Notices. Notice; proposed incidental harassment authorization; request for comments
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BILLING CODE P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XX25 Small Takes of Marine Mammals Incidental to Specified Activities; Exploratorium Relocation Project in San Francisco, CA AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; proposed incidental harassment authorization; request for comments. SUMMARY: NMFS has received a complete and adequate application from the Exploratorium for an Incidental Harassment Authorization
(IHA)to take marine mammals, by harassment, incidental to pile driving during the Exploratorium's relocation project. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing to issue an IHA to the Exploratorium to incidentally harass, by Level B harassment only, four species of marine mammals during the specified activity within a specific geographic area and is requesting comments on its proposal. DATES: Comments and information must be received no later than August 23, 2010. ADDRESSES: Comments on the application and this proposal should be addressed to 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. The mailbox address for providing email comments is *0648-XX25@noaa.gov* . NMFS is not responsible for e-mail comments sent to addresses other than the one provided here. Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size. Instructions: All comments received are a part of the public record and will generally be posted to *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT ), or visiting the internet at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* . Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Michelle Magliocca or Jaclyn Daly, 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 small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specific 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 authorization is 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), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings 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 established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by 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 marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. A. Except with respect to certain 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]. Summary of Request On April 28, 2010, NMFS received an application from the Exploratorium, a nature, science, art and technology museum, requesting an IHA for the take, by Level B harassment, of small numbers of Pacific harbor seals ( *Phoca vitulina richardii* ), California sea lions ( *Zalophus californianus* ), harbor porpoises ( *Phocoena phocoena* ), and gray whales ( *Eschrichtius robustus* ) incidental to relocation of the Exploratorium museum. Upon receipt of additional information, NMFS determined the application complete and adequate on June 1, 2010. The Exploratorium proposes to relocate from the Palace of Fine Arts to Piers 15 and 17, along San Francisco's waterfront. The relocation project would include the installation, repair, and removal of piles at Pier 15, removal of wharf decking between Piers 15 and 17, and expansion of the southern portion of Pier 15. The Exploratorium proposes to install up to 69 new steel piles and repair and remove existing piles by hydraulic or hand-held cutting tools. Because pile driving has the potential to result in marine mammal harassment, NMFS is proposing to issue an IHA for take incidental to this specified activity. Description of the Specified Activity The Exploratorium proposes to relocate from 3601 Lyon Street to Piers 15 and 17, along the Embarcadero of San Francisco's waterfront. The relocation project is scheduled to commence as early as September 2010 and construction would continue throughout a 26-month period. However, of the activities associated with the relocation, only pile driving has the potential to result in marine mammal take and this activity is expected to be complete by the spring of 2011. To make room for the new Exploratorium, a maximum of 69 various sized steel piles (thirty 72-inch, twenty six 24-inch, and thirteen 20-inch diameter piles) would be installed around Piers 15 and 17 using a vibratory hammer (Table 1). Between two and five steel piles (average of three piles) would be installed daily, depending on their size and the amount of time necessary to install them. Each pile would take approximately 30 minutes to install followed by at least one hour break, the minimum amount of time needed to reset the hammer and next pile. In total, the Exploratorium anticipates conducting 28 hours of pile driving, with 15 hours spent on 72-inch piles, five hours spent on 20-inch piles, and eight hours spent on 24-inch piles. All piles would be installed with an ICE 14122 (or similar) vibratory hammer; however, it may be necessary to seat a pile using an impact hammer. Based on the ground sediments and the depth of pile driving needed, the use of an impact hammer is not anticipated for the smaller 20-inch and 24-inch piles but may be needed for the large diameter 72-inch piles. Should an impact hammer be necessary, the Exploratorium would use a steam or diesel-powered hammer delivering between 80,000 and 110,000 ft-lbs per blow. For 20, 24, and 72-inch piles, the amount of strikes per pile would be limited to 120, 25, and 5, respectively. Sound attenuation devices (e.g., wood block, bubble curtain) would be used during any impact hammering. In addition, impact hammering would not occur between June 1 and November 30 to prevent injury to listed salmonids. In addition to pile driving, the Exploratorium would repair or remove existing piles (Table 1) and remove existing wharf decking. Existing concrete piles would be removed by cutting them with a hydraulic shear. The shear operates like a knife gate, with hydraulic rams pushing a shear plate through the piling. The cutting shear would be suspended from a crane on deck. In-water noise from this work would be negligible. Pile repair would include installing a fiberglass shell around damaged pile and filling the shell with concrete. The work would be completed by divers using hand tools and does not involve loud noise. Furthermore, there are no marine mammal haul out sites at Piers 15 and 17 and deck height in the area is at elevations generally too high to facilitate marine mammal haul out. Deck removal and expansion would occur outside of habitat for marine mammals. Therefore, removal and expansion of the existing pier decking would not likely result in harassment of marine mammals. Finally, there would be two to ten barges or floats at any given time in the water to support construction activities; however, these would be concentrated in the direct vicinity of Piers 15/17. Because pile repair, pile removal, and use of barges do not release loud sounds into the environment, marine mammal harassment from these activities not anticipated. Table 1. Summary of pile activities during the Exploratorium relocation Activity Activity Maximum Number of Piles Location Installation of new piles 69 steel piles (30 72-inch diameter steel piles, 26 24-inch steel piles, and 13 20-inch steel piles) Marginal Wharf; South Apron Repair of existing piles 1026 Pier 15; Valley Infill Area; Marginal Wharf; North Apron Extension of existing piles 120 Valley Infill Area Removal of existing piles— cut at mudline 837 Marginal Wharf; Valley Removal Area; South Apron; Pier 15 Removal of existing piles—cut above mean lower low water
(MLLW)306 Valley Removal Area; Marginal Wharf During the San Francisco Oakland Bay Bridge Project (SFOBB), the California Department of Transportation (Caltrans), measured vibratory driving sound levels from various pile types, sizes, and locations around San Francisco Bay (Caltrans, 2007). Because no pile driving noise data specific to the Exploratorium project exists, NMFS has determined that hydroacoustic data from the Caltrans SFOBB project are appropriate to use to estimate sound levels from the specified activity. For background, sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water, and is generally characterized by several variables. Frequency describes the sound's pitch and is measured in hertz
(Hz)or kilohertz (kHz), while sound level describes the sound's loudness and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. For example, 10 dB yields a sound level 10 times more intense than 1 dB, while a 20 dB level equates to 100 times more intense, and a 30 dB level is 1,000 times more intense. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. For air and water, these reference pressures are “re: 20 μPa” and “re: 1 μPa,” respectively. In 2007, Caltrans released a report summarizing typical and maximum sound pressure levels
(SPLs)measured during vibratory pile driving in San Francisco Bay (Table 2). In summary, Caltrans measured sound pressure levels
(SPLs)5 m from the hammer were below 180 dB root mean square
(rms)values. Most of the energy during vibratory pile driving was below 600 Hz. NMFS notes that the vibratory hammers Caltrans used to install the 72-inch pile were the King Kong and Super Kong Driver (Model 600). The hammer the Exploratorium proposes to use is 40% of the energy of the King Kong hammer; therefore, source levels would be lower for the relocation project as hammer noise levels are proportional to blow energy. Vibratory pile driving measurements taken by Caltrans approximately 11-13 kilometers
(km)northeast of the Exploratorium in similar depth water indicate that peak sound pressures drop off at a rate of about 7 dB per doubling of distance. For comparison, spherical spreading (20 log R) is characterized by a drop-off rate of 6 dB per doubling of distance. Therefore, it is anticipated that noise from pile driving will dissipate very quickly around the Exploratorium. Table 2. Measured sound pressure levels during vibratory pile driving in San Francisco Bay (Caltrans, 2007). Pile Type/Size Relative Water Depth SPL at 10 m
(RMS)72-inch steel pile 5 meters Average = 170 dB Loudest = 180 dB 34-inch steel pile 5 meters Average = 170 dB Loudest = 175 dB 24-inch steel pile 5 meters Average = 160 dB Loudest = 165 dB 12-inch steel pile 5 meters Average = 155 dB Caltrans also conducted hydroacoustic surveys within San Francisco Bay during impact pile driving of similar size piles proposed for use by the Exploratorium (Table 3). Bubble curtains can provide between 5-20 dB reduction in source level; however, this is highly directional and a function of current and device effectiveness (Caltrans, 2009). Therefore, distances to the Level A and Level B harassment isopleths are based on estimated unattenuated source levels. These distances are likely an overestimate of sound levels produced by pile driving using a bubble curtain or wood cap. Table 3. Measured unattenuated sound pressure levels in the near field (10 m) during impact pile driving in San Francisco Bay (Caltrans, 2009). Pile Type/Size Relative Water Depth SPL at 10 m
