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12 June 2008
[Federal Register: June 12, 2008 (Volume 73, Number 114)]
[Notices]
[Page 33400-33411]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jn08-49]
[[Page 33400]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XI16
Small Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Construction of a Liquefied Natural
Gas Facility off Massachusetts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA)
regulations, notification is hereby given that NMFS has issued an
incidental harassment authorization (IHA) to Neptune LNG, L.L.C.
(Neptune) to take, by harassment, small numbers of several species of
marine mammals incidental to construction of an offshore liquefied
natural gas (LNG) facility in Massachusetts Bay for a period of 1 year.
DATES: Effective July 1, 2008, through June 30, 2009.
ADDRESSES: A copy of the IHA and application are available by writing
to P. Michael Payne, Chief, Permits, Conservation, and Education
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225 or by
telephoning the contact listed here. A copy of the application
containing a list of references used in this document may be obtained
by writing to this address, 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.
The Maritime Administration (MARAD) and U.S. Coast Guard (USCG)
Final Environmental Impact Statement (Final EIS) on the Neptune LNG
Deepwater Port License Application is available for viewing at http://
dms.dot.gov under the docket number 22611.
FOR FURTHER INFORMATION CONTACT: Candace Nachman or Ken Hollingshead,
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 to allow, upon request, the
incidental, but not intentional taking of \TM\all 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, 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 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.
Section 101(a)(5)(D) of the MMPA establishes an expedited process
by which citizens of the U.S. can apply for an authorization to
incidentally take small numbers of marine mammals by harassment. Except
for certain categories of activities not pertinent here, the MMPA
defines ``harassment'' as:
any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [``Level A harassment'']; or (ii) has the potential to disturb
a marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[``Level B harassment''].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS
review of an application followed by a 30-day public notice and comment
period on any proposed authorizations for the incidental harassment of
small numbers of marine mammals. Within 45 days of the close of the
comment period, NMFS must either issue or deny the authorization.
Summary of Request
On December 27, 2007, NMFS received an application from Neptune
requesting an IHA to take small numbers of several species of marine
mammals, by Level B (behavioral) harassment, for a period of 1 year,
incidental to construction of an offshore LNG facility in Massachusetts
Bay.
Description of the Project
On March 23, 2007, Neptune received a license to own, construct,
and operate a deepwater port (Port or Neptune Port) from MARAD. The
Port, which will be located in Massachusetts Bay, will consist of a
submerged buoy system to dock specifically designed LNG carriers
approximately 22 mi (35 km) northeast of Boston, Massachusetts, in
Federal waters approximately 260 ft (79 m) in depth. The two buoys will
be separated by a distance of approximately 2.1 mi (3.4 km).
Neptune will be capable of mooring LNG shuttle and regasification
vessels (SRVs) with a capacity of approximately 140,000 cubic meters
(m\3\). Up to two SRVs will temporarily moor at the proposed deepwater
port by means of a submerged unloading buoy system. Two separate buoys
will allow natural gas to be delivered in a continuous flow, without
interruption, by having a brief overlap between arriving and departing
SRVs. The annual average throughput capacity will be around 500 million
standard cubic feet per day (mmscfd) with an initial throughput of 400
mmscfd, and a peak capacity of approximately 750 mmscfd.
The SRVs will be equipped to store, transport, and vaporize LNG,
and to odorize, meter and send out natural gas by means of two 16-in
(40.6-cm) flexible risers and one 24-in (61-cm) subsea flowline. These
risers and flowline will lead to a proposed 24-in (61-cm) gas
transmission pipeline connecting the deepwater port to the existing 30-
in (76.2-cm) Algonquin Hubline\TM\ (Hubline\TM\) located approximately
9 mi (14.5 km) west of the proposed deepwater port location. The Port
will have an expected operating life of approximately 20 years. Figure
1-1 of Neptune's application shows an isometric view of the Port.
On February 15, 2005, Neptune submitted an application to the USCG
and MARAD under the Deepwater Port Act for all Federal authorizations
required for a license to own, construct, and operate a deepwater port
for the import and regasification of LNG off the coast of
Massachusetts. Because, as described later in this document, there is a
potential for marine mammals to be taken by haras\TM\ent, incidental to
construction of the facility and its pipeline, Neptune has applied for
a 1-year IHA for activities commencing in July 2008. Detailed
information on these activities can be found in the MARAD/USCG Final
EIS on the Neptune Project (see ADDRESSES for availability).
[[Page 33401]]
Detailed information on the LNG facility's pipeline and port
construction and noise generated from these activities was included in
NMFS' Notice of Proposed IHA, which published in the Federal Register
on February 19, 2008 (73 FR 9092). No changes have been made to these
proposed activities.
Comments and Responses
A notice of receipt and request for public comment on the
application and proposed authorization was published on February 19,
2008 (73 FR 9092). During the 30-day public comment period, NMFS
received the following comments from the Marine Mammal Commission
(MMC), the Whale Center of New England (WCNE), Nahant Safer Waters in
Massachusetts, Inc. (SWIM), and one private citizen.
Comment 1: The MMC recommends issuance of the IHA provided that all
mitigation, monitoring, and reporting measures identified in the
proposed IHA Federal Register notice (73 FR 9092, February 19, 2008)
are included in the authorization.
Response: NMFS agrees with the MMC's recommendation. All measures
proposed in the initial Federal Register notice are included in the
authorization.
Comment 2: The MMC recommends that the beginning of construction
activities in 2009 be postponed until June 1 instead of beginning on
May 1. The MMC notes that NMFS' proposed vessel speed limits in the
area from January 1 to May 15, to reduce the likelihood of vessel
collisions with the North Atlantic right whale, indicate that right
whales may be present into the middle of May. Delaying construction
until June 1 will allow a two-week buffer to increase the likelihood
that all right whales have left the area.
Response: The authorization requires Neptune to employ both a
visual monitoring program and a passive acoustic monitoring (PAM)
program for detection of North Atlantic right whales and other marine
mammals in the vicinity of construction activities. Both of these
programs were developed in accordance with recommendations made by the
NMFS Northeast Region during its section 7 consultation under the
Endangered Species Act (ESA) and by the Stellwagen Bank National Marine
Sanctuary (SBNMS). All construction activities will be conducted under
a level of heightened awareness if a North Atlantic right whale is
acoustically detected by the PAM devices. Construction will cease if a
whale is detected either visually within 500 yards (457 m) of
construction activities or acoustically and will not resume until the
animal is known to have left the area. Therefore, NMFS believes that
the use of this dual monitoring program will reduce the potential for
impacts to the North Atlantic right whale to the lowest level
practicable, even with construction activities resuming on May 1, 2009.
Comment 3: The MMC notes that construction activities producing
loud noises could occur at night and under poor sighting conditions
when visual detections of animals would be impaired. Even under good
sighting conditions, observers are unlikely to see all whales or
protected species in the immediate vicinity of the construction site.
The MMC states that the use of PAM provides additional, but limited,
means of detection of vocalizing marine mammals in the vicinity. The
MMC recommends that a real-time passive acoustic array be used at all
times during the construction period as a supplement to visual
monitoring efforts.
Response: NFMS agrees with the MMC that PAM should be used at all
times during the construction period. A detailed description of how PAM
will be used to assist visual monitoring is provided in the draft
Prevention, Monitoring, and Mitigation Plan for the Construction Phase:
Neptune Project, Massachusetts Bay (Neptune, 2008). The PAM primarily
serves as an early warning and supplemental measure for marine mammal
visual monitoring provided by two marine mammal observers (MMOs) on
each construction vessel. The PAM will be a near real-time system.
Neptune will equip MMOs with night vision devices for marine mammal
monitoring during low-light hours.
Comment 4: The MMC and WCNE both concur with NMFS' finding in the
proposed IHA Federal Register notice that the take numbers requested in
Neptune's application seem a bit low (73 FR 9092, February 19, 2008).
Therefore, the MMC recommends that NMFS reanalyze marine mammal density
in the area, the area to be ensonified to 160 dB, and the number of
days that construction activities will occur to derive more accurate
estimates of the numbers of marine mammals likely to be taken
incidental to construction.
Response: NMFS recalculated the cetacean density data and estimated
take number based on the compilation of a large number of databases
published by the National Centers for Coastal Ocean Science (NCCOS,
2006). The recalculated density numbers were then multiplied by the
area to be ensonified to 120 dB, which is used as the threshold for
estimating the onset of Level B (behavioral) haras\TM\ent for
continuous sounds. The number of days that construction activities will
occur were also included. Please refer to the ``Estimates of Take by
Harassment'' section found later in this document for a detailed
description of how the new take numbers were calculated.
