when 25 shutdown/delays were recorded. Most of these occurred
when marine mammals were sighted approaching or surfacing just inside
the harassment zone.
According to the POA's annual report, within the LOA reporting
period (July 15- December 14, 2009), MMOs stationed at the POA recorded
122 marine mammal sightings for a total of 1,127 total animals sighted
(Table 2). There were 1,094 beluga whales (516 white, 481 gray, and 97
dark gray); 17 harbor seals (15 adults and 2 juveniles); 15 harbor
porpoises (10 adults and 5 unknown age); and one unidentified pinniped.
The highest number of sightings (51) and number of marine mammals
sighted (576) occurred in August (572 of this number were beluga
whales: 234 white; 277 gray; and 61 dark gray). The fewest number of
sightings for a 30-day period were recorded in April, when only 8
marine mammals were sighted. In general, beluga whales showed no
observable reaction to pile driving. The only observable reaction which
has been documented is beluga whale groups splitting momentarily on
three occasions as they maneuver around barges or vessels. In-water
pile driving has yet to begin this year, to date; therefore, no MMOs
have been required at the POA in 2010.
Independent Scientific Monitoring
POA regulations (50 CFR 217 subpart U) stipulate that the POA and
MARAD employ a scientific marine mammal monitoring team separate from
the on-site MMOs to characterize beluga whale frequency, abundance,
group composition, movements, behavior, and habitat use around the POA
and observe, analyze, and document potential changes in behavior in
response to in-water construction work. The POA and MARAD complied with
this requirement by assembling a monitoring team from the Alaska
Pacific University (APU) to implement a NMFS-approved scientific
monitoring plan. The scientific marine mammal monitoring 2009 annual
report was attached as an appendix to the annual report submitted by
POA and MARAD. This report covers the period of May through November,
2009 (ICRC, 2010). A summary of that report follows.
The APU observers conducted scientific monitoring from the Cairn
Point Station on Elmendorf Air Force Base, which directly overlooks the
POA. For 86 days, from May 4 through November 18, 2009, trained
graduate and undergraduate marine biology students conducted
approximately 783 hours of scientific monitoring and documented
approximately 166 beluga whales, comprising 54 groups, and one harbor
seal traveling through the study area. Spatial distribution analysis
indicates that approximately 52 percent of all groups sighted occurred
within (n=25) or adjacent to (n=3) the MRTP footprint. There were
significant differences in the number of whales observed across tidal
stages (F8,45 = 2.94, p = .02). There were significant peaks
in sightings during low (p = .01) and high (p = .03) flood tides and
during high ebb tides (p = .03).
Mean beluga whale group size was 3.0 plus or minus .36 individuals.
Only four groups contained individuals identified as calves, and groups
with calves were larger on average (5.4 plus or minus 1.9 individuals)
than those without. All four groups containing calves were sighted
within or adjacent to the MTRP footprint. The number of beluga whales
sighted, group size, and size of groups with calves in 2009 decreased
from those sighted in 2008; however, this difference was not considered
significant. The APU team will continue to monitor and report on beluga
whale abundance and the various parameters discussed here within lower
Knik Arm for the duration of POA construction.
In summary, the scientific monitoring team found that beluga whale
habitat use, distribution and movements, and behavior during 2009 were
consistent with previous years (2007-2008) with whales primarily
traveling through the study area on the incoming and outgoing tides to
and from likely foraging areas further up Knik Arm. Similar to accounts
from the MMOs stationed at the POA, no observed behavioral changes
(e.g., abrupt behavioral changes, rapid descents) or other indicators
of response to in-water pile driving or other MTRP in-water
construction activities were noted by the APU observers.
Take Summary for 2009 Construction Season
During the 2009 LOA reporting period, the following numbers of
marine mammals were identified as taken from in-water pile driving: 20
beluga whales; five harbor seals; four harbor porpoises; and zero
killer whales. Of the 20 beluga whale takes recorded, three were in
August, one in September, one in October, and 15 in November (during
one sighting). The 15 beluga whales sighted in November were initially
seen south of Cairn Point, approximately 950 m from in-water pile
driving. As a result, pile driving was shut down for 40 minutes while
the animals were in view and no behavioral changes were recorded. The
animals were resighted north of Cairn Point heading north along the
shoreline and away from the action area. The number of animals, by
species, taken under the 2009 LOA was within the amount authorized.