(RMS)96-inch steel pile 10 meters 205 dB 60-inch steel pile <5 meters 195 dB 36-inch steel pile <5 meters 190 dB 24-inch steel pile 5 meters 190 dB 14-inch steel pile 15 meters 184 dB Description of Marine Mammals in the Area of the Specified Activity Marine mammals with confirmed occurrences in San Francisco Bay are the Pacific harbor seal, California sea lion, harbor porpoise, gray whale, humpback whale ( *Megaptera noveangliae* ), and sea otter ( *Enhydra lutris* ). However, humpback whales are considered extremely rare in San Francisco Bay and are highly unlikely to be present in the project vicinity during pile driving. Sea otters are managed by the U.S. Fish and Wildlife Service. Therefore, these two species are not considered further in this proposed IHA notice. Pacific Harbor Seals Pacific harbor seals are found in the coastal and estuarine waters off Baja, California, north to British Columbia, west through the Gulf of Alaska, and in the Bering Sea. The most recent harbor seal counts estimate the California stock of Pacific harbor seals at 34,233 individuals. The population appears to be stabilizing at what may be their carrying capacity and human-caused mortality is declining (NMFS, 2005). The California stock of Pacific harbor seals is not listed under the Endangered Species Act
(ESA)nor considered strategic under the MMPA. In California, approximately 400-500 harbor seal haul out sites are widely distributed along the mainland and offshore islands, including intertidal sandbars, rocky shores, and beaches. The north side of Yerba Buena Island is the closest haul out area to the relocation project, approximately 3 km from Piers 15 and 17. Although harbor seals use this haul out year-round, Yerba Buena Island is not considered a pupping site. In California breeding occurs from March to May, and pupping between April and May depending on local populations. Harbor seals around the new Exploratorium site would likely be transiting to and from their closest haul out (Yerba Buena Island) or opportunistically foraging. Herring spawning events could result in harbor seals congregating and approaching the action area sporadically in an unpredictable manner (pers. comm., M. DeAngelis to M. Magliocca). Pinnipeds produce a wide range of social signals, most occurring at relatively low frequencies (Southall *et al.* , 2007), suggesting that hearing is keenest at these frequencies. Pinnipeds communicate acoustically both on land and in the water, but have different hearing capabilities dependent upon the medium (air or water). Based on numerous studies, as summarized in Southall *et al.* (2007), pinnipeds are more sensitive to a broader range of sound frequencies underwater than in air. Underwater, pinnipeds can hear frequencies from 75 Hz to 75 kHz. In air, the lower limit remains at 75 Hz but the highest audible frequencies are only around 30 kHz (Southall *et al.* , 2007). California Sea Lions California sea lions are found throughout the Eastern North Pacific Ocean in shallow coastal and estuarine waters, ranging from Central Mexico to British Columbia, Canada. Their primary breeding range extends from Central Mexico to the Channel Islands in Southern California. The abundance of the U.S. stock is estimated to be 238,000 sea lions (NMFS, 2007). This stock is approaching carrying capacity and is reaching “optimum sustainable population” limits, as defined by the MMPA. California sea lions are not listed under the ESA nor considered strategic under the MMPA. Sandy beaches are preferred habitat for haul out sites, but marina docks, jetties, and buoys are often used in California for resting, breeding, and molting. In San Francisco Bay, sea lions haul out on floating docks (e.g., Pier 39 around Fishermen's Wharf) and on buoys throughout the Bay. Breeding season begins in May and lasts until August, with most pups born by July. While onshore, California sea lions often form groups of several hundred animals. No sea lion haulouts are located around the Exploratorium. However, sea lions observed within this area may be transiting to and from nearby piers or opportunistically foraging. Harbor Porpoises Harbor porpoises have a wide and discontinuous range that includes the North Atlantic and North Pacific. In the Eastern North Pacific, harbor porpoises are found in coastal and inland waters from Point Conception, California to Alaska. Harbor porpoises in U.S. waters are divided into 10 stocks, based on genetics, movement patterns, and management. Any harbor porpoises encountered during the Exploratorium relocation would likely be part of the San Francisco-Russian River stock which has an estimated abundance of 9,189 animals. Abundance of the San Francisco-Russian River stock appeared to be stable or declining between 1988 and 1991 and has steadily increased since 1993, although this increase is not statistically significant. Harbor porpoises are not commonly sighted in San Francisco Bay, but have been observed traveling in small pods of two to three animals on occasion (pers. comm., M. DeAngelis to M. Magliocca). They may occur in the action area during a time when they could be affected by pile driving activities; however, their presence in the vicinity is rare. Harbor porpoises in California are not listed under the ESA nor considered strategic under the MMPA. Cetaceans are divided into three functional hearing groups: low-frequency, mid-frequency, and high frequency. Harbor porpoises are considered high-frequency cetaceans and their estimated auditory bandwidth (lower to upper frequency hearing cut-off) ranges from 200 Hz to 180 kHz. Gray Whales Gray whales are large mysticetes, or baleen whales, found mainly in shallow coastal waters of the North Pacific Ocean. Two isolated geographic distributions of gray whales exist: the Eastern North Pacific stock and the Western North Pacific stock. The Eastern North Pacific stock migrates as far south as Baja, California for breeding and calving in the winter and as far north as the Bering and Chukchi Seas for summer feeding. During migration, gray whales will occasionally enter rivers and bays, including San Francisco Bay, along the coast, but in very low numbers. They could potentially be in the action area during pile driving activities. The most recent 2008 stock assessment report estimated the Eastern North Pacific stock to be approximately 18,813 individuals with an increasing population trend over the past several decades. Gray whales were delisted from the ESA in 1994 and are not considered strategic under the MMPA. Gray whales, like other baleen whales, are in the low-frequency hearing group. There are no empirical data on gray whale hearing; however, Wartzok and Ketten
(1999)suggest that mysticete hearing is most sensitive at the same frequencies at which they vocalize. Underwater sounds produced by gray whales range from 20 Hz to 20 kHz (Richardson et al., 1995). Potential Effects on Marine Mammals Pile driving at the Exploratorium's new location may temporarily impact marine mammal behavior within the action area due to elevated in-water noise levels. No pinnipeds on haulouts would be affected as the closest haulout is approximately 3 kms away; therefore, in-air noise is not a concern. Marine mammals are continually exposed to many sources of sound. Naturally occurring sounds such as lightning, rain, sub-sea earthquakes, and biological sounds (e.g., snapping shrimp, whale songs) are ubiquitous throughout the world's oceans. Marine mammals produce sounds in various contexts and use sound for various biological functions including, but not limited to,
(1)social interactions;
(2)foraging;
(3)orientation; and
(4)predator detection. Interference with producing or receiving these sounds may result in adverse impacts. Audible distance, or received levels
(RLs)will depend on the nature of the sound source, ambient noise conditions, and the sensitivity of the receptor to the sound (Richardson *et al* ., 1995). Type and significance of marine mammal reactions to noise are likely to dependent on a variety of factors including, but not limited to, the behavioral state (e.g., feeding, traveling, etc.) of the animal at the time it receives the stimulus, frequency of the sound, distance from the source, and the level of the sound relative to ambient conditions (Southall *et al.* , 2007). Hearing Impairment Temporary or permanent hearing impairment is possible when marine mammals are exposed to very loud sounds. Hearing impairment is measured in two forms: temporary threshold shift
(TTS)and permanent threshold shift (PTS). There are no empirical data for onset of PTS in any marine mammal; therefore, PTS-onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the hearing threshold is reduced by ≥ 40 dB (i.e., 40 dB of TTS). Due to proposed mitigation measures and source levels, NMFS does not expect that marine mammals would be exposed to levels that could elicit PTS; therefore, it will not be discussed further. Temporary Threshold Shift
(TTS)TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be louder in order to be heard. TTS can last from minutes or hours to, in cases of strong TTS, days. For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the noise ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals. Southall et al.
(2007)considers a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient to be recognized as an unequivocal deviation and thus a sufficient definition of TTS-onset. Because it is non-injurious, NMFS considers TTS as Level B harassment that is mediated by physiological effects on the auditory system; however, NMFS does not consider onset TTS to be the lowest level at which Level B harassment may occur. Southall et al.
(2007)summarizes underwater pinniped data from Kastak et al. (2005), indicating that a tested harbor seal showed a TTS of around 6 dB when exposed to a nonpulse noise at SPL 152 dB re: 1 μPa for 25 minutes. In contrast, a tested sea lion exhibited TTS-onset at 174 dB re: 1 μPa under the same conditions as the harbor seal. Data from a single study on underwater pulses found no signs of TTS-onset in sea lions at exposures up to 183 dB re: 1 μPa (peak-to-peak) (Finneran et al., 2003). There is no information on species-specific TTS for harbor porpoises or gray whales. There are limited data available on the effects of non-pulse noise (e.g., vibratory pile driving) on pinnipeds in-water; however, field and captive studies to date collectively suggest that pinnipeds do not strongly react to exposures between 90-140 dB re: 1 microPa; no data exist from exposures at higher levels. Jacobs and Terhune
(2002)observed wild harbor seal reactions to high frequency acoustic harassment devices
(ADH)around nine sites. Seals came within 44 m of the active ADH and failed to demonstrate any behavioral response when received SPLs were estimated at 120-130 dB. In a captive study (Kastelein, 2006), a group of seals were collectively subjected to data collection and communication network
(ACME)non-pulse sounds at 8-16 kHz. Exposures between 80-107 dB did not induce strong behavioral responses; however, a single observation at 100-110 dB indicated an avoidance response at this level. The group returned to baseline conditions shortly following exposure. Southall et al.
(2007)notes contextual differences between these two studies noting that the captive animals were not reinforced with food for remaining in the noise fields, whereas free-ranging subjects may have been more tolerant of exposures because of motivation to return to a safe location or approach enclosures holding prey items. While most of the pile driving will be vibratory, a small portion of piles may be driven using an impact hammer (pulse noise) and sound attenuation devices, resulting in anticipated hydroacoustic levels between 164 and 179 dB RMS. Southall et al.