Comment 5: The WCNE questions why only acoustic models were used to
determine the zone of influence (ZOI) created by construction
activities for this project. Referring to the Northeast Gateway LNG
Port (NEG or NEG Port), the WCNE states that there was a significant
amount of data gathered on the sounds created by, and the zone of
impact from that project, through the use of required passive acoustic
arrays. The WCNE suggests that these data should be analyzed and made
available to test whether the ZOI suggested by Neptune's acoustic
models are supported. Until such actual results are available and
analyzed, the WCNE suggests that no action should take place on the
current permit application.
Response: The acoustic array in place in Massachusetts Bay near the
NEG Port and the site of construction for Neptune has not been used for
sound source verification of vessel noise and other acoustic activities
that occurred last year during construction of the NEG Port. Similarly,
they were not used to validate the ZOI around the NEG Port construction
site. NMFS has determined that in the absence of any in-water
measurements, acoustic models must be used to determine the ZOI. The
modeling conducted very early in the planning stages for the project,
before a company had been contracted to perform the Neptune Port
construction, most likely overestimates the 120-dB ZOI. In a letter
submitted by Neptune to NMFS on May 28, 2008, Neptune indicated that
certain vessels were used in the modeling as worst case examples. The
pipeline construction company now under contract to construct the
Neptune Port will not be using a vessel such as the Britoil 51, which
was used in the modeling and shown to have a broadband source level of
199.7 dB re 1 microPa at 1m. Construction will involve vessels closer
in characteristics to other vessels that were modeled, creating an area
of 120-dB ensonification of approximately 52 km\2\ (15 nm\2\), not the
maximum of approximately 161 km\2\ (47 nm\2\) predicted in the original
modeling.
Comment 6: The WCNE states that in their research efforts on
northern Stellwagen Bank in 2006, they identified over 250 individual
humpback whales, including 33 mother-calf pairs using standard photo-
identification techniques, and even that number is considered an
underestimate by the WCNE. Similar numbers, with
[[Page 33402]]
similar effort, were identified by the WCNE in 2007. Given the
proximity of the project to Stellwagen Bank, the WCNE states that it is
possible for any of these animals on any given day to be exposed to
project noise of over 120 dB or to other related activities which could
disturb them.
Response: NMFS believes a small number of humpback whales might be
incidentally taken by Level B harassment if they happen to occur in the
ZOI where noise from construction activities reach over 120 dB.
However, the maximum size of the ZOI has been recalculated to be 52
km\2\ (15 nm\2\) with a vessel's dynamic positioning thrusters being
operated at the surface. This maximum ZOI would only occur inside the
SBNMS' western boundary, in an area that is still northwest of
Stellwagen Bank. In addition, between the proposed project are and
Stellwagen Bank, there is a steep drop off from the 50-m isobath where
construction noise would not propagate as far when compared to at the
surface, where the maximum ZOI could occur. Therefore, the
identification of 250 individual humpback whales in the northern
Stellwagen Bank by the WCNE does not mean that individuals on the Bank
would be harassed. To the contrary, the fact that the majority of
whales occur within the SBNMS, especially gathering around the
Stellwagen Bank, means that fewer whales would be taken by Level B
harassment in the vicinity of the project area, which is outside the
Sanctuary's boundaries.
Comment 7: Citing the WCNE's own research on humpback whales in the
SBNMS and other studies (cited as Seipt et al., 1989), the WCNE states
that a more realistic upper bound of the number of animals that may be
taken during any given year by the project is more likely to be up to
400 individuals each of humpback, fin, and minke whales, each of which
may be taken multiple times on multiple days (no calculation provided).
Response: NMFS cannot evaluate whether the WCNE's estimated take
numbers are scientifically supported because the WCNE did not provide
any valid calculation indicating how these numbers were assessed. The
photo-identification of 250 humpback whales (including 33 mother-calf
pairs) in the northern Stellwagen Bank, as mentioned in the previous
Comment, does not support the WCNE's take estimate. The research
conducted by Seipt et al. (1990), titled ``Population Characteristics
of Individual Fin Whales, Balaenoptera physalus, in Massachusetts Bay,
1980-1987,'' was published in the Fishery Bulletin in 1990. While the
study described the use of photo-identification technology on fin whale
population studies in Massachusetts Bay and presented fin whale
sighting and resighting data between 1980 and 1987, it did not provide
any population estimate or density assessment of the species in the
study area. Therefore, NMFS does not believe these data can be used for
fin whale take estimates in the proposed project area.
In addition, NMFS' own population assessment of the Gulf of Maine
humpback stock is 847 whales (Waring et al., 2007). The WCNE's
estimated annual take of 400 humpback whales (47 percent of the
population) within a maximum 120 dB re 1 microPa ZOI of 52 km\2\ (15
nm\2\) is not scientifically supportable. Likewise, the WCNE's
estimated annual take numbers of 400 fin whales, which accounts for 18
percent of the Western North Atlantic population of 2,269 whales
(Waring et al., 2007); and 400 minke whales, which is 12 percent of the
Canadian East Coast population of 3,312 whales (which are mostly
sighted off Nova Scotia and New Brunswick, Canada; Waring et al.,
2007); are not good estimates because no valid calculations were
provided on how these numbers were derived.
Comment 8: Although the data on the number of right whales that use
the area, especially during the winter and early spring, are limited,
the WCNE indicates that the data they do have suggests the project site
is one of the more frequently used sites within their study area, and
acoustic detections of whales in the past two years have been numerous.
The WCNE believes it is likely that whales which use Jeffreys Ledge in
the fall and Cape Cod Bay (CCB) in the spring transit through the
project site. In fall 2007, the WCNE identified over 70 right whales on
Jeffreys Ledge in October through December; over 100 individuals were
seen in CCB in spring 2007. Hence, the WCNE states that an appropriate
estimate of North Atlantic right whales to be harassed by the proposed
project would be 100 individuals annually; although if managing
conservatively, the actual number might be somewhat higher (no
references provided).
Response: Data sets used by the NCCOS (2006), which include survey
efforts and sightings data from ship and aerial surveys and
opportunistic sources between 1970 and 2005 from a wide range of
sources, indicate that right whales spend most of their time across the
southern Gulf of Maine in CCB in spring, with highest abundance located
over the deeper waters on the northern edge of the Great South Channel
and deep waters parallel to the 100-m (328-ft) isobath of northern
Georges Bank and Georges Basin. The data collected by the WCNE focused
on CCB, which is 30 40 mi (48 64 km) southeast of the proposed project
area, and Jeffreys Ledge, which is approximately 12-14 mi (19-22.5 km)
northeast of the proposed project area at its southwestern most point.
Both areas have different oceanographic features and ecological
characteristics and are more important habitat for right whales than
the project area. In addition, Weinrich et al. (2006), in their report
on the distribution of baleen whales in the Neptune proposed LNG
project area, state:
North Atlantic right whales are sporadic visitors to the study
area [Neptune project area] during the April to November period.
Right whales typically aggregate in [CCB] during the late winter and
early spring (Mayo and Marx, 1990), then move east to the Great
South Channel during the spring (Kenney and Wishner, 1995). They
then move east along the northern edge of Georges Bank, and into the
Bay of Fundy and Nova Scotian shelf during the summer and early fall
(Kraus et al., 1988; Winn et al., 1986; Baumgartner et al., 2003).
Once they leave the Bay of Fundy, pregnant females migrate to the
coastal waters of the southern U.S. to calve, while the distribution
of much of the rest of the population remains unknown (Winn et al.,
1986). Recent work on Jeffreys Ledge, immediately to the north of
Cape Ann, has indicated that significant numbers of right whales may
use the area as a feeding habitat from October through at least
December (Weinrich et al., 2000; Weinrich and Sardi, 2004;
Unpublished data).
Right whale sighting plots presented in this report support this
statement, and it is consistent with the survey data published in the
NCCOS (2006) report, which indicates that right whales do not use the
proposed project area regularly, especially during the months for which
construction activities are planned. Weekly construction reports
submitted by NEG indicated only one visual sighting of a North Atlantic
right whale in the NEG project area (which is just south of the Neptune
Port) in the month of December. The authorization issued to Neptune
does not allow for any construction activities from December 1 through
April 30. An acoustic array near the NEG Port construction site
detected 11 North Atlantic right whale calls in September, two in
October, and two in December. Barring weather delays, construction
activities at the Neptune Port in 2008 should be completed in early
October. Therefore, NMFS does not believe that the WCNE's estimated
annual take of 100 North Atlantic right whales by the proposed project
is reasonable, especially given that the WCNE did not provide the
calculation
[[Page 33403]]
regarding how this take number was assessed.
