17458 Federal Register / Vol

17458 Federal Register / Vol. 86, No. 62 / Friday, April 2, 2021 / Rules and Regulations

DEPARTMENT OF COMMERCE take of marine mammals incidental to exceptions. Sections 101(a)(5)(A) and the HRCP’s construction activities (D) of the MMPA (16 U.S.C. 1361 et National Oceanic and Atmospheric associated with the HRBT. The HRBT is seq.) direct the Secretary of Commerce Administration a major road transportation (as delegated to NMFS) to allow, upon infrastructure project along the existing request, the incidental, but not 50 CFR Part 217 I–64 highway in Virginia, consisting of intentional, taking of small numbers of [Docket No. 210318–0058] roadway improvements, trestle bridges, marine mammals by U.S. citizens who and bored tunnels crossing the James engage in a specified activity (other than RIN 0648–BK21 River between Norfolk and Hampton. commercial fishing) within a specified The purpose of the project is to address geographical region if certain findings Taking Marine Mammals Incidental to severe traffic congestion at the existing are made and either regulations are the Hampton Roads Bridge Tunnel HRBT crossing by increasing traffic issued or, if the taking is limited to Expansion Project in Norfolk, Virginia capacity and upgrading lanes. harassment, a notice of a proposed incidental take authorization may be AGENCY: National Marine Fisheries Legal Authority for the Action Service (NMFS), National Oceanic and provided to the public for review. Atmospheric Administration (NOAA), Section 101(a)(5)(A) of the MMPA (16 Authorization for incidental takings Commerce. U.S.C. 1371(a)(5)(A)) directs the shall be granted if NMFS finds that the taking will have a negligible impact on ACTION: Final rule; notification of Secretary of Commerce to allow, upon the species or stock(s) and will not have issuance of Letters of Authorization. request, the incidental, but not intentional taking of small numbers of an unmitigable adverse impact on the SUMMARY: NMFS, upon request of the marine mammals by U.S. citizens who availability of the species or stock(s) for Hampton Roads Connector Partners engage in a specified activity (other than taking for subsistence uses (where (HRCP), hereby issues regulations to commercial fishing) within a specified relevant). Further, NMFS must prescribe govern the unintentional taking of geographical region for up to five years the permissible methods of taking and marine mammals incidental to if, after notice and public comment, the other ‘‘means of effecting the least construction activities associated with agency makes certain findings and practicable adverse impact’’ on the the Hampton Roads Bridge Tunnel issues regulations that set forth affected species or stocks and their Expansion Project (HRBT) in Norfolk, permissible methods of taking pursuant habitat, paying particular attention to Virginia, over the course of five years to that activity and other means of rookeries, mating grounds, and areas of (2021–2026). These regulations, which effecting the ‘‘least practicable adverse similar significance, and on the allow for the issuance of Letters of impact’’ on the affected species or availability of the species or stocks for Authorization (LOA) for the incidental stocks and their habitat (see the taking for certain subsistence uses take of marine mammals during the discussion below in the Mitigation (referred to in shorthand as described activities and specified Measures section), as well as monitoring ‘‘mitigation’’); and requirements timeframes, prescribe the permissible and reporting requirements. Section pertaining to the mitigation, monitoring methods of taking and other means of 101(a)(5)(A) of the MMPA and the and reporting of the takings are set forth. effecting the least practicable adverse implementing regulations at 50 CFR part The definitions of all applicable MMPA impact on marine mammal species or 216, subpart I provide the legal basis for statutory terms cited above are included stocks and their habitat, as well as issuing this final rule containing five- in the relevant sections below. requirements pertaining to the year regulations, and for any subsequent Summary of Request monitoring and reporting of such taking. LOAs. As directed by this legal On November 19, 2019, NMFS authority, this final rule contains DATES: Effective from April 2, 2021 received an application from HRCP mitigation, monitoring, and reporting through April 1, 2026. requesting authorization for take of requirements. ADDRESSES: A copy of HRCP’s marine mammals incidental to application and supporting documents, Summary of Major Provisions Within construction activities related to a major as well as a list of the references cited the Final Rule road transport infrastructure project in this document, may be obtained Following is a summary of the major along the existing I-64 highway in online at: https:// provisions of these regulations regarding Virginia, consisting of roadway www.fisheries.noaa.gov/action/ HRCP’s construction activities. These improvements, trestle bridges, and incidental-take-authorization-hampton- measures include: bored tunnels crossing Hampton Roads roads-bridge-tunnel-expansion-project- • Shutdown of construction activities between Norfolk and Hampton, hampton-0. In case of problems under certain circumstances to Virginia. HRCP submitted a revised accessing these documents, please call minimize injury of marine mammals; application on June 27, 2020 which the contact listed below. • Required monitoring of the included changes to construction FOR FURTHER INFORMATION CONTACT: construction areas to detect the presence methods. We determined the Robert Pauline, Office of Protected of marine mammals before beginning application was adequate and complete Resources, NMFS, (301) 427–8401. construction activities; on September 29, 2020. On October 7, SUPPLEMENTARY INFORMATION: • Soft start for impact pile driving to 2020 (85 FR 63256), we published a allow marine mammals the opportunity notice of receipt (NOR) of HRCP’s Purpose and Need for Regulatory application in the Federal Register, Action to leave the area prior to initiating impact pile driving at full power; and requesting comments and information We received an application from the • Use of bubble curtains during related to the request for thirty days. HRCP requesting five-year regulations impact driving of steel piles in The proposed rule was subsequently and authorization to take multiple appropriate circumstances. published in the Federal Register on species of marine mammals. This rule January 8, 2021 (86 FR 1588) and establishes a framework under the Background requested comments and information authority of the MMPA (16 U.S.C. 1361 The MMPA prohibits the ‘‘take’’ of from the public. Please see Comments et seq.) to allow for the authorization of marine mammals, with certain and Responses, below.

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HRCP previously applied for an occur at variable rates, from a few boring machine (TBM), expansion of the incidental harassment authorization minutes one day to several hours the existing portal islands, and widening of (IHA) to cover initial in-water pile next. HRCP anticipates that between 1 the Willoughby Bay Trestle-Bridges, Bay driving work. That IHA was issued on to 10 piles could be installed per day, Avenue Bridges, and Oastes Creek July 10, 2020 (85 FR 48153; August 10, depending on project scheduling. Bridges. Also, upland portions of I-64 2020), and is effective until July 9, 2021. The project may incidentally expose will be widened to accommodate the Information related to this previous IHA marine mammals occurring in the additional lanes, the Mallory Street may be found online at: https:// vicinity to elevated levels of underwater Bridge will be replaced, and the I-64 www.fisheries.noaa.gov/action/ sound, thereby resulting in incidental overpass bridges will be improved. incidental-take-authorization-hampton- take, by Level A and Level B Pile installation and removal would roads-bridge-tunnel-expansion-project- harassment. occur at North Trestle, North Island, hampton-norfolk. To date, HRCP has Dates and Duration South Island, South Trestle, Willoughby adhered to all mitigation, monitoring, Spit, and Willoughby Bay (refer to and reporting requirements and has not The regulations are valid for a period Figure 1–1 in the application). Table 1 exceed authorized numbers of take. of five years (2021–2026). The specified below identifies the various project HRCP proposed to conduct in-water activities may occur at any time during design segments where in-water marine construction activities, including pile the five-year period of validity of the construction activities are planned that installation and removal, and requested regulations. HRCP expects pile driving have the potential to affect marine authorization to take five species of and removal to occur six days per week. mammals. HRCP plans to install up to marine mammals by Level A and Level The overall number of anticipated days 6,798 piles including 24- to 60-inch B harassment. Neither HRCP nor NMFS of pile installation and removal is 312 steel pipe piles, 24- to 54-inch concrete expects serious injury or mortality to each year for five years, based on a 6- piles, 16-inch timber piles, and sheet result from this activity, and none is day work week for an estimated total of piles. This would be done by a variety authorized. The regulations are effective 1,560 days. of methods including use of vibratory for five years (2021–2026). HRCP plans to conduct work during hammer, impact hammer, DTH hammer, daylight hours. However, pile and/or jetting. HRCP would remove up Description of Activity installation and removal may extend to 4,728 piles including 24- to 42-inch Overview into evening or nighttime hours as steel pipe piles, sheet piles, and 16-inch needed to accommodate pile installation timber piles using a vibratory hammer, HRCP is planning to conduct requirements (e.g., once pile driving construction activities associated with direct pull or by cutting them below the begins, a pile will be driven to design mudline. HRCP plans on using multiple the HRBT project. This is a major road tip elevation). In order to maintain pile transport infrastructure project along the hammers concurrently to install and integrity and follow safety precautions, remove piles. Tables 2 through Table 6 existing I-64 highway in Virginia, pile installation or removal will consisting of roadway improvements, show the number and types of piles continue after dark only for piles planned for installation and removal trestle bridges, and bored tunnels already in the process of being installed crossing Hampton Roads between each year by component and segment or removed. Installation or removal will while Table 7 shows the total number of Norfolk and Hampton. The project will not commence on new piles after dark. address severe traffic congestion at the template piles over five years by existing HRBT crossing by increasing Specific Geographic Region location. A detailed description of capacity and will include widening I-64 HRCP’s planned activities was provided The project area is located in the in our notice of proposed rulemaking to create an eight-lane facility with a waterway of Hampton Roads adjacent to consistent six-lanes between the I-64/I- (86 FR 1588; January 8, 2021) and is not the existing bridge and island structures repeated here. No changes have been 664 and I-64/I-564 Interchange, which of the HRBT. Hampton Roads is located could expand to eight-lanes during peak made to the specified activities at the confluence of the James River, the described therein. travel periods with the use of drivable Elizabeth River, the Nansemond River, shoulder lanes within the project limits. Willoughby Bay, and the Chesapeake TABLE 1—HRBT EXPANSION PROJECT The project will include the Bay. (see Figures 1–1 and 2–1 in HRCP’s DESIGN SEGMENTS construction of two new two-lane application). For additional detail tunnels, expansion of the existing portal regarding the specified geographic Project design segment Construction islands, and full replacement of the region, please see our Proposed Rule (86 number and name area existing North and South bridge-trestles. FR 1588; January 8, 2021) and Section The HRBT project will require 2 of HRCP’s application. A map of the Segment 1a (Hampton) ...... 1 extensive pile installation and pile HRBT Project Area is provided in Figure Segment 1b (North Trestle- removal activities. Pile installation 1 below and Figures 1–1 and 2–1 in Bridges) 1 ...... 2 1 methods will include impact and HRCP’s application. Segment 2a (Tunnel) ...... 3 Segment 3a (South Trestle- vibratory driving, jetting, and down-the- 1 hole (DTH) pile installation. Pile Detailed Description of Specific Activity Bridge) ...... 2 Segment 3b (Willoughby removal techniques for temporary piles The planned project will widen I-64 Spit) 1 ...... 4 will include vibratory pile removal or for approximately 9.9 miles along I-64 Segment 3c (Willoughby Bay cutting three feet below the mudline. from Settlers Landing Road in Hampton, Trestle-Bridges) 1 ...... 2 Impact pile installation is projected to Virginia, to the I-64/I-564 interchange in Segment 3d (4th View Street take place at 3 to 4 locations Norfolk, Virginia. The project will create Interchange) ...... 4 simultaneously and there is the an eight-lane facility with six consistent Segment 4a (Norfolk-Navy) .. 4 potential for as many as 7 pile use lanes and will include full Segment 5a (I-564 Inter- installation locations operating replacement of the North and South change) ...... 4 concurrently with different hammer Trestle-Bridges, two new parallel 1 Indicates segment includes in-water con- types. Pile installation and removal can tunnels constructed using a tunnel struction activities.

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TABLE 2—NUMBERS AND TYPES OF PILES TO BE INSTALLED AND REMOVED DURING LOA YEAR ONE FOR EACH HRBT PROJECT COMPONENT AND SEGMENT

Average Total Total Number down-the- Number Average Approximate Number of Estimated Number of Pile size/type and number number Embedment of piles hole of piles vibratory number of piles per total number days of Project component material of piles of piles length down-the- duration vibrated/ duration impact day per of hours of installation to be to be (feet) hole per pile hammered per pile strikes hammer installation and removal I installed I removed I I I(minutes) I I(minutes) I per pile I Iand removal I North Trestle (Segment 1b)

Permanent Piles ...... 54-inch Concrete 188 0 140 ...... 188 ...... 2,100 1 376 188 Cylinder Pipe. Casing ...... 60-inch Steel Pipe ... 15 0 60 15 120 ...... 3 30 5 North Shore Abut- AZ 700–19 Steel 63 63 20 ...... 126 30 ...... 10 63 13 ment. Sheet. I I I I I I I North Island (Segment 2a)

Hampton Creek Ap- Existing, 36-inch 1 1 ...... 1 50 ...... 1 2 1 proach Channel Steel Pipe. Marker. North Island Expan- AZ 700–26 Steel 176 176 40 ...... 352 30 ...... 10 176 35 sion. Sheet. I I I I I I I Willoughby Bay (Segment 3c)

Work Trestle ...... 36-inch Steel Pipe ... 212 0 100 ...... 212 50 40 2 177 106 Moorings (Safe 42-inch Steel Pipe ... 40 0 60 ...... 40 30 ...... 6 20 7 Haven). Permanent Piles ...... 24-inch Concrete 402 0 140 ...... 402 ...... 2,100 1 804 402 Square Pipe. Casing ...... 42-inch Steel Pipe ...I 240 I 240 60 I ...... I ...... 480 30 I ...... I 6 160 I 80 Willoughby Spit (Segment 3b)

Dock on Spuds, 36-inch Steel Pipe ... 8 0 100 ...... 8 50 40 3 7 3 Floating Dock. Dock on Piles, Fixed 36-inch Steel Pipe ... 44 0 100 ...... 44 50 40 3 37 15 Pier. Finger Piers on Tim- 16-inch CCA * Tim- 36 0 60 ...... 36 30 ...... 4 18 9 ber Piles. ber. I I I I I I I South Trestle (Segment 3a)

Work Trestle ...... 36-inch Steel Pipe ... 156 0 100 22 120 134 50 40 2 130 78 Temporary MOT * 36-inch Steel Pipe ... 113 0 100 11 120 102 50 40 2 85 51 Trestle. Casing ...... 42-inch Steel Pipe ... 30 0 60 ...... 30 30 ...... 6 15 5 Permanent Piles ...... 54-inch Concrete 252 0 140 ...... 252 ...... 2,100 1 504 252 Cylinder Pipe. Casing ...... 60-inch Steel Pipe ...I 65 I 0 I 60 I 65 I 120 I ...... I ...... I ...... I 3 I 130 I 22 South Island (Segment 2a)

Settlement Reduc- 24-inch Steel Pipe ... 24 0 85 ...... 24 60 40 6 24 4 tion Piles. Deep Foundation 30-inch Steel Pipe, 82 0 85 8 120 74 60 40 6 82 14 Piles. Concrete Filled. Moorings ...... 42-inch Steel Pipe ... 25 0 60 ...... 25 30 ...... 6 13 4 South Island Abut- AZ 700–19 Steel 12 0 20 ...... 12 30 ...... 10 6 2 ment. Sheet.

Total ...... 2,184 480 ...... 1,296 * CCA = Chromated Copper Arsenate; MOT = Maintenance of Traffic; TBM = Tunnel Boring Machine.

TABLE 3—NUMBERS AND TYPES OF PILES TO BE INSTALLED AND REMOVED DURING LOA YEAR TWO FOR EACH HRBT PROJECT COMPONENT AND SEGMENT

North Shore Work 36-inch Steel Pipe ... 0 194 100 ...... 194 50 40 3 162 65 Trestle. Work Trestle ...... 36-inch Steel Pipe ... 182 ...... 100 12 120 170 50 40 2 152 91 Jump Trestle ...... 36-inch Steel Pipe ... 42 38 100 3 120 77 50 40 2 65 39 Permanent Piles ...... 54-inch, Concrete 102 0 140 ...... 102 ...... 2,100 1 204 102 Cylinder Pipe. I I I I I I I North Island (Segment 2a)

North Island Abut- AZ 700–19 Steel 96 0 20 ...... 96 30 ...... 10 48 10 ment. Sheet.

Willoughby Bay (Segment 3c)

Jump Trestle ...... 36-inch Steel Pipe ... 84 76 100 ...... 160 50 40 2 134 80 Work Trestle ...... 36-inch Steel Pipe ... 0 126 100 ...... 126 50 ...... 2 105 63 Permanent Piles ...... 24-inch Concrete 102 0 140 ...... 102 ...... 2,100 1 204 102 Square Pipe. I I I I I I I I I I I

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TABLE 3—NUMBERS AND TYPES OF PILES TO BE INSTALLED AND REMOVED DURING LOA YEAR TWO FOR EACH HRBT PROJECT COMPONENT AND SEGMENT—Continued

Average Total Total Number down-the- Number Average Approximate Number of Estimated Number of Pile size/type and number number Embedment of piles hole of piles vibratory number of piles per total number days of Project component material of piles of piles length down-the- duration vibrated/ duration impact day per of hours of installation to be to be (feet) hole per pile hammered per pile strikes hammer installation and removal installed removed (minutes) (minutes) per pile and removal Casing ...... 42-inch Steel Pipe ...I 60 I 60 I 60 I ...... I ...... I 120 I 30 I ...... I 6 I 60 I 20 South Trestle (Segment 3a)

Work Trestle ...... 36-inch Steel Pipe ... 100 0 100 14 120 86 50 40 2 84 50 Jump Trestle ...... 36-inch Steel Pipe ... 175 175 100 10 120 350 50 40 2 292 175 Temporary MOT * 36-inch Steel Pipe ... 105 0 100 10 120 95 50 ...... 2 80 48 Trestle. Permanent Piles ...... 54-inch Concrete 168 0 140 ...... 168 ...... 2,100 1 336 168 Cylinder Pipe. I I I I I I I South Island (Segment 2a)

Settlement Reduc- 24-inch Steel Pipe, 370 0 85 ...... 370 60 40 6 370 62 tion Piles. Steel. Deep Foundation 30-inch Steel Pipe, 425 0 85 42 120 383 60 40 6 425 71 Piles. Concrete Filled. South Island Abut- AZ 700–19 Steel 12 24 20 ...... 36 30 ...... 10 18 4 ment. Sheet. South Island Expan- AZ 700–26 Steel 378 378 70 ...... 756 30 ...... 10 189 76 sion. Sheet.