(2007)reviewed relevant data from studies involving pinnipeds exposed to pulse noise and concluded that exposures to 150 to 180 dB (approximate source level range for vibratory pile driving) generally have limited potential to induce avoidance behavior. Vibratory pile driving emits low frequency broadband noise, all of which may be detectable by marine mammals within the action area. However, lower frequency hearing animals such as pinnipeds and gray whales are likely to be able to hear the sound better and farther away than the harbor porpoise, who has a hearing range of 200 Hz-180 kHz (Southall et al., 2007), as most of the energy during vibratory pile is expected to be below 600 Hz (Caltrans 2007). No known data exists for sound levels resulting from the type of vibratory hammer and pile sizes that would be used at the Exploratorium; however, measured sound levels for the “King Kong” vibratory hammer used in Richmond, California ranged between 163 and 180 dB RMS (Illingworth and Rodkin, 2007). Sound levels at the Exploratorium are expected to be substantially lower because the vibratory hammer being used is approximately 40 percent of the energetic capacity of the “King Kong” hammer and will not be used at full capacity. In addition, San Francisco Bay is highly industrialized and masking of the pile driver by other vessels and anthropogenic noise within the action area may, especially in the nearby shipping channel, may also make construction sounds difficult to hear at greater distances. Underwater ambient noise levels along the San Francisco waterfront may be around 133 dB RMS, based on measurements from the nearby Oakland Outer Harbor (Caltrans, 2009). Seals would likely also exhibit tolerance or habituation (as described in Richardson et al., 1999) due to the amount of anthropogenic use within the action area and San Francisco Bay as a whole. Pacific harbor seal and California sea lion pupping season is outside of the temporal pile driving schedule; therefore, no impacts to reproduction are anticipated. It is expected that marine mammals exposed to pile driving noise would be using the adjacent waters around the Exploratorium's project site for foraging or as a daily migration route between foraging grounds and haul out locations. Harbor porpoises also may use the adjacent waters for foraging and may pass through the area during pile driving. Gray whales are not expected to forage in the activity area, but may display behavioral changes in response to noise if they enter San Francisco Bay and transit or linger around the action area during their annual migration. Any impacts to marine mammal behavior are expected to be temporary. First, animals may avoid the area around the hammer; thereby reducing exposure. Second, pile driving does not occur continuously throughout the day. As described above, the vibratory hammer only operates for about 30 minutes followed by at least a one hour break. Two to five pilings are anticipated to be driven per day, resulting in a total of 1-2.5 hours of pile driving within any given 24 hour period. Limiting pile driving to less than three hours per day would allow for minimal disruption of foraging or dispersal throughout the habitat. Any disturbance to marine mammals is likely to be in the form of temporary avoidance or alteration of opportunistic foraging behavior near the pile driving location. In addition, because pile driving is anticipated to be accomplished using only a vibratory hammer, marine mammal injury or mortality is not anticipated. If an impact hammer is used, a protected species observers
(PSO)would be on watch to implement pile driver shut down, a mitigation measure designed to prevent animals from being exposed to injurious level sounds. For these reasons, any changes to marine mammal behavior are expected to be temporary and result in a negligible impact to affected species and stocks. Anticipated Effects on Habitat On May 28, 2010, the NMFS Southwest Regional Office concluded section 7 and Essential Fish Habitat
(EFH)consultation, under the ESA and Magnuson Stevens Fishery Conservation and Management Act (MSFCMA), respectively, with the U.S. Army Corps of Engineers (Corps) on issuance of a Corps permit to the Exploratorium. In summary, NMFS Southwest Regional Office found that the proposed construction activities may affect ESA-listed fish by generating increased levels of turbidity and sound; however, these impacts are expected to be minor, localized, and short term. As such, NMFS Southwest Regional Office concurred with the Corps determination that impacts from the Exploratorium's project would not result in adverse impacts to ESA-listed fish or their critical habitat. NMFS Southwest Regional Office also determined that the proposed project would adversely affect EFH for various federally-managed species within the Pacific Groundfish, Coastal Pelagic, and Pacific Salmonid Fishery Management Plans; however, they also determined that the proposed action contains adequate measures to avoid, minimize, mitigate, or otherwise offset the adverse effects to EFH. Marine mammals and fish may occupy the same habitat. Pile driving noise would result in degradation of in-water habitat; however, this impact would be short term and localized. Installation of new piles would be permanent; however, overall site conditions are anticipated to be substantively unchanged from existing conditions for marine mammals following project implementation. Therefore, following results of consultation under the ESA and MSFCMA, NMFS has preliminarily determined impacts to marine mammal habitat are negligible. Proposed Mitigation In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. The Exploratorium has proposed the following mitigation measures to help ensure the least practicable adverse impact on marine mammals: Limited Use of an Impact Hammer All piles would be installed using a vibratory pile driver unless sufficient depth cannot be reached, at which point an impact hammer may be used. In the event that an impact hammer is necessary, a bubble curtain, wood block, or both would be used as an attenuation device to reduce hydroacoustic sound levels to avoid the potential for injury. With the use of these devices, hydroacoustic source levels are anticipated to be between 164 and 179 dB RMS during impact hammering. Establishment of a Safety Zone During all in-water impact pile driving, the Exploratorium would establish a preliminary marine mammal safety zone of 500 m around each pile before pile driving commences. No safety zone for vibratory pile driving is necessary as source levels will not exceed the Level A harassment threshold. Pile Driving Shut Down and Delay Procedures If a PSO observes a marine mammal within or approaching the safety zone prior to start of impact pile driving, the PSO would notify the Resident Engineer (or other authorized individual) who would then be required to delay pile driving until the marine mammal has moved outside of the safety zone or if the animal has not been resighted within 15 minutes. If a marine mammal is sighted within or on a path toward the safety zone during pile driving, pile driving should cease until that animal has cleared and is on a path away from the safety zone or 15 minutes has lapsed since the last sighting. In addition, if a marine mammal not authorized to be taken under the IHA (e.g., humpback whale) is observed within the Level B harassment zone (1900 m), pile driving would be delayed until that animal has cleared and is on a path away from the safety zone or 15 minutes has lapsed since the last sighting. Soft-start Procedures A “soft-start” technique would be used at the beginning of each pile installation to allow any marine mammal that may be in the immediate area to leave before the pile hammer reaches full energy. For vibratory pile driving, the soft-start procedure requires contractors to initiate noise from the vibratory hammer for 15 seconds at 40-60% reduced energy followed by a 1-minute waiting period. The procedure would be repeated two additional times before full energy may be achieved. For impact hammering, contractors would be required to provide an initial set of three strikes from the impact hammer at 40% energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. The soft-start procedure would be conducted prior to driving each pile if vibratory hammering ceases for more than 30 minutes. NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
(1)the manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2)the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
(3)the practicability of the measure for applicant implementation, including consideration of personnel safety, and practicality of implementation. Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed Monitoring and Reporting In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present. The Exploratorium must designate at least one biologically-trained, on-site individual, approved in advance by NMFS, to monitor the area for marine mammals 30 minutes before, during, and 30 minutes after all impact pile driving activities and call for shut down if any marine mammal is observed within or approaching the designated Level A harassment zone (preliminary set at 500 m). In addition, at least one NMFS-approved PSO would conduct behavioral monitoring in and around the Exploratorium at least two days per week between March 1 and November 30 to estimate take and evaluate the behavioral impacts pile driving has on marine mammals out to the Level B harassment isopleth (1,900 m). Should a non-authorized marine mammal (i.e. humpback whale) be observed at any time in this zone, the aforementioned shut down and delay procedures would be followed. As set forth in the Exploratorium's application to the Corps, monitoring for herring spawning events would be conducted on a daily basis between December 1 and February 28. This PSO would also monitor for marine mammals within and around the Level B harassment area. In addition to stationing a PSO to monitor for herring, the Exploratorium would cease pile driving for two weeks should a herring spawning event occur (a measure designed to reduce impacts to fish). Pinniped presence during such events can be sporadic and unpredictable; therefore, the requirements set forth under ESA and EFH consultation also minimize and allow for monitoring of impacts to marine mammals. PSOs would be provided with the equipment necessary to effectively monitor for marine mammals (e.g., high-quality binoculars, compass, and range-finder) in order to determine if animals have entered into the harassment isopleths and to record species, behaviors, and responses to pile driving. PSOs would be required to submit a report to NMFS within 120 days of expiration of the IHA or completion of pile driving, whichever comes first. The report would include data from marine mammal sightings (e.g., species, group size, behavior), any observed reactions to construction, distance to operating pile hammer, and construction activities occurring at time of sighting. Estimated Take by Incidental Harassment Except with respect to certain 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]. Based on the Exploratorium's application and subsequent analysis, the impact of the described pile driving operations may result in, at most, short-term modification of behavior by small numbers of marine mammals who are within the action area. Marine mammals may avoid the area or halt any behaviors (e.g., foraging) at time of exposure. Due to the short duration of pile driving per day (1- 2.5 hours), animals are not anticipated to be exposed multiple times per day. Current NMFS practice regarding exposure of marine mammals to anthropogenic noise is that in order to avoid the potential for injury of marine mammals (e.g., PTS), cetaceans and pinnipeds should not be exposed to impulsive sounds of 180 and 190 dB rms or above, respectively. This level is considered precautionary as it is likely that more intense sounds would be required before injury would actually occur (Southall et al., 2007). Potential for behavioral harassment (Level B) is considered to have occurred when marine mammals are exposed to sounds at or above 160 dB rms for impulse sounds (e.g., impact pile driving) and 120dB rms for non-pulse noise (e.g., vibratory pile driving), but below the aforementioned thresholds. These levels are also considered precautionary. Based on empirical measurements taken by Caltrans (which are presented in the Description of Specified Activities section above), estimated distances to NMFS