Comment 9: The WCNE points out that special attention should be
given to project activities occurring in the fall. This is a
particularly sensitive time for endangered humpback and fin whales,
which have been exploiting a new prey source annually since 2000,
within the proposed project area, as supported by the studies conducted
by Weinrich and Sardi (2005) and as noted in the Neptune LNG Final EIS
(USCG and MARAD, 2006). The WCNE states that heavy industrial activity
during these months would result in either take levels of these species
at far greater levels than during any other month or in habitat
displacement altogether. The WCNE notes that while they did see both
species feeding in the NEG construction area in fall 2007, there were
fewer whales, and those whales were resident for shorter periods, than
in the previous three years. Since the WCNE does not have annual
measurements of prey biomass, they state that it is possible that this
is merely related to annual fluctuations in food availability.
Response: NMFS reviewed the Weinrich and Sardi (2005) report on the
distribution of baleen whales in the waters surrounding the Neptune LNG
project, but we did not find that the report contained any quantitative
analysis of the cetacean density data showing that there is a
statistical significance of baleen whales' use of the proposed project
area on a seasonal or monthly basis. The cetacean sighting data,
plotted in an area that includes most of the SBNMS, part of
Massachusetts Bay, the west terminal portion of the Boston Traffic
Separation Scheme (TSS), and the proposed project area, clearly show
that most humpback, fin, and minke whales were sighted within the SBNMS
(Weinrich and Sardi, 2005). NMFS recognizes that there is a potential
for take of small numbers of marine mammals by Level B harassment as a
result of this project; however, NMFS does not agree with the WCNE that
there would be takes at far greater levels during the fall months for
humpback and fin whales, as strict monitoring and mitigation measures,
described in the ``Marine Mammal Mitigation, Monitoring, and
Reporting'' section later in this document, will be implemented to keep
the impacts to the lowest level practicable.
Comment 10: The WCNE states that whales would be harassed not just
by exposure to sound sources of over 120 dB re 1 microPa, but they may
also be disturbed by multiple boats in a limited area. The WCNE cites
studies conducted by Borgaard et al. (1999) and Stone and Tasker (2006)
on whales affected by continuous activity from dredging coupled with
vessel traffic and seismic activities. The WCNE states that in its
comments regarding the NEG IHA application in 2007, they recommended
that if in the first year [of the project] abundance of any of the key
species are notably lower than that of previous years, the IHA should
stipulate that project operations should cease until it can be
determined if that change was related to project activities or other
ecological factors. The WCNE notes that abundance was lower, and they
believe that the full impact of the project cannot be assessed until
the underlying reasons for the lower whale use can be determined.
Response: It is true that marine mammals may be disturbed by
multiple boats in a limited area, especially within the Boston TSS.
However, this concern is not related to the issuance of this IHA since
the construction of a deepwater LNG facility would only increase vessel
traffic in the vicinity by a very small amount, about 1.5 percent
(NMFS, 2007). The study by Borgaard et al. (1999) cited by the WCNE was
focused on the effects of large scale industrial activity, which
involved dredging and blasting, on large cetaceans in Bull Arm, Trinity
Bay, Newfoundland from 1992 through 1995. The research indicates that
humpback whales were more affected by continuous activity from
dredging, coupled with vessel traffic, but appeared tolerant of
transient blasting and frequent vessel traffic. Individually-identified
minke whales were resighted in the industrialized area and appeared
tolerant of vessel traffic. Stone and Tasker (2006) in their research
analyzed the effects of airgun seismic surveys on marine mammals in UK
waters. The airgun used in seismic surveys produces impulse sounds,
which is fundamentally different sound in acoustic characteristics from
the intermittent noises produced during the proposed deepwater LNG port
construction. No blasting will occur during Port construction.
The weekly construction reports submitted by NEG to NMFS during its
construction phase do not indicate any large or long-term reactions of
marine mammals to the presence of the construction or support vessels.
When animals were detected within the ZOI, mitigation measures to
reduce the ZOI were implemented immediately. The IHA is issued for a
duration of 1 year. NMFS will evaluate any new scientific information
that may surface during the project period and assess any impacts that
may result due to the deepwater port construction and operation. Based
on the new information and monitoring reports, NMFS will determine
whether any additional monitoring or mitigation measures are warranted
for future authorizations.
Comment 11: The WCNE notes that Neptune's application falsely
states, ``Pinnipeds are unlikely to be present during summer and will
not be affected.'' The WCNE states that they have many sighting records
of harbor seals at sea in the project area during the summer months.
Hence, they need to be included in any IHA request for the area during
summer.
Response: NMFS concurs with the WCNE's assertion that harbor seals
should be included in the take authorization. Harbor seals have been
added to the IHA (see the ``Marine Mammals Affected by the Activity''
and ``Estimates of Take by Harassment'' sections later in the
document).
Comment 12: The WCNE requests that Neptune withdraw the IHA
application and resubmit it with more realistic numbers, such as those
posed by the WCNE above (i.e., 400 humpback, 400 fin, 400 minke, and
100 North Atlantic right whales, all of which may be taken multiple
times over multiple days). They also suggest that Neptune be required
to obtain a Letter of Authorization (LOA), rather than an IHA. The WCNE
feels that the take levels they posed are more realistic, and coupled
with the possibility of displacing animals from preferred food sources,
seem to them to be ``well above'' the levels of ``incidental
harassment'' for which the permit category is intended.
Response: NMFS has revised the incidental harassment take estimates
for project construction. The development of these numbers is explained
in the ``Estimates of Take by Harassment'' section found later in this
document. Also, as stated in responses above, NMFS does not believe the
WCNE's estimated take numbers are scientifically supported, especially
given that the WCNE did not provide any valid calculations indicating
how these numbers were assessed. NMFS has defined ``incidental
harassment'' in 50 CFR 216.103 as ''...an accidental taking. This does
not mean that the taking is unexpected, but rather it includes those
takings that are infrequent, unavoidable, or accidental.'' NMFS
believes that incidental harassment of marine mammals near the Neptune
Port construction site will be infrequent.
Comment 13: The WCNE states that they would also be amenable to
NMFS issuing the IHA as requested by Neptune in their application to
allow
[[Page 33404]]
the annual take of two North Atlantic right whales, one minke whale,
two fin whales, three humpback whales, and the other take levels
requested in the application. The WCNE states, ``If this option is
taken, we would strongly urge that the permit include an explicit
statement of the maximum number of annual violations that can take
place before ALL port construction or operations must cease ANY
activity which is likely to harass a marine mammal, either by exposing
to sounds above 120 dB or by resulting in a behavioral disturbance,
including displacement.'' In order to determine when such a violation
occurs, the WCNE requests that Neptune produce real-time, daily plots
of sound levels as detected by the acoustic arrays, which can be
plotted against independent sightings of marine mammals, as well as all
of the acoustic detections of marine mammals by Neptune's array.
Response: The numbers cited by the WCNE from the Neptune
application were requests for Port operations, not construction. The
requested take numbers for construction in Neptune's application are
slightly higher (but only by a few individuals for each species). In
its proposed IHA Federal Register notice (73 FR 9092, February 19,
2008), NMFS indicated that the take levels requested by Neptune in its
application for construction were too low. NMFS reevaluated species
density, the area to be ensonified to 120 dB, and number of days of
construction to develop more realistic take levels (see the ``Estimates
of Take by Harassm>ent'' section found later in this document).
The taking of marine mammals in a manner not described in the IHA
is strictly prohibited. Any violation of the IHA is subject to
prosecution; therefore, NMFS does not include ``a maximum number'' of
violations that may be committed before enforcement action is taken
against the holder. To this end, the IHA issued to Neptune contains the
following conditions:
The taking, by incidental Level B harassment only, is limited to
the species listed [in the IHA]. The taking by Level A harassment,
injury, or death of these species, or the taking of any other
species of marine mammal is prohibited and may result in the
modification, suspension, or revocation of this Authorization; and
Any person who violates any provision of this IHA is subject to
civil and criminal penalties, permit sanctions, and forfeiture as
authorized under the MMPA.