Total ...... 2,401 1,071 ...... 1,226 * CCA = Chromated Copper Arsenate; MOT = Maintenance of Traffic; TBM = Tunnel Boring Machine.

TABLE 4—NUMBERS AND TYPES OF PILES TO BE INSTALLED AND REMOVED DURING LOA YEAR THREE FOR EACH HRBT PROJECT COMPONENT AND SEGMENT

Average Total Total Number down-the- Number Average Approximate Number of Estimated Number of Pile size/type and number number Embedment of piles hole of piles vibratory number of piles per total number days of Project component material of piles of piles length down-the- duration vibrated/ duration impact day per of hours of installation to be to be (feet) hole per pile hammered per pile strikes hammer installation and removal I installed I removed I I I (minutes) I I(minutes) I per pile I Iand removal I North Trestle (Segment 1b)

Jump Trestle ...... 36-inch Steel Pipe ... 228 232 100 9 120 451 50 40 2 376 226 Permanent Piles ...... 54-inch, Concrete 187 0 140 ...... 187 ...... 2,100 1 374 187 Cylinder Pipe. North Shore Abut- AZ 700–19 Steel 62 62 20 ...... 124 30 ...... 10 62 13 ment. Sheet. I I I I I I I North Island (Segment 2a)

North Island Abut- AZ 700–19 Steel 32 128 20 ...... 160 30 ...... 10 80 16 ment. Sheet.

Willoughby Bay (Segment 3c)

Jump Trestle ...... 36-inch Steel Pipe ... 460 468 100 ...... 928 50 40 2 774 464 Work Trestle ...... 36-inch Steel Pipe ... 0 86 100 ...... 86 50 ...... 2 72 43

South Trestle (Segment 3a)

Jump Trestle ...... 36-inch Steel Pipe ... 245 245 100 14 120 476 50 40 2 397 238 Demolition Trestle ... 36-inch Steel Pipe ... 15 0 100 2 120 13 50 40 2 13 30 Work Trestle ...... 36-inch Steel Pipe ... 0 182 100 ...... 182 50 ...... 2 152 91 Temporary MOT * 36-inch Steel Pipe ... 0 110 100 ...... 110 50 ...... 2 92 55 Trestle. Permanent Piles ...... 54-inch Concrete 196 0 140 ...... 196 ...... 2,100 1 392 196 Cylinder Pipe. I I I I I I I South Island (Segment 2a)

South Island Abut- AZ 700–19 Steel 46 46 20 ...... 92 30 ...... 10 46 10 ment. Sheet. Total ...... I 1,471 I 1,559 I...... I I ...... I ...... I ...... I ...... I ...... I ...... I 1,569 * CCA = Chromated Copper Arsenate; MOT = Maintenance of Traffic; TBM = Tunnel Boring Machine.

TABLE 5—NUMBERS AND TYPES OF PILES TO BE INSTALLED AND REMOVED DURING LOA YEAR FOUR FOR EACH HRBT PROJECT COMPONENT AND SEGMENT

Average Total Total Number down-the- Number Average Approximate Number of Estimated Number of Pile size/type and number number Embedment of piles hole of piles vibratory number of piles per total number days of Project component material of piles of piles length down-the- duration vibrated/ duration impact day per of hours of installation to be to be (feet) hole per pile hammered per pile strikes hammer installation and removal I installed I removed I I I (minutes) I I(minutes) I per pile I Iand removal I North Trestle (Segment 1b)

Demolition Trestle ... 36-inch Steel Pipe ... 344 172 100 24 120 492 50 40 2 410 246 Permanent Piles ...... 54-inch, Concrete 85 0 140 ...... 85 ...... 2,100 1 170 85 Cylinder Pipe. I I I I I I I I I I I

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TABLE 5—NUMBERS AND TYPES OF PILES TO BE INSTALLED AND REMOVED DURING LOA YEAR FOUR FOR EACH HRBT PROJECT COMPONENT AND SEGMENT—Continued

Average Total Total Number down-the- Number Average Approximate Number of Estimated Number of Pile size/type and number number Embedment of piles hole of piles vibratory number of piles per total number days of Project component material of piles of piles length down-the- duration vibrated/ duration impact day per of hours of installation to be to be (feet) hole per pile hammered per pile strikes hammer installation and removal installed removed (minutes) (minutes) per pile and removal

North Shore Abut- AZ 700–19 Steel 62 62 20 ...... 124 30 ...... 10 62 13 ment. Sheet.

South Trestle (Segment 3a)

Demolition Trestle ... 36-inch Steel Pipe ... 57 72 100 10 120 119 50 40 2 99 60 Work Trestle ...... 36-inch Steel Pipe ... 0 74 100 ...... 74 50 ...... 2 62 37 Temporary MOT * 36-inch Steel Pipe ... 0 108 100 ...... 108 50 ...... 2 90 54 Trestle. Permanent Piles ...... 54-inch Concrete 194 0 140 ...... 194 ...... 2,100 1 388 194 Cylinder Pipe. I I I I I I I South Island (Segment 2a)

TBM Platform ...... 36-inch Steel Pipe ... 0 216 140 ...... 216 60 ...... 2 216 108 Conveyor Trestle ..... 36-inch Steel Pipe ... 0 84 100 ...... 84 50 ...... 3 70 42 Total ...... I 742 I 788 I...... I I ...... I ...... I ...... I ...... I ...... I ...... I 839

TABLE 6—NUMBERS AND TYPES OF PILES TO BE INSTALLED AND REMOVED DURING LOA YEAR FIVE FOR EACH HRBT PROJECT COMPONENT AND SEGMENT

Average Total Total Number down-the- Number Average Approximate Number of Estimated Pile size/type and number number Embedment of piles hole of piles vibratory number of piles per total number Number of Project component material of piles of piles length down-the- duration vibrated/ duration impact day per of hours of days of to be to be (feet) hole per pile hammered per pile strikes hammer removal removal I installed I removed I I I(minutes) I I(minutes) I per pile I I I North Trestle (Segment 1b)

Moorings ...... 42-inch Steel Pipe ... 0 36 60 ...... 36 30 ...... 6 18 6 Moorings ...... 24-inch Steel Pipe ... 0 30 60 ...... 30 30 ...... 6 15 5 Work Trestle ...... 36-inch Steel Pipe ... 0 182 100 ...... 182 50 ...... 2 152 91 Demolition Trestle ... 36-inch Steel Pipe ... I 0 I 172 100 I ...... I ...... 172 50 I ...... I 2 144 I 86 North Island (Segment 2a)

Moorings ...... 42-inch Steel Pipe ... 0 80 60 ...... 80 30 ...... 6 40 14

Willoughby Bay (Segment 3c)

Moorings ...... 42-inch Steel Pipe ... 0 50 60 ...... 50 30 ...... 6 25 9 Moorings ...... 24-inch Steel Pipe ... 0 18 60 ...... 18 30 ...... 6 9 3 Moorings (Safe 42-inch Steel Pipe ... 0 90 60 ...... 90 30 ...... 6 45 15 Haven). I I I I I I I Willoughby Spit (Segment 3b)

Dock on Spuds, 36-inch Steel Pipe ... 0 8 100 ...... 8 50 ...... 3 7 3 Floating Dock. Dock on Piles, Fixed 36-inch Steel Pipe ... 0 44 100 ...... 44 50 ...... 3 37 15 Pier. Finger Piers on Tim- 16-inch CCA *, Tim- 0 36 60 ...... 36 30 ...... 4 18 9 ber Piles. ber. I I I I I I I I I I I South Trestle (Segment 3a)

Moorings ...... 42-inch Steel Pipe ... 0 41 60 ...... 41 30 ...... 6 21 7 Moorings ...... 24-inch Steel Pipe ... 0 18 60 ...... 18 30 ...... 6 9 3

South Island (Segment 2a)

Mooring ...... 42-inch Steel Pipe ... 0 25 60 ...... 25 30 ...... 6 36 5 Total ...... I 0 I 830 I ...... I I ...... I ...... I ...... I ...... I ...... I ...... 271

TABLE 7—NUMBERS OF TEMPLATE PILES (UPTO36-INCH STEEL PIPE PILES) TO BE INSTALLED AND REMOVED USING A VIBRATORY HAMMER FOR THE HRBT PROJECT

Number Estimated Estimated Average Average of piles number of number of down-the-hole vibratory per day per Project component/location Pile size/type and material template template duration duration per component piles to be piles to be per pile template pile (install and installed removed (minutes) (minutes) removal)

North Trestle Permanent Piles ...... 54-inch Concrete Cylinder Pipe ...... 750 750 ...... 5 8 South Trestle Permanent Piles ...... 54-inch Concrete Cylinder Pipe ...... 1,080 1,080 ...... 5 8 Willoughby Bay Permanent Piles ...... 24-inch Concrete Square Pipe ...... 672 672 ...... 5 8 Willoughby Spit Fixed Pier * ...... 36-inch Steel Pipe ...... 59 59 ...... 5 16 Willoughby Spit Floating Pier * ...... 36-inch Steel Pipe ...... 11 11 ...... 5 16 South Island Deep Foundation Piles ... 30-inch Steel Pipe, Concrete Filled .... 676 676 120 5 16

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TABLE 7—NUMBERS OF TEMPLATE PILES (UPTO36-INCH STEEL PIPE PILES) TO BE INSTALLED AND REMOVED USING A VIBRATORY HAMMER FOR THE HRBT PROJECT—Continued

South Island Settlement Reduction 24-inch Steel Pipe ...... 526 526 ...... 5 16 Piles.

Estimated Total Template Pile Driving ...... 3,774 3,774 ...... Actions.

Total number of Temporary Template ...... 7,548 Pile Driving action. * The piles at Willoughby Spit will be temporary piles for the two temporary piers being constructed to allow barge access; however, these piles will be using a template for installation.

Mitigation, monitoring, and reporting issues occurred in some tables, likely prioritized the issue. NMFS is also measures are described in detail later in due to their size and complexity. A exploring the applicability of utilizing this document (please see Mitigation number of the Commission’s suggested animat models. and Monitoring and Reporting). corrections are, for the most part, Comment 3: The Commission differences of opinion on how available recommended that NMFS (1) refrain Comments and Responses data should be applied to our analysis from using any assumed reductions in We published a Proposed Rule in the and, in each case, we have presented the operational parameters or presumed Federal Register on January 8, 2021 (86 reasons why we disagree with specific residency time when estimating the FR 1588). During the 30-day comment recommendations. If we did agree that extents of the Level A harassment zones, period, we received a letter from the there actually was an error or that the (2) verify that a maximum of only one Marine Mammal Commission Commission’s logic is more appropriate 54-inch concrete pile can be installed at (Commission), and comments from two to implement, we have made the a given location on a given day and, if members of the general public. All recommended changes. We note many the impact hammers at North and South substantive recommendations are of the recommendations by the Trestle would be in close proximity responded to here. The comments are Commission are detail-oriented and, in (500–700 m), assume that the Level A available online at: https:// NMFS’ view, do not provide additional harassment zones would overlap and www.fisheries.noaa.gov/action/ conservation value or meaningfully two piles would be installed per day incidental-take-authorization-hampton- influence any of the analyses underlying rather than one, and (3) re-estimate the roads-bridge-tunnel-expansion-project- the necessary findings. NMFS is extents of the Level A harassment zones hampton-0. confident that our negligible impact and for all scenarios for HRCP’s activities, Comment 1: The Commission least practicable adverse impact re-estimate the numbers of Level A recommended that NMFS publish a determinations are valid, and we note harassment takes as necessary, and corrected notice in the Federal Register that the Commission did not provide revise the shut-down zones accordingly that includes, at a minimum, the dates any information to the contrary. Overall, in the preamble to and the final rule. and the correct number(s) of days there are no substantial changes or new Response: The Commission within a year the activities are expected information that would lead us to reach repeatedly asserts that NMFS’ to occur, the correct input parameters any other conclusions regarding the assumptions in evaluating potential for estimating the extents of the Level A impact to marine mammals. Any Level A harassment are ‘‘arbitrary,’’ and harassment zones, the correct proposed increase in take numbers resulted from, states that NMFS’ assumptions are made shut-down zones, and the revised NMFS increasing the number of Level A in an ‘‘effort to reduce the size of the numbers of Level A and B harassment and B harassment takes for Year 5 by Level A harassment zones.’’ NMFS takes for Year 5 and provide a 30-day assuming that construction would take disagrees. Although we acknowledge comment period from when the the full year instead of a partial year the general lack of data available to corrected notice publishes. The (312 work days instead of 181 work inform a species- and location-specific Commission further recommended that days). For these reasons, NMFS is not understanding of likely individual NMFS refrain from publishing any final republishing a notice of proposed residence time in the vicinity of a rule until the correct shut-down zones rulemaking. construction project, the approach have been made available for the public Comment 2: The Commission espoused by the Commission, in which to provide meaningful comments during recommended that NMFS should individual animals are assumed to a 30-day comment period, which the determine the appropriate timeframes remain in the construction area for Commission asserted would fulfill over which sound exposure levels extended periods of time, would be NMFS’s requirements under the should be accumulated when estimating unnecessarily precautionary in many Administrative Procedure Act. the extents of the Level A harassment cases. As is typical for marine Response: NMFS does not agree with zones. The Commission also construction areas, the affected areas the Commission and does not adopt the recommended that NMFS prioritize considered for this activity are located recommendation. NMFS disagrees that resolving this issue in the near future in urbanized and/or industrialized the information presented in association and consider incorporating animat settings, encompass generally degraded with the proposed rule was insufficient modeling into its user spreadsheet. habitat relative to other nearby available to facilitate public review and comment. Response: NMFS generally concurs habitat, and do not include areas of NMFS agrees that minor formatting with this recommendation and has particular importance for foraging or

