Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to the Port of Anchorage Marine Terminal Redevelopment Project

Federal Register: July 2, 2010 (Volume 75, Number 127)

Notices

Page 38465-38467

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr02jy10-39

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XQ80

Taking and Importing Marine Mammals; Taking Marine Mammals

Incidental to the Port of Anchorage Marine Terminal Redevelopment

Project

AGENCY: National Marine Fisheries Service, National Oceanic and

Atmospheric Administration, Commerce.

ACTION: Notice of issuance of a Letter of Authorization.

SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), as amended and implementing regulations, notification is hereby given that the National Marine Fisheries Service (NMFS) has issued a Letter of Authorization (LOA) to the Port of Anchorage (POA) and the U.S.

Department of Transportation Maritime Administration (MARAD), to take four species of marine mammals incidental to the POA's Marine Terminal

Redevelopment Project (MTRP).

DATES: Effective July 15, 2010, through July 14, 2011.

ADDRESSES: The LOA and supporting documentation are available for review by writing to P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine

Fisheries Service (NMFS), 1315 East-West Highway, Silver Spring, MD 20910-3225 or by telephoning one of the contacts listed below.

Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address and at the Alaska

Regional Office, 222 West 7th Avenue, Anchorage, AK 99513.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly or Brian D. Hopper,

Office of Protected Resources, NMFS, (301) 713-2289.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs the National Marine Fisheries Service (NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued. Under the MMPA, the term

``take'' means to harass, hunt, capture, or kill or to attempt to harass, hunt, capture, or kill marine mammals.

Authorization may be granted for periods up to 5 years if NMFS finds, after notification and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses. In addition, NMFS must prescribe regulations that include permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species for subsistence uses. The regulations must include requirements for monitoring and reporting of such taking.

Regulations governing the taking of Cook Inlet beluga whales

(Delphinapterus leucas), harbor porpoises (Phocoena phocoena), killer whales (Orcinus orca), and harbor seals (Phoca vitulina), by Level B harassment, incidental to in-water pile driving were issued on July 15, 2009 (74 FR 35136), and remain in effect until July 14, 2014. These regulations may be found in 50 CFR 217 subpart U. For detailed information on this action, please refer to that document. These regulations include mitigation, monitoring, and reporting requirements for the incidental take of marine mammals during the specified activity.

Summary of Request

On April 23, 2010, NMFS received a request for an LOA renewal pursuant to the aforementioned regulations that would authorize, for a period not to exceed 1 year, take of marine mammals, by Level B harassment only, incidental to the POA MTRP. In compliance with the 2009 LOA, POA and MARAD submitted an annual report on POA construction activites, covering the period of July 15 through December 31, 2009.

The report also covers the period of January 1 through July 15, 2009, pursuant to the U.S. Army Corps of Engineers' reporting requirement under their permit issued under Section 10 of the Rivers and Harbors

Act and Section 404 of the Clean Water Act. The report can be found on the NMFS website at

Page 38466

http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Summary of Activity and Monitoring Under the 2009 LOA

During the reporting period covered by the 2009 LOA, in-water construction activities were conducted in the North Extension and Barge

Berth areas. In-water construction and construction monitoring for the 2009 season ended on December 14, 2009, when ice formation and poor visibility impeded further activity. These activities were within the scope of those analyzed in the final rule and included in the 2009 LOA.

On-site POA Monitoring

As required by the 2009 LOA, the POA and MARAD established safety and harassment zones at the project site, which were monitored for the presence of marine mammals before, during, and after in-water pile driving. If the applicable safety and harassment zones were not visible because of fog, poor light, darkness, sea state, or any other reason, in-water construction activities were shut down until the area was once again visible. From July 15 to December 14, 2009, 45 pile driving shutdowns were documented due to marine mammal sightings. The peak month for shutdowns and delays during the 2009 construction season was

August, when 25 shutdown/delays were recorded. Most of these occurred when marine mammals were sighted approaching or surfacing just inside the harassment zone.