Comment 14: The WCNE urges that there be an explicit stipulation
that blasting activities are specifically not covered by the IHA, and
such activities would require applying for a new permit and a new
public review process.
Response: NMFS concurs with the WCNE. The IHA does not authorize
blasting to be used for port construction at the Neptune site. If,
during the course of the construction, an unexpected need for blasting
arises, the blasting cannot take place until a blasting plan is
submitted to the Federal Energy Regulatory Commission (FERC) and a
Blasting Mitigation Plan prepared in consultation with NOAA for
submittal to, and approval by, FERC. A new application would need to be
submitted to NMFS and reviewed in the same manner as the original IHA
application.
Comment 15: SWIM notes that the endangered whales that frequent the
waters of Massachusetts Bay are utterly dependent upon their hearing
and their acoustic ``sonar'' for navigation, finding food, and
survival, and that these animals do not remain wholly in the bounds of
the SBNMS. SWIM endorses the comments made by the WCNE.
Response: NMFS analyzed the distribution of endangered whales in
Massachusetts Bay and determined that \TM\all numbers of these
populations may be impacted by port construction activities but also
determined that the activities would have a negligible impact. Several
mitigation and monitoring measures are required by the IHA to reduce
the impact to the lowest level practicable (see the ``Marine Mammal
Mitigation, Monitoring, and Reporting'' section later in this
document). Responses to the comments submitted by the WCNE have been
provided previously.
Comment 16: One commenter opposed the issuance of permits that
allows the killing of marine mammals.
Response: NMFS does not believe that the authorized activities will
result in the death (or injury) of any marine mammals, nor does this
IHA authorize any marine mammal mortality (or injury).
Marine Mammals Affected by the Activity
Marine mammal species that could occur within the Neptune facility
impact area include several species of cetaceans and pinnipeds: North
Atlantic right, blue, fin, sei, minke, humpback, killer, long-finned
pilot, and sperm whales, Atlantic white-beaked, Atlantic white-sided,
bottlenose, common, Risso's, and striped dolphins, harbor porpoise, and
gray, harbor, harp, and hooded seals. Table 3-1 in the IHA application
outlines the marine mammal species that occur in Massachusetts Bay and
the likelihood of occurrence of each species. Information on those
species that may be impacted by this activity are discussed in detail
in the MARAD/USCG Final EIS on the Neptune LNG proposal. Please refer
to that document for more information on these species and potential
impacts from construction of this LNG facility. In addition, general
information on these marine mammal species can also be found in the
NMFS U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments
(Waring et al., 2007), which is available at: http://
www.nefsc.noaa.gov/nefsc/publications/tm/tm205/. An updated summary on
several commonly sighted marine mammal species distribution and
abundance in the vicinity of the action area is provided below.
Humpback Whale
The highest abundance for humpback whales was distributed primarily
along a relatively narrow corridor following the 100-m (328 ft) isobath
across the southern Gulf of Maine from the northwestern slope of
Georges Bank, south to the Great South Channel, and northward alongside
Cape Cod to Stellwagen Bank and Jeffreys Ledge. The relative abundance
of whales increased in the spring with the highest occurrence along the
slope waters (between the 40- and 140-m, 131- and 459-ft, isobaths) off
Cape Cod and Davis Bank, Stellwagen Basin and Tillies Basin and between
the 50- and 200-m (164- and 656-ft) isobaths along the inner slope of
Georges Bank. High abundance was also estimated for the waters around
Platts Bank. In the summer months, abundance increased markedly over
the shallow waters (<50 m, or <164 ft) of Stellwagen Bank, the waters
(100-200 m, 328-656 ft) between Platts Bank and Jeffreys Ledge, the
steep slopes (between the 30- and 160-m isobaths, 98- and 525-ft
isobaths) of Phelps and Davis Bank north of the Great South Channel
towards Cape Cod, and between the 50- and 100-m (164- and 328-ft)
isobath for almost the entire length of the steeply sloping northern
edge of Georges Bank. This general distribution pattern persisted in
all seasons except winter, when humpbacks remained at high abundance in
only a few locations including Porpoise and Neddick Basins adjacent to
Jeffreys Ledge, northern Stellwagen Bank and Tillies Basin, and the
Great South Channel.
Fin Whale
Spatial patterns of habitat utilization by fin whales were very
similar to those of humpback whales. Spring and summer high-use areas
followed the 100-m (328 ft) isobath along the northern edge of Georges
Bank (between the 50- and 200-m, 164- and 656-ft,
[[Page 33405]]
isobaths), and northward from the Great South Channel (between the 50-
and 160-m, 164- and 525-ft, isobaths). Waters around Cashes Ledge,
Platts Bank, and Jeffreys Ledge are all high-use areas in the summer
months. Stellwagen Bank was a high-use area for fin whales in all
seasons, with highest abundance occurring over the southern Stellwagen
Bank in the summer months. In fact, the southern portion of SBNMS was
used more frequently than the northern portion in all months except
winter, when high abundance was recorded over the northern tip of
Stellwagen Bank. In addition to Stellwagen Bank, high abundance in
winter was estimated for Jeffreys Ledge and the adjacent Porpoise Basin
(100- to 160-m, 328- to 525-ft, isobaths), as well as Georges Basin and
northern Georges Bank.
Minke Whale
Like other piscivorus baleen whales, highest abundance for minke
whale was strongly associated with regions between the 50- and 100-m
(164- and 328-ft) isobaths, but with a slightly stronger preference for
the shallower waters along the slopes of Davis Bank, Phelps Bank, Great
South Channel, and Georges Shoals on Georges Bank. Minke whales were
sighted in SBNMS in all seasons, with highest abundance estimated for
the shallow waters (approximately 40 m, 131 ft) over southern
Stellwagen Bank in the summer and fall months. Platts Bank, Cashes
Ledge, Jeffreys Ledge, and the adjacent basins (Neddick, Porpoise, and
Scantium) also supported high relative abundance. Very low densities of
minke whales remained throughout most of the southern Gulf of Maine in
winter.
North Atlantic Right Whale
North Atlantic right whales were generally distributed widely
across the southern Gulf of Maine in spring with highest abundance
located over the deeper waters (100- to 160-m, or 328- to 525-ft,
isobaths) on the northern edge of the Great South Channel and deep
waters (100-300 m, 328-984 ft) parallel to the 100-m (328-ft) isobath
of northern Georges Bank and Georges Basin. High abundance was also
found in the shallowest waters (< 30 m, <98 ft) of CCB, over Platts
Bank and around Cashes Ledge. Lower relative abundance was estimated
over deep-water basins including Wilkinson Basin, Rodgers Basin, and
Franklin Basin. In the summer months, right whales moved almost
entirely away from the coast to deep waters over basins in the central
Gulf of Maine (Wilkinson Basin, Cashes Basin between the 160- and 200-
m, 525- and 656-ft, isobaths) and north of Georges Bank (Rogers,
Crowell, and Georges Basins). Highest abundance was found north of the
100-m (328-ft) isobath at the Great South Channel and over the deep
slope waters and basins along the northern edge of Georges Bank. The
waters between Fippennies Ledge and Cashes Ledge were also estimated as
high-use areas. In the fall months, right whales were sighted
infrequently in the Gulf of Maine, with highest densities over Jeffreys
Ledge and over deeper waters near Cashes Ledge and Wilkinson Basin. In
winter, CCB, Scantum Basin, Jeffreys Ledge, and Cashes Ledge were the
main high-use areas. Although SBNMS does not appear to support the
highest abundance of right whales, sightings within SBNMS are reported
for all four seasons, albeit at low relative abundance. Highest
sighting within SBNMS occurred along the southern edge of the Bank.
Pilot Whale
Pilot whales arrived in the southern Gulf of Maine in spring, with
highest abundance in the region occurring in summer and fall. Summer
high-use areas included the slopes of northern Georges Bank along the
100-m (328-ft) isobath and pilot whales made extensive use of the
shoals of Georges Bank (<60 m, <97 ft, depth). Similarly, fall
distributions were also primarily along the slopes of northern Georges
Bank, but with high-use areas also occurring in the deep-water basins
and ledges of the south-central Gulf of Maine. Within SBNMS, pilot
whales were sighted infrequently and were most often estimated at low
density. CCB and southern SBNMS were the only locations with pilot
whale sightings for winter.
