AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Notice; issuance of a modified Letter of Authorization.
SUMMARY:
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued a modified Letter of Authorization to the U.S. Navy to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with pile driving and bulkhead repair at Naval Station Newport in Newport, Rhode Island.
DATES:
This Authorization is effective from January 25, 2023 to May 14, 2027.
FOR FURTHER INFORMATION CONTACT:
Cara Hotchkin, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the original application and supporting documents (including NMFS Federal Register notices of the original proposed and final authorizations, and the previous IHA), as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island. In case of problems accessing these documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
History of Request
On December 15, 2021, NMFS issued a final rule to the Navy (86 FR 71162) to incidentally harass, by Level A and Level B harassment only, marine mammals during construction activities associated with bulkhead replacement and repairs at Naval Station Newport (NAVSTA Newport) over the course of 5 years (2022-2027). Subsequently, on January 26, 2022, NMFS issued a Letter of Authorization (LOA) to the Navy (87 FR 6145) associated with the final rule. Species authorized for take included Atlantic white-sided dolphin ( Lagenorhynchus acutus), common dolphin ( Delphinus delphis), harbor porpoise ( Phocoena phocoena), harbor seal ( Phoca vitulina), gray seal ( Halichoerus grypus), harp seal ( Pagophilus groenlandicus), and hooded seal ( Cystophora cristata). The effective dates of this LOA are May 15, 2022 through May 14, 2027.
On November 15, 2022, NMFS received a request from the Navy for a modification to the NAVSTA Newport bulkhead construction project due to a change in the construction contractor's plan. On December 15, 2022, the Navy revised their request to incorporate NMFS's DTH source level recommendations (available at: https://media.fisheries.noaa.gov/2022-11/PUBLIC%20DTH%20Basic%20Guidance_November%202022.pdf ). In its initial request for incidental take regulations, the Navy did not anticipate the need for vibratory driving of steel pipe piles or DTH installation of any pile type. Vibratory driving of steel sheet and H-piles was included, and analyzed in the rule. However, the construction contractor for the first phase of the project (S45 bulkhead) has since determined that vibratory driving of steel pipe piles will be required, and that DTH hammering may be necessary if obstructions are encountered that would prevent the use of impact or vibratory hammers to install piles. Therefore, the Navy requested, and NMFS proposed, to modify the 2022 LOA to include take incidental to potential vibratory driving of 30-in steel pipe piles and DTH hammering of 10-in diameter holes. These updates to the Navy's specified activity will increase estimated Level B harassment isopleths and, therefore, result in an increased estimate of exposures by Level B harassment for harbor seal, gray seal, and harp seal. NMFS has determined that the changes also necessitate revised shutdown mitigation provisions for vibratory and DTH pile driving scenarios for all species. The monitoring and reporting measures remain the same as prescribed in the initial LOA, and no additional take is authorized for other species. There have been no changes from the proposed modification.
Description of the Specified Activity and Anticipated Impacts
The modified LOA includes the same construction activities ( i.e., impact pile driving, vibratory pile driving and removal) in the same locations that were described in the 2022 final rule (86 FR 71162; December 15, 2021); for the S45 location, additional vibratory driving and DTH hammering are included. The monitoring and reporting measures remain the same as prescribed in the initial LOA, while revisions to the required mitigation measures have been made. NMFS refers the reader to relevant documents related to issuance of the initial LOA, including the Navy's application, the proposed rule and request for comments (86 FR 56857; October 13, 2021), final rule (86 FR 71162; December 15, 2021), and notice of issued LOA (87 FR 6145; February 3, 2022) (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island ) for more detailed description of the project activities.
Detailed Description of the Action
A detailed description of the planned construction activities is found in the aforementioned documents associated with issuance of the initial LOA. The location, time of year, and general nature of the activities are identical to those described in the previous documents. However, as noted in the History of Request section, the Navy anticipates that vibratory installation of 30-in steel pipe piles and DTH hammering will be necessary to complete the S45 phase of the project on time.
A detailed description of the planned S45 bulkhead modifications is provided in the Federal Register notice for the proposed LOA Modification (88 FR 342; January 4, 2023). Since that time, no changes have been made to the planned construction activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue a Modified LOA to the Navy was published in the Federal Register on January 4, 2023 (88 FR 342). That notice described, in detail, the Navy's modified activities. In that notice, we requested public input on the request for authorization described therein, our analyses, the proposed authorization, and any other aspect of the notice of proposed LOA modification, and requested that interested persons submit relevant information, suggestions, and comments. This proposed notice was available for a 15-day public comment period. NMFS received no public comments on the proposed modification.