current threshold sound levels from pile driving during the Exploratorium's relocation project are presented in Table 4. These estimates are based on the worst case scenario of driving the 72- inch steel piles but would be carried over for all pile driving. Note that despite short distances to the Level A harassment isopleth, the Exploratorium has proposed to implement a preliminary 500-m marine mammal safety zone until empirical pile driving measurements can be made and distances to this threshold isopleth can be verified. Table 4: Modeled underwater distances to NMFS' marine mammal harassment threshold levels. Level A (190/180 dB) Level B harassment (160 dB) Level B harassment (120 dB) Impact hammering 20 m (w/o sound attenuation device) 100 m n/a Vibratory hammering n/a n/a 1900 m The estimated number of marine mammals potential taken was based on marine mammal monitoring reports prepared by Caltrans during similar activities in San Francisco Bay and on discussions with the NMFS Southwest Regional Office. Caltrans' SFOBB marine mammal monitoring reports were used to estimate the number of pinnipeds near the Exploratorium project area as the SFOBB site and Exploratorium are relatively close to each other and are similar in bathymetric features (e.g., water depth, substrate). However, monitoring conducted for the SFOBB project has been in close proximity to a haul out area, while the Exploratorium project is in an area of high commercial boat activity with no haul out sites. Therefore, the Caltrans data likely overestimates marine mammal abundance for the Exploratorium project area. Based on consultation with the NMFS Southwest Regional Office and review of Caltrans monitoring reports for pile driving activities in San Francisco Bay, the Exploratorium requested a total take of two Pacific harbor seals, one California sea lion, and one gray whale per day of pile driving. Upon further consultation with NMFS Southwest Regional Office, NMFS is proposing to include harbor porpoise as a species potentially taken by pile driving, due to the recorded, albeit infrequent, sightings of harbor porpoises within San Francisco Bay. The Exploratorium estimates an average of three piles would be driven in a single day. Given 69 piles in total, pile driving would occur for 19 days over the life of the project. Therefore, NMFS is proposing to authorize annual take, by Level B harassment only, of 38 Pacific harbor seals, 19 California sea lions incidental to the Exploratorium's pile driving activities. Due to the infrequent, but potential presence of harbor porpoise and gray whales in the area, NMFS is also proposing to authorize the take of 28 harbor porpoise and five gray whales, annually, based on consultation with the NMFS Southwest Regional Office, NMFS. These numbers indicate the maximum number of animals expected to occur within the Level B harassment isopleth (1,900 m). Estimated and proposed level of take of each species is less than one percent of the affected stock population and therefore is considered small in relation to the population numbers previously set forth. Negligible Impact and Small Numbers Analysis and Determination 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.” In making a negligible impact determination, NMFS considers a number of factors which include, but are not limited to, number of anticipated injuries or mortalities (none of which would be authorized here), number, nature, intensity, and duration of Level B harassment, and the context in which takes occur (e.g., will the takes occur in an area or time of significance for marine mammals, are takes occurring to a small, localized population?). As described above, marine mammals would not be exposed to activities or sound levels which would result in injury (e.g., PTS), serious injury, or mortality. Pile driving would occur in shallow coastal waters of San Francisco Bay to stocks occurring throughout California, and, for gray whales, the eastern Pacific Ocean. The action area (waters around Piers 15-17) is not considered as providing significant habitat for harbor seals. The closest haulout is 3 kms away on Yerba Buena Island; however, noise levels about NMFS harassment thresholds would only extend to 1,900 m in-water. Marine mammals approaching the action area would likely be traveling or opportunistically foraging. However, marine mammals foraging on herring runs would not be affected by construction because the Exploratorium would not conduct pile driving for two weeks if a herring run is observed by the on-site PSO, who would monitor the area daily between December 1- February 28. In addition, a PSO would monitor for marine mammals twice a day to estimate take and verify impacts to marine mammals are not above those described here. The amount of take the Exploratorium has requested, and NMFS proposes to authorize, is considered small (less than one percent) relative to the estimated populations of 34,233 Pacific harbor seals, 238,000 California sea lions, 9,189 harbor porpoises, and 18,813 gray whales. As previously noted, no affected marine mammals are listed under the ESA or considered strategic under the MMPA. Marine mammals may be temporarily impacted by pile driving noise. However, marine mammals are expected to avoid the area, thereby reducing exposure and impacts. Further, although the relocation project is expected to take up to two years, installation of the 69 steel piles would only occur for approximately 19 days. Further, San Francisco Bay is a highly industrialized area and species such as harbor seals and California sea lions flourish throughout the Bay. Therefore, animals are likely tolerant or habituated to anthropogenic disturbance, including low level vibratory pile driving operations, and noise from other anthropogenic sources (e.g., vessels in the adjacent shipping lane) may mask construction related sounds. Finally, breeding and pupping season occur outside of the proposed pile driving timeframe; therefore, no disruption to reproductive behavior is anticipated. There is no anticipated effect on annual rates of recruitment or survival of affected marine mammals. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily determines that the Exploratorium's relocation project will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from will have a negligible impact on the affected species or stocks. Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Endangered Species Act
(ESA)No marine mammal species listed under the ESA are anticipated to occur within the action area. Therefore, Section 7 consultation under the ESA is not required. National Environmental Policy Act
(NEPA)In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ), as implemented by the regulations published by the Council on Environmental Quality (40 CFR parts 1500-1508), and NOAA Administrative Order 216-6, NMFS is preparing an Environmental Assessment
(EA)to consider the direct, indirect, and cumulative effects to marine mammals and other applicable environmental resources resulting from issuance of a one-year IHA and the potential issuance of additional authorization for incidental harassment for the ongoing project. Upon completion, this EA will be available on the NMFS website listed in the beginning of this document. Dated: July 16, 2010. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2010-18002Filed 7-21-10; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XW81 Takes of Marine Mammals Incidental to Specified Activities; Installation of Meteorological Data Collection Facilities in the Mid-Atlantic Outer Continental Shelf AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; proposed incidental harassment authorization; request for comments. SUMMARY: NMFS has received two applications from Bluewater Wind (Bluewater) for an Incidental Harassment Authorization
(IHA)to take marine mammals, by harassment, incidental to pile driving associated with installation of two meteorological data collection facilities (MCDFs); one each off the coast of Delaware and New Jersey. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to Bluewater to incidentally harass, by Level B Harassment only, eight species of marine mammals during the installation of both MDCFs. The IHA would be effective from October 1-November 15, 2010. DATES: Comments and information must be received no later than August 23, 2010. ADDRESSES: Comments on the applications should be addressed to 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. The mailbox address for providing e-mail comments is *PR1.0648-XW81@noaa.gov.* NMFS is not responsible for e-mail comments sent to addresses other than the one provided here. Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size. *Instructions:* All comments received are a part of the public record and will generally be posted to *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* without change. All Personal Identifying Information (for example, name, address, *etc.* ) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT ), or visiting the Internet at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm.* The following associated document is also available at the same internet address: Environmental Assessment
(EA)on the *Issuance of Leases for Wind Resource Data Collection on the Outer Continental Shelf Offshore Delaware and New Jersey* (MMS, 2009). Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected Resources, NMFS,
(301)713-2289, ext 151. 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 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 authorization is 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), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings 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 established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by 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 marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain 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]. Summary of Request On May 5, 2010, NMFS received two applications from Bluewater for the taking, by Level B harassment, of marine mammals incidental to pile driving associated with installation of a MDCF in Federal waters approximately 16.5 miles off the coast of Delaware and one approximately 20 miles off the coast of New Jersey during October 2010. Bluewater provided supplemental information to NMFS on June 8, 2010, completing the applications. In summary, to build each MDCF, Bluewater must drive, via an impact hammer, a single 3-meter pile into the seabed which will act as the foundation to elevate and support the data collection device. Pile driving has the potential to result in the take, by Level B harassment, of eight species marine mammals within the action area as it elevates underwater noise levels. The IHA would be effective from October 1-November 15, 2010. Description of the Specified Activity In November 2009, the Mineral Management Service
(MMS)issued a lease to Bluewater for construction and operation of MDCFs designed to support future development of Bluewater's planned Delaware and New Jersey Offshore Wind Parks. The purpose of installing the MDCFs is to determine the feasibility of a commercial-scale offshore wind energy park at the proposed project site. Bluewater would collect and analyze at least one full year of meteorological data inclusive of wind speed and direction at multiple heights, information on other seasonal meteorological conditions ( *e.g.,* turbulence, temperature, pressure, and atmospheric stability), the marine environment ( *e.g.,* ocean currents, tides, and waves), and avian and bat activity ( *e.g.,* activity within the potential rotor swept area, flight altitude). The proposed IHA would authorize the take, by Level B harassment only, of marine mammals incidental to pile driving the monopole foundation required to support the wind data collection devices, not future installation of wind turbines. Bluewater has proposed installing a single 3-meter diameter pile foundation to elevate and stabilize a data collection device at two locations; one located in the Outer Continental Shelf
(OCS)Official Protraction Diagram
(OPD)lease block Salisbury, NJ 18-05 Lease Block 6325 (approximately 16 miles off Delaware) and one at OCS OPD lease block Wilmington, NJ 18-02 Block 6936 (approximately 20 miles off NJ). The mean lower low water depth