Atlantic White-sided Dolphin
In spring, summer and fall, Atlantic white-sided dolphins were
widespread throughout the southern Gulf of Maine, with the high-use
areas widely located on either side of the 100-m (328-ft) isobath along
the northern edge of Georges Bank, and north from the Great South
Channel to Stellwagen Bank, Jeffreys Ledge, Platts Bank, and Cashes
Ledge. In spring, high-use areas existed in the Great South Channel,
northern Georges Bank, the steeply sloping edge of Davis Bank, and Cape
Cod, southern Stellwagen Bank, and the waters between Jeffreys Ledge
and Platts Bank. In summer, there was a shift and expansion of habitat
toward the east and northeast. High-use areas were identified along
most of the northern edge of Georges Bank between the 50- and 200-m
(164- and 656-ft) isobaths and northward from the Great South Channel
along the slopes of Davis Bank and Cape Cod. High sightings were also
recorded over Truxton Swell, Wilkinson Basin, Cashes Ledge and the
bathymetrically complex area northeast of Platts Bank. High sightings
of white-sided dolphin were recorded within SBNMS in all seasons, with
highest density in summer and most widespread distributions in spring
located mainly over the southern end of Stellwagen Bank. In winter,
high sightings were recorded at the northern tip of Stellwagen Bank and
Tillies Basin.
A comparison of spatial distribution patterns for all baleen whales
(Mysticeti) and all porpoises and dolphins combined showed that both
groups have very similar spatial patterns of high- and low-use areas.
The baleen whales, whether piscivorus or planktivorous, were more
concentrated than the dolphins and porpoises. They utilized a corridor
that extended broadly along the most linear and steeply sloping edges
in the southern Gulf of Maine indicated broadly by the 100 m (328 ft)
isobath. Stellwagen Bank and Jeffreys Ledge supported a high abundance
of baleen whales throughout the year. Species richness maps indicated
that high-use areas for individual whales and dolphin species co-
occurred, resulting in similar patterns of species richness primarily
along the southern portion of the 100-m (328-ft) isobath extending
northeast and northwest from the Great South Channel. The southern edge
of Stellwagen Bank and the waters around the northern tip of Cape Cod
were also highlighted as supporting high cetacean species richness.
Intermediate to high numbers of species are also calculated for the
waters surrounding Jeffreys Ledge, the entire Stellwagen Bank, Platts
Bank, Fippennies Ledge, and Cashes Ledge.
Killer Whale, Common Dolphin, Bottlenose Dolphin, and Harbor Porpoise
Although these four species are some of the most widely distributed
small cetacean species in the world (Jefferson et al., 1993), they were
not commonly seen in the vicinity of the project area in Massachusetts
Bay (Wiley et al., 1994; NCCOS, 2006; Northeast Gateway Marine Mammal
Monitoring Weekly Reports, 2007).
Harbor Seal and Gray Seal
In the U.S. western North Atlantic, both harbor and gray seals were
usually found from the coast of Maine south to southern New England and
New York (Waring et al., 2007).
[[Page 33406]]
Along the southern New England and New York coasts, harbor seals
occur seasonally from September through late May (Schneider and Payne,
1983). In recent years, their seasonal interval along the southern New
England to New Jersey coasts had increased (deHart, 2002). In U.S.
waters, harbor seal breeding and pupping normally occur in waters north
of the New Hampshire/Maine border, although breeding has occurred as
far south as Cape Cod in the early part of the 20th century (Temte et
al., 1991; Katona et al., 1993).
Although gray seals were often seen off the coast from New England
to Labrador, within U.S. waters, only \TM\all numbers of gray seals
have been observed pupping on several isolated islands along the Maine
coast and in Nantucket-Vineyard Sound, Massachusetts (Katona et al.,
1993; Rough, 1995). In the late 1990s, a year-round breeding population
of approximately 400 gray seals was documented on outer Cape Cod and
Muskeget Island (Waring et al., 2007).
Potential Effects on Marine Mammals
The effects of sound on marine mammals are highly variable and can
be categorized as follows (based on Richardson et al., 1995): (1) The
sound may be too weak to be heard at the location of the animal (i.e.,
lower than the prevailing ambient noise level, the hearing threshold of
the animal at relevant frequencies, or both); (2) the sound may be
audible but not strong enough to elicit any overt behavioral response;
(3) the sound may elicit reactions of variable conspicuousness and
variable relevance to the well being of the marine mammal; these can
range from temporary alert responses to active avoidance reactions,
such as vacating an area at least until the sound ceases; (4) upon
repeated exposure, a marine mammal may exhibit diminishing
responsiveness (habituation) or disturbance effects may persist; the
latter is most likely with sounds that are highly variable in
characteristics, infrequent, and unpredictable in occurrence, and
associated with situations that a marine mammal perceives as a threat;
(5) any anthropogenic sound that is strong enough to be heard has the
potential to reduce (mask) the ability of a marine mammal to hear
natural sounds at similar frequencies, including calls from
conspecifics, and underwater environmental sounds such as surf noise;
(6) if mammals remain in an area because it is important for feeding,
breeding, or some other biologically important purpose even though
there is chronic exposure to sound, it is possible that there could be
sound-induced physiological stress; this might in turn have negative
effects on the well-being or reproduction of the animals involved; and
(7) very strong sounds have the potential to cause temporary or
permanent reduction in hearing sensitivity. In terrestrial mammals, and
presumably marine mammals, received sound levels must far exceed the
animal's hearing threshold for there to be any temporary threshold
shift (TTS) in its hearing ability. For transient sounds, the sound
level necessary to cause TTS is inversely related to the duration of
the sound. Received sound levels must be even higher for there to be
risk of permanent hearing impairment. In addition, intense acoustic (or
explosive events) may cause trauma to tissue associated with organs
vital for hearing, sound production, respiration, and other functions.
This trauma may include minor to severe hemorrhage.
Sound from Port and pipeline construction will cause some possible
disturbance to small numbers of cetaceans and pinnipeds. The
installation of the suction piles will produce only low levels of sound
during the construction period and will not increase the numbers of
animals affected. Modeling results indicate that noise levels would be
below 90 dB re 1 microPa within 0.2 mi (0.3 km) of the source.
During construction of the Port and pipeline, underwater sound
levels will be temporarily elevated. These elevated sound levels may
cause some species to temporarily disperse from or avoid construction
areas, but they are expected to return shortly after construction is
completed.
The likelihood of a vessel strike of a marine mammal during pipe
laying and trenching operations is low since equipment will be towed at
very slow speeds (approximately 5 ft/min, 1.5 m/min). Any whales
foraging near the bottom would be able to avoid collision or
interaction with the equipment, and displacement would be temporary for
the duration of the plow pass.
Using conservative estimates of both marine mammal densities in the
Project area and the size of the 120-dB ZOI, the calculated number of
individual marine mammals for each species that could potentially be
harassed annually is small. NMFS concluded that there would be no
biologically significant effects on the survival and reproduction of
these species or stocks. Please see the ``Estimates of Take by
Harassment'' section for the calculation of these numbers.
Estimates of Take by Harassment
There are three general types of sounds recognized by NMFS:
continuous, intermittent (or transient), and pulsive. Sounds of short
duration that are produced intermittently or at regular intervals, such
as sounds from pile driving, are classified as ``pulsed.'' Sounds
produced for extended periods, such as sound from generators, are
classified as ``continuous.'' Sounds from moving sources, such as
ships, can be continuous, but for an animal at a given location, these
sounds are ``transient'' (i.e., increasing in level as the ship
approaches and then diminishing as it moves away). Construction of the
Port will not cause pulsive sounds.
The sound sources of potential concern are continuous and
intermittent sound sources, including underwater noise generated during
pipeline/flowline construction. Both continuous and intermittent noise
sources are subject to NMFS' 120 dB re 1 microPa threshold for
determining levels of continuous underwater noise that may result in
the disturbance of marine mammals.