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other important behaviors. In this incidental take authorizations; and (5) and proposed incidental harassment context, and given what should be specify when it uses source levels authorizations. considered generally to be aversive associated with different pile types or Response: NMFS concurs with the stimulus (i.e., noise from construction sizes as proxies and what the Commission’s recommendation and has activity), it is unrealistic to assume that differences are. prioritized these efforts. individual animals remain present for Response: In summary, NMFS ran Comment 6: The Commission extended periods of time. Therefore, regressions in the R programming recommended that NMFS refrain from NMFS makes reasonable assumptions to language (version 3.5.1) using the R using the 7-dB source level reduction more realistically represent the likely Commander Graphical User Interface. factor for far-field impacts (≤100 m) and potential for Level A harassment to Data were average source levels from consult with acousticians regarding the occur. recordings of single piles and available appropriate source level reduction For purposes of estimated take by covariates (e.g., water depth, pile depth, factor, if any, to use to minimize far- Level A harassment, NMFS assumed hole size, distance of sound source field effects on marine mammals. that the number of piles, and therefore measurement) where NMFS had access Response: NMFS does not agree with pile strikes, installed on a given day was to both published and unpublished DTH the Commission’s assessment on bubble 50 percent of the total that was actually monitoring data. The Generalized Linear curtain efficacy that is based on near- planned. Since the marine mammals Model routine in R Commander was and far-distance (referred as ‘‘near-field’’ proposed for authorization are highly used to assess the fit of linear and non- and ‘‘far-field’’ by the Commission). The mobile, it is unlikely that an animal linear multiple regression models of the Commission noted information would remain within an established data. Model assumptions were assessed provided in Illingworth and Rodkin Level A harassment zone during the graphically and mathematically and the (2012) suggesting that, in some cases, entire installation/removal process best fit of models that fit statistical sound level reductions in the far field involving multiple piles throughout a assumptions and retained statistically may be less (4 to 5 dB reduction given day. To provide a more realistic significant covariates was chosen approximately 120–750 m from the estimate of take by Level A harassment, mathematically. The best fit model was source). Although the measured levels NMFS assumed that an animal would used to calculate the source level for the at far-distances (i.e., >100 m) showed occur within the injury zone for 50 extrapolated hole size. The calculated less differences (e.g., 4–5 dB) from those percent of the driving time, (which for source level was then rounded to the that were measured at near source at 10 purposes of zone size calculation next highest integer decibel for use in m (e.g., 8 dB), this is likely due to equates to 50 percent of the piles and this action. The extrapolation technique propagation effects that some of the strikes planned for installation). and software packages employed by HRCP also plans to install a single 54- sediment-borne acoustic energy that was NMFS and described below are inch concrete pile at a given driving not attenuated by the bubble curtain re- commonly used and widely accepted by location per day. Since the largest emerged into the water-column at much the scientific community. estimated Level A harassment isopleth further distances. However, this is 420 m (i.e. low-frequency cetaceans) NMFS did not use SPLpeak source information should not be used to and the North and South Trestle are a levels when calculating zones as the suggest that a different noise level minimum of 500 m apart, the Level A SEL metric typically results in largest reduction needs to be used for long- harassment zones associated with each isopleths. Using peak levels in distance (Level B harassment distance) site would not overlap. situations when there are a large impact assessment. Since the applicant Given the information provided number of strikes per day will not used a conservative practical spreading above, there is no reason for NMFS to provide the largest harassment approximation of propagation loss (i.e., re-estimate the extents of the Level A isopleths. NMFS has reviewed the DTH 15 log (r)), acoustic energy that is lost harassment zones, re-estimate the data and methodologies that were due to boundary refraction and numbers of Level A harassment takes or utilized and that were used in reflection is not considered in revise the shut-down zones. developing our interim guidance and determining the impact distances, and Comment 4: The Commission determined they are the best available. this loss is in addition to the practical recommended that NMFS (1) fully In Table 11 in the notice of proposed spreading. Therefore, the small describe the regression analysis or rule, NMFS specified the pile sizes of differences at far-distances between extrapolation method (including the the proxies it used for impact and with and without bubble curtains actual source level data points, vibratory driving. Table 11 in this notice indicates that the bubble curtain is less associated references, and type of has been revised to display the different effective in attenuating additional regression) used for estimating the pile sizes that were used as proxies for acoustic energy beyond that within the SELs-s source level for DTH pile DTH installation. NMFS will include water column. installation of 60-inch piles, (2) explain this type of information as appropriate Comment 7: NMFS used the average why such a method was not used for in future ITAs. of average daily counts of seals (13.6) at SPLpeak source levels and why NMFS Comment 5: The Commission the Chesapeake Bay Bridge Tunnel believes that an SPLpeak source level recommended that NMFS (1) have its (CBBT) to estimate take for the HRBT would be the same for 30-, 36-, and 42- experts in underwater acoustics and project. The Commission recommended inch piles as 60-inch piles, and (3) bioacoustics review and finalize as soon that NMFS re-estimate the number of ensure appropriate review of the as possible, its recommended proxy Level B harassment takes of harbor seals regression analysis for the SELs-s source source levels for impact pile driving of based on the maximum daily count (45 level for 60-inch piles and justification the various pile types and sizes, (2) seals) at the CBBT haul-out sites added for the SPLpeak source level for 60-inch compile and analyze the source level to the percentage of the Eastern Shore piles before publishing any final rule, data for vibratory pile driving of the haul-out sites average of the daily and (4) ensure appropriate review of all various pile types and sizes in the near average count (18.3 seals) that occur in regression analyses, extrapolation term, and (3) ensure action proponents the Chesapeake Bay (36 percent). This methods, and proxy source levels for use consistent and appropriate proxy equates to an additional 7 seals per day DTH pile installation for all related source levels in all future rulemakings for a daily total of 52 takes.

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Response: There are no known seal temporary piles. Level A harassment three 36-inch, and three 60-inch piles haul outs in the James River and within zones associated with this type of using near-field and far-field the Core Monitoring Area which is the activity are small. Therefore, no takes by hydrophones placed mid-water column area expected to be ensonified during Level A harassment have been and (2) include in its hydroacoustic most of the pile installation and removal authorized for year 5. monitoring report all of the activities. The CBBT is over 9 nautical Comment 9: Based on the size of the aforementioned elements. The miles and the Eastern Shore is harassment zones and the fact that PSOs Commission also recommended that approximately 24 nautical miles from cannot keep track of individuals, NMFS require HRCP to increase the the HRBT. Sightings of seals at the particularly harbor seals, as they move sizes of the shut-down zones and Level HRBT are low and occur only during amongst the numerous adjacent sites, A harassment zones if the measured winter months, November through the Commission stated that an data indicate that the zones were April. The HRBT project is currently individual could be enumerated as underestimated. operating under an IHA that authorizes being taken by both Level A and Level Response: NMFS does not concur 2,184 takes by Level A and Level B B harassment in the same day at the with these recommendations. NMFS harassment combined for harbor seals. same location and/or at different sites. agrees that there would be value in The analysis for the IHA used an The Commission noted that this could conducting sound source verification on average take of 13.6 harbor seals per be an issue for other species as well. As some of the piles for which DTH day. The project began pile installation such, the Commission recommended installation data is not available. in September and no seals have been that NMFS not reduce the Level B However, HRCP has not budgeted for sighted during 5 months of construction harassment takes by the Level A the sound source verification and under the Project’s Marine Mammal harassment takes and authorize the full propagation measurements as described Monitoring and Mitigation Program. The number of Level B harassment takes for by the Commission and a requirement of estimated 14 harbor seals per day is each species. this nature would not be practicable. based on Jones et al. (2020), concurring Response: NMFS agrees that it is Note that HRCP is conducting a that activities at HRBT would not take possible that a seal or (other marine hydroacoustic monitoring study as a the maximum daily harbor seals sighted mammal) could be taken more than condition of the US Army Corps of at CBBT (45 animals). Based on current once on any given day at the same or at Engineers (USACE) and Virginia Marine sighting data and previous sighting a different activity location. However, Resources Commission (VMRC) permits, trends, 13.6 harbor seals per day is an this is likely true for most other and it is being designed in collaboration appropriate estimate which results in incidental take authorizations, with NMFS Greater Atlantic Regional 2,122 combined takes by Level A and especially those where the project Field Office staff to minimize impacts Level B harassment per year. NMFS features more than one active pile on Atlantic sturgeon. It is likely that does not concur with the Commission’s installation/removal location. It is some of the pile sizes, pile types, and recommendation. unclear how the Commission’s pile installation methods described by Comment 8: The Commission approach would reduce or eliminate the the Commission will be measured and recommended that NMFS (1) re-estimate potential for double counting of provide value. The study results and the numbers of Level A harassment animals. HRCP and NMFS are assuming preliminary data will be summarized in takes for each species and each of the that a certain number of seals (13.6) annual reports, and a final report will be first four years of activities based on the could be taken per day in the Level B made available at the end of the study. percentages of days in which the Level harassment zone. Of this number, some Comment 11: The Commission A harassment zones exceed the shut- subset may enter, and remain inside the recommended that NMFS prohibit down zones and (2) authorize the Level A harassment zone long enough to HRCP from installing or removing new revised numbers of Level A harassment experience Level A harassment. The piles after daylight hours in section takes in addition to the unreduced Level Commission referred to previous IHAs 217.24 of the final rule and in any LOA B harassment takes as estimated by the where NMFS assumed that there would issued under the final rule. various take estimation methods in the be a given number of Level B Response: NMFS does not fully final rule. harassment takes per day that were concur with the Commission’s Response: The Commission has added to a given number of takes by recommendation. While HRCP has no recommended one reasonable approach Level A harassment which are not a intention of conducting pile driving for estimating takes by Level A subset of the Level B harassment takes. activities at night, it is unnecessary to harassment. Given that there are no Either approach is acceptable as long as preclude such activity should the need standard protocols for take estimation, it an accompanying explanation is arise (e.g., on an emergency basis or to may reasonably be calculated through provided. Therefore, NMFS does not complete driving of a pile begun during other means. NMFS has provided agree with the Commission’s daylight hours, should the construction justification for the numbers of take by recommendation and does not adopt it. operator deem it necessary to do so). We Level A harassment authorized for each Comment 10: The Commission disagree with the statement that a species in the Estimated Take section recommended that NMFS require HRCP prohibition on pile driving activity and refers the reader there. to (1) conduct sound source and sound outside of daylight hours would help to In response to the Commission’s propagation measurements of (a) impact ensure that HRCP is effecting the least informal comment regarding the lack of installation of at least three 24-inch and practicable adverse impact on the certainty of construction plans in Year three 54-inch concrete piles and three affected species, and the Commission 5 which was submitted in response to 36-inch piles with and three 36-inch does not justify this assertion. the Notice of Receipt of HRCP’s piles without a bubble curtain, (b) Comment 12: The Commission application (85 FR 63256; October 7, vibratory installation using multiple recommended that NMFS revise section 2020), takes for all species were revised hammers over multiple days of 217.25(f)(9) in the final rule to require and are shown in Table 31. It was activities when three or more hammers HRCP to report the number of assumed that there would be a full year are used in the Core Monitoring Area, individuals of each species detected of in-water work (312 days). However, (c) jetting of at least 3 42-inch piles, and within the Level A and B harassment the work would consist of removal of (4) DTH pile installation of six 30-inch, zones, and estimates of the number of

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marine mammals taken by Level A and that were not visible—may be used to Changes From Proposed to Final B harassment, by species. glean an approximate understanding of Regulations Response: We do not fully concur whether HRCP may have exceeded the NMFS increased take for all species with the Commission’s recommendation amount of take authorized. Although the by assuming that pile driving activities and do not adopt it as stated. NMFS Commission does not explain its would take place for a full year (312 agrees with the recommendation to reasoning for offering these work days per year) during year 5 require HRCP to report the number of recommendations, NMFS’ recognizes instead of a partial year (181 work days individuals of each species detected the basic need to understand whether an per year) as was assumed for the within the Level A and Level B LOA-holder may have exceeded its proposed rule (86 FR 1588; January 8, harassment zones and NMFS has authorized take. The need to accomplish 2021) which resulted in increased take already included this requirement in the this basic function of reporting does not numbers for all species. Consequently proposed regulations, and has included require that NMFS require applicants to Table 24, Table 26, Table 29, Table 30 it in the final regulations (§ 217.25(f)(9)) use methods we do not have confidence and Table 31 in this notice have been and the final authorization (6(c)(viii)). in to generate estimates of ‘‘total take’’ revised to reflect this change. The work NMFS does not agree with the that cannot be considered reliable. recommendation to require HRCP to Comment 14: The Commission in Year 5 is anticipated to consist of report estimates of the numbers of recommended that NMFS reinforce that removal of temporary piles, and Level A marine mammals taken by Level A and HRCP must keep a running tally of the harassment zones associated with this Level B harassment. The Commission total Level A and B harassment takes, type of activity are small; therefore, no does not explain why it believes this both observed and extrapolated, for each takes by Level A harassment are requirement is necessary, nor does it species consistent with section anticipated or have been authorized for provide recommendations for methods 217.24(a)(10) of the final rule. Year 5, and this is reflected in the of generating such estimates in a Response: The LOA indicates the revised take estimates in those revised manner that would lead to credible number of takes authorized for each tables. Note that table numbers remain results. NMFS does not agree that the species. We agree that HRCP must unchanged from the proposed rule (86 basic method described in footnote 22 of ensure they do not exceed authorized FR 1588; January 8, 2021). Table 3, the Commission’s 19 November 2020 takes, but do not concur with the Table 14, Table 15, Table 32 and Table letter should be expected to yield Commission’s repeated 33 have been revised to correct estimates of total take such that readers recommendations regarding the need for formatting errors found in the proposed of HRCP’s report should have NMFS to oversee incidental take rule (86 FR 1588; January 8, 2021). In confidence that the estimates are authorization (ITA)-holders’ compliance Table 33, shutdown zones were rounded reasonable representations of what may with issued ITAs, including the use of up to the nearest 5-m increment instead have actually occurred. a ‘‘running tally’’ of takes. Regardless of of the nearest 10-m increment for Comment 13: The Commission the Commission’s substitution of the consistency. NMFS has revised Table 11 recommended that, for the final rule, word ‘‘reinforce’’ for the word ‘‘ensure,’’ to display the SL sources as well as pile NMFS include requirements in section as compared with its prior sizes that were used for DTH 217.25(f) that HRCP include in its recommendations for other actions, installation. NMFS has included a monitoring report (1) the estimated compliance with the terms of an issued requirement that HRCP should report percentages of the Level A and B LOA remains the responsibility of the the estimated percentage(s) of the Level harassment zones that were not visible LOA-holder. A and Level B harassment zones that and the estimated percentage of Comment 15: A private citizen were not visible. This may be found in activities that occurred during nighttime expressed concern that the planned the § 217.25(f)(3) of the regulations. hours, (2) an extrapolation of the project would require HRCP or NMFS to NMFS received an informal comment estimated takes by Level A and B physically move marine animals away from the Commission indicating that the harassment based on the number of from their natural habitat near the HRCP should use 5 PSOs with one observed exposures within the Level A project site to some other location in the stationed at the CBBT when multiple and B harassment zones and the Chesapeake Bay. Another private citizen hammers are used. NMFS agreed with percentages of the Level A and B noted that while transportation and this recommendation. However, after harassment zones that were not visible relocation of marine mammals may careful consideration it was concluded or percentage of activities that occurred result in Level A and Level B that placing a PSO on the CBBT could during nighttime hours (i.e., harassment of marine mammals, present safety hazard. Therefore, this extrapolated takes), and (3) the total animals would be spared exposure to measure will not be required. number of Level A and B harassment construction activities that could result Description of Marine Mammals in the takes based on both the observed and in extreme injury and death. Area of Specified Activities extrapolated takes for each species. Response: There will be no capture Response: We do not fully concur and relocation of marine mammals away Sections 3 and 4 of the application with the Commission’s recommendation from the project site by NMFS, HRCP, summarize available information and do not adopt it as stated. NMFS or any other entity. Marine mammals regarding status and trends, distribution does agree that HRCP should report the are free to move away from or remain and habitat preferences, and behavior estimated percentage(s) of the Level A in close proximity to the project area. and life history, of the potentially and Level B harassment zones that were Neither NMFS nor HRCP will engage in affected species. Additional information not visible, and has included this any activities specifically directed to regarding population trends and threats requirement in the final regulations attract or deter marine mammals. Seals may be found in NMFS’ Stock (§ 217.25(f)(3)) and the final that move away from the project area Assessment Reports (SAR); https:// authorization (6(c)(iv)). These pieces of will find suitable natural habitat across www.fisheries.noaa.gov/national/ information—numbers of individuals of much of the lower Chesapeake Bay. marine-mammal-protection/marine- each species detected within the Numerous seal haul-outs are located in mammal-stock-assessment-reports- harassment zones and the estimated the lower Bay which are used by seals region and more general information percentage(s) of the harassment zones primarily during the winter. about these species (e.g., physical and

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behavioral descriptions) may be found that stock to reach or maintain its represent the total estimate of on NMFS’ website (https:// optimum sustainable population (as individuals within the geographic area, www.fisheries.noaa.gov/find-species). described in NMFS’ SARs). While no if known, that comprises that stock. For Table 8 lists all species with expected mortality is anticipated or authorized some species, this geographic area may potential for occurrence in the project here, PBR and annual serious injury and extend beyond U.S. waters. All managed area and summarizes information mortality from anthropogenic sources stocks in this region are assessed in related to the population or stock, are included here as gross indicators of NMFS’s U.S. Atlantic and Gulf of including regulatory status under the the status of the species and other Mexico SARs (e.g., Hayes et al., 2020). MMPA and ESA and potential threats. All values presented in Table 8 are the biological removal (PBR), where known. Marine mammal abundance estimates most recent available at the time of For taxonomy, we follow Committee on presented in this document represent publication and are available in the Taxonomy (2020). PBR is defined by the the total number of individuals that 2019 SARs (Hayes et al., 2020) and draft MMPA as the maximum number of make up a given stock or the total 2020 SARS available at: https:// animals, not including natural number estimated within a particular www.fisheries.noaa.gov/national/ mortalities, that may be removed from a study or survey area. NMFS’s stock marine-mammal-protection/marine- marine mammal stock while allowing abundance estimates for most species mammal-stock-assessment-reports. TABLE 8—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA

ESA/ MMPA Stock abundance Annual Common name Scientific name Stock status; (CV, N , most recent PBR min M/SI 3 strategic abundance survey) 2 I (Y/N) 1 I I I Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales)

Family Balaenopteridae (rorquals): Humpback whale ...... Megaptera novaeangliae Gulf of Maine ...... -,-; N 1,396 (0; 1,380; see SAR) ...... 22 58

Superfamily Odontoceti (toothed whales, dolphins, and porpoises):

Family Delphinidae: Bottlenose dolphin ...... Tursiops truncatus ...... Western North Atlantic (WNA) -,-; Y 6,639 (0.41; 4,759; 2011) ...... 48 12.2–21.5 Coastal, Northern Migratory. WNA Coastal, Southern Migra- -,-; Y 3,751 (0.06; 2,353; 2011) ...... 23 18.3 tory. Northern North Carolina Estua- -,-; Y 823 (0.06; 782; 2017) ...... 7.8 7–29.8 rine System (NNCES). Family Phocoenidae (porpoises): Harbor porpoise ...... Phocoena phocoena ...... Gulf of Maine/Bay of Fundy ...... -, -; N 95,543 (0.31; 74,034; see SAR) 851 217

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals): Harbor seal ...... Phoca vitulina ...... WNA ...... -; N 75,834 (0.15; 66,884, see SAR) 2,006 350 Gray seal 4 ...... Halichoerus grypus ...... WNA ...... -; N 27,131 (0.19, 23,158, see SAR) 1,359 5,410 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment- reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 451,431.