(MLLW)at the Delaware and New Jersey site is approximately 69 feet (21 m) and 82 feet (25 m), respectively. Sediments in the region of the project area are characterized by terrigenous quartz sand, typical of the majority of sediments found in the Mid-Atlantic to Northern continental shelf. No bedrock (which is difficult to pile drive through) was encountered during Bluewater's sub-bottom profiling operations in 2009 at either location. Pile driving is scheduled to occur during in October 2010; however, given unforeseen construction or weather related delays, NMFS is proposing to make the IHA effective until November 15, 2010. To install the monopole foundation, Bluewater would use a IHC-S 900 Hydraulic Impact Hammer (or equal) with a maximum rated impact force of 900 kilojoules (KJ). Noise emissions are proportional to hammer blow energy, which is determined by the weight of the falling mass and height of the fall. The IHC-S 900 hammer is a relatively larger hammer than those needed for coastal construction projects. Therefore, source levels generated from this hammer are higher than those from impact hammers used to drive piles in shallow, coastal waters. To be conservative in its acoustic modeling, Bluewater has assumed the full impact force of 900 KJ will be required for construction; however, full force may not be necessary. Bluewater anticipates it will take approximately 8 to 12 hours to mobilize and demobilize the construction vessels on site; however, only 3-8 of these hours would be spent pile driving. The two MDCFs would not be installed simultaneously; the Delaware MDCF would be installed first followed by the New Jersey MDCF approximately 1-2 weeks later. Because of physical parameters associated with this project ( *e.g.,* pile size, water depth), Bluewater has indicated a vibratory hammer cannot be used. Pile driving activities would be restricted to daylight hours between one-half hour after sunrise and one-half hour prior to sunset. Bluewater would transport the MDCF foundation materials and equipment to the project site slowly (less than 10 knots) on a deck cargo barge. In addition, installation of the fixed MDCF will also necessitate the use of crew boats, tugs, and crane barge support vessels. Contrary to Bluewater's original proposal during the MMS leasing process, no aircraft will be used during the MDCF installation. Bluewater estimates the construction radius (total work area needed during construction operations centered on the MDCF construction site) would be approximately 450 meters. All vessels would abide by NOAA Fisheries Northeast Regional Viewing Guidelines ( *http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf* ). Description of Marine Mammals in the Area of the Specified Activity Several species of marine mammals are known to traverse or occasionally inhabit the waters within the action area of project construction activities, including some species listed as threatened or endangered under the Endangered Species Act (ESA). Thirty-four marine mammal species including 29 cetaceans, four pinnipeds, and one sirenian species have confirmed occurrences in the mid-Atlantic OCS (Table 1). Table 1—Marine Mammal Occurrence on the OCS Off Delaware and New Jersey Species Status Population Suborder Mysticeti (baleen whales) North Atlantic right whale ( *Eubaleana glacialis* ) Endangered 306. Humpback whale ( *Megaptera novaeangliae* ) Endangered 902. Fin whale ( *Balaenoptera physalus* ) Endangered 2,269. Sei whale ( *Balaenoptera borealis* ) Endangered Unknown. Blue whale ( *Balaenoptera musculus* ) Endangered Unknown. Minke whale ( *Balaenoptera acutorostrata* ) None 2,998. Suborder Odontoceti (toothed whales) Sperm whale ( *Physeter macrocephalus* ) Endangered 4,804. Pygmy sperm whale ( *Kogia breviceps* ) None 395. Dwarf sperm whale ( *Kogia sima* ) None 395. Cuvier's beaked whale ( *Ziphius cavirostris* ) None 3,513. True's beaked whale ( *Mesoplodon mirus* ) None 3,513. Gervais' beaked whale ( *Mesoplodon europaeus* ) None 3,513. Sowerby's beaked whale ( *Mesoplodon bidens* ) None 3,513. Blainville's beaked whale ( *Mesoplodon densirostris* ) None 3,513. Bottlenose dolphin ( *Tursiops truncatus* ) Coastal Stock—Depleted Coastal—Unknown; Offshore—81,588. Pantropical spotted dolphin ( *Stenella attenuata* ) None 4,439. Atlantic spotted dolphin ( *Stenella frontalis* ) None 50,978. Spinner dolphin ( *Stenella longirostris* ) None Clymene dolphin ( *Stenella clymene* ) None Unknown. Striped dolphin ( *Stenella coeruleoalba* ) None Common dolphin ( *Delphinus delphis* ) None 120,743. White-beaked dolphin ( *Lagenorhychus albirostris* ) None Atlantic White-Sided dolphin ( *Lagenorhynchus acutus)* None Risso's dolphin ( *Grampus griseus)* None 15,053. Melon-headed whale ( *Peponocephala electra* ) None Pygmy killer whale ( *Feresa attenuate* ) None Long-finned pilot whale ( *Globicephala melas* ) None 31,139. Short-finned pilot whale ( *Globicephala macrorhynchus)* None Harbor porpoise ( *Phocoena phocoena* ) None 89,054. Order Carnivora Suborder Pinnipedia (seals, sea lions, walruses) Harbor seal ( *Phoca vitulina* ) None 99,340. Gray seal (Halichoerus grypus) None Unknown. Hooded seal ( *Cystophora cristata* ) None Unknown. Harp seal ( *Pagophilus groenlandicus* ) None Unknown. Order Sirenia West Indian manatee ( *Trichechus manatus* ) None 1,822. Some marine mammals species are likely to occur within the action area more so than others; however, marine mammal occurrence within the action areas during the 3-8 hours of pile driving is expected to be minimal. During July-October 2009, multiple geophysical and geotechnical (G&G) surveys were conducted by three wind park developers off the coast of New Jersey, all of which had dedicated protected species observers onboard the survey vessel. In general, sightings of marine mammals were uncommon. No marine mammals were sighted during G&G surveys conducted between July 24-August 1, 2009, approximately 17 miles off the New Jersey coast (RPS GeoCet, 2009). Similarly, during nine days of G&G surveys from August 25-September 21, no marine mammals were sighted approximately 12 miles of the southeast coast of New Jersey (AIS, 2009). Only during geophysical surveys conducted by Bluewater from August 14-17, 2009 (within lease block 6936) were marine mammals observed; one group was confirmed *Tursiops* comprised of two individuals; the other group was of an unknown species and contained five individuals (Geo-Marine, 2009). In addition to the G&G survey, from January to December 2008, the New Jersey Department of the Environment (NJDOE) conducted monthly marine mammal and avian surveys off of New Jersey out to approximately 20 nautical miles
(NM)(37 km); however, no surveys were conducted in October or November. Shipboard surveys were conducted over 3 days in July and August each and four days in September. Total on-effort transect length per month equaled approximately 417 NM (773 km), 481 NM (891 km), and 440 NM (816 km), respectively. The abundance data from the July-October quarterly report is presented in Table 2. Based on these data and the data from the G&G surveys, the potential for marine mammals to occur within the action area exists; however, given the limited duration of pile driving associated with the project (3-8 hours), it is unlikely many individual marine mammals would be harassed by the specified activity. Table 2—Summary of Marine Mammal Sightings From the NJDOE Shipboard Surveys From July Through September 2008 (Geo-Marine, 2008). Species Number of sightings per survey month July August September Humpback whale 0 2 3 Fin whale 1 37 1 Bottlenose dolphin 44 0 7 Harbor porpoise 1 0 0 Unidentified dolphin 1 0 2 Unidentified large whale 0 0 1 On May 14, 2009, the NMFS Northeast Region concluded informal ESA consultation with MMS on issuance of lease blocks. In summary, NMFS determined that, given a 1,000 m exclusion zone ( *i.e.,* if ESA listed species are seen within 1,000 m of the active pile driver, operation will cease until that animal clears the area), ESA-listed marine mammals are not likely to be adversely affected by the specified activity. This determination was based on acoustical information provided, in part, by Bluewater which estimated the 160 dB re: 1 microPa isopleth (NMFS' Level B harassment threshold for impulsive noise) to be approximately 500 m. Bluewater's IHA application presents a more recent and thorough acoustic analysis that reveals the Level B harassment threshold (160 dB) isopleth may extend to approximately 7,000 m (not 500 m). Bluewater and NMFS consider the 7,000 m Level B harassment distance conservative. Given the timing of the activity (October) and short duration of pile driving (3-8 hours), North Atlantic right whales would be rare in the action area but are possible. The location of the proposed MDFC is within the main right whale migratory corridor ( *i.e.,* within 20 miles of shore in 5-15 fathoms of water). However, right whales are most likely to occur in the mid-Atlantic between November and April. Although ESA-listed whales may be present, Bluewater would implement mitigation measures such that no ESA-listed marine mammal, including right whales, would be exposed to sound levels at or above NMFS behavioral harassment threshold for impulsive noise ( *i.e.,* 160 dB rms). Therefore, Bluewater has determined that only eight species of marine mammals have the potential to be taken by harassment incidental to MDCF installation off Delaware and New Jersey. These include bottlenose dolphins, spotted dolphins, common dolphins, Atlantic white-sided dolphins, Risso's dolphins, pilot whales, harbor porpoise, and harbor seals. None of these species are listed under the ESA. The western north Atlantic coastal stock of bottlenose dolphins is the only species listed as depleted under the MMPA. The action area does not provide significant reproductive, migratory and feeding habitat for any marine mammal. Animals will likely be transiting through the area or opportunistically resting or foraging. A detailed description on species status, abundance, and ecology of the eight species of cetaceans and pinnipeds that may be taken from the specified activity are provided in the IHA application and are summarized here with updates to some population size estimates. Bottlenose Dolphins There are two morphologically and genetically distinct bottlenose dolphin stocks in the Western Atlantic Ocean: coastal and offshore. Coastal bottlenose dolphins are continuously distributed along the Atlantic coast south of Long Island, New York around the Florida peninsula and along the Gulf of Mexico coast. Initially, a single stock of coastal morphotype bottlenose dolphins was thought to migrate seasonally between New Jersey (summer months) and central Florida based on seasonal patterns in strandings during a large scale mortality event occurring during 1987-1988 (Scott *et al.,* 1988). However, re-analysis of stranding data (McLellan *et al.,* 2003) and extensive analysis of genetic, photo-identification, satellite telemetry, and stable isotope studies demonstrate a complex mosaic of coastal bottlenose dolphin stocks (NMFS 2001). Seven management units within the range of the coastal western North Atlantic bottlenose dolphin (Atlantic coast south of Long Island through the Gulf of Mexico) have been defined. Animals within the action area may belong to either the Southern Migratory Management Unit