Pipe-laying activities will generate continuous but transient sound
and will likely result in variable sound levels during the construction
period. Depending on water depth, the 120-dB contour during pipe-laying
activities will extend from the source (the Port) out to 3.9 km (2.1
nm) and cover an area of 52 km\2\ (15 nm\2\), and, for the flowline at
the Port, the 120-dB contour will extend from the pipeline route out to
4.2 km (2.3 nm) and cover an area of 49 km\2\ (14.3 nm\2\). (This
information is different from what is contained in the March 23, 2007,
application submitted by Neptune to NMFS. Neptune conducted its
acoustic modeling in the very early planning stages of the project,
when little information was available on the types of vessels that
could potentially be used during construction. Since that time, a
contractor has been hired to construct the Port. The vessels to be used
during Neptune Port construction are estimated to generate broadband
underwater source levels in the range of 180 dB re 1 microPa at 1m,
similar to several of the vessels modeled by JASCO for Neptune and not
in the range of 200 dB re 1 microPa at 1m, which was also included in
the original modeling as a worst case scenario. For more information on
the modeling conducted by JASCO, please refer to Appendix B of
Neptune's application.) Installation of the suction pile anchors at the
Port will produce only low levels of underwater sound, with no source
[[Page 33407]]
levels above 120-dB for continuous sound.
The basis for Neptune's ``take'' estimate is the number of marine
mammals that potentially could be exposed to sound levels in excess of
120 dB. Typically, this is determined by applying the modeled ZOI
(e.g., the area ensonified by the 120-dB contour) to the seasonal use
(density) of the area by marine mammals and correcting for seasonal
duration of sound-generating activities and estimated duration of
individual activities when the maximum sound-generating activities are
intermittent to occasional. Nearly all of the required information is
readily available in the MARAD/USCG Final EIS, with the exception of
marine mammal density estimates for the project area. In the case of
data gaps, a conservative approach was used to ensure that the
potential number of takes is not underestimated, as described next.
NMFS recognizes that baleen whale species other than North Atlantic
right whales have been sighted in the project area from May to
November. However, the occurrence and abundance of fin, humpback, and
minke whales is not well documented within the project area.
Nonetheless, NMFS used the data on cetacean distribution within
Massachusetts Bay, such as those published by the NCCOS (2006), to
determine potential takes of marine mammals in the vicinity of the
project area.
The NCCOS study used cetacean sightings from two sources: (1) the
North Atlantic Right Whale Consortium (NARWC) sightings database held
at the University of Rhode Island (Kenney, 2001); and (2) the Manomet
Bird Observatory (MBO) database, held at the NMFS Northeast Fisheries
Science Center (NEFSC). The NARWC data contained survey efforts and
sightings data from ship and aerial surveys and opportunistic sources
between 1970 and 2005. The main data contributors included: the
Cetacean and Turtles Assessment Program, the Canadian Department of
Fisheries and Oceans, the Provincetown Center for Coastal Studies,
International Fund for Animal Welfare, NEFSC, New England Aquarium,
Woods Hole Oceanographic Institution, and the University of Rhode
Island. A total of 406,293 mi (653,725 km) of survey track and 34,589
cetacean observations were provisionally selected for the NCCOS study
in order to minimize bias from uneven allocation of survey effort in
both time and space. The sightings-per-unit-effort (SPUE) was
calculated for all cetacean species by month covering the southern Gulf
of Maine study area, which also includes the project area (NCCOS,
2006).
The MBO's Cetacean and Seabird Assessment Program (CSAP) was
contracted from 1980 to 1988 by NEFSC to provide an assessment of the
relative abundance and distribution of cetaceans, seabirds, and marine
turtles in the shelf waters of the northeastern U.S. (MBO, 1987). The
CSAP program was designed to be completely compatible with NEFSC
databases so that marine mammal data could be compared directly with
fisheries data throughout the time series during which both types of
information were gathered. A total of 8,383 mi (5,210 km) of survey
distance and 636 cetacean observations from the MBO data were included
in the NCCOS analysis. Combined valid survey effort for the NCCOS
studies included 913,840 mi (567,955 km) of survey track for small
cetaceans (dolphins and porpoises) and 1,060,226 mi (658,935 km) for
large cetaceans (whales) in the southern Gulf of Maine. The NCCOS study
then combined these two data sets by extracting cetacean sighting
records, updating database field names to match the NARWC database,
creating geometry to represent survey tracklines and applying a set of
data selection criteria designed to minimize uncertainty and bias in
the data used.
Based on the comprehensiveness and total coverage of the NCCOS
cetacean distribution and abundance study, NMFS calculated the
estimated take number of marine mammals based on the most recent NCCOS
report published in December, 2006. A summary of seasonal cetacean
distribution and abundance in the project area is provided previously
in this document, in the ``Marine Mammals Affected by the Activity''
section. For a detailed description and calculation of the cetacean
abundance data and SPUE, refer to the NCCOS study (NCCOS, 2006). SPUE
for the spring, summer, and fall seasons were analyzed, and the highest
value SPUE for the season with the highest abundance of each species
was used to determine relative abundance. Based on the data, the
relative abundance of North Atlantic right, fin, humpback, minke, and
pilot whales and Atlantic white-sided dolphins, as calculated by SPUE
in number of animals per square kilometer, is 0.0082, 0.0097, 0.0265,
0.0059, 0.0407, and 0.1314 n/km, respectively.
In calculating the area density of these species from these linear
density data, NMFS used 0.4 km (0.25 mi), which is a quarter the
distance of the radius for visual monitoring (see Monitoring,
Mitigation, and Reporting section later in this document), as a
conservative hypothetical strip width (W). Thus the area density (D) of
these species in the project area can be obtained by the following
formula:
D = SPUE/2W
Based on the calculation, the estimated take numbers by Level B
haras\TM\ent for the 1-year IHA period for North Atlantic right, fin,
humpback, minke, and pilot whales and Atlantic white-sided dolphins,
within the 120-dB ZOI of the LNG Port facility area of approximately 52
km\2\ (15 nm\2\) maximum ZOI, corrected for 50 percent underwater, are
48, 57, 155, 35, 238, and 770, respectively. This estimate is based on
an estimated 60 days of construction activities that will produce
sounds of 120 dB or greater. These numbers represent approximately 15,
2.5, 18, 1, 0.95, and 1.5 percent of the populations for these species
in the western North Atlantic, respectively. There is no danger of
injury, death, or hearing impairment from the exposure to these noise
levels.
In addition, harbor porpoises and harbor seals could also be taken
by Level B harassment as a result of the deepwater LNG port project.
The numbers of estimated take of these species are not available
because they are rare in the project area. The minimum population
estimates for the Gulf of Maine/Bay of Fundy stock of harbor porpoise
and the western North Atlantic stock of harbor seal are 60,970 and
91,546, respectively (Waring et al., 2007). Since Massachusetts Bay
represents only a small fraction of the western North Atlantic basin
where these animals occur, and these animals do not regularly
congregate in the vicinity of the project area, NMFS believes that only
relatively small numbers (less than two percent) of these marine mammal
species would be potentially affected by the Neptune LNG deepwater
project. From the most conservative estimates of both marine mammal
densities in the project area and the size of the 120-dB ZOI, the
maximum calculated number of individual marine mammals for each species
that could potentially be harassed annually is small relative to the
overall population sizes (18 percent for humpback whales and 15 percent
for North Atlantic right whales and no more than 2.5 percent of any
other species).
Potential Impacts on Habitat
Construction of the Neptune Port and pipeline could affect marine
mammal habitat in several ways: seafloor disturbance, increased
turbidity, and generation of additional underwater sound in the area.
Construction
[[Page 33408]]
activities will temporarily disturb 418 acres (1.7 km\2\) of seafloor
(11 acres, 0.04 km\2\, at the Port, 85 acres, 0.3 km\2\, along the
pipeline route, and an estimated 322 acres, 1.3 km\2\, due to anchoring
of construction and installation vessels). Pipeline installation,
including trenching, plowing, jetting, and backfill, is expected to
generate the most disturbance of bottom sediments. Sediment transport
modeling conducted by Neptune indicates that initial turbidity from
pipeline installation could reach 100 milligrams per liter (mg/L) but
will subside to 20 mg/L after 4 hours. Turbidity associated with the
flowline and hot-tap will be considerably less and also will settle
within hours of the work being completed. Resettled sediments also will
constitute to seafloor disturbance. When re-suspended sediments
resettle, they reduce growth, reproduction, and survival rates of
benthic organisms, and in extreme cases, smother benthic flora and
fauna. Plankton will not be affected by resettled sediment. The project
area is largely devoid of vegetation and consists of sand, silt, clay,
or mixtures of the three.
Recovery of soft-bottom benthic communities impacted by project
installation is expected to be similar to the recovery of the soft
habitat associated with the construction of the HubLine\TM\ (Algonquin
Gas Transmission L.L.C., 2004). Post-construction monitoring of the
HubLine\TM\ indicates that areas that were bucket-dredged showed the
least disturbance. Displaced organisms will return shortly after
construction ceases, and disrupted communities will easily re-colonize
from surrounding communities of similar organisms. Similarly,
disturbance to hard-bottom pebble/cobble and piled boulder habitat is
not expected to be significant. Some organisms could be temporarily
displaced from existing shelter, thereby exposing them to increased
predation, but the overall structural integrity of these areas will not
be reduced (Auster and Langton, 1998).