According to the POA's annual report, within the LOA reporting period (July 15- December 14, 2009), MMOs stationed at the POA recorded 122 marine mammal sightings for a total of 1,127 total animals sighted

(Table 2). There were 1,094 beluga whales (516 white, 481 gray, and 97 dark gray); 17 harbor seals (15 adults and 2 juveniles); 15 harbor porpoises (10 adults and 5 unknown age); and one unidentified pinniped.

The highest number of sightings (51) and number of marine mammals sighted (576) occurred in August (572 of this number were beluga whales: 234 white; 277 gray; and 61 dark gray). The fewest number of sightings for a 30-day period were recorded in April, when only 8 marine mammals were sighted. In general, beluga whales showed no observable reaction to pile driving. The only observable reaction which has been documented is beluga whale groups splitting momentarily on three occasions as they maneuver around barges or vessels. In-water pile driving has yet to begin this year, to date; therefore, no MMOs have been required at the POA in 2010.

Independent Scientific Monitoring

POA regulations (50 CFR 217 subpart U) stipulate that the POA and

MARAD employ a scientific marine mammal monitoring team separate from the on-site MMOs to characterize beluga whale frequency, abundance, group composition, movements, behavior, and habitat use around the POA and observe, analyze, and document potential changes in behavior in response to in-water construction work. The POA and MARAD complied with this requirement by assembling a monitoring team from the Alaska

Pacific University (APU) to implement a NMFS-approved scientific monitoring plan. The scientific marine mammal monitoring 2009 annual report was attached as an appendix to the annual report submitted by

POA and MARAD. This report covers the period of May through November, 2009 (ICRC, 2010). A summary of that report follows.

The APU observers conducted scientific monitoring from the Cairn

Point Station on Elmendorf Air Force Base, which directly overlooks the

POA. For 86 days, from May 4 through November 18, 2009, trained graduate and undergraduate marine biology students conducted approximately 783 hours of scientific monitoring and documented approximately 166 beluga whales, comprising 54 groups, and one harbor seal traveling through the study area. Spatial distribution analysis indicates that approximately 52 percent of all groups sighted occurred within (n=25) or adjacent to (n=3) the MRTP footprint. There were significant differences in the number of whales observed across tidal stages (F8,45= 2.94, p = .02). There were significant peaks in sightings during low (p = .01) and high (p = .03) flood tides and during high ebb tides (p = .03).

Mean beluga whale group size was 3.0 plus or minus .36 individuals.

Only four groups contained individuals identified as calves, and groups with calves were larger on average (5.4 plus or minus 1.9 individuals) than those without. All four groups containing calves were sighted within or adjacent to the MTRP footprint. The number of beluga whales sighted, group size, and size of groups with calves in 2009 decreased from those sighted in 2008; however, this difference was not considered significant. The APU team will continue to monitor and report on beluga whale abundance and the various parameters discussed here within lower

Knik Arm for the duration of POA construction.

In summary, the scientific monitoring team found that beluga whale habitat use, distribution and movements, and behavior during 2009 were consistent with previous years (2007-2008) with whales primarily traveling through the study area on the incoming and outgoing tides to and from likely foraging areas further up Knik Arm. Similar to accounts from the MMOs stationed at the POA, no observed behavioral changes

(e.g., abrupt behavioral changes, rapid descents) or other indicators of response to in-water pile driving or other MTRP in-water construction activities were noted by the APU observers.

Take Summary for 2009 Construction Season

During the 2009 LOA reporting period, the following numbers of marine mammals were identified as taken from in-water pile driving: 20 beluga whales; five harbor seals; four harbor porpoises; and zero killer whales. Of the 20 beluga whale takes recorded, three were in

August, one in September, one in October, and 15 in November (during one sighting). The 15 beluga whales sighted in November were initially seen south of Cairn Point, approximately 950 m from in-water pile driving. As a result, pile driving was shut down for 40 minutes while the animals were in view and no behavioral changes were recorded. The animals were resighted north of Cairn Point heading north along the shoreline and away from the action area. The number of animals, by species, taken under the 2009 LOA was within the amount authorized.