As indicated above, all five species changes in the status of these species to sound, it is necessary to understand (with seven managed stocks) in Table 8 and stocks; therefore, detailed the frequency ranges marine mammals temporally and spatially co-occur with descriptions are not provided here. are able to hear. Current data indicate the activity to the degree that take is Please refer to the proposed rule for that not all marine mammal species reasonably likely to occur, and we are these descriptions (86 FR 1588; January have equal hearing capabilities (e.g., authorizing take. 8, 2021). Please also refer to NMFS’ Richardson et al., 1995; Wartzok and A detailed description of the species website (https:// Ketten, 1999; Au and Hastings, 2008). likely to be affected by HRCP’s project, www.fisheries.noaa.gov/find-species) for To reflect this, Southall et al. (2007) including brief introductions to the generalized species accounts. recommended that marine mammals be species and relevant stocks as well as divided into functional hearing groups Marine Mammal Hearing available information regarding based on directly measured or estimated population trends and threats, and Hearing is the most important sensory hearing ranges on the basis of available information regarding local occurrence, modality for marine mammals behavioral response data, audiograms were provided in the proposed rule (86 underwater, and exposure to derived using auditory evoked potential FR 1588; January 8, 2021); since that anthropogenic sound can have techniques, anatomical modeling, and time, other than minor stock assessment deleterious effects. To appropriately other data. Note that no direct changes, we are not aware of any assess the potential effects of exposure measurements of hearing ability have

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been successfully completed for based on the approximately 65 decibel implausible and the lower bound from mysticetes (i.e., low-frequency (dB) threshold from the normalized Southall et al. (2007) retained. Marine cetaceans). Subsequently, NMFS (2018) composite audiograms, with the mammal hearing groups and their described generalized hearing ranges for exception for lower limits for low- associated hearing ranges are provided these marine mammal hearing groups. frequency cetaceans where the lower in Table 9. Generalized hearing ranges were chosen bound was deemed to be biologically

TABLE 9—MARINE MAMMAL HEARING GROUPS (NMFS, 2018)

Generalized hearing Hearing group range *

Low-frequency (LF) cetaceans (baleen whales) ...... 7 Hz to 35 kHz. Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ...... 150 Hz to 160 kHz. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 275 Hz to 160 kHz. australis). Phocid pinnipeds (PW) (underwater) (true seals) ...... 50 Hz to 86 kHz. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ...... 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation).

The pinniped functional hearing that are expected to be taken by this to result, primarily for low- and high- group was modified from Southall et al. activity. The Negligible Impact Analysis frequency species and phocids because (2007) on the basis of data indicating and Determination section considers the predicted auditory injury zones are that phocid species have consistently content of this section, the Estimated larger than for mid-frequency species. demonstrated an extended frequency Take section, and the Mitigation Auditory injury is unlikely to occur for range of hearing compared to otariids, Measures section, to draw conclusions mid-frequency species. The required especially in the higher frequency range regarding the likely impacts of these mitigation and monitoring measures are (Hemila¨ et al., 2006; Kastelein et al., activities on the reproductive success or expected to minimize the severity of 2009; Reichmuth and Holt, 2013). survivorship of individuals and how such taking to the extent practicable. For more detail concerning these those impacts on individuals are likely As described previously, no serious groups and associated frequency ranges, to impact marine mammal species or injury or mortality is anticipated or please see NMFS (2018) for a review of stocks. We also provided additional authorized for this activity. Below we available information. Five marine description of sound sources in our describe how the take is estimated. mammal species (three cetacean and proposed rule (86 FR 1588; January 8, Generally speaking, we estimate take two phocid pinniped species) have the 2021). by considering: (1) Acoustic thresholds reasonable potential to co-occur with above which marine mammals will be the planned construction activities. Estimated Take behaviorally disturbed or incur some Please refer to Table 8. Of the cetacean This section provides an estimate of degree of permanent hearing species that may be present, one is the number of incidental takes impairment; (2) the area or volume of classified as a low-frequency cetacean authorized by NMFS through the LOA, water that will be ensonified above (i.e., humpback whale) one is classified which will inform both NMFS’ these levels in a day; (3) the density or as a mid-frequency cetacean (i.e., consideration of small numbers and the occurrence of marine mammals within bottlenose dolphin), and one is negligible impact determination. these ensonified areas; and, (4) and the classified as a high-frequency cetacean Harassment is the only type of take number of days of activities. We note (i.e., harbor porpoise). expected to result from these activities. that while these basic factors can Except with respect to certain activities contribute to a basic calculation to Potential Effects of Specified Activities not pertinent here, section 3(18) of the provide an initial prediction of takes, on Marine Mammals and Their Habitat MMPA defines harassment as: Any act additional information that can The effects of underwater noise from of pursuit, torment, or annoyance which qualitatively inform take estimates is HRCP’s activities have the potential to (i) has the potential to injure a marine also sometimes available (e.g., previous result in harassment of marine mammal or marine mammal stock in the monitoring results or average group mammals in the vicinity of the survey wild (Level A harassment); or (ii) has size). Below, we describe the factors area. The proposed rule (86 FR 1588; the potential to disturb a marine considered here in more detail and January 8, 2021) included a discussion mammal or marine mammal stock in the present the take estimate. of the effects of anthropogenic noise on wild by causing disruption of behavioral marine mammals and the potential patterns, including, but not limited to, Acoustic Thresholds effects of underwater noise from HRCP’s migration, breathing, nursing, breeding, NMFS recommends the use of construction activities on marine feeding, or sheltering (Level B acoustic thresholds that identify the mammals and their habitat. That harassment). received level of underwater sound information and analysis is incorporated Authorized takes would primarily be above which exposed marine mammals by reference into this final rule and is by Level B harassment, as noise would be reasonably expected to not repeated here; please refer to the generated from in-water pile driving experience behavioral disturbance proposed rule (86 FR 1588; January 8, (vibratory and impact) has the potential (equated to Level B harassment) or to 2021). to result in disruption of behavioral incur PTS of some degree (equated to The Estimated Take section in this patterns for individual marine Level A harassment). document includes a quantitative mammals. There is also some potential Level B Harassment for non-explosive analysis of the number of individuals for auditory injury (Level A harassment) sources—Though significantly driven by

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received level, the onset of behavioral noise above received levels of 120 dB re (Technical Guidance, 2018) identifies disturbance from anthropogenic noise 1 mPa (rms) for continuous (e.g., dual criteria to assess auditory injury exposure is also informed to varying vibratory pile-driving, drilling) and (Level A harassment) to five different degrees by other factors related to the above 160 dB re 1 mPa (rms) for non- marine mammal groups (based on source (e.g., frequency, predictability, explosive impulsive (e.g., seismic hearing sensitivity) as a result of duty cycle), the environment (e.g., airguns) or intermittent (e.g., scientific exposure to noise from two different bathymetry), and the receiving animals sonar) sources. types of sources (impulsive or non- (hearing, motivation, experience, HRCP’s planned activity includes the impulsive). As noted previously, demography, behavioral context) and use of continuous (vibratory pile HRCP’s planned activity includes the driving, DTH pile installation) and can be difficult to predict (Southall et use of impulsive (impact pile driving, impulsive (impact pile driving, DTH al., 2007, Ellison et al., 2012). Based on DTH pile installation) and non- pile installation), sources, and therefore what the available science indicates and impulsive (vibratory pile driving/ the 120 and 160 dB re 1 mPa (rms) removal, DTH pile installation) sources. the practical need to use a threshold criteria are applicable. Note that the 120 based on a factor that is both predictable dB criterion is used for DTH pile These thresholds are provided in the and measurable for most activities, installation, as the continuous noise Table 10 below. The references, NMFS uses a generalized acoustic produced through the activity will analysis, and methodology used in the threshold based on received level to produce the largest harassment development of the thresholds are estimate the onset of Level B isopleths. described in NMFS 2018 Technical harassment. NMFS predicts that marine Level A harassment for non-explosive Guidance, which may be accessed at: mammals are likely to experience sources—NMFS’ Technical Guidance https://www.fisheries.noaa.gov/ behavioral disturbance in a manner we for Assessing the Effects of national/marine-mammal-protection/ consider Level B harassment when Anthropogenic Sound on Marine marine-mammal-acoustic-technical- exposed to underwater anthropogenic Mammal Hearing (Version 2.0) guidance.

TABLE 10—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * Hearing group (received level) Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6: LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) ...... Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 8: LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. 2 Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.

Ensonified Area elsewhere in Virginia, or outside of a 0.035-second window compared to a Virginia (California, Florida, 1-second window can be considered Here, we describe operational and Washington, Alaska) (Table 11). It is impulsive. Therefore, DTH pile environmental parameters of the activity assumed that jetting will be quieter than installation is treated as both an that will feed into identifying the area vibratory installation of the same pile impulsive and non-impulsive noise ensonified above the acoustic size, but data for this activity are source. In order to evaluate Level A thresholds, which include source levels limited; therefore, SSLs for vibratory harassment, DTH pile installation and transmission loss coefficient. installation have been applied to jetting. activities are evaluated according to the The sound field in the project area is DTH pile installation includes drilling impulsive criteria. Level B harassment the existing background noise plus (non-impulsive sound) and hammering isopleths are determined by applying additional construction noise from the (impulsive sound) to penetrate rocky non-impulsive criteria and using the project. Marine mammals are expected substrates (Denes et al. 2016; Denes et 120 dB threshold which is also used for to be affected via sound generated by al. 2019; Reyff and Heyvaert 2019). DTH vibratory driving. This approach the primary components of the project pile installation was initially thought be ensures that the largest ranges to effect (i.e., vibratory pile driving, vibratory a primarily non-impulsive noise source. for both Level A and Level B harassment pile removal, impact pile driving, However, Denes et al. (2019) concluded are accounted for in the take estimation jetting, and DTH pile installation). from a study conducted in Virginia, process. Sound source levels (SSLs) for each nearby the location for this project, that The source level employed to derive method of installation and removal were DTH should be characterized as Level B harassment isopleths for DTH estimated using empirical impulsive based on Southall et al. pile installation of all pile sizes was measurements from similar projects in (2007), who stated that signals with a >3 derived from the Denes et al. (2016) Norfolk and Little Creek (Craney Island), dB difference in sound pressure level in study at Kodiak, Alaska. The median

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source value for drilling was reported to higher for given metric) Reyff and some driving scenarios bubble curtains be 166 dB RMS. Heyvaert (2019), Denes et al. (2019), and will be used to reduce sound source The source level employed to derive Reyff (2020). For pile/holes 60-inch in levels by 7 dB from the values recorded Level A harassment isopleths for DTH diameter, values were provided by Reyff by Denes et al. (2019) at the nearby pile installation of piles/holes above 24- (Reyff personal communication) and are Chesapeake Bay Bridge Tunnel. These inch up to 42-inch in diameter came shown in Table 11. Note that during are also noted in Table 11. from a combination of (whichever

TABLE 11—SUMMARY OF PROJECT SOUND SOURCE LEVELS (a 10 m)

Sound source level at 10 meters Method and pile type dB Literature source rms

Vibratory Hammer: 42-inch steel pile ...... 168 Austin et al. 2016. 36-inch steel pile ...... 167 DoN 2015. 30-inch steel pile, concrete filled ...... 167 DoN 2015. 24-inch steel pile ...... 161 DoN 2015. 16-inch CCA timber pile * ...... 162 Caltrans 2015. AZ 700–19 steel sheet pile ...... 160 Caltrans 2015. AZ 700–26 steel sheet pile ...... 160 Caltrans 2015. Jetting: 42-inch steel pile ...... 161 Austin et al. 2016 Sound source level at 10 meters Method and pile type dB dB dB Literature source rms SEL peak

DTH Pile Installation: 30-inch and 36-inch steel pipe piles ...... 1 166 2 164 3 196 Denes et al. 2016, 2019; Reyff and Heyvaert 2019; Reyff 2020. 60-inch steel pipe pile ...... 1 166 175 196 Denes et al. 2016; Reyff pers. comm. Impact Hammer: 36-inch steel pile ...... 193 183 210 Caltrans 2015; Chesapeake Tunnel Joint Venture 2018. 36-inch steel pile, attenuated** ...... 186 176 203 Caltrans 2015; Chesapeake Tunnel Joint Venture 2018 ∂. 30-inch steel pile, concrete filled ...... 195 186 216 DoN 2015. 30-inch steel pile, concrete filled, attenuated ** ... 188 179 209 DoN 2015. 24-inch steel pile ...... 190 177 203 Caltrans 2015. 24-inch steel pile, attenuated ** ...... 183 170 196 Caltrans 2015. 54-inch concrete cylinder pile *** ...... 187 177 193 MacGillivray et al. 2007. 24-inch concrete square pile ...... 176 166 188 Caltrans 2015. Note: It is assumed that noise levels during pile installation and removal are similar. dB = decibel: SEL = sound exposure level; dB peak = peak sound level; rms = root mean square; DoN = Department of the Navy; CCA = Chromated Copper Arsenate, Caltrans = California Depart- ment of Transportation. * SSL taken from 12-inch timber piles in Norfolk, Virginia. ** SSLs are a 7 dB reduction from Chesapeake Tunnel Joint Venture 2018 values due to usage of a bubble curtain. *** SSLs taken from 36-inch concrete square piles, no project specific information provided. ∂ The primary literature source for 36-inch steel pipe attenuated piles is Caltrans 2015; however, the Chesapeake Tunnel Joint Venture 2018 is also cited due to the proximity of the project to the HRBT Project. 1 SSL for Level B harassment based on DTH-installation of 24-inch steel pile (Denes et al. 2016). 2 SSL for Level A harassment based on DTH-installation of 42-inch steel piles (Reyff and Heyvaert 2019). 3 SSL for Level A harassment based on DTH-installation of 42-inch steel piles (Reyff 2020).

Simultaneous use of hammers could continuous sound sources (vibratory hammer will be used within a day at result in increased SPLs and harassment hammer and Level B harassment zones more than one location; therefore, only zone sizes given the proximity of the for drilling with a DTH hammer) (See one DTH hammer was included in the component driving sites and the rules of Table 12). It is unlikely that the two multiple hammer calculations for Level decibel addition. Impact pile impact hammers would strike at the B harassment zones. installation is projected to take place same instant, and therefore, the SPLs When two continuous noise sources, concurrently at 3 to 4 locations and will not be adjusted regardless of the such as vibratory hammers, have there is the potential for as many as 7 distance between impact hammers. In overlapping sound fields, there is potential for higher sound levels than pile installation locations operating this case, each impact hammer will be for non-overlapping sources. The concurrently. NMFS (2018b) handles considered to have its own independent method described below was used by overlapping sound fields created by the Level A and Level B harassment zones Washington State Department of use of more than one hammer and drilling with a DTH hammer will be Transportation (WSDOT) and has been differently for impulsive (impact considered to have its own independent used by NMFS (WSDOT 2020). hammer and Level A harassment zones Level A harassment zones. It will be When two or more vibratory hammers for drilling with a DTH hammer) and unlikely that more than one DTH are used simultaneously, and the

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isopleth of one sound source hammers, the difference between the difference is between 4 to 9 dB, 1 dB is encompasses the sound source of two SSLs is calculated, and if that added to the highest SSL; and with another isopleth, the sources are difference is between 0 and 1 dB, 3 dB differences of 10 or more decibels, there considered additive and combined are added to the higher SSL; if is no addition. using the following rules (Table 12) for difference is between 2 or 3 dB, 2 dB are addition of two simultaneous vibratory added to the highest SSL; if the

TABLE 12—RULES FOR COMBINING SOUND LEVELS GENERATED DURING PILE INSTALLATION

Hammer types Difference in SSL Level A harassment zones Level B harassment zones

Vibratory, Impact ...... Any ...... Use impact zones ...... Use vibratory zone. Impact, Impact ...... Any ...... Use zones for each pile size and Use zone for each pile size. number of strikes. Vibratory, Vibratory ...... 0 or 1 dB ...... Add 3 dB to the higher source level ... Add 3 dB to the higher source level. 2 or 3 dB ...... Add 2 dB to the higher source level ... Add 2 dB to the higher source level. 4 to 9 dB ...... Add 1 dB to the higher source level ... Add 1 dB to the higher source level. 10 dB or more ...... Add 0 dB to the higher source level ... Add 0 dB to the higher source level.