Short-term impacts on phytoplankton, zooplankton (holoplankton),
and planktonic fish and shellfish eggs and larvae (meroplankton) will
occur as a result of the project. Turbidity associated with Port and
pipeline installation will result in temporary direct impacts on
productivity, growth, and development. Phytoplankton and zooplankton
abundance will be greatest during the summer construction schedule.
Fish eggs and larvae are present in the project area throughout the
year. Different species of fish and invertebrate eggs and larvae will
be affected by the different construction schedules.
The temporary disturbance of benthic habitat from trenching for and
burial of the transmission pipeline will result in direct, minor,
adverse impacts from the dispersion of fish from the area and the
burying or crushing of shellfish. In the short-term, there will be a
temporary, indirect, and beneficial impact from exposing benthic food
sources. Seafloor disturbance could also occur as a result of
resettling of suspended sediments during installation and construction
of the Port and pipeline. Redeposited sediments will potentially reduce
viability of demersal fish eggs and growth, reproduction, and survival
rates of benthic shellfish. In extreme cases, resettled sediments could
smother benthic shellfish, although many will be able to burrow
vertically through resettled sediments.
Construction activities will not create long-term habitat changes,
and marine mammals displaced by the disturbance to the seafloor are
expected to return soon after construction ceases. Marine mammals also
could be indirectly affected to the extent benthic prey species are
displaced or destroyed by construction activities. Affected species are
expected to recover soon after construction ceases and will represent
only a small fraction of food available to marine mammals in the area.
Marine Mammal Mitigation, Monitoring, and Reporting
Port Construction Minimization Measures
General
Construction activities will be limited to a May through November
time frame so that acoustic disturbance to the endangered North
Atlantic right whale can largely be avoided.
Construction activities must be suspended immediately and NMFS
contacted if a dead or injured marine mammal is found in the vicinity
of the project area, and the death or injury of the animal could be
attributable to the LNG facility construction. Activities will not
resume until review and approval is given by NMFS.
Visual Monitoring Program
The Neptune Project will employ two MMOs on each lay barge, bury
barge, and diving support vessel for visual shipboard surveys during
construction activities. Qualifications for these individuals will
include direct field experience on a marine mammal/sea turtle
observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of
Mexico. The observers (one primary, one secondary) are responsible for
visually locating marine mammals at the ocean's surface, and, to the
extent possible, identifying the species. The primary observer will act
as the identification specialist, and the secondary observer will serve
as data recorder and also assist with identification. Both observers
will have responsibility for monitoring for the presence of marine
mammals. All observers will receive NMFS-approved MMO training and be
approved in advance by NMFS after review of their qualifications.
The MMOs will be on duty at all times when any vessel is moving and
at selected periods when construction vessels are idle, including when
other vessels move around the construction lay barge. The MMOs will
monitor the construction area beginning at daybreak using 25x power
binoculars and/or hand-held binoculars, resulting in a conservative
effective search range of 0.5 mi (0.8 km) during clear weather
conditions for the shipboard observers. The MMO will scan the ocean
surface by eye for a minimum of 40 minutes every hour. All sightings
will be recorded in marine mammal field sighting logs. Observations of
marine mammals will be identified to species or the lowest taxonomic
level possible and their relative position in relation to the vessel
will be recorded. Night vision devices will be standard equipment for
monitoring during low-light hours and at night.
During all phases of construction, MMOs will be required to scan
for and report all marine mammal sightings to the vessel captain. The
captain will then alert the environmental coordinator that a marine
mammal is near the construction area. The MMO will have the authority
to bring the vessel to idle or to temporarily suspend operations if a
baleen whale is seen within 0.6 mi (1 km) of the moving pipelay vessel
or construction area. The MMO or environmental coordinator will
determine whether there is a potential for harm to an individual animal
and will be charged with responsibility for determining when it is safe
to resume activity. A vessel will not increase power again until the
marine mammal(s) leave(s) the area or has/have not been sighted for 30
minutes. The vessel will then power up slowly.
Construction and support vessels will be required to display lights
when operating at night, and deck lights will be required to illuminate
work areas. However, use of lights will be limited to areas where work
is actually occurring, and all other lights will be extinguished.
[[Page 33409]]
Lights will be downshielded to illuminate the deck and will not
intentionally illuminate surrounding waters, so as not to attract
whales or their prey to the area.
Distance and Noise Level for Cut-Off
(1) During construction, if a marine mammal is detected within 0.5
mi (0.8 km) of a construction vessel, the vessel superintendent or on-
deck supervisor will be notified immediately. The vessel's crew will be
put on a heightened state of alert. The marine mammal will be monitored
constantly to determine if it is moving toward the construction area.
The observer is required to report all North Atlantic right whale
sightings to NMFS as soon as possible.
(2) Construction vessels will cease any movement in the
construction area if a marine mammal other than a right whale is
sighted within or approaching to a distance of 100 yd (91 m) from the
operating construction vessel. Construction vessels will cease any
movement in the construction area if a right whale is sighted within or
approaching to a distance of 500 yd (457 m) from the operating
construction vessel. Vessels transiting the construction area such as
pipe haul barge tugs will also be required to maintain these separation
distances
(3) Construction vessels will cease all activities that emit sounds
reaching a received level of 120 dB re 1 microPa or higher at 100 yd
(91 m) if a marine mammal other than a right whale is sighted within or
approaching to this distance, or if a right whale is sighted within or
approaching to a distance of 500 yd (457 m), from the operating
construction vessel. The back-calculated source level, based on the
most conservative cylindrical model of acoustic energy spreading, is
estimated to be 139 dB re 1 microPa.
(4) Construction may resume after the marine mammal is positively
reconfirmed outside the established zones (either 500 yd (457 m) or 100
yd (91 m), depending upon species).
Vessel Strike Avoidance
(1) While moving, all construction vessels will remain 0.6 mi (1
km) away from right whales and all other whales to the extent possible
and 100 yd (91 m) away from all other marine mammals to the extent
physically feasible given navigational constraints as required by NMFS.
(2) MMOs will direct a moving vessel to slow to idle if a baleen
whale is seen within 0.6 mi (1 km) of the vessel.
(3) All construction vessels 300 gross tons or greater will
maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than
300 gross tons carrying supplies or crew between the shore and the
construction site must contact the appropriate authority or the
construction site before leaving shore for reports of recent right
whale sighting and, consistent with navigation safety, restrict speeds
to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent
sighting location.
(4) All vessels transiting through the Cape Cod Canal and CCB
between January 1 and May 15 will reduce speeds to 10 knots (18.5 km/
hr) or less, follow the recommended routes charted by NOAA to reduce
interactions between right whales and shipping traffic, and avoid
aggregations of right whales in the eastern portion of CCB. To the
extent practicable, pipe deliveries will be avoided during the January
to May time frame. In the unlikely event the Canal is closed during
construction, the pipe haul barges will transit around Cape Cod
following the Boston TSS and all measures for the SRVs when transiting
to the Port.
(5) Construction and support vessels will transit at 10 knots or
less in the following seasons and areas, which correspond to times and
areas in NMFS' proposed rule (71 FR 36299, June 26,2006) to implement
speed restrictions to reduce the likelihood and severity of ship
strikes of right whales:
Southeast U.S. Seasonal Management Area (SMA) from
November 15 through April 15, which is bounded by the shoreline,
31[deg] 27' N. (i.e., the northern edge of the Mandatory Ship Reporting
System (MSRS) boundary) to the north, 29[deg] 45' N. to the south, and
80[deg] 51.6' W. (i.e., the eastern edge of the MSRS boundary);
Mid-Atlantic SMAs from November 1 through April 30, which
encompass the waters within a 30 nm (55.6 km) area with an epicenter at
the midpoint of the COLREG demarcation line crossing the entry into the
following designated ports or bays: (a) Ports of New York/New Jersey;
(b) Delaware Bay (Ports of Philadelphia and Wilmington); (c) Entrance
to the Chesapeake Bay (Ports of Hampton Roads and Baltimore) (d) Ports
of Morehead City and Beaufort, North Carolina; (e) Port of Wilmington,
North Carolina; (f) Port of Georgetown, South Carolina; (g) Port of
Charleston, South Carolina; and (h) Port of Savannah, Georgia;
CCB SMA from January 1 through May 15, which includes all
waters in CCB, extending to all shorelines of the Bay, with a northern
boundary of 42[deg] 12' N.;
Off Race Point SMA year round, which is bounded by
straight lines connecting the following coordinates in the order
stated:
42[deg] 30' N. 70[deg] 30' W.