Description of Marine Mammals
A detailed description of the marine mammals in the area of the activities is found in relevant documents related to issuance of the initial LOA, including the Navy's application, and the proposed rule and request for comments (86 FR 56857; October 13, 2021). This information remains applicable to this modified LOA. A description of the modified construction activities at the S45 bulkhead, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register of proposed LOA Modification (88 FR 342; January 4, 2023); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS' website ( https://www.fisheries.noaa.gov/find-species ) for generalized species accounts.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities on marine mammals and their habitat may be found in the documents supporting the final rule, which remains applicable to modification of the LOA. NMFS is not aware of new information regarding potential effects.
Estimated Take
A detailed description of the methods and inputs used to estimate authorized take for the specified activity are found in the proposed rule (86 FR 56857; October 13, 2021); the descriptions presented in the proposed rule did not change in the final rule (86 FR 71162; December 15, 2021). The types and sizes of piles, and marine mammal stocks taken remain unchanged from the final rule. This modification addresses the addition of vibratory driving of four 30-in steel pipe piles and ten instances of DTH hammering at the S45 bulkhead, which would result in increased harassment zone sizes. The Navy anticipates that up to four days of vibratory driving (up to two piles per day) and up to eight days of DTH hammering at one hole per day will be required. Acoustic effects on marine mammals during the specified activity can occur from impact and vibratory pile installation and removal, and DTH. The effects of underwater noise from the Navy's activities have the potential to result in Level A and Level B harassment of marine mammals in the action area.
The modification includes the use of DTH hammers, which were not evaluated in the final rule. A DTH hammer is essentially a drill bit that drills through the bedrock using a rotating function like a normal drill, in concert with a hammering mechanism operated by a pneumatic (or sometimes hydraulic) component integrated into to the DTH hammer to increase speed of progress through the substrate ( i.e., it is similar to a “hammer drill” hand tool). The sounds produced by DTH methods contain both a continuous non-impulsive component from the drilling action and an impulsive component from the hammering effect. Therefore, NMFS treats DTH systems as both impulsive and continuous, non-impulsive sound source types simultaneously.
Ensonified Area
A detailed description of the operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient, can be found in the proposed rule (86 FR 56857; October 13, 2021), and did not change in the final rule (86 FR 71162; December 15, 2021). The new activities include vibratory driving of 30-in pipe piles and DTH hammering; for those activities, we provide a description of the sound source levels and ensonified areas below.
Sound Source Levels of Construction Activities —The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment ( e.g., sediment type) in which the activity takes place. The Navy consulted with NMFS on the appropriate sound source levels to use for vibratory driving, and NMFS recommended a value based on available measurements of vibratory driving of 30-in steel pipe piles (CALTRANS, 2020). Source data for the installation methods and pile types are provided in Table 2. Note that the source levels in this Table represent the SPL referenced at a distance of 10 m from the source.
NMFS recommends treating DTH systems as both impulsive and continuous, non-impulsive sound source types simultaneously. Thus, impulsive thresholds are used to evaluate Level A harassment, and the continuous threshold is used to evaluate Level B harassment. The Navy consulted with NMFS to obtain the appropriate proxy values for DTH mono-hammers. NMFS recommended proxy levels for Level A harassment based on available data regarding DTH systems of similar sized piles and holes (Table 1) (Denes et al., 2019; Guan and Miner, 2020; Reyff and Heyvaert, 2019; Reyff, 2020; Heyvaert and Reyff, 2021).
Table 1—Source Information for Modified Pile Driving and DTH Activities
The methods used to calculate the ensonified areas based on the sound source information in Table 2 are identical to those used in the final rule; details are provided in the Proposed Rule (86 FR 56857; October 13, 2021). The resulting Level A and Level B harassment isopleths are provided in Tables 2 and 3.
Table 2—Calculated Distance and Areas of Level A and Level B Harassment for Impulsive Noise (DTH)
Table 3—Calculated Distance and Areas of Level A and Level B Harassment for Non-Impulsive Noise (Vibratory, DTH)
Marine Mammal Occurrence and Take Calculation and Estimation
A description of the methods used to estimate take anticipated to occur from the project is found in the project's aforementioned documents. The methods of estimating take are identical to those used in the final rule. Table 4 shows the authorized takes at the S45 facility under the initial LOA (all in year 1) and the estimated takes from the modified activities.