When three or more continuous the lower two is combined with the modified from WSDOT in their sound sources are used concurrently, highest of the three Biological Assessment manual and such as vibratory hammers, the three It is common for pile installation to described in Table 13, decibel addition overlapping sources with the highest start and stop multiple times as each calculations were carried out for SSLs are identified. Of the three highest pile is adjusted and its progress is possible combinations of vibratory SSLs, the lower two are combined using measured and documented. For short installations of 24-, 30-, 36-, and 42-inch the above rules, then the combination of durations, it is anticipated that multiple steel pipe piles throughout the Project hammers could be in use area. simultaneously. Following an approach

TABLE 13—POSSIBLE VIBRATORY PILE COMBINATIONS

Method 24 24+24 30/36 42 30/36+24 24+42 30/36+30/36 42+30/36 42+42 Pile diameter SSL (inches) (dB) 161 164 167 168 168 169 170 171 171

Vibratory: 24 ...... 161 164 166 168 169 169 169 171 171 172 DTH ...... 166 167 168 170 170 170 171 172 172 172 30/36 ...... 167 168 169 170 171 171 171 172 172 172 42 ...... 168 169 169 171 171 171 172 172 172 173

These source levels are used to when more sophisticated 3D modeling For purposes of estimated take by compute the Level A harassment zones methods are not available, and NMFS Level A harassment, NMFS assumed and to estimate the Level B harassment continues to develop ways to that the strike rate for impact pile zones. quantitatively refine these tools, and installation was 50 percent of the will qualitatively address the output estimated number of strikes displayed Level A Harassment Zones where appropriate. For stationary in Table 14 and 15. Similarly, for When the NMFS’ Technical Guidance sources such as in-water pile driving vibratory driving NMFS assumed that (2016) was published, in recognition of activities during the HRBT project, the driving time for each pile was 50 the fact that ensonified area/volume NMFS User Spreadsheet predicts the percent of the estimated total. For the could be more technically challenging closest distance at which, if a marine DTH hammer calculations, Reyff and to predict because of the duration mammal remained at that distance the Heyvaert 2019 identified a strike rate of component in the new thresholds, we whole duration of the activity, it would 10 Hz. This was also reduced by 50 developed a User Spreadsheet that incur PTS. percent to 5 Hz which to achieve the includes tools to help predict a simple Inputs used in the User Spreadsheet same 50 percent Level A harassment isopleth that can be used in conjunction (Table 14 and Table 15) and the reduction as was done for impact and with marine mammal density or resulting isopleths are reported below vibratory driving. Strikes per Pile values occurrence to help predict takes. We (Table 14). Level A harassment were not altered when calculating Level note that because of some of the thresholds for impulsive sound sources A harassment zones for DTH pile assumptions included in the methods (impact pile driving, DTH pile installation. used for these tools, we anticipate that installation) are defined for both Since the marine mammals isopleths produced are typically going SELcum and Peak SPL, with the authorized for take are highly mobile, it to be overestimates of some degree, threshold that results in the largest is unlikely that an animal would remain which may result in some degree of modeled isopleth for each marine within an established Level A overestimate of Level A harassment mammal hearing group used to establish harassment zone for the entire duration take. However, these tools offer the best the effective Level A harassment or number of strikes associated with way to predict appropriate isopleths isopleth. installation or removal of a specified

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number of piles throughout a given day. removal methods as shown in Tables 14 Steel, and 36-inch steel due to use of This was done to provide more realistic and 15. Additionally, note that under bubble curtains as shown in Table 14. take estimates by Level A harassment. some driving scenarios a 7 dB The calculated Level A isopleths for NMFS applied this reduction across all attenuation was applied to impact different size pile and driving types are pile sizes, types, and installation/ installation of 24-inch steel, 30-inch shown in Tables 16–18. TABLE 14—USER SPREADSHEET INPUT PARAMETERS USED FOR CALCULATING LEVEL A HARASSMENT ISOPLETHS FOR VIBRATORY AND IMPACT HAMMERS *

Model parameter Steel 16-inch 24-inch steel 24-inch 30-inch steel, concrete 36-inch steel 42-inch steel 54-inch sheet timber concrete filled concrete Vib Imp Imp- Imp- Vib Vib Vib Vib Imp Imp- Vib Jetting Vib Vib bubble Imp Vib Imp bubble bubble Imp

Spreadsheet Tab...... A.1 A.1 A.1 E.1 E.1 E.1 A.1 E.1 E.1 A.1 A.1 A.1 A.1 E.1 E.1 A.1 A.1 E.1 Weighting Factor Adjust- ment (kHz)...... 2.5 2.5 2.5 2 2 2 2.5 2 2 2.5 2.5 2.5 2.5 2 2 2.5 2.5 2 Sound Pressure Level (SPLrms) ...... 160 162 161 190 183 176 167 195 188 167 167 167 167 193 186 168 161 187 SELss (LE, p, single strike) at 10 meters...... 177 170 166 ...... 186 179 ...... 183 176 ...... 177

Lp, 0-pk at 10 meters ...... 203 196 188 ...... 216 209 ...... 210 203 ...... 193 Number of piles within 24- hour period...... 10 4 6 6 6 1 6 6 6 1 8 & 2 & 3 2 2 & 3 2 6 1 1 16 Estimated Duration to drive a single pile (min) 30 30 30/60 ...... 60 ...... 50 5 50 60 ...... 30 30 ...... 50% of Duration to drive a single pile (min) ...... 15 15 15/30 ...... 30 ...... 25 2.5 25 30 ...... 15 15 ...... Transmission loss coefficient ...... 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 15 Distance from sound pressure level (SPLrms) measurement (m)...... 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 10 Estimated Strikes per pile ...... 40 40 2,100 ...... 40 40 ...... 40 40 ...... 2,100 50% of Strikes per pile ...... 20 20 1,050 ...... 20 20 ...... 20 20 ...... 1,050 * To provide a more realistic estimate of take by Level A harassment, NMFS assumes that an animal would occur within the vicinity of the construction activity for 50 percent of the pile installation and removal time. HRCP has implemented this reduction across all pile sizes, types, and installation and removal methods. For purposes of vibratory installation, the duration of installation was reduced by half to accomplish the reduction. For impact installation, the number of strikes per pile was reduced by half to accomplish the reduction.

TABLE 15—USER SPREADSHEET INPUT PARAMETERS USED FOR CALCULATING LEVEL A HARASSMENT ISOPLETHS FOR DRILLING WITH A DTH HAMMER *

30-inch steel, 36-inch steel 60-inch steel Model parameter concrete filled DTH DTH DTH

Spreadsheet Tab ...... E.2 E.2 E.2 Weighting Factor Adjustment (kilohertz) ...... 2 2 2 SELss (LE, p, single strike) at 10 meters ...... 164 164 175 Lp, 0-pk at 10 meters ...... 196 196 196 Number of piles per day ...... 6 2 3 Duration to drive a pile (minutes) ...... 120 120 120 Transmission loss coefficient ...... 15 15 15 Distance from source (meters) ...... 10 10 10 Estimated Number of Strikes per 24-hour period ...... 432,000 144,000 216,000 50% of Strikes per 24-hour period ...... 216,000 72,000 108,000 Strike rate (Hz) average strikes per second ...... 10 10 10 50% of Strike rate (Hz) average strikes per second ...... 5 5 5 * To provide a more realistic estimate of take by Level A harassment, NMFS assumes that an animal would occur within the vicinity of the construction activity for 50 percent of the pile installation and removal time, which equates to 50 percent of the piles planned for installation and removal. HRCP has implemented this reduction across all pile sizes, types, and installation and removal methods. For drilling with a DTH hammer installation, the strike rate (Hz) was reduced by half to accomplish the reduction. A 10 Hz strike rate was identified from Reyff and Heyvaert 2019 which was then reduced by 50% to 5 Hz to accomplish the 50% Level A reduction.

TABLE 16—CALCULATED DISTANCES TO LEVEL A HARASSMENT ISOPLETHS DURING VIBRATORY INSTALLATION, AND VIBRATORY REMOVAL AND JETTING INSTALLATION WITH NO ATTENUATION

Level A harassment isopleth distance Level A harassment isopleth areas Minutes (meters) (km2) per pile Number Project component Pile size/type (reduced of piles Cetaceans Pinnipeds Cetaceans Pinnipeds by half) per day I I I LF MF HF I PW LF MF HF I PW Vibratory Hammer

North Trestle: Moorings ...... 42-inch Pipe, Steel 15 6 27 3 39 16 ...... <0.01 ...... Template Piles I 36-inch Pipe, Steel I 2.5 I 8 I 9 1 I 13 I 5 I ...... I ...... I <0.01 I ......

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TABLE 16—CALCULATED DISTANCES TO LEVEL A HARASSMENT ISOPLETHS DURING VIBRATORY INSTALLATION, AND VIBRATORY REMOVAL AND JETTING INSTALLATION WITH NO ATTENUATION—Continued

North Shore 36-inch Pipe, Steel 25 2 16 2 23 10 ...... <0.01 ...... Work Tres- tle, Jump Trestle, Work Tres- tle, Demoli- tion Trestle. Moorings ...... 24-inch Pipe, Steel 15 6 9 1 14 6 ...... <0.01 ...... North Shore AZ 700–19 Sheet, 15 10 11 1 16 7 ...... <0.01 ...... Abutment. Steel. North Island: Moorings ...... 42-inch Pipe, Steel 15 6 27 3 39 16 ...... <0.01 ...... Hampton Existing, 36-inch 25 1 10 1 15 6 ...... <0.01 ...... Creek Ap- Pipe, Steel. proach Channel Marker. North Island AZ 700–26 Sheet, 15 10 11 1 16 7 ...... <0.01 ...... Expansion. Steel. North Island AZ 700–19 Sheet, ...... Abutment. Steel. South Island AZ 700–19 Sheet, 15 10 11 1 16 7 ...... <0.01 ...... Abutment. Steel. South Island AZ 700–26 Sheet, ...... Expansion. Steel. Settlement Re- 24-inch Pipe, Steel 30 6 15 2 21 9 ...... duction Piles. Deep Founda- 30-inch Pipe, Steel, 30 6 36 4 53 22 ...... tion Piles. Concrete Filled. TBM Platform 36-inch Pipe, Steel 30 2 18 2 26 11 ...... Conveyor Tres- 36-inch Pipe, Steel 25 3 20 2 30 13 ...... tle. Moorings ...... 42-inch Pipe, Steel 15 6 27 3 39 16 ...... <0.01 ...... Template Piles 36-inch Pipe, Steel 2.5 16 14 2 20 8 ...... <0.01 ...... South Trestle: Template Piles 36-inch Pipe, Steel 2.5 8 9 1 13 5 ...... <0.01 ...... Moorings, Cas- 42-inch Pipe, Steel 15 6 27 3 39 16 ...... <0.01 ...... ings. Work Trestle, 36-inch Pipe, Steel 25 2 16 2 23 10 ...... Jump Tres- tle, Demoli- tion Trestle, Temporary MOT Trestle. Moorings ...... 24-inch Pipe, Steel 15 6 9 1 14 6 ...... Willoughby Bay: Moorings ...... 24-inch Pipe, Steel 15 6 9 1 14 6 ...... <0.01 ...... Work Trestle, 36-inch Pipe, Steel 25 2 16 2 23 ...... 10 ...... Jump Trestle. Moorings (Safe 42-inch Pipe, Steel 15 6 27 3 39 16 ...... <0.01 ...... Haven). Casing ...... 42-inch Pipe, Steel 15 6 27 3 39 16 ...... <0.01 ...... Template Piles 36-inch Pipe, Steel 2.5 8 9 1 13 5 ...... <0.01 ...... Willoughby Spit Laydown Area: Finger Piers on 16-inch CCA, Tim- 15 4 8 1 12 5 ...... <0.01 ...... Timber Piles. ber. Dock on 36-inch Pipe, Steel 25 3 20 2 30 13 ...... <0.01 ...... Spuds, Dock on Piles. Template Piles 36-inch Pipe, Steel 2.5 16 14 2 20 8 ...... <0.01 ......

Jetting

Willoughby Bay: Casing ...... 42-inch Pipe, Steel 15 1 3 1 4 2 ...... <0.01 ......

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TABLE 17—CALCULATED DISTANCES TO LEVEL A HARASSMENT ISOPLETHS DURING IMPACT INSTALLATION AND DTH PILE INSTALLATION WITH NO ATTENUATION

Number Level A harassment isopleth distance Level A harassment isopleth areas of strikes (meters) (km2) per pile Number Project component Pile size/type or strike of piles Cetaceans Pinnipeds Cetaceans Pinnipeds rate * per day (reduced LF MF HF PW LF MF HF PW by half)

North Trestle

Permanent Piles .... 54-inch Pipe, Con- 1,050 1 411 15 490 220 0.53 <0.001 0.75 0.15 crete Cylinder. Work Trestle, Jump 36-inch Pipe, Steel 20 2 117 5 140 63 0.04 <0.001 0.06 0.01 Trestle, Demoli- tion Trestle. I I I I I South Island

Settlement Reduc- 24-inch Pipe, Steel 20 6 97 4 116 52 0.02 <0.001 0.03 0.01 tion Piles. Deep Foundation 30-inch Pipe, Steel, 20 6 386 14 459 207 0.35 <0.001 0.49 0.10 Piles. Concrete Filled. I I I I I I I I I I South Trestle

Work Trestle, Jump 36-inch Pipe, Steel 20 2 117 5 140 63 0.04 <0.001 0.06 0.01 Trestle, Demoli- tion Trestle, Tem- porary MOT Trestle. Permanent Piles .... 54-inch Pipe, Con- 1,050 1 411 15 490 220 0.53 <0.001 0.75 0.15 crete Cylinder.

Willoughby Bay

Work Trestle, Jump 36-inch Pipe, Steel 20 2 117 5 140 63 0.04 <0.001 0.06 0.01 Trestle. Permanent Piles .... 24-inch Pipe, Con- 1,050 1 76 3 91 41 0.02 <0.001 0.03 <0.01 crete Square. I I I I I Willoughby Spit Laydown Area

Dock on Spuds, 36-inch Pipe, Steel 20 3 154 6 183 82 0.12 0.09 <0.001 0.03 Dock on Piles. I I I I I I I I I I DTH Pile Installation * North Trestle

Work Trestle, Jump 36-inch Pipe, Steel 36,000 2 936 34 1,115 501 1.81 <0.01 2.27 0.78 Trestle, Demoli- tion Trestle. Casing ...... 60-inch Pipe, Steel I 36,000 I 3 I 6,633 I 236 I 7,901 I 3,550 I 34.04 I 0.18 I 43.75 I 13.03 South Island

Deep Foundation 30-inch Pipe, Steel, 36,000 6 1,946 70 2,318 1,042 8.28 <0.01 11.30 2.49 Piles. Concrete Filled. I I I I I I I I I I South Trestle

Work Trestle, Jump 36-inch Pipe, Steel 36,000 2 936 34 1,115 501 2.67 <0.01 3.67 0.79 Trestle, Tem- porary MOT Trestle, Demoli- tion Trestle. Casing ...... 60-inch Pipe, Steel I 36,000 I 3 I 6,633 I 236 7,901 3,550 77.50 0.18 102.16 I 27.12 * For DTH Hammer calculations, a 10 Hz strike rate was identified from Reyff and Heyvaert 2019 which was then reduced by 50% to 5 Hz to accomplish the 50% Level A harassment reduction. Strikes per Pile values were not reduced for DTH methods.

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TABLE 18—CALCULATED DISTANCES TO LEVEL A HARASSMENT ISOPLETHS DURING IMPACT INSTALLATION WITH ATTENUATION

Number Level A harassment isopleth distance Level A harassment isopleth areas 2) of strikes Number (meters) (km Project component Pile size/type per pile of piles Cetaceans Pinnipeds Cetaceans Pinnipeds (reduced per day by half) LF MF HF PW LF MF HF PW

Impact Hammer

South Island:

Settlement Reduc- 24-inch Pipe, Steel 20 6 33 2 40 18 <0.01 tion Piles.

Deep Foundation 30-inch Pipe, Steel, 20 6 132 5 157 71 0.04 <0.001 0.06 0.01 Piles. Concrete Filled. South Trestle:

Temporary 36-inch Pipe, Steel 20 2 40 2 48 22 <0.001 0.007 0.002 MOT Trestle. Jump Trestle Work Trestle

Level B Harassment Zones R1 = the distance of the modeled SPL from of 15,849 m for vibratory pile driving of the driven pile, and 42- and 36-inch diameter piles. Other Transmission loss (TL) is the decrease R2 = the distance from the driven pile of the activities including impact driving and in acoustic intensity as an acoustic initial measurement vibratory installation sheet piles have pressure wave propagates out from a The recommended TL coefficient for smaller Level B harassment zones. All source. TL parameters vary with most nearshore environments is the Level B harassment isopleths are frequency, temperature, sea conditions, practical spreading value of 15. This reported in Table 19 below. It should be current, source and receiver depth, value results in an expected propagation noted that based on the geography of the water depth, water chemistry, and environment that would lie between project area, and pile driving locations, bottom composition and topography. spherical and cylindrical spreading loss in many cases sound will not reach the The general formula for underwater TL conditions, which is the most full distance of the Level B harassment is: appropriate assumption for HRCP’s isopleth. The radial distances provided planned activity. in Table 19 and Table 20 are shown as TL = B * Log10 (R1/R2), Using the practical spreading model, calculated. However, the land areas Where HRCP determined underwater noise presented in these tables take into TL = transmission loss in dB would fall below the behavioral effects account truncation by various land B = transmission loss coefficient; for practical threshold of 120 dB rms for marine masses in the project area and only spreading equals 15 mammals at a maximum radial distance shows the in-water ensonified area.