42[deg] 30' N. 69[deg] 45' W.
41[deg] 40' N. 69[deg] 45' W.
41[deg] 40' N. 69[deg] 57' W.
42[deg] 04.8' N. 70[deg] 10' W.
42[deg] 12' N. 70[deg] 15' W.
42[deg] 12' N. 70[deg] 30' W.
42[deg] 30' N. 70[deg] 30' W.; and
Great South Channel SMA from April 1 through July 31,
which is bounded by straight lines connecting the following coordinates
in the order stated:
42[deg] 30' N. 69[deg] 45' W.
42[deg] 30' N. 67[deg] 27' W.
42[deg] 09' N. 67[deg] 08.4' W.
41[deg] 00' N. 69[deg] 05' W.
41[deg] 40' N. 69[deg] 45' W.
42[deg] 30' N. 69[deg] 45' W.
PAM Program
In addition to visual monitoring, Neptune will utilize a PAM system
to aid in the monitoring and detection of vocalizing marine mammals in
the project area. Neptune has engaged personnel from NMFS and the SBNMS
regarding available passive acoustic technology that could be used to
enhance the PAM program.
The PAM system will be capable of detecting, localizing (range and
bearing), and classifying marine mammals in near real-time. When
combined with an action and communication plan, Neptune will have the
capability to make timely decisions and undertake steps to minimize the
potential for collisions between marine mammals and construction
vessels. The PAM system for the Neptune project involves the
installation of an array of auto-detection monitoring buoys moored at
regular intervals in a circle surrounding the site of the terminal and
associated pipeline construction. Buoys will be arranged to maximize
auto detection and provide localization capability. With the existing
technology, this would require six buoys moored every 5 nm (9.3 km) to
provide some overlap in coverage. The buoys are designed to monitor the
sound output from construction activities to ensure predicted levels
are not exceeded and to detect the presence of vocally active marine
mammals. Passive acoustic devices will be actively monitored for
detections by a NMFS-approved bioacoustic technician.
Other Measures
Mesh grates will be used during flooding and hydrostatic testing of
the pipeline and flowlines to minimize impingement and entrainment of
marine mammals. Operations involving
[[Page 33410]]
excessively noisy equipment will ``ramp-up'' sound sources, as long as
this does not jeopardize the safety of vessels or construction workers,
allowing whales a chance to leave the area before sounds reach maximum
levels. Contractors will be required to utilize vessel-quieting
technologies that minimize sound. Contractors will be required to
maintain individual Spill Prevention, Control, and Containment Plans in
place for construction vessels during construction.
An environmental coordinator with experience coordinating projects
to monitor and minimize impacts to marine mammals will be onsite to
coordinate all issues concerning marine protected species, following
all of the latest real-time marine mammal movements. The coordinator
will work to ensure that environmental standards are adhered to and
adverse interactions between project equipment and marine mammals do
not occur.
Reporting
During construction, weekly status reports will be provided to NMFS
utilizing standardized reporting forms. In addition, the Neptune Port
Project area is within the Mandatory Ship Reporting Area (MSRA), so all
construction and support vessels will report their activities to the
mandatory reporting section of the USCG to remain apprised of North
Atlantic right whale movements within the area. All vessels entering
and exiting the MSRA will report their activities to WHALESNORTH.
During all phases of project construction, sightings of any injured or
dead marine mammals will be reported immediately to the USCG and NMFS,
regardless of whether the injury or death is caused by project
activities. Any right whale sightings will be reported to the NMFS
Sighting Advisory System.
Sightings of injured or dead marine mammals not associated with
project activities can be reported to the USCG on VHF Channel 16 or to
NMFS Stranding and Entanglement Hotline. In addition, if the injury or
death was caused by a project vessel (e.g., SRV, support vessel, or
construction vessel), USCG must be notified immediately, and a full
report must be provided to NMFS, Northeast Regional Office. The report
must include the following information: (1) the time, date, and
location (latitude/longitude) of the incident; (2) the name and type of
vessel involved; (3) the vessel's speed during the incident; (4) a
description of the incident; (5) water depth; (6) environmental
conditions (e.g., wind speed and direction, sea state, cloud cover, and
visibility); (7) the species identification or description of the
animal; and (8) the fate of the animal.
An annual report on marine mammal monitoring and mitigation will be
submitted to NMFS Office of Protected Resources and NMFS Northeast
Regional Office within 90 days after the expiration of the IHA. The
weekly reports and the annual report must include data collected for
each distinct marine mammal species observed in the project area in
Massachusetts Bay during the period of Port construction. Description
of marine mammal behavior, overall numbers of individuals observed,
frequency of observation, and any behavioral changes and the context of
the changes relative to construction activities shall also be included
in the annual report. Additional information that will be recorded
during construction and contained in the reports include: date and time
of marine mammal detections (visually or acoustically), weather
conditions, species identification, approximate distance from the
source, activity of the vessel or at the construction site when a
marine mammal is sighted, and whether or not thrusters were in use and
how many at the time of the sighting.
ESA
On January 12, 2007, NMFS concluded consultation with MARAD and the
USCG under section 7 of the ESA on the proposed construction and
operation of the Neptune LNG facility. The finding of that consultation
was that the construction and operation of the Neptune LNG terminal
adversely affect, but is not likely to jeopardize, the continued
existence of northern right, humpback, and fin whales, and is not
likely to adversely affect sperm, sei, or blue whales and Kemp's
ridley, loggerhead, green, or leatherback sea turtles. Because the
issuance of an IHA to Neptune under section 101(a)(5)(D) of the MMPA is
a Federal action, NMFS also conducted a section 7 consultation, and it
was determined that issuance of the IHA will not have effects on listed
species beyond what was previously analyzed.
National Environmental Policy Act
MARAD and the USCG released a Final EIS for the proposed Neptune
LNG Deepwater Port. A notice of availability was published by MARAD on
November 2, 2006 (71 FR 64606). The Final EIS provides detailed
information on the proposed project facilities, construction methods,
and analysis of potential impacts on marine mammals. The Final EIS is
incorporated as part of the MMPA record of decision (ROD) for this
action.
NMFS was a cooperating agency in the preparation of the Draft and
Final EISs based on a Memorandum of Understanding related to the
Licensing of Deepwater Ports entered into by the U.S. Department of
Commerce along with 10 other government agencies. NMFS has adopted the
USCG and MARAD FEIS and issued a separate ROD for issuance of the IHA.
Determinations
NMFS has determined that the impact of construction of the Neptune
Port Project may result, at worst, in a temporary modification in
behavior of \TM\all numbers of certain species of marine mammals that
may be in close proximity to the Neptune LNG facility and associated
pipeline during its construction. These activities are expected to
result in some local short-term displacement, resulting in no more than
a negligible impact on the affected species or stocks of marine
mammals. The provision requiring that the activity not have an
unmitigable adverse impact on the availability of the affected species
or stock for subsistence use does not apply for this action.
These determinations are supported by measures described earlier in
this document under ``Marine Mammal Mitigation, Monitoring, and
Reporting'' and MARAD's ROD (and NMFS' Biological Opinion on this
action). As a result of the described mitigation measures, no take by
injury or death is requested, anticipated, or authorized, and the
potential for temporary or permanent hearing impairment is very
unlikely due to the relatively low noise levels (and consequently
\TM\all ZOI). The likelihood of such effects will be avoided through
the incorporation of the shut-down mitigation measures mentioned in
this document. While the number of marine mammals that may be harassed
will depend on the distribution and abundance of marine mammals in the
vicinity of the Port construction, the estimated number of marine
mammals to be harassed is small relative to overall population sizes.
Authorization
As a result of these determinations, NMFS has issued an IHA to
Neptune for the taking (by Level B harassment only) during construction
of the Neptune Port provided the previously mentioned mitigation,
monitoring, and reporting requirements are incorporated.
[[Page 33411]]
Dated: June 6, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. E8-13264 Filed 6-11-08; 8:45 am]
BILLING CODE 3510-22-S