Table 4—Take Estimates at S45 Facility Under the Initial LOA and the Modification
| Initial LOA (year 1; S45) | Modified LOA | |||
|---|---|---|---|---|
| Level A | Level B | Level A | Level B | |
| Atlantic White-sided Dolphin | 0 | 1 | 0 | 1 |
| Common Dolphin | 0 | 3 | 0 | 3 |
| Harbor Porpoise | 1 | 4 | 1 | 4 |
| Harbor Seal | 15 | 188 | 15 | 244 |
| Gray Seal | 3 | 40 | 3 | 52 |
| Harp Seal | 1 | 16 | 1 | 20 |
| Hooded Seal | 0 | 0 | 0 | 0 |
Table 5—Take Estimates as a Percentage of Stock Abundance for the Modification for Year 1 Takes at the S45 Facility
| Species | Stock (N EST ) | Level A harassment | Level B harassment | Percent of stock |
|---|---|---|---|---|
| Atlantic White-sided Dolphin | Western North Atlantic (93,233) | 0 | 3 | Less than 1 percent. |
| Common Dolphin | Western North Atlantic (172,947) | 0 | 3 | Less than 1 percent. |
| Harbor Porpoise | Gulf of Maine/Bay of Fundy (95,543) | 1 | 4 | Less than 1 percent. |
| Harbor Seal | Western North Atlantic (61,336) | 15 | 244 | Less than 1 percent. |
| Gray Seal | Western North Atlantic (451,431) | 3 | 52 | Less than 1 percent. |
| Harp Seal | Western North Atlantic (7.6 million) | 1 | 20 | Less than 1 percent. |
| Hooded Seal | Western North Atlantic (593,500) | 0 | 0 | Less than 1 percent. |
Description of Mitigation, Monitoring and Reporting Measures
The reporting measures are identical to those included in the initial LOA included in 2022 final rule. The monitoring and mitigation measures have been updated to include additional hydroacoustic monitoring and conservative shutdown zones. The following measures are included in the LOA Modification, and are in addition to those described in the Final Rule (86 FR 71162; December 15, 2021):
- Supplemental hydroacoustic monitoring will include:
○ 30-in Steel Pipe—vibratory driving: 2 piles; and
○ Obstruction drilling—DTH hammer: up to 8 holes (if required for pile installation).
- Shutdown zones for the new activities are identical to those identified in the Final Rule (86 FR 71162; December 15, 2021):
○ DTH Obstruction Drilling: The maximum shutdown zone included in the initial LOA is 150 m. This distance is greater than the calculated distance to Level A harassment thresholds for marine mammal species from DTH activities at the S45 facility, which is 111.6 m for harbor porpoise. The Navy will implement the same 150 m shutdown distance for cetaceans and pinnipeds when conducting DTH activities.
○ Vibratory driving steel pipe piles: the greatest calculated distance to Level A harassment thresholds for species at this location is 7.4 m, which is less than the standard construction shutdown of 10 m to prevent equipment/mammal interactions. However, for consistency the Navy will implement a 30 m shutdown distance for cetaceans and 10 m for pinnipeds from vibratory pile driving steel pipe piles, which is the same as for vibratory driving steel sheet piles in the initial authorization.
Determinations
With the exception of the revised take numbers and monitoring and mitigation measures, the Navy's planned in water construction activities as well as reporting requirements are unchanged from those in the initial LOA. The effects of the activity on the affected species and stocks, taking into consideration the modified mitigation and related monitoring measures, remain unchanged, notwithstanding the increase to the authorized amount of harbor seal, gray seal, and harp seal take by Level B harassment.
The additional takes from Level B harassment will be due to potential behavioral disturbance and TTS. No serious injury or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for harassment is minimized through the construction method and the implementation of the planned mitigation measures (see Description of Mitigation, Monitoring and Reporting Measures section).
The Navy's pile driving project is unlikely to result in serious injury or mortality. For all species and stocks, take would occur within a limited, confined area (immediately surrounding NAVSTA Newport in the Narragansett Bay area) of the stock's range. Level A and Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. Furthermore, the amount of take authorized is extremely small when compared to stock abundance.
The additional 72 takes of harbor, gray, and harp seals represents an increase of approximately 5.7 percent of the total take authorized in the initial LOA, and the anticipated impacts are identical to those described in the 2022 final rule. The amount of additional take for each species is also small (less than 1 percent of each stock). The Navy will conduct additional hydro-acoustic monitoring of the new activities, which will improve understanding of the source levels of such activities for future work. The modification to the LOA includes additional required mitigation and monitoring measures (albeit some minor modification to harassment and shutdown distances), and identical reporting measures as the 2022 LOA.
In conclusion, there is no new information suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) Navy's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action, and (5) appropriate monitoring and reporting requirements are included.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our action ( i.e., the issuance of an IHA) with respect to potential impacts on the human environment.
This action remains consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the modified LOA continues to qualify to be categorically excluded from further NEPA review.
Endangered Species Act (ESA)
Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that each Federal agency ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of incidental take authorizations, NMFS consults internally whenever we propose to authorize take for endangered or threatened species.
No incidental take of ESA-listed species is expected to result from this activity, and none is authorized herein. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
Authorization
NMFS has issued a modified LOA to the Navy for the potential harassment of small numbers of three marine mammal species incidental to construction at the S45 Bulkhead at Naval Station Newport in Newport, Rhode Island, that includes the previously explained mitigation, monitoring, and reporting requirements.
Dated: January 25, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries Service.
[FR Doc. 2023-01807 Filed 1-27-23; 8:45 am]
BILLING CODE 3510-22-P