TABLE 19—DISTANCES TO LEVEL B HARASSMENT ISOPLETHS FOR DIFFERENT PILE SIZES AND TYPES AND METHODS OF INSTALLATION AND REMOVAL WITH NO ATTENUATION

Level B Level B area Location and component Method and pile type isopleth (m), unattenuated unattenuated (km2)

Vibratory Hammer (Level B Isopleth = 120 dB)

North Trestle: Moorings ...... 42-inch steel piles ...... 15,849 96.78 Template Piles ...... 36-inch steel piles ...... 13,594 85.53 Demolition Trestle ...... 36-inch steel piles ...... 13,594 85.53 North Shore Work Trestle ...... 36-inch steel piles ...... 13,594 85.53 Jump Trestle ...... 36-inch steel piles ...... 13,594 85.53 Work Trestle ...... 36-inch steel piles ...... 13,594 85.53 Moorings ...... 24-inch steel piles ...... 5,412 25.34 North Shore Abutment ...... AZ 700–19 steel sheet piles ...... 4,642 19.81 North Island: Moorings North ...... 42-inch steel piles ...... 15,849 103.86 Moorings South ...... 42-inch steel piles ...... 15,849 201.04 Hampton Creek Approach Channel Marker ...... 36-inch steel pile ...... 13,594 93.99 North Island Expansion North ...... AZ 700–26 steel sheet piles ...... 4,642 26.06 North Island Expansion South ...... AZ 700–26 steel sheet piles ...... 4,642 36.73 North Island Abutment North ...... AZ 700–19 steel sheet piles ...... 4,642 26.06 North Island Abutment ...... AZ 700–19 steel sheet piles ...... 4,642 36.73 South ...... South Island: Moorings ...... 42-inch steel piles ...... 15,849 246.86 Template Piles ...... 36-inch steel piles ...... 13,594 81.75

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TABLE 19—DISTANCES TO LEVEL B HARASSMENT ISOPLETHS FOR DIFFERENT PILE SIZES AND TYPES AND METHODS OF INSTALLATION AND REMOVAL WITH NO ATTENUATION—Continued

Level B Level B area Location and component Method and pile type isopleth (m), unattenuated unattenuated (km2)

TBM Platform ...... 36-inch steel piles ...... 13,594 81.75 Conveyor Trestle ...... 36-inch steel piles ...... 13,594 81.75 Deep Foundation Piles ...... 30-inch steel piles, concrete filled ...... 13,594 194.04 Settlement Reduction Piles ...... 24-inch steel piles ...... 5,412 45.10 South Island Expansion ...... AZ 700–26 steel sheet piles ...... 4,642 34.69 South Island Abutment ...... AZ 700–19 steel sheet piles ...... 4,642 34.69 South Trestle: Moorings, Casings ...... 42-inch steel piles ...... 15,849 305.30 Template Piles ...... 36-inch steel piles ...... 13,594 235.60 Temporary MOT Trestle ...... 36-inch steel piles ...... 13,594 235.60 Jump Trestle ...... 36-inch steel piles ...... 13,594 235.60 Work Trestle ...... 36-inch steel piles ...... 13,594 235.60 Demolition Trestle ...... 36-inch steel piles ...... 13,594 235.60 Moorings ...... 24-inch steel piles ...... 5,412 55.87 Willoughby Bay: Moorings (Safe Haven) ...... 42-inch steel piles ...... 15,849 5.52 Moorings ...... 42-inch steel piles ...... 15,849 5.52 Casing ...... 42-inch steel piles ...... 15,849 5.52 Template Piles ...... 36-inch steel piles ...... 13,594 5.52 Work Trestle ...... 36-inch steel piles ...... 13,594 5.52 Jump Trestle ...... 36-inch steel piles ...... 13,594 5.52 Moorings ...... 24-inch steel piles ...... 5,412 5.52 Willoughby Spit Laydown Area: Template Piles ...... 36-inch steel piles ...... 13,594 74.45 Dock on Spuds ...... 36-inch steel piles ...... 13,594 74.45 Dock on Piles ...... 36-inch steel piles ...... 13,594 74.45 Finger Piers ...... 16-inch CCA timber piles ...... 6,310 40.62

DTH Pile Installation (Level B Isopleth = 120 dB)

North Trestle Casings ...... 60-inch steel piles ...... 11,659 72.28 North Trestle Work Trestle, Jump Trestle, Demo- 36-inch steel piles ...... 11,659 72.28 lition Piles, Templates. South Island Deep Foundation Piles ...... 30-inch steel piles, concrete filled ...... 11,659 152.79 South Trestle Casings ...... 60-inch steel piles ...... 11,659 184.12 South Trestle Work Trestle, Jump Trestle, Demo- 36-inch steel piles ...... 11,659 14.12 lition Trestle, Temporary MOT Trestle, Tem- plates. Willoughby Bay Templates ...... 36-inch steel piles ...... 11,659 5.52

Jetting (Level B Isopleth = 120 dB)

Willoughby Bay: Casing ...... 42-inch steel piles ...... 5,412 5.52

Impact Hammer (Level B Isopleth = 160 dB)

North Trestle: Permanent Piles ...... 54-inch concrete cylinder piles ...... 631 1.14 Work Trestle ...... 36-inch steel piles ...... 1,585 3.81 Jump Trestle ...... 36-inch steel piles ...... 1,585 3.81 Demolition Trestle ...... 36-inch steel piles ...... 1,585 3.81 South Island: Deep Foundation Piles ...... 30-inch steel piles, concrete filled ...... 2,154 9.91 Settlement Reduction Piles ...... 24-inch steel piles ...... 1,000 2.29 South Trestle: Permanent Piles ...... 54-inch concrete cylinder piles ...... 631 1.25 Work Trestle ...... 36-inch steel piles ...... 1,585 6.84 Jump Trestle ...... 36-inch steel piles ...... 1,585 6.84 Temporary MOT Trestle ...... 36-inch steel piles ...... 1,585 6.84 Demolition Trestle ...... 36-inch steel piles ...... 1,585 6.84 Willoughby Bay: Permanent Piles ...... 24-inch concrete cylinder piles ...... 117 0.04 Work Trestle ...... 36-inch steel piles ...... 1,585 3.15 Jump Trestle ...... 36-inch steel piles ...... 1,585 3.15 Willoughby Spit Laydown Area: Dock on Spuds ...... 36-inch steel piles ...... 1,585 6.03 Dock on Piles ...... 36-inch steel piles ...... 1,585 6.03

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TABLE 20—DISTANCES TO LEVEL B HARASSMENT ISOPLETHS FOR INSTALLATION AND REMOVAL OF STEEL PIPE PILES WITH ATTENUATION BUBBLE CURTAIN

Level B Level B area Location and component Method and pile type isopleth (m), attenuated attenuated (km2)

Impact Hammer (Level B Isopleth = 160 dB)

South Island: Deep Foundation Piles ...... 30-inch steel piles, concrete filled ...... 736 1.25 Settlement Reduction Piles 24-inch steel piles ...... 341 0.27 South Trestle: Temporary MOT Trestle, Work Trestle, Jump 36-inch steel piles ...... 541 0.68 Trestle.

The daily duration in which more multiple sites, Level A harassment zone the duration required to meet the than one vibratory hammer or DTH pile sizes were calculated for the longest calculated Level A harassment installation could occur is difficult to anticipated duration of the largest pile threshold. Furthermore, installation of predict and quantify. As noted sizes that could be installed within a 18 42-inch steel pipe piles likely previously, DTH pile installation is day. For example, if 18 42-inch steel represents an unrealistic level of considered by NMFS to be both pipe piles were installed with a efficiency that will not be achieved in impulsive and continuous. Therefore, vibratory hammer on a single day by the field. Other combinations of pile decibel addition will not be used to multiple hammers with overlapping sizes and numbers would result in Level calculate Level A harassment zones sound fields, the Level A harassment A harassment zones smaller than 100 during concurrent DTH pile installation zone for each of the functional hearing meters. To be precautionary, shutdown activities. The Level A harassment groups likely to be present near the zones outlined in Table 21 for each zones for each DTH activity will be project area would remain smaller than species will be implemented for each based on a single DTH hammer. To 100 meters as shown in Table 21 with vibratory hammer on days when it is simplify implementation of Level A the largest Level A harassment zone anticipated that multiple vibratory harassment zones for use of more than being 81 m for harbor porpoises. hammers will be used, whether at a one vibratory hammer within a day and/ However, it is highly unlikely that a single or multiple sites. This mitigation or during simultaneous use of multiple harbor porpoise could accumulate measure would also minimize the need vibratory hammers with overlapping enough sound from the installation of for onsite coordination among project isopleths, whether at a single site or multiple piles in multiple locations for sites and components.

TABLE 21—DISTANCES TO LEVEL A HARASSMENT ISOPLETHS FOR INSTALLATION OF 42-INCH PILES BY MULTIPLE VIBRATORY HAMMERS

Level A harassment isopleth distance (meters) Minutes per pile Number of piles Pile size/type (reduced by half) per day Cetaceans Pinnipeds LF MF HF PW

42-inch Pipe, Steel ...... 15 18 55 5 81 33 Note: LF = Low-frequency; MF = Mid-frequency; HF = High frequency; PW = Phocids in water. Table does not stipulate the number of active vibratory hammers, as Level A effects are cumulative. The piles per day could be split between multiple hammers and not affect the size of Level A zones.

The size of the Level B harassment which generally requires close TABLE 22—DISTANCES TO LEVEL B zone during concurrent operation of proximity of driving locations. HARASSMENT ISOPLETHS FOR MUL- multiple vibratory hammers will Furthermore, it is expected to be a rare TIPLE HAMMER ADDITIONS—Contin- depend on the combination of sound event when three or more 30-, 36-, or ued sources due to decibel addition of 42-inch piles are being installed multiple hammers producing simultaneously with vibratory hammers. Combined SSL Distance to Level B continuous noise. The distances to (dB) isopleth Level B harassment isopleths during TABLE 22—DISTANCES TO LEVEL B (meters) ARASSMENT SOPLETHS FOR UL simultaneous installation of piles using H I M - 167 ...... 13,594 two or more vibratory hammers is TIPLE HAMMER ADDITIONS 168 ...... 15,849 shown in Table 22. As noted previously, 169 ...... 18,478 pile installation often involves Combined SSL Distance to Level B 170 ...... 21,544 numerous stops and starts of the isopleth (dB) (meters) 171 ...... 25,119 hammer for each pile. Therefore, decibel 172 ...... 29,286 addition is applied only when the 164 ...... 8,577 173 ...... 34,145 adjacent continuous sound sources 165 ...... 10,000 experience overlapping sound fields, 166 ...... 11,659

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Marine Mammal Occurrence and Take 2017a, 2018, 2019) did not produce high November through April for the Calculation and Estimation enough sample sizes to calculate duration of in-water pile installation In this section we provide the densities, or survey data were not and removal. NMFS concurs with the information about the presence, density, collected during systematic line-transect request and is authorizing a total of 183 or group dynamics of marine mammals surveys. However, humpback whale takes of humpback whales over the 5- that will inform the take calculations. densities have been calculated for year Project period (Table 24). This We describe how the information populations off the coast of New Jersey, number is increased from 172 included provided above is brought together to resulting in a density estimate of in the proposed rule due to the produce a quantitative take estimate. 0.000130 animals per square kilometer increased number of assumed pile or one humpback whale within the area driving days in Year 5. Only vibratory Humpback Whale (off the coast of New Jersey) on any extraction is planned for Year 5 which given day of the year (Whitt et al. 2015). While humpback whales are observed will result in smaller PTS zones. In the project area, a similar density near the mouth of the Chesapeake Bay Therefore take by Level A harassment is and the nearshore waters of Virginia may be expected, although the project not expected. The largest Level A during winter and spring months, they area is much smaller. Aschettino et al. harassment zone of 6,633 meters for LF are relatively rare in the project area. (2018) observed and tracked two Density data for this species within the individual humpback whales in the cetaceans is associated with drilling project vicinity do not exist or were not Hampton Roads (in the James River) with a DTH installation of 60-inch steel calculated because sample sizes were area of the project area and over the 5- pipe piles (casings) (Table 17). It is too small to produce reliable estimates year project period (2015–2019), tracked unlikely but possible that a humpback of density. Humpback whale sighting 12 individual humpback whales west of whale could enter this area and remain data collected by the U.S. Navy near the CBBT (Movebank 2020). Based on for a sufficient duration to incur PTS. Naval Station Norfolk and Virginia these data, and the known movement of Therefore, HRCP requested and NMFS Beach from 2012 to 2015 (Table 22) humpback whales from November is authorizing eight humpback whale (Engelhaupt et al. 2014, 2015, 2016) and through April at the mouth of the takes by Level A harassment (2 per year in the mid-Atlantic (including the Chesapeake Bay, HRCP requested two except for Year 5 when there are no Chesapeake Bay) from 2015 to 2019 takes every month from May to October requests) and 35 Level B harassment (Table 23) (Aschettino et al. 2015, 2016, and three to four each month from takes each year (Table 24). TABLE 23—SUMMARY OF INDIVIDUAL HUMPBACK WHALE SIGHTINGS BY MONTH FROM 2012 TO 2019 IN THE CHESAPEAKE BAY

Engelhaupt surveys Aschettino surveys Month 2012 2013 2014 2015 2015 2016 2017 2018 2019 Total

January ...... 0 0 7 56 43 106 1 30 243 February ...... 0 0 0 5 30 84 0 32 151 March ...... 0 0 10 7 0 1 18 April ...... 2 1 0 0 ...... 1 4 May ...... 0 1 0 0 1 ...... 4 6 June ...... 0 ...... 0 July ...... 0 0 0 ...... 1 ...... 1 August ...... 0 ...... 0 ...... 0 September ...... 0 1 0 ...... 1 October ...... 0 0 0 ...... 2 ...... 2 November ...... 0 0 0 ...... 21 8 0 ...... 29 December ...... 9 ...... 42 30 21 11 ...... 113

Total ...... 0 3 11 7 103 135 228 13 68 568 * Source: Engelhaupt et al. 2014, 2015, 2016 (2012–2015 inshore survey data only; not dedicated humpback whale surveys); Aschettino et al. 2015, 2016, 2017a, 2018, 2019 (2015–2019). Monthly survey data from the 2019–2020 season have not been published; however, Aschettino et al. 2020b reported that during the 2019/ 2020 field season, which began 21 December 2019 and concluded 27 March 2020, resulted in 44 humpback whale sightings of 60 individuals.

TABLE 24—SUMMARY OF THE ESTIMATED NUMBERS OF HUMPBACK WHALES POTENTIALLY EXPOSED TO LEVEL A AND LEVEL B HARASSMENT SOUND LEVELS PER MONTH PER YEAR

Annual Year Mar Apr May Jun Jul Aug Sept Oct Nov Dec Jan Feb Level A Level B total

Year 1...... 4 3 2 2 2 2 2 2 4 4 4 4 2 35 37 Year 2...... 4 3 2 2 2 2 2 2 4 4 4 4 2 35 37 Year 3...... 4 3 2 2 2 2 2 2 4 4 4 4 2 35 37 Year 4...... 4 3 2 2 2 2 2 2 4 4 4 4 2 35 37 Year 5...... 4 3 2 2 2 2 2 2 4 4 5 5 0 35 35

Monthly 5-Year Total...... 20 15 10 10 10 10 10 10 20 20 21 21 8 175 183

Bottlenose Dolphin density methods from conventional 2012 through August 2015 (Engelhaupt line-transect vessel surveys near Naval et al. 2016). The total estimated number of takes Station Norfolk and adjacent areas near HRCP estimated potential exposure for bottlenose dolphins in the Project Virginia Beach, Virginia, from August area was estimated using a combined using daily sighting data for areas west approach of daily sighting rates and of the HRBT area and within the Core

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Monitoring Area (shown in Figure days per year for 5 years. Due to the was utilized to calculate the number of 11–1 in the LOA application) and used complex schedule and the inexact dolphins per day that could be seasonal densities of bottlenose timeline in which parts of the project anticipated to occur in the project area dolphins from Engelhaupt et al. (2016) may be completed ahead of or behind during each season and year. The for areas northeast of the HRBT Project schedule, trying to quantify the exact surveyed width for these surveys was and outside the Core Monitoring Area. number of days certain isopleths will be two nautical miles, which encompasses The Core Monitoring Area will active for the purposes of take the areas ensonified within the Core encompass the area south of the HRBT estimation is infeasible. However, these Monitoring Area during pile installation and north of the Hampton Roads calculations reflect the best available and removal (HDR-Mott MacDonald Monitor-Merrimac Memorial Bridge- data for the areas in and around the 2020). The number of anticipated days Tunnel (Interstate 664) with observers Project and represent a conservative of in-water pile installation and removal positioned at key areas to monitor the estimate of potential exposure based on for each month was multiplied by the entire geographic area between the reasonable assumptions. average daily sighting rate estimate of bridges. This is the area that will be Sighting rates (numbers of dolphins the number of dolphins per month that ensonified during most of the pile per day) were determined for each of the could be exposed to project noise within installation and removal activities. four seasons from observations located the Core Monitoring Area. For the Depending on placement, the observers in the inshore Chesapeake Bay zone (the majority of piles being installed and/or will be able to view west/southwest Chesapeake Bay waters near Naval removed, the ensonified area is towards Batten Bay and the mouth of Station Norfolk) which were used to constrained by surrounding land the Nansemond River. The largest estimate potential exposure west of the features and does not extend out into ensonified southwest radii extend to the project site and within the Core Chesapeake Bay. For piles with south into the James and Nansemond Monitoring Area. Sightings per season constrained sound fields, this method is rivers, areas where marine mammal ranged from 5 in spring to 24 in fall sufficient to calculate potential abundance is anticipated to be low and while no bottlenose dolphins were exposure. approaching zero. Towards the sighted in the winter months in this Table 25 depicts values in the average northeast direction, the largest of the inshore area (Table 25). Note that the dolphins sighted per day column that multiple hammer zones may reach winter sighting total of 0 was a result of are from within the Core Monitoring beyond the Chesapeake Bay Bridge and truncating winter survey data to only Area, which is smaller and closer to the Tunnel. However, concurrent vibratory include sighting data within the vicinity river mouth. Values in the seasonal installation of three or more 30-, 36-, or of the project location. Bottlenose density column (individuals per km2) 42-inch piles will occur infrequently. dolphin abundance was highest in the are from outside the Core Monitoring This approach also factored in the fall, (24 sightings representing 245 Area which is farther out in the Bay and number of days of pile installation and individuals), followed by the spring (n where there are likely to be more removal, which is estimated to be 312 = 156), and summer (n = 115). This data dolphins.