The POA has implemented a robust monitoring program so that pile driving is shut down before marine mammals enter into the designated

Level A and B isopleths; thereby minimizing harassment, as demonstrated by the number of sightings vs. the number of takes. The POA has also developed a successful communication system between MMOs and engineers' to shut down pile driving before whales enter into designated harassment zones, avoiding take.

Planned Activities and Mitigation for 2010

As stated in the regulations and LOA, take of marine mammals will be minimized through implementation of the following mitigation measures: (1) if a marine mammal is detected within or approaching the

Level A or impact and vibratory pile driving Level B harassment isopleths (200 m, 350 m and 1,300 m, respectively) prior to in-water pile driving, operations shall be immediately delayed or suspended until

Page 38467

the marine mammal moves outside these designated zones or the animal is not detected within 15 minutes of the last sighting; (2) if a marine mammal is detected within or approaching 200 m prior to chipping, this activity shall be immediately delayed or suspended until the marine mammal moves outside these designated zones or the animal is not detected within 15 minutes of the last sighting; (3) in-water impact pile driving shall not occur during the period from two hours before low tide until two hours after low tide; (4) in-water piles will be driven with a vibratory hammer to the maximum extent possible (i.e., until a desired depth is achieved or to refusal) prior to using an impact hammer; (5) in-water pile driving or chipping shall not occur when conditions restrict clear, visible detection of all waters within harassment zones; (6) A ''soft start'' technique shall be used at the beginning of each day's in-water pile driving activities or if pile driving has ceased for more than one hour to allow any marine mammal that may be in the immediate area to leave before pile driving reaches full energy; (7) if a group of more than 5 beluga whales or group with a calf is sighted within the Level B harassment isopleths, in-water pile driving shall be suspended; and (8) for operated in-water heavy machinery work other than pile driving or chipping (i.e., dredging, dump scowles, linetug boats used to move barges, barge mounted hydraulic excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 50 m, those operations will cease and vessels will reduce to the slowest speed practicable while still maintaining control of the vessel and safe working conditions.

NMFS-approved marine mammal observers (MMOs) will be stationed at the port during all in-water pile driving and chipping and blasting associated with dock demolition, if it occurs. These observers will be responsible for documenting take, marine mammal behavior, and, if necessary, notifying the resident engineer when shut down is necessary.

In addition, the POA and MARAD shall employ a scientific marine mammal monitoring team separate from the on-site MMOs to characterize beluga whale abundance, frequency, movements, behavior, group dynamics, and habitat use around the POA and observe, analyze, and document potential changes in behavior in response to in-water construction work. This monitoring team is not required to be present during all in-water pile driving operations but will be on-site 4 days per week, weather permitting. The on-site MMOs and this marine mammal monitoring team shall remain in contact to alert each other to marine mammal presence when both teams are working.

The POA and MARAD shall submit monthly reports summarizing all in- water construction activities and marine mammal sightings. In addition, an annual report shall be due sixty days before expiration of the LOA.

This report shall summarize monthly reports and any apparent long or short term impacts the MTRP may be having on marine mammals. This LOA will be renewed annually based on review of the annual monitoring report.

Authorization

The POA and MARAD have complied with the requirements of the 2009

LOA, and NMFS has determined that marine mammal take during the 2009 construction season is within the amount authorized. Accordingly, NMFS has issued a LOA to POA and MARAD authorizing take by harassment of marine mammals incidental to the marine terminal redevelopment project at the POA. Issuance of the 2010-2011 LOA is based on NMFS' review of the annual report submitted by the POA and MARAD, and determination that the observed impacts were within the scope of the analysis and authorization contained in the final rule and previously issued LOA.

Specifically, NMFS found that the total taking of marine mammals, in consideration of the required mitigation, monitoring, and reporting measures, will have no more than a negligible impact on the affected species or stocks and will not have an unmitigable adverse impact on their availability for taking for subsistence uses.

Dated: June 25, 2010.

James H. Lecky,

Director, Office of Protected Resources, National Marine Fisheries

Service.

FR Doc. 2010-16189 Filed 7-1-10; 8:45 am

BILLING CODE 3510-22-S