(MMU)or Northern Migratory Management Unit (NMMU). The coastal stock of bottlenose dolphins resides along the inner continental shelf and around islands preferring waters less than 30-40 meters in depth, typically travel in groups of multiple animals, and may carry soft barnacles ( *Xenobalanus* sp.) on the dorsal fin or flukes (NOAA Fisheries 2001, 2008; McLellan *et al.,* 2003). The offshore form are large robust animals which tend to travel in small groups of 1-3 individuals and are distributed primarily along the outer continental shelf and continental slope in the Northwest Atlantic Ocean. The best abundance estimates of the SMMU and NMMU come from summer aerial surveys which estimate the populations to be 10,341 and 7,489, respectively (NMFS, 2008). The offshore stock is estimated at 81,588 individuals (NMFS, 2008). Spotted Dolphins There are two species of spotted dolphin in the Atlantic Ocean, the Atlantic spotted dolphin ( *Stenella frontalis* ), and the pantropical spotted dolphin ( *S. attenuata* ) (Perrin, 1987). Where they co-occur, the two species can be difficult to differentiate (Waring *et al.,* 2006). Atlantic spotted dolphins prefer tropical to warm temperate waters along the continental shelf 10 to 200 meters (33 to 650 feet) deep to slope waters greater than 500 meters (1,640 feet) deep. Recent surveys in the Navy's Virginia Capes Operating Area (VACAPES OPAREA), which includes waters off Delaware through North Carolina, indicate higher abundance of spotted dolphin in deep, continental slope waters east of North Carolina, but few, if any, in the vicinity of the project area (DoN, 2007b). The best available population estimates for Atlantic and Pantropical spotted dolphins are 50,978 and 4,439, respectively. Common Dolphin The common dolphin may be one of the most widely distributed species of cetaceans, as it is found world-wide in temperate, tropical, and subtropical seas. Mitochondrial DNA (mtDNA), and morphometric cranial analysis of North Atlantic specimens suggest that common dolphins in the western North Atlantic are composed of a single panmictic group whereas gene flow between western and eastern North Atlantic animals is limited (Westgate, 2005). Common dolphins can be found in pelagic waters of the Atlantic and Pacific Oceans along the 200- to 2,000-meter (650- to 6,500-foot) isobaths over the continental shelf. They are present in the western Atlantic from Newfoundland to Florida. This species is especially common along shelf edges and in areas associated with Gulf Stream features and sharp bottom relief such as seamounts and escarpments (Reeves *et al.,* 2002; NMFS, 2007)—bathymetric features not found at the project site. Recent surveys in the Northeast Study Area (New Jersey through Maine) inclusive of the Navy's Atlantic City OPAREA, which includes waters off Delaware through North Carolina, indicate higher abundance of common dolphin in deep, continental slope waters throughout the Mid-Atlantic region, but few, if any, in the vicinity of the project area (DoN, 2007a and b). The best abundance estimate for common dolphins in the western North Atlantic is 120,743 animals (NMFS, 2007). Atlantic White-sided Dolphins Atlantic white-sided dolphins are typically found at depths greater than 330 feet (100 meters) in the cool temperate and subpolar waters of the North Atlantic, generally along the continental shelf between the Gulf Stream and the Labrador current to as far south as North Carolina (Bulloch 1993; Reeves *et al.* 2002). NMFS recognizes three stocks of the Atlantic white-sided dolphin in the western North Atlantic: a Gulf of Maine stock, a Gulf of St. Lawrence stock, and a Labrador Sea stock (Waring *et al.,* 2006). Although this species is widely distributed, sightings in the vicinity of Hudson Canyon and points south have occurred at low densities (Waring *et al.* 2006). The best available current abundance estimate for white-sided dolphins in the western North Atlantic stock is 63,368 (NMFS, 2009). Risso's Dolphin Risso's dolphins are typically an offshore dolphin whose inshore appearance is uncommon (Reeves *et al.,* 2002). Risso's dolphins prefer temperate to tropical waters along the continental shelf edge and can range from Cape Hatteras to Georges Bank from spring through fall, and throughout the Mid-Atlantic Bight out to oceanic waters during winter (Payne *et al.,* 1984). Risso's dolphins are usually seen in groups of 12 to 40 individuals (NMFS, 2009). Loose aggregations of 100 to 200, or even several thousand, are seen occasionally (Reeves *et al.* 2002). Based on a survey from Maryland to the Bay of Fundy in 2004, the estimated population size for Risso's dolphins is 15,053 (NMFS, 2009). Pilot Whale There are two species of pilot whales in the western North Atlantic—the Atlantic or long-finned pilot whale, *Globicephala melas,* and the short-finned pilot whale, *G. macrorhynchus.* Sightings of these animals in the U.S. Atlantic Exclusive Economic Zone (EEZ), which extends from the coastline to 200 nm, occur in oceanic waters and along the continental shelf and continental slope in the northern Gulf of Mexico (Hansen *et al.* 1996; Mullin and Hoggard 2000; Mullin and Fulling 2003). Pilot whales are highly social and typical group size can range from the tens to hundreds and may reach up to 1,200 individuals (Zachariassen, 1993; Bloch, 1998). Information on stock differentiation for the Atlantic population based on morphological, genetic, and/or behavioral data is in progress. Pending these results, the western North Atlantic *Globicephala* sp. population(s) is provisionally being considered a separate stock from the northern Gulf of Mexico stock(s). Because these species are difficult to differentiate at sea, seasonal abundance estimates are reported for both long-finned and short-finned pilot whales. The best abundance estimate for *Globicephala* sp. is 31,139 (NMFS 2009). Harbor Porpoise The harbor porpoise inhabits shallow, coastal waters, often found in bays, estuaries, and harbors. During fall and spring, harbor porpoises are widely dispersed in the North Atlantic from New Jersey to Maine, with lower densities farther north and south. During winter (January to March), intermediate densities of harbor porpoises can be found in waters off New Jersey to North Carolina. They are seen from the coastline to deep waters (>1800 m; Westgate *et al.,* 1998), although the majority of the population is found over the continental shelf. Gaskin (1984; 1992) proposed that there were four separate populations in the western North Atlantic: the Gulf of Maine/Bay of Fundy, Gulf of St. Lawrence, Newfoundland, and Greenland populations. As described in NMFS' most recent stock assessment report (2009), this hypothesis has been recently supported by mtDNA analysis, organochlorine contaminants, heavy metals, and life history parameters. The aggregation of porpoises found in the mid-Atlantic during winter may be composed of a mix of all these stocks; however, the Gulf of Main/Bay of Fundy stock is likely the largest contributor (NMFS, 2009). The best current abundance estimate of the Gulf of Maine/Bay of Fundy harbor porpoise stock is 89,054 (NMFS, 2009). Harbor Seals Harbor seals are the most abundant seals in eastern United States waters and are commonly found in all nearshore waters of the Atlantic Ocean and adjoining seas above northern Florida. However, their “normal” southern range is probably only to the waters off the coast of New Jersey. In late autumn and winter, harbor seals may be at sea continuously for several weeks or more (Reeves *et al.,* 2002). Although the stock structure of the western North Atlantic population is unknown, it is thought that harbor seals found along the eastern U.S. and Canadian coasts represent one population (Temte *et al.,* 1991). In late autumn and winter, harbor seals may be at sea continuously for several weeks or more, presumably feeding to recover body mass lost during the reproductive and molting seasons and to fatten up for the next breeding season (Reeves *et al.* 2002). (Reeves *et al.,* 2002). The population estimate for the western North Atlantic stock of harbor seals is 99,340 (Marine Mammal Center, 2002; NOAA, 1993; Waring *et al.,* 2006). Potential Effects on Marine Mammals NMFS has preliminarily determined that open-water impact pile driving of the single monopole at each site, as outlined in the project description, has the potential to result in behavioral harassment of marine mammals if they are present near the action area. However, NMFS notes that the limited duration of pile driving (3-8 hours) will minimize the chance marine mammals are exposed to pile driving noise and pile driving at the sites will not occur concurrently; therefore, no cumulative impacts are anticipated. Bluewater has proposed a mitigation and monitoring plan designed to eliminate potential for Level A (injurious) harassment of all marine mammals and also Level B harassment of ESA-listed marine mammals (see *Proposed Mitigation* section). Noise from pile driving may harass marine mammals. Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water. Sound is generally characterized by several variables, including frequency and sound level. Frequency describes the sound's pitch and is measured in hertz
(Hz)or kilohertz (kHz), while sound level describes the sound's loudness and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. For example, 10-dB yields a sound level 10 times more intense than 1 dB, while a 20 dB level equates to 100 times more intense. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. All underwater noise levels presented here are quantified in decibels relative to 1 micro Pascal (re: 1 microPa), unless otherwise noted. Marine mammals are continually exposed to many sources of sound. Naturally occurring noise from lightning, rain, sub-sea earthquakes, and biological sounds ( *e.g.,* snapping shrimp, whale songs) are ubiquitous throughout the world's oceans. Marine mammals produce sounds in various contexts and use sound for various biological functions including, but not limited to:
(1)Social interactions;
(2)foraging;
(3)orientation; and
(4)predator detection. Interference with producing or receiving these sounds may result in adverse impacts. Type and significance of marine mammal reactions to noise are likely to depend on a variety of factors including, but not limited to, received levels, the behavioral state ( *e.g.,* feeding, traveling, *etc.* ) of the animal at the time it receives the stimulus, frequency of the sound, distance from the source, source characteristics ( *e.g.,* is the source moving or stationary) and the level of the sound relative to ambient conditions (Southall *et al.,* 2007). NMFS is in the process of developing guidelines for determining sound pressure level
(SPL)thresholds for acoustic harassment based on the best available science. In the interim, NMFS generally considers 180 and 190 dB root mean square
(rms)as the level at which cetaceans and pinnipeds, respectively, could be subjected to Level A (injurious) harassment. Level B (behavioral) harassment has the potential to occur if marine mammals are exposed to pulsed sounds ( *e.g.* impact pile driving) at or above 160 dB rms, but below injurious thresholds. These thresholds are considered conservative. Bluewater's analyzed pile driving data collected during offshore wind farm construction in Europe to estimate the distances to NMFS' threshold levels during pile driving off Delaware and New Jersey (see sections 2.2 and 2.3 in Bluewater's IHA application. Table 3 below summarizes the estimated distances to NMFS' Level A and B harassment isopleths at each location based on Bluewater's modeling. Water depth is the main contributing factor to any discrepancy between the two proposed sites. Table 3—Estimated Distances to NMFS' Harassment Thresholds for Impact Pile Driving Off Delaware and New Jersey Site location 190 dB re: 1 microPa
(rms)1 180 dB re: 1 microPa
(rms)2 160 dB re: 1 microPa
(rms)3 OCS—Delaware 330 m 760 m 7,230 m OCS—New Jersey 375 m 1,000 m 6,600 m 1 Level A harassment threshold for pinnipeds in water. 2 Level A harassment threshold for cetaceans. 3 Level B harassment thresholds for pinnipeds and cetaceans from impulsive noise. Hearing Impairment Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very loud sounds. Hearing impairment is measured in two forms: Temporary threshold shift
(TTS)and permanent threshold shift (PTS). There are no empirical data for onset of PTS in any marine mammal; therefore, PTS-onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the hearing threshold is reduced by ≥ 40 dB ( *i.e.,* 40 dB of TTS). Due to proposed mitigation measures, NMFS does not expect that marine mammals will be exposed to levels that could elicit PTS; therefore, it will not be discussed further. Temporary Threshold Shift
(TTS)TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises and a sound must be louder in order to be heard. TTS can last from minutes or hours to, in cases of strong TTS, days. For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the noise ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals. Southall *et al.*
(2007)considers a 6 dB TTS ( *i.e.,* baseline thresholds are elevated by 6 dB) sufficient to be recognized as an unequivocal deviation and thus a sufficient definition of TTS-onset. Because it is non-injurious, NMFS considers TTS as Level B harassment that is mediated by physiological effects on the auditory system; however, NMFS does not consider onset TTS to be the lowest level at which Level B harassment may occur. Of all marine mammals which could be encountered during the very short pile driving period (3-8 hours), bottlenose and spotted dolphins are the species most likely to come within the action area as they are the most abundant. Bottlenose dolphins have been the subject for most TTS studies and can be considered a surrogate for other delphinids ( *e.g.,* spotted dolphins, common dolphins) that may be exposed to Bluewater's pile driving activity. For bottlenose dolphins, eight different captive individuals have been exposed to impulsive anthropogenic sound, with TTS being induced in five individuals (Schlundt *et al.,* 2000; Nachtigall *et al.,* 2004; Finneran *et al.,* 2007; Mooney *et al.,* 2009). TTS onset occurred when animals were exposed to sound levels ranging from 182 to 203 dB re: 1μPa2-s (SEL), with a median TTS onset level of 192.5 dB SEL. For pinnipeds, underwater TTS experiments involving exposure to pulse noise is limited to a single study. Finneran *et al.*