TABLE 25—AVERAGE DAILY SIGHTING RATES AND SEASONAL DENSITIES OF BOTTLENOSE DOLPHINS WITHIN THE PROJECT AREA

Average number Seasonal density Number of of dolphins outside core Season sightings per sighted per day monitoring area season within core 2 monitoring area (individuals/km )

Spring, March–May ...... 5 17.33 1.00 Summer, June–August ...... 14 16.43 3.55 Fall, September–November ...... 24 27.22 3.88 Winter, December–February ...... 0 0.00 0.63 Source: Engelhaupt et al. 2016.

For each month and year, the average incorporated the number of piles that ((5 piles * 20 km2/pile) + (2 piles * 50 area within the Level B harassment produce the different zone sizes km2/pile))/(7 piles) = weighted zones and outside the Core Monitoring ensonified by each pile size/hammer/ average of 28.6 km2. Area was calculated and used to location. The number of piles with each estimate potential exposure east of the different zone size was multiplied by its The sum of potential exposures project site and outside the Core relevant ensonified area; those were within the Core Monitoring Area (daily Monitoring Area. The weighted average then summed and the total was divided sighting rate method) and outside the area within the relevant Level B by the total number of piles. Core Monitoring Area (density method harassment zones outside the Core For example, if there are 5 piles with for zones that extend into Chesapeake Monitoring Area was used to calculate a 20 km2 Level B harassment zone each Bay) yields the total number of potential potential exposure or take of bottlenose and 2 piles with a 50 km2 Level B bottlenose dolphin exposures (Table 26) dolphin for each month. The weighting harassment zone, the formula would be: for each month and year.

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TABLE 26—MONTHLY AND ANNUAL ESTIMATED DOLPHIN EXPOSURES USING NUMBER/DAY FOR CORE MONITORING AREA, AND DENSITY/KM2 FOR AREAS EXTENDING OUTSIDE THE CORE MONITORING AREA INTO CHESAPEAKE BAY

Annual Mar Apr May Jun Jul Aug Sept Oct Nov Dec Jan Feb total

Dolphin density (#/km2) ...... 1 1 1 3.55 3.55 3.55 3.88 3.88 3.88 0.63 0.63 0.63 ...... Year 1 In CMA 468 451 451 427 444 427 708 708 681 0 0 0 4,765 Year 1 Out CMA 539 539 539 1,914 1,022 1,022 2,989 2,980 2,963 476 428 953 16,362 Year 2 In CMA 468 451 451 427 444 427 708 708 681 0 0 0 4,763 Year 2 Out CMA 2,297 1,304 706 2,631 2,464 1,627 1,342 6,770 6,758 1,097 1,526 1,498 30,021 Year 3 In CMA 468 451 451 427 444 427 708 708 681 0 0 0 4,764 Year 3 Out CMA 2,440 1,622 1,622 0 0 5,122 0 0 14,058 2,070 2,090 1,537 30,562 Year 4 In CMA 468 451 451 427 444 427 708 708 681 0 0 0 4,764 Year 4 Out CMA 0 0 0 0 0 0 10,146 9,287 6,009 444 0 0 25,884 Year 5 In CMA 468 451 451 427 444 427 708 708 681 0 0 0 4,763 Year 5 Out CMA 360 0 0 0 0 0 0 0 0 0 267 227 854

The largest Level A harassment available to apportion the requested project-related underwater noise each isopleth is 236 m for DTH pile takes precisely to each of these three month during the spring (March–May) installation of 60-inch steel pipe piles stocks present in the project area. Given for a total of 6 harbor porpoises takes (casings) at the South Trestle and covers that most of the NNCES stock are found (i.e., 1 group of 2 individuals per month an area less than 0.18 km2. Given the in the Pamlico Sound Estuarine System, × 3 months per year = 6 harbor daily sightings rates shown in Table 24, the Project will assume that no more porpoises) per year. and the small Level A harassment than 200 of the requested takes will be The largest calculated Level A zones, HRCP and NMFS do not from this stock during any given year. harassment zone for harbor porpoises anticipate that bottlenose dolphins will Since members of the Western North extends 7,901 m from the noise source actually incur Level A harassment. Atlantic Northern Migratory Coastal and during DTH installation of 60-inch steel However, because animals may enter Western North Atlantic Southern pipe piles (casings) at the South Trestle, into a PTS zone before being sighted, Migratory Coastal stocks are thought to for a harassment area of 102.16 km2 HRCP has requested authorization of occur in or near the Project area in (Table 17). However, HRCP has planned Level A harassment for bottlenose greater numbers, HRCP will a 100-meter shutdown zone for harbor dolphins as a precaution. Although conservatively assume that no more porpoises. HRCP has requested small NMFS does not agree that a brief than half of the remaining animals will numbers of take by Level A harassment sighting of a marine mammal within a belong to either of these stocks. for harbor porpoises during Years 1–4 of Level A harassment zone calculated on Additionally, a subset of these takes the project. While NMFS does not agree the basis of accumulated energy would likely be comprised of that take by Level A harassment is necessarily means that the animal has Chesapeake Bay resident dolphins, likely, due to the duration of time a experienced Level A harassment, we although the size of that population is harbor porpoise would be required to nevertheless propose to authorize take unknown. It is assumed that an animal remain within the Level A zone to as requested by HRCP. HRCP assumed will be taken once over a 24-hour accumulate enough energy to that approximately 1 percent of the total period; however, the same individual experience PTS, we nevertheless harassment exposures will be in the may be taken multiple times over the propose to authorize limited take as form of Level A harassment. HRCP has duration of the project. Therefore, both requested by HRCP. It is anticipated that requested and NMFS is authorizing the number of takes for each stock and 2 individuals may enter the Level A 127,502 exposures by Level B the affected population percentages harassment zone during pile installation harassment and 1,222 exposures by represent the maximum potential take and removal each spring, for a total of Level A harassment of bottlenose numbers. 2 potential Level A harassment dolphins divided among the 5 project exposures per year. Therefore, NMFS is Harbor Porpoise authorizing 4 takes by Level B construction years (127,502 total Harbor porpoises are rarely seen in ¥ exposures ¥1,222 Level A harassment harassment each spring for Years 1 4 the project area although they are (6 total exposures¥2 Level A takes = 126,280 Level B harassment known to occur in the coastal waters harassment takes = 4 Level B takes). However, due to the construction near Virginia Beach (Hayes et al. 2020). harassment takes). In Year 5, NMFS is schedule, these takes will not occur They have been sighted on rare authorizing 6 takes by Level B equally during each year of the LOA. occasions in the Chesapeake Bay closer harassment and no takes by Level A There are no Level A harassment takes to Norfolk. Density data does not exist harassment. authorized for year 5. The maximum for this species within the project area. annual harassment number for dolphins Sighting data collected by the U.S. Navy Harbor Seal is 35,326 in Year 3. near Naval Station Norfolk and Virginia HRCP estimated the expected number The total number of bottlenose Beach from 2012 to 2015 (Engelhaupt et of harbor seals in the project area using dolphin takes by Level A and Level B al. 2014, 2015, 2016) did not produce systematic, land- and vessel-based harassment is expected to be split high enough sample sizes to calculate survey data for in-water and hauled-out between three bottlenose dolphin densities. One group of two harbor seals collected by the U.S. Navy at the stocks: Western North Atlantic Southern porpoises was seen during spring 2015 CBBT rock armor and portal islands Migratory Coastal; Western North (Engelhaupt et al. 2016). from November 2014 through April Atlantic Northern Migratory Coastal; HRCP estimated that one group of two 2019 (Rees et al. 2016; Jones et al. 2018; and NNCES. There is insufficient data harbor porpoises could be exposed to Jones and Rees 2020). The number of

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harbor seals sighted by month from Project, ranged from 0 to 170 anticipated to be present in the 2014 through 2019, in the Chesapeake individuals Table 27. During the months Chesapeake Bay. Bay waters, in the vicinity (lower of June through October (Table 27 and Chesapeake Bay along the CBBT) of the Table 29) harbor seals are not

TABLE 27—SUMMARY OF HISTORICAL HARBOR SEAL SIGHTINGS BY MONTH FROM 2014 TO 2019

Monthly Month 2014 2015 2016 2017 2018 2019 average

January ...... 33 120 170 7 82.5 February ...... 39 80 106 159 21 81 March ...... 55 61 41 0 18 43.8 April ...... 10 1 3 3 4 4.2 May ...... 3 0 0 0 ...... 0.8

June ...... Seals not expected to be present ...... 0

July ...... Seals not expected to be present ...... 0

August ...... Seals not expected to be present ...... 0

September ...... Seals not expected to be present ...... 0

October ...... Seals not expected to be present ...... 0

November ...... 1 0 1 0 3 ...... 1.3 December ...... 4 9 24 8 29 ...... 14.8

TABLE 28—HARBOR SEAL SURVEY EFFORT, TOTAL COUNT, MAX COUNT ON A SINGLE SURVEY DAY, AND THE AVERAGE NUMBER OF SEALS OBSERVED PER SURVEY DAY AT THE CBBT SURVEY AREA

Number of Total seal Average daily Max daily Field season survey days count seal count seal count

2014–2015 ...... 11 113 10 33 2015–2016 ...... 14 187 13 39 2016–2017 ...... 22 308 14 40 2017–2018 ...... 15 340 23 45 2018–2019 ...... 10 82 8 17 Average ...... 14.4 186 13.6 34.8

TABLE 29—SUMMARY OF THE ESTIMATED NUMBERS OF HARBOR SEALS POTENTIALLY TAKEN BY LEVEL A AND LEVEL B HARASSMENT PER MONTH PER YEAR 1

Annual Year Nov Dec Jan Feb Mar Apr May Level A Level B total

Year 1 ...... 177 367 354 326 367 354 177 424 1,697 2,122 Year 2 ...... 177 367 354 326 367 354 177 424 1,697 2,122 Year 3 ...... 177 367 354 326 367 354 177 424 1,697 2,122 Year 4 ...... 177 367 354 326 367 354 177 424 1,697 2,122 Year 5 ...... 177 367 354 326 367 354 177 0 2,122 2,122

Monthly 5-Year Total ...... 884 1,836 1,768 1,632 1,836 1,768 884 1,696 8,910 10,608 1 Harbor seals not expected June–October.

The estimated total number of harbor The largest Level A harassment anticipated that up to 20 percent of the seals potentially exposed to in-water isopleth associated with drilling with a total exposures would be at or above the noise at harassment levels is 13.6 per DTH hammer of 60-inch steel pipe piles Level A harassment threshold. day (the average of the 5-year average (casings) at the South Trestle for harbor Therefore, HRCP has requested and daily harbor seal count) (Table 28) for seals is 3,550 meters (Table 17) with a NMFS is authorizing 1,697 takes by 156 days based on a 6-day work week Level A harassment zone of 27.12 km2. Level B harassment and 424 takes by from mid-November to mid-May. Seals It is possible that harbor seals could Level A harassment for project years are not expected to be present in the enter this or other Level A harassment 1–4 and 2,122 Level B harassment takes Chesapeake Bay from June through zones undetected. While NMFS does and no Level A harassment takes of October. It is estimated that 13.6 harbor not believe that take of harbor seals by harbor seals for project year 5 since only Level A harassment is likely due to seals could be exposed per day to vibratory extraction will be occurring in accumulated energy that would be Project-related underwater noise for 156 the last year. (Table 29). required to experience injury, we days for a total of 2,122 exposures per nevertheless propose to authorize year. limited take as requested by HRCP. It is

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Gray Seal the months of March through December. for sufficient duration to incur injury, Between 2015 and 2019 only three eight takes by Level A harassment have Gray seals are expected to be very individual seals were observed, all in also been requested (2 during years uncommon in the Project area. As the month of February (i.e., 2015, 2016 1–4 and 0 during year 5). NMFS concurs described below, historical data indicate and 2018). with this assessment and is authorizing that approximately one gray seal has As a precautionary measure, HRCP seven takes by Level B harassment and been seen per year in the Chesapeake assumed that there could be three gray two takes by Level A harassment per Bay. Similar to the harbor seal, HRCP seals taken by Level B harassment year for years 1–4 (9 takes¥2 takes by estimated the expected number of gray during each of the winter months Level A harassment = 7 takes by Level seals in the Project area using (December through February). B harassment) and 9 takes by Level B systematic, land- and vessel-based Therefore, HRCP requested and NMFS harassment, with no authorized takes by survey data for in-water and hauled-out is authorizing nine gray seal takes per Level A harassment, in year 5. seals collected by the U.S. Navy at the year for 5 years (3 gray seals per month Table 30 below summarizes CBBT rock armor and portal islands × 3 months per year = 9 gray seals) for authorized take numbers by species per from 2014 through 2019 (Rees et al., a total of 45 takes of gray seals (Table project year while Table 31 describes 2016; Jones et al. 2018; Jones and Rees 30). Given the size of the Level A the proposed authorized take for all the 2020). Gray seals are not expected to be harassment zones and potential for a species described above as a percentage present in the Chesapeake Bay during gray seal to be present within the zone of stock abundance. TABLE 30—ESTIMATED TAKE BY LEVEL A AND LEVEL B HARASSMENT, BY SPECIES

2021 2022 2023 2024 2025 Species Level A Level B Level A Level B Level A Level B Level A Level B Level A Level B

Humpback whale...... 2 35 2 35 2 35 2 35 0 37 Bottlenose dolphin...... 212 20,915 349 34,435 354 34,972 307 30,341 0 5,617 Harbor porpoise...... 2 4 2 4 2 4 2 4 0 6 Harbor seal...... 424 1,697 424 1,697 424 1,697 424 1,697 0 2,121 Gray seal...... 2 7 2 7 2 7 2 7 0 9

TABLE 31—MAXIMUM ANNUAL ESTIMATED TAKE BY LEVEL A AND LEVEL B HARASSMENT, BY SPECIES AND STOCK IN COMPARISON TO STOCK ABUNDANCE

Level A and Stock Level B Percent Species Stock abundance harassment of stock takes

Humpback Whale ...... Gulf of Maine ...... b 12,312 37 0.3 Bottlenose Dolphin ...... WNA Coastal, Northern Migratory a ...... 6,639 17,561 264.5 WNA Coastal, Southern Migratory a ...... 3,751 17,561 468.2 NNCES c ...... 823 200 24.3 Harbor Porpoise ...... Gulf of Maine/Bay of Fundy ...... 95,543 6 <0.01 Harbor Seal ...... Western North Atlantic ...... 75,834 2,121 2.8 Gray Seal ...... Western North Atlantic ...... 505,000 9 <0.01 a Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow same probability of presence in the project area. Please see the Small Numbers section for additional information. b West Indies DPS from Bettridge et al. 2015. c Assumes multiple repeated takes of same individuals from small portion of each stock as well as repeated takes of Chesapeake Bay resident population (size unknown). Please see the Small Numbers section for additional information.