The POA has implemented a robust monitoring program so that pile
driving is shut down before marine mammals enter into the designated
Level A and B isopleths; thereby minimizing harassment, as demonstrated
by the number of sightings vs. the number of takes. The POA has also
developed a successful communication system between MMOs and engineers'
to shut down pile driving before whales enter into designated
harassment zones, avoiding take.
Planned Activities and Mitigation for 2010
As stated in the regulations and LOA, take of marine mammals will
be minimized through implementation of the following mitigation
measures: (1) if a marine mammal is detected within or approaching the
Level A or impact and vibratory pile driving Level B harassment
isopleths (200 m, 350 m and 1,300 m, respectively) prior to in-water
pile driving, operations shall be immediately delayed or suspended
until
[[Page 38467]]
the marine mammal moves outside these designated zones or the animal is
not detected within 15 minutes of the last sighting; (2) if a marine
mammal is detected within or approaching 200 m prior to chipping, this
activity shall be immediately delayed or suspended until the marine
mammal moves outside these designated zones or the animal is not
detected within 15 minutes of the last sighting; (3) in-water impact
pile driving shall not occur during the period from two hours before
low tide until two hours after low tide; (4) 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; (5) in-water pile driving or chipping shall not occur
when conditions restrict clear, visible detection of all waters within
harassment zones; (6) A ''soft start'' technique shall be used at the
beginning of each day's in-water pile driving activities or if pile
driving has ceased for more than one hour to allow any marine mammal
that may be in the immediate area to leave before pile driving reaches
full energy; (7) if a group of more than 5 beluga whales or group with
a calf is sighted within the Level B harassment isopleths, in-water
pile driving shall be suspended; and (8) for operated in-water heavy
machinery work other than pile driving or chipping (i.e., dredging,
dump scowles, linetug boats used to move barges, barge mounted
hydraulic excavators, or clamshell equipment used to place or remove
material), if a marine mammal comes within 50 m, those operations will
cease and vessels will reduce to the slowest speed practicable while
still maintaining control of the vessel and safe working conditions.
NMFS-approved marine mammal observers (MMOs) will be stationed at
the port during all in-water pile driving and chipping and blasting
associated with dock demolition, if it occurs. These observers will be
responsible for documenting take, marine mammal behavior, and, if
necessary, notifying the resident engineer when shut down is necessary.
In addition, the POA and MARAD shall employ a scientific marine mammal
monitoring team separate from the on-site MMOs to characterize beluga
whale abundance, frequency, movements, behavior, group dynamics, and
habitat use around the POA and observe, analyze, and document potential
changes in behavior in response to in-water construction work. This
monitoring team is not required to be present during all in-water pile
driving operations but will be on-site 4 days per week, weather
permitting. The on-site MMOs and this marine mammal monitoring team
shall remain in contact to alert each other to marine mammal presence
when both teams are working.
The POA and MARAD shall submit monthly reports summarizing all in-
water construction activities and marine mammal sightings. In addition,
an annual report shall be due sixty days before expiration of the LOA.
This report shall summarize monthly reports and any apparent long or
short term impacts the MTRP may be having on marine mammals. This LOA
will be renewed annually based on review of the annual monitoring
report.
Authorization
The POA and MARAD have complied with the requirements of the 2009
LOA, and NMFS has determined that marine mammal take during the 2009
construction season is within the amount authorized. Accordingly, NMFS
has issued a LOA to POA and MARAD authorizing take by harassment of
marine mammals incidental to the marine terminal redevelopment project
at the POA. Issuance of the 2010-2011 LOA is based on NMFS' review of
the annual report submitted by the POA and MARAD, and determination
that the observed impacts were within the scope of the analysis and
authorization contained in the final rule and previously issued LOA.
Specifically, NMFS found that the total taking of marine mammals, in
consideration of the required mitigation, monitoring, and reporting
measures, will have no more than a negligible impact on the affected
species or stocks and will not have an unmitigable adverse impact on
their availability for taking for subsistence uses.
Dated: June 25, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2010-16189 Filed 7-1-10; 8:45 am]
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