(2003)found no measurable TTS when two California sea lions were exposed to sounds up to 183 dB re: 1 microPa (peak-to-peak). No TTS studies have been conducted on mysticetes; therefore, no data exist. However, if the pattern holds true as that for mid-frequency cetaceans and pinnipeds, one can assume that TTS occurs in mysticetes at levels much higher than NMFS' Level B behavioral harassment threshold for impulsive noise ( *i.e.,* 160 dB) and likely above NMFS' Level A (injurious) harassment thresholds. Bluewater is proposing to pile drive continuously for 3-8 hours. Until recently, previous marine mammal TTS studies have generally supported an equal energy relationship hypothesis whereby as amplitude and duration of sound exposure increase, generally, so does the amount of TS and recovery time (Southall *et al.,* 2007). However, two recent studies by Mooney *et al.* (2009a, 2009b) on a single bottlenose dolphin exposed to playbacks of Navy mid-frequency active sonar or octave-band (non-impulsive) noise (4-8 kHz) and one by Kastak *et al.*
(2007)on a single California sea lion exposed to airborne octave-band noise (centered at 2.5 kHz) concluded that for all noise exposure situations, the equal energy relationship may not be the best indicator to predict TTS onset levels. Generally, with sound exposures of equal energy, those that were quieter SPLs with longer duration were found to induce TTS onset more than those of louder (higher SPLs) and shorter duration. For intermittent sounds, less TS will occur than from a continuous exposure with the same energy (some recovery will occur between exposures) (Kryter *et al.,* 1966; Ward, 1997). Although Bluewater's pile driving would be both loud and continous for 3-8 hours, NMFS anticipates that if TTS does occur, it would be short in duration as:
(1)Pile driving would cease if animals come within the 190 or 180 dB isopleth for pinnipeds and cetaceans, respectively; and
(2)marine mammals will likely not linger in areas with sound pressure levels high enough to induce long-term TTS. Behavioral Impacts NMFS has discussed behavioral impacts resulting from impact pile driving for various other projects ( *e.g.,* 73 FR 38180; 74 FR 18492; 74 FR 63724) which are relevant here. Additionally, in 2009, the MMS prepared an EA and associated Finding of No Significant Impact (FONSI) on the *Issuance of Leases for Wind Resource Data Collection on the Outer Continental Shelf Offshore Delaware and New Jersey* which analyzes the impacts of constructing, operating, and decommissioning MDCFs similar to ones proposed by Bluewater in their MMPA application. In summary, MMS found that noise from pile driving could disturb normal marine mammal behaviors ( *e.g.,* feeding, social interactions), mask calls from conspecifics, disrupt echolocation capabilities, and mask sounds generated by predators. Behavioral effects may be incurred at ranges of many miles, and hearing impairment may occur at close range (Madsen *et al.,* 2006). Behavioral reactions may include avoidance of, or flight from, the sound source and its immediate surroundings, disruption of feeding behavior, interruption of vocal activity, and modification of vocal patterns (Watkins and Scheville, 1975; Malme *et al.,* 1984; Bowles *et al.,* 1994; Mate *et al.,* 1994). These impacts are similar to those previous identified by NMFS for the previous pile driving projects discussed above. NMFS characterizes the potential effects described here as indicative of Level B (behavioral) harassment. In addition to noise related impacts to marine mammals, NMFS has considered the specified activity includes the impacts from vessel traffic ( *i.e.,* ship strikes) and potential operational discharges from MCDF construction and operation. The marine mammals most vulnerable to vessel strikes are slow-moving and/or spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives ( *e.g.,* right whales, fin whales, sperm whales). Smaller marine mammals such as delphinids, are agile and move more quickly through the water, making them less susceptible to ship strikes. Vessels used for construction include crew boats and slow moving support vessels such as tugs and barges. To prevent ship strikes, crew aboard all vessels associated with the specified activity transiting to and from the construction site would actively watch for whales and other marine mammals and vessel operators would abide by NMFS' Northeast Marine Mammal Viewing Guidelines. As a result, NMFS does not anticipate a ship strike is likely to occur. MMS's EA also analyzed impacts from operational waste generated from vessels includes bilge and ballast waters, trash and debris, and sanitary and domestic wastes. Operational discharges from construction vessels would be released into the open ocean where they would be rapidly diluted and dispersed, or collected and taken to shore for treatment and disposal. Sanitary and domestic wastes would be processed through on-site waste treatment facilities before being discharged overboard or would be tanked to shore for disposal there. Deck drainage would also be processed prior to discharge. The discharge or disposal of solid debris into offshore waters from OCS structures and vessels is prohibited by the MMS (30 CFR 250.300) and the USCG (MARPOL, Annex V, Public Law 100-220 [101 Statute 1458]). MMS and USCG would enforce such prohibitions; hence, the entanglement in or ingestion of proposed action-related trash and debris by marine mammals would not be expected. Because of the limited amount of vessel traffic and construction activity that would occur from Bluewater's proposed activities, the release of liquid wastes would occur infrequently and cease following completion of tower construction. NMFS agrees with MMS's analysis and, as such, has preliminarily determined that impacts to marine mammals from the discharge of waste materials or the accidental release of fuels are expected to be negligible. Anticipated Effects on Habitat The footprint of the foundation and scour protection (if used) is approximately 0.06 acre (30-foot radius around the monopile foundation) at the MDCF site. Under the terms of the MMS lease, within a period of one year after cancellation, expiration, relinquishment, or other termination of the lease, the lessee shall remove all devices, works and structures from the leased area and restore the leased area to its original condition before issuance of the lease (MMS 2008). Bluewater's consultation with the NMFS under section 7 of the ESA for the MMS lease, completed May 14, 2009, concluded that all effects of the proposed project, including those to habitat, will be insignificant or discountable. Under the MMPA, the same determination on effects to marine mammal habitat applies based on the factors in the earlier consultation. Proposed Mitigation In order to issue an incidental take authorization
(ITA)under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. Bluewater has proposed, and NMFS supports, the following mitigation measures designed to eliminate the potential for serious injury/mortality and Level A (injurious) harassment and minimize Level B (behavioral) harassment to marine mammals: Establishment of Exclusion Zone Bluewater would establish and monitor a preliminary 1,000 m Level A harassment exclusion zone
(EZ)around the pile driving site in order to eliminate the potential for injury (Level A harassment) of marine mammals. This zone is designed to include all areas where the underwater SPLs are anticipated to equal or exceed 180 dB rms. If the acoustic survey (see Acoustic Monitoring section) determines that the area ensonified by sounds exceeding 180 dB extends beyond the preliminary 1,000-meter EZ, a new safety exclusion zone would be established. Otherwise, the 1,000-meter EZ will remain in place. Triggers and protocol for pile driving shut down for this zone are described below. Bluewater would also establish a 7-km EZ at the Delaware site for ESA-listed marine mammals ( *i.e.,* large whales) to avoid Level B (behavioral) harassment to these species. Should acoustic monitoring at the Delaware site determine the estimated distance to the 160 dB isopleth (the Level B harassment threshold level) is not accurate, the large whale exclusion zone would be altered for the New Jersey site accordingly, after accounting for depth differences between the two sites. Pile Driving Shut-Down and Delay Triggers and Procedures At least one protected species observer
(PSO)stationed onboard the pile-driving vessel would monitor the established 1,000 m EZ for 30 minutes prior to the soft-start of pile driving. If the PSO observes a marine mammal within this zone during this time, the PSO would notify the Resident Engineer (or other authorized individual) who would then delay pile driving. Pile driving would not commence until the PSO confirms that animal has moved out of and on a path away from the EZ or a PSO has not sighted the animal within the EZ for 15 minutes. If a marine mammal approaches or enters the exclusion zone after pile driving has begun, pile driving would cease until the PSO confirms that the animal has moved out of and on a path away from the EZ or the PSO has not sighted the animal within the EZ for 15 minutes. If pile driving ceases for 30 minutes or more, the PSO would observe for an additional 30-minute period before he/she would notify the Resident Engineer (or other authorized individual) that none of the aforementioned situations are triggered and pile driving could commence. On a separate vessel navigating at approximately 4-5 kms around the pile hammer, PSOs would monitor for large whales. Protocol for pile shut down and delay would follow the procedures described above for the 1,000 EZ. Ramp-Up Procedures A ramp-up or soft-start will be used at the beginning of pile driving in order to provide additional protection to marine mammals near the project area by allowing them time to vacate the area prior to the commencement of pile-driving activities. The soft-start requires an initial set of 3 strikes from the impact hammer at 40 percent energy with a one minute waiting period between subsequent 3-strike sets. The procedure will be repeated two additional times. If marine mammals are sighted within the exclusion zone prior to pile-driving, or during the soft start, the Resident Engineer (or other authorized individual) will delay pile driving until the animal has moved outside the exclusion zone and no marine mammals are sighted for a period of 30 minutes. Use of Sound Attenuation Devices Bluewater has conducted a sound attenuation device feasibility study and has concluded that traditional devices ( *e.g.,* bubble curtain, wood cap, sleeve) are not practical or feasible for the proposed activity for various reasons (see Bluewater's application). However, Bluewater would continue to explore other options and, if found, would implement a sound attenuation device during pile driving. Reduced Hammer Force Bluewater would not ramp-up to full power if, at decreased power, the pile can be driven to the desired depth. Recall that source levels are directly related to hammer force. The estimates to the Level A and Level B harassment thresholds are based on maximum hammer force (900 kJ); hence if less energy is used, noise levels would be less than anticipated. Time-of-Day and Weather Restrictions Pile-driving will be limited to day light hours between one-half hour after sunrise and one-half hour prior to sunset. If detection capability of a marine mammal within the EZ is obscured by foul weather ( *e.g.,* rough seas, fog), Bluewater would delay or suspend pile driving operations until the EZ is clear. NMFS has carefully evaluated the applicant's proposed mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: the manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and the practicability of the measure for applicant implementation, including consideration of personnel safety, and practicality of implementation. Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable adverse impacts on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed Monitoring and Reporting In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present. Visual Monitoring Bluewater is proposing to conduct both visual and acoustic monitoring to better understand impacts to marine mammals from pile driving and estimate take. At least one PSO would be stationed at the pile hammer to monitor, and implement mitigation if necessary, the preliminary 1,000 m EZ and notify the Resident Engineer (or other authorized person) if shut down is necessary. In addition, at least one PSO, in a dedicated visual monitoring vessel circumnavigating the pile hammer at a distance of 4-5 kms, would monitor the Level B harassment zone ( *i.e.,* those waters estimated to carry sound levels at or above 160 dB) to determine take numbers for non-listed marine mammals located at a distance to the pile hammer and call for pile driving shut down should a large whale enter this zone. PSOs would be stationed at the highest vantage point possible aboard support vessels (the higher the platform, the greater distance seen). In addition, a visual monitor would be aboard the acoustic monitoring vessel to observe for marine mammals. All PSOs will be in contact with each other at all times. Acoustic Monitoring Bluewater would carry out an acoustic study as described in the application (Attachment 1—Underwater Noise Survey Protocol). The plan includes the use of hydrophone array deployed by vessel within the near field ( *i.e.,* within 1,000 m) which provides data in real time and two automous recorders in the far field (2 km and 5 km from the hammer) which will archive sound data until they are retrieved and downloaded. The plan is designed to:
(1)Empirically verify the marine mammal exclusion and harassment zones;
(2)estimate site specific underwater sound transmission loss decay rates in the action area;
(3)provide a digital sound recording of acoustic measurements completed during pile driving; and
(4)investigate background noise levels in absence of pile driving. As stated previously, the acoustic models contained within the application are likely an overestimate of sound levels; however, by how much cannot be determined at this time. Empirical data collection will help refine these numbers. Based on the data collected at the each site, the EZ would be adjusted accordingly (but not less than 1,000 m) and from the autonomous recorders at the Delaware site, estimates to the Level B isopleths may be refined for the New Jersey site after adjustment for water depth differences. In addition, MMS may also conduct an independent sound study during pile driving, providing further acoustical data. Estimated Take by Incidental Harassment Except with respect to certain 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]. As discussed in the *Potential Effects* section above, marine mammals exposed to certain levels of pile driving noise may be taken by Level B harassment. Monitoring and mitigation measures will prevent animals from being exposed to levels which could induce Level A (injury) harassment. Responses to the specified activity may include avoidance, altered patterns in foraging, traveling, and resting patterns, masking, and stress hormone production. Many of these effects are difficult to quantify; therefore, NMFS has established threshold criteria which indicate the levels at which any of these effects may occur and a take is possible. Hence these levels are conservative and currently are being refined to better reflect the best scientific data available. Bluewater has determined that eight species of marine mammals have the potential to be taken, by Level B harassment only, incidental to pile driving. Tables 4 and 5 below provide Bluewater's proposed estimated take levels for Delaware and New Jersey, respectively. For all species, the requested take is less than 1% of the population; therefore, take numbers can be considered small relative to the population size. Although some species have low average and maximum calculated take estimates based on density, these species ( *e.g.,* spotted dolphin, common dolphin) can travel in large groups, hence higher numbers of take are requested given the assumption that an entire group would come within the designated Level B harassment isopleths. Due to the short duration of pile driving (3-8 hours) it is unlikely single individuals would be exposed multiple times, further reducing impacts from Level B harassment. In addition, the number of requested takes proposed here are unlikely to all occur ( *i.e.,* it is unlikely all these species would be present within the action area over a period of 3-8 hours); however, it is difficult to determine which species may or may not be encountered. For example, only spotted dolphins may come within the Level B harassment zone during pile driving; however, these animals travel in large groups so all take for this species may be used. Bluewater would cease pile driving if marine mammals come within 1,000 m of the pile; therefore, no Level A takes are requested nor would any be authorized in the proposed IHA. In addition, no ESA-listed species would be taken by harassment (Level A or B) given the implementation of the mitigation and monitoring measures described above. Table 4—Requested Take Numbers, by Species, Off Delaware Species Density Fall (No./100 km 2 ) Average take estimate a Maximum take estimate b Requested take (number of animals) Bottlenose dolphin 3.969 4.95 11.90 15 Spotted dolphin 8.730 14.06 28.11 35 Common dolphin 5.275 8.09 16.99 20 Atlantic White-Sided dolphin 0.410 .066 1.32 15 Risso's dolphin 3.288 5.29 10.59 15 Pilot whale 1.696 2.73 5.46 10 Harbor porpoise 3.200 5.15 10.30 15 Harbor seal c 9.743 16.69 31.37 35 a Density values from Dept. of Navy (2007a,b). b Maximum take estimate 2x average take estimate. c Density estimate from Barlas
(1999)used for this species. Table 5—Requested Take Numbers, by Species, Off New Jersey Species Density Fall (no./100 km 2 ) a Average take estimate Maximum take estimate b Requested take (number of animals) Bottlenose dolphin 3.969 4.94 9.88 15 Spotted dolphin 8.730 11.67 23.35 35 Common dolphin 5.275 7.05 14.11 20 Atlantic White-Sided dolphin 0.410 .055 1.10 15 Risso's dolphin 3.288 4.40 8.79 15 Pilot whale 1.696 2.27 4.54 10 Harbor porpoise 3.200 4.28 8.56 10 Harbor seal c 9.743 13.03 26.05 30 a Density values from DoN (2007a,b). b Maximum take estimate 2x average take estimate. c Density estimate from Barlas
(1999)used for this species. Bluewater would operate support vessels ( *e.g.,* small vessels, barges, tugs) to deliver and install equipment at the MDCF site; however, operation of these vessels is not anticipated to result in takes of marine mammals. Vessels would transit to the site slowly and operators would follow NMFS' Northeast Regional marine mammal viewing guidelines. Vessel transit speed is similar to that in NMFS' final rule concerning right whale vessel collision reduction strategy which established operational measures for the shipping industry to reduce the potential for large vessel collisions with North Atlantic right whales while transiting to and from mid-Atlantic ports during right whale migratory periods (73 FR 60173; October 10, 2008). For these reasons (slow transit, viewing guideline adherence) NMFS does not anticipate take of marine mammals incidental to support vessel operation. Negligible Impact and Small Numbers Analysis and Determination 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.” In making a negligible impact determination, NMFS considers the following: number of anticipated mortalities; number and nature of anticipated injuries; number, nature, intensity, and duration of Level B harassment; is the nature of the anticipated takes such that we would expect it to actually impact rates of recruitment or survival; and context in which the takes occur—that is will the takes occur in areas (and/or times) of significance for marine mammals ( *e.g.,* feeding or resting areas, reproductive areas, rookeries, critical habitat, *etc.* ). Due to the implementation of mitigation measures, no ESA-listed species would be exposed to sound levels exceeding those established by NMFS as indicative of harassment. Therefore, no take of ESA-listed marine mammals are anticipated to occur. Non-ESA listed marine mammals may be exposed temporarily to pile driving noise; however, at each location, pile driving would occur for only 3-8 hours in total. The waters in the mid-Atlantic OCS are not designated as critical habitat for ESA-listed marine mammals, nor do they provide significant habitat for any marine mammal species ( *i.e.,* no significant foraging or reproductive areas are known to be in this area). Animals within the action area are likely to be traveling, resting, socializing or opportunistically foraging. Noise from pile driving may temporarily disturb animals in these behavioral states and induce mild TTS; however, no significant or long-term impacts are anticipated given the implementation of mitigation measures, short duration of pile driving and the anticipation that individuals are not expected to linger within the action area. While pile driving noise may affect more than one individual, population level effects are not anticipated as impacts are anticipated to be limited to short term behavioral changes in individuals ( *e.g.,* avoidance, cessation of activity at time of noise exposure, change in vocalization patterns) and potential masking effects. These effects would not alter fitness or reproductive success. Bluewater would not conduct pile driving at both sites simultaneously; therefore, no cumulative impacts which could arise from exposure to noise from multiple pile hammers are expected. Finally, the project footprint is extremely small, and each MDCF would be removed after 1-2 years. Therefore, no long term impacts to marine mammal habitat are anticipated. Bluewater has conducted a conservative analysis of estimated sound levels and used these estimates to determine take. Hence, the number of animals potentially taken is also likely an overestimated as it is not anticipated that all species listed in Tables 3 and 4 would be encountered during the short duration of pile driving. The number of animals requested to be taken is considered small (less than 1 percent) when compared to the estimated stock size for each species. Again, no ESA-listed species would be taken based on implementation of the proposed mitigation and monitoring measures and no Level A (injurious) harassment, serious injury, or mortality is anticipated nor would any be authorized in the proposed IHA. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that pile driving conducted by Bluewater during MDCF installation will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from will have a negligible impact on the affected species or stocks. Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by this action. Endangered Species Act
(ESA)Bluewater is not requesting, nor is NMFS proposing, take of ESA listed species; hence, ESA consultation is not necessary for issuance of the proposed IHA. National Environmental Policy Act
(NEPA)On June 2, 2009, the MMS issued an EA and associated Finding of No Significant Impact (FONSI) on the *Issuance of Leases for Wind Resource Data Collection on the Outer Continental Shelf Offshore Delaware and New Jersey.* The EA evaluates the impacts to the human environment, including those to marine mammals, from issuing seven leases in the Atlantic OCS for purposes of constructing, operating, and decommissioning a MDCF in each lease block. The MDCFs proposed by Bluewater are included in that analysis. NMFS will either adopt MMS's EA or conduct a separate NEPA analysis, as necessary, prior to making a final determination of the issuance of the IHA. The EA is available for comment on NMFS' Web site ( *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* ) for the duration of the public comment period of the proposed IHA. Dated: July 15, 2010. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2010-17968 Filed 7-21-10; 8:45 am]
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- 50 CFR 216.103
- 50 CFR 216.104
- Pub. L. 100-220
- 50 CFR 216.104(a)(13)
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Notices
Notice; proposed incidental harassment authorization; request for comments
Cite50 CFR 216.103
Cite50 CFR 216.104
Pub. L.Pub. L. 100-220
Cite50 CFR 216.104(a)(13)
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