Mitigation conducting such activity or other means impact being mitigated (likelihood, In order to issue an LOA under of effecting the least practicable adverse scope, range). It further considers the Section 101(a)(5)(A) of the MMPA, impact upon the affected species or likelihood that the measure will be NMFS must set forth the permissible stocks and their habitat (50 CFR effective if implemented (probability of methods of taking pursuant to such 216.104(a)(11)). accomplishing the mitigating result if activity, and other means of effecting In evaluating how mitigation may or implemented as planned) the likelihood the least practicable impact on such may not be appropriate to ensure the of effective implementation (probability species or stock and its habitat, paying least practicable adverse impact on implemented as planned); and species or stocks and their habitat, as particular attention to rookeries, mating (2) The practicability of the measures well as subsistence uses where grounds, and areas of similar for applicant implementation, which applicable, we carefully consider two significance, and on the availability of may consider such things as cost, such species or stock for taking for primary factors: impact on operations, and, in the case certain subsistence uses (latter not (1) The manner in which, and the of a military readiness activity, applicable for this action). NMFS degree to which, the successful regulations require applicants for implementation of the measure(s) is personnel safety, practicality of incidental take authorizations to include expected to reduce impacts to marine implementation, and impact on the information about the availability and mammals, marine mammal species or effectiveness of the military readiness feasibility (economic and technological) stocks, and their habitat. This considers activity. of equipment, methods, and manner of the nature of the potential adverse

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In addition to the measures described monitoring of marine mammals can be as a precautionary measure. HRCP will later in this section, HRCP will employ conducted. Installation or removal of also document the duration any animal the following mitigation measures: new piles will not commence after spends within the Level A harassment • For in-water heavy machinery work daylight hours. zone; other than pile driving, if a marine mammal comes within 10 m, operations Shutdown Zones When two or more vibratory hammers shall cease and vessels shall reduce For all pile driving activities, HRCP are in use HRCP will employ the speed to the minimum level required to will establish shutdown zones for a following measures: maintain steerage and safe working marine mammal species which • A shutdown zone will be conditions; correspond to the Level A harassment implemented for each species for each • HRCP will conduct briefings zones. The purpose of a shutdown zone vibratory hammer on days when it is between construction supervisors and is generally to define an area within anticipated that multiple vibratory crews and the marine mammal which shutdown of the activity would hammers will be used, whether at a monitoring team prior to the start of all occur upon sighting of a marine single site or multiple sites; pile driving activity and when new mammal (or in anticipation of an animal • personnel join the work, to explain entering the defined area). In some A 35-meter shutdown zone will be responsibilities, communication instances, however, large zone sizes will implemented for harbor seals and gray procedures, marine mammal monitoring make it impossible to monitor the seals to prevent direct injury; protocol, and operational procedures; entirety of the Level A harassment • An 85-meter shutdown zone will be • For those marine mammals for zones. implemented for harbor porpoise to which Level A or Level B harassment During use of a single hammer the prevent direct injury; and take has not been requested, in-water following measures will be employed by • pile installation/removal will shut down HRCP: A 55-meter shutdown zone will be immediately if such species are • A minimum 10-meter shutdown implemented for humpback whales to observed within or entering the Level A zone will be implemented for all prevent direct injury; or Level B harassment zone; and species, pile sizes, and hammer types to Calculated Level A harassment zones • If take reaches the authorized limit prevent direct injury of marine and shutdown zones for each activity for an authorized species, pile mammals; and pile size and type are depicted in • installation/removal will shut down A 15-meter shutdown zone will be Table 32 and Table 33. Note that immediately if these species approach implemented for seals to prevent direct shutdown zones in Table 33 include a the Level A or Level B harassment zone injury; 7 dB reduction due to the use of bubble • A 100-meter shutdown zone will be to avoid additional take. curtains. Compare shutdown zones in The following mitigation measures implemented for harbor porpoises when Table 32 with Level A harassment zones apply to HRCP’s in-water construction utilizing a DTH hammer and impact activities. hammering to prevent direct injury; and contained in Tables 16, 17 and 18. • When the Level A harassment zone Under some pile driving scenarios, the Time Restriction is larger than 50 meters, shutdown Level A harassment zones are larger For pile driving, work would occur zones have been rounded up relative to than the specified shutdown zones. only during daylight hours, when visual the calculated Level A harassment zones

TABLE 32—SHUTDOWN ZONES WITH NO ATTENUATION FOR ALL SPECIES

Level A harassment isopleth distance Number of (meters) Minutes (min) piles installed Method Pile size and type per pile or or removed Cetaceans strikes per pile per day Pinnipeds LF MF HF

Vibratory Installa- 24-inch Pipe, Steel 15 min ...... 6 1 10/55 10 2 14/85 3 15/35 tion and Re- moval. 30-inch Pipe, 30 min ...... 6 15/55 ...... 21/85 ...... Steel, Concrete 36/55 60/85 Filled. 36-inch Pipe, Steel 2.5 min ...... 8 10/55 ...... 13/85 ...... 2.5 min...... 16 14/55 ...... 20/85 ...... 25 min...... 1 10/55 ...... 15/85 ...... 2 16/55 ...... 23/85 ...... 3 20/55 ...... 30/85 ...... 30 min...... 2 18/55 ...... 26/85 ...... 42-inch Pipe, Steel 15 min ...... 6 27/55 ...... 39/85 ...... Sheet, Steel ...... 15 min ...... 10 11/55 ...... 16/85 ...... 16-inch CCA, Tim- 15 min ...... 4 10/55 ...... 12/85 ...... ber. Jetting ...... 42-inch Pipe, Steel 15 min ...... 1 10 ...... 10 ...... Down-the-Hole In- 30-inch Pipe, 36,000 strikes * 6 1,950 70 100 ...... stallation. Steel, Concrete Filled. 36-inch Pipe, Steel 2 940 34 ...... 60-inch Pipe, Steel 3 6,640 240 ...... Impact Installation 24-inch Pipe, Steel 20 strikes ...... 6 100 10 ......

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TABLE 32—SHUTDOWN ZONES WITH NO ATTENUATION FOR ALL SPECIES—Continued

Level A harassment isopleth distance Number of (meters) Minutes (min) piles installed Method Pile size and type per pile or or removed Cetaceans strikes per pile per day Pinnipeds LF MF HF

30-inch Pipe, 390 14 ...... Steel, Concrete Filled. 36-inch Pipe, Steel 2 120 10 ...... 36-inch Pipe, Steel 3 160 10 ...... 24-inch Pipe, Con- 1,050 strikes .... 1 80 10 ...... crete Square. 54-inch Pipe, Con- 420 15 ...... crete Cylinder. 1 A 55-meter shutdown zone will be implemented for humpback whales during concurrent vibratory driving of two or more hammers. 2 A 85-meter shutdown zone will be implemented for harbor porpoise during concurrent vibratory driving of two or more hammers. 3 A 35-meter shutdown zone will be implemented for harbor seals and gray seals during concurrent vibratory driving of two or more hammers.

TABLE 33—SHUTDOWN ZONES WITH ATTENUATION FOR ALL SPECIES

Level A harassment isopleth distance (meters) Strikes Number of Method Pile size and type per pile piles per day Cetaceans Pinnipeds LF MF HF PW

Impact Installation 24-inch Pipe, Steel 20 strikes ...... 6 35 10 40 20 30-inch Pipe, Steel, 135 10 160 75 Concrete Filled. 36-inch Pipe, Steel 20 strikes ...... 2 40 10 50 25

Protected Species Observers threshold during vibratory driving and harassment. Bubble curtains will meet DTH pile installation. the following requirements: The placement of PSOs during all pile • The Level A and Level B harassment The bubble curtain must distribute driving and removal activities air bubbles around 100 percent of the (described in the Monitoring and monitoring zones are given in Tables 16–19. piling perimeter for the full depth of the Reporting section) will ensure that the water column; entire shutdown zone is visible during Monitoring for Level B Harassment • The lowest bubble ring shall be in pile driving and removal. Should contact with the mudline and/or rock environmental conditions deteriorate HRCP will monitor the Level B bottom for the full circumference of the such that marine mammals within the harassment zones to the extent ring, and the weights attached to the entire shutdown zone would not be practicable, as well as Level A bottom ring shall ensure 100 percent visible (e.g., fog, heavy rain), pile harassment zones extending beyond mudline and/or rock bottom contact. No driving and removal must be delayed shutdown zones. HRCP will monitor at parts of the ring or other objects shall until the PSO is confident marine least a portion of the Level B harassment prevent full mudline and/or rock bottom mammals within the shutdown zone zone on all pile driving days. contact; could be detected. However, if work on Monitoring zones provide utility for • The bubble curtain shall be a pile has already begun, work is observing by establishing monitoring operated such that there is proper allowed to continue until that pile is protocols for areas adjacent to the (equal) balancing of air flow to all installed. shutdown zones. Monitoring zones bubblers; and enable observers to be aware of and • The applicant shall require that Establishment of Level A and Level B communicate the presence of marine Harassment Zones construction contractors train personnel mammals in the project area outside the in the proper balancing of air flow to the HRCP will establish monitoring zones shutdown zone and thus prepare for a bubblers and corrections to the based on calculated Level A harassment potential cessation of activity should the attenuation device to meet the isopleths associated with specific pile animal enter the shutdown zone. performance standards. This shall occur driving activities and scenarios. These Bubble Curtains prior to the initiation of pile driving are areas beyond the established activities. shutdown zones in which animals could Use of air bubble curtain systems will be exposed to sound levels that could be implemented by HRCP during impact Soft-Start result in Level A harassment in the form driving of steel piles except in situations The use of soft-start procedures are of PTS. HRCP will also establish and where the water depth is less than 20 ft believed to provide additional monitor Level B harassment zones in depth. The use of this sound protection to marine mammals by which are areas where SPLs are equal to attenuation device will reduce SPLs and providing warning and/or giving marine or exceed the 160 dB rms threshold for the size of the zones of influence for mammals a chance to leave the area impact driving and 120 dB rms Level A harassment and Level B prior to the hammer operating at full

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capacity. For impact pile driving, HRCP restrict full visibility of the shut-down • Mitigation and monitoring will be required to provide an initial set zone(s) until the entire shut-down effectiveness. of strikes from the hammer at reduced zone(s) is visible. HRCP will submit a Marine Mammal energy, with each strike followed by a Based on our evaluation of HRCP’s Monitoring Plan which must be 30-second waiting period. This planned measures, as well as other approved by NMFS in advance of the procedure will be conducted a total of measures considered by NMFS, NMFS start of construction. three times before impact pile driving has determined that the planned Visual Monitoring begins. Soft start will be implemented at mitigation measures provide the means the start of each day’s impact pile of effecting the least practicable impact Marine mammal monitoring during driving and at any time following on the affected species or stocks and pile driving and removal must be cessation of impact pile driving for a their habitat, paying particular attention conducted by PSOs in a manner period of 30 minutes or longer. Soft start to rookeries, mating grounds, and areas consistent with the following: • is not required during vibratory or DTH of similar significance. Independent PSOs (i.e., not pile driving activities. construction personnel) who have no If a marine mammal is present within Monitoring and Reporting other assigned tasks during monitoring the shutdown zone, ramping up will be In order to issue an LOA for an periods must be used; • delayed until the PSO has determined, activity, section 101(a)(5)(A) of the At least one PSO must have prior through sighting, that the animal(s) has MMPA states that NMFS must set forth experience performing the duties of a moved outside the shutdown zone. If a requirements pertaining to the PSO during construction activity marine mammal is present in the Level monitoring and reporting of such taking. pursuant to a NMFS-issued incidental A or Level B harassment zone, ramping take authorization; NMFS’ MMPA implementing • up may begin and a Level A or Level B regulations further describe the Other PSOs may substitute harassment take will be recorded. If a information that an applicant should education (degree in biological science marine mammal is present in the Level provide when requesting an or related field) or training for A or Level B harassment zone, HRCP experience; authorization (50 CFR 216.104 (a)(13)), • may elect to delay ramping up to avoid including the means of accomplishing Where a team of three or more PSOs a Level A or Level B harassment take. the necessary monitoring and reporting is required, a lead observer or To avoid a take by Level A or Level B that will result in increased knowledge monitoring coordinator must be harassment, ramping up will begin only of the species and the level of taking or designated. The lead observer must have after the PSO has determined, through impacts on populations of marine prior experience working as a marine sighting, that the animal(s) has moved mammals. Monitoring and reporting mammal observer during construction; outside the corresponding Level A or requirements prescribed by NMFS and • HRCP must submit PSO Curriculum Level B harassment zone or 15 minutes should contribute to improved Vitae for approval by NMFS prior to the have passed. understanding of one or more of the onset of pile driving. following: Pre-Activity Monitoring PSOs must have the following • Occurrence of marine mammal Prior to the start of daily in-water additional qualifications: construction activity, or whenever a species or stocks in the area in which • Ability to conduct field break in pile driving of 30 minutes or take is anticipated (e.g., presence, observations and collect data according longer occurs, PSOs will observe the abundance, distribution, density); • to assigned protocols; shutdown and monitoring zones for a Nature, scope, or context of likely • Experience or training in the field period of 30 minutes. The shutdown marine mammal exposure to potential identification of marine mammals, zone will be cleared when a marine stressors/impacts (individual or including the identification of mammal has not been observed within cumulative, acute or chronic), through behaviors; the zone for that 30-minute period. If a better understanding of: (1) Action or • Sufficient training, orientation, or marine mammal is observed within the environment (e.g., source experience with the construction shutdown zone, a soft-start cannot characterization, propagation, ambient operation to provide for personal safety proceed until the animal has left the noise); (2) affected species (e.g., life during observations; zone or has not been observed for 15 history, dive patterns); (3) co-occurrence • Writing skills sufficient to prepare a minutes. If the Level A and Level B of marine mammal species with the report of observations including but not harassment zones have been observed action; or (4) biological or behavioral limited to the number and species of for 30 minutes and non-permitted context of exposure (e.g., age, calving or marine mammals observed; dates and species are not present within the zone, feeding areas); times when in-water construction soft start procedures can commence and • Individual marine mammal activities were conducted; dates, times, work can continue even if visibility responses (behavioral or physiological) and reason for implementation of becomes impaired within the Level A or to acoustic stressors (acute, chronic, or mitigation (or why mitigation was not Level B harassment monitoring zones. cumulative), other stressors, or implemented when required); and When a marine mammal permitted for cumulative impacts from multiple marine mammal behavior; and take by Level A or Level B harassment stressors; • Ability to communicate orally, by is present in the Level A or Level B • How anticipated responses to radio or in person, with project harassment zone, activities may begin stressors impact either: (1) Long-term personnel to provide real-time and Level A or Level B harassment take fitness and survival of individual information on marine mammals will be recorded as appropriate. If work marine mammals; or (2) populations, observed in the area as necessary. ceases for more than 30 minutes, the species, or stocks; PSOs will be positioned at the best pre-activity monitoring of both the Level • Effects on marine mammal habitat practical vantage point(s). The B harassment and shutdown zone will (e.g., marine mammal prey species, position(s) may vary based on commence again. Additionally, in-water acoustic habitat, or other important construction activity and location of construction activity must be delayed or physical components of marine piles or equipment. At least one of the cease, if poor environmental conditions mammal habitat); and monitoring locations will have an

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unobstructed view of the pile being as observer requirements when individual animals taken and the driven, and an unobstructed view of the construction is taking place within the number of incidences of take, such as Level A shutdown and Level B bay. The Bay is relatively small and will ability to track groups or individuals. harassment zones, Core Monitoring be monitored from the construction site If no comments are received from Area, as well as the 100-meter shutdown by one to two observers. NMFS within 30 days, the draft report zone. will constitute the final report. If Between one and five PSOs will be Reporting comments are received, a final report stationed at locations offering the best HRCP would submit an annual draft addressing NMFS comments must be available views of the Level A and Level report for each construction year to submitted within 30 days after receipt of B harassment monitoring zones during NMFS within 90 calendar days of the comments. in-water pile installation and removal, completion of marine mammal In the event that personnel involved depending on where active in-water monitoring. A final annual report will in the construction activities discover work is taking place. It is anticipated be prepared and submitted to NMFS an injured or dead marine mammal, that a PSO will observe from the North within 30 days following receipt of HRCP shall report the incident to the Island when in-water pile installation is comments on the draft report from Office of Protected Resources (OPR) occurring at the North Island and North NMFS. (301–427–8401), NMFS and to the Trestle. If the view field is adequate, The report will detail the monitoring Greater Atlantic Region New England/ Level A and Level B harassment zones protocol and summarize the data Mid-Atlantic Regional Stranding may be monitored for multiple pile recorded during monitoring. Coordinator as soon as feasible. If the driving locations by the same individual Specifically, the report must include death or injury was clearly caused by PSO. Two PSOs will be located at the • Dates and times (begin and end) of the specified activity, HRCP must South Island, where they will monitor all marine mammal monitoring; immediately cease the specified for marine mammals passing into and • Construction activities occurring activities until NMFS is able to review out of the Core Monitoring Area as well during each daily observation period, the circumstances of the incident and as monitor the active hammer sites. This including how many and what type of determine what, if any, additional location also provides good views to the piles were driven or removed and by measures are appropriate to ensure east for monitoring when zones extend what method (i.e., impact or vibratory); compliance with the terms of the • beyond the Core Monitoring Area into Environmental conditions during authorization. HRCP must not resume Chesapeake Bay. One PSO will be monitoring periods (at beginning and their activities until notified by NMFS. stationed on Willoughby Spit or a end of PSO shift and whenever The report must include the following similar location that offers the best conditions change significantly), information: available views of the Level A and Level including Beaufort sea state and any i. Time, date, and location (latitude/ B harassment monitoring zones during other relevant weather conditions longitude) of the first discovery (and in-water pile installation and removal including cloud cover, fog, sun glare, updated location information if known within Willoughby Bay. Finally, on days and overall visibility to the horizon, and and applicable); when use of multiple hammers is estimated observable distance (if less ii. Species identification (if known) or planned and it is anticipated that the than the harassment zone distance); and description of the animal(s) involved; Level B harassment isopleth will percentages of Level A and Level B iii. Condition of the animal(s) encompass the CBBT, a PSO will be harassment zones that are not visible; (including carcass condition if the located on one of the CBBT Portal • The number of marine mammals animal is dead); Islands to monitor the extended observed, by species, relative to the pile iv. Observed behaviors of the ensonified area. A central position will location and if pile driving or removal animal(s), if alive; generally be staffed by the lead PSO, was occurring at time of sighting; v. If available, photographs or video who will monitor the shutdown zones • Age and sex class, if possible, of all footage of the animal(s); and and communicate with construction marine mammals observed; vi. General circumstances under personnel about shutdowns and take • PSO locations during marine which the animal was discovered. management. PSOs at the pile mammal monitoring; Negligible Impact Analysis and • Distances and bearings of each installation and removal locations will Determination be able to see at least a radius around marine mammal observed to the pile the construction site that exceeds the being driven or removed for each NMFS has defined negligible impact largest Level A harassment zone. PSOs sighting (if pile driving or removal was as an impact resulting from the will watch for marine mammals occurring at time of sighting); specified activity that cannot be entering and leaving the James River • Description of any marine mammal reasonably expected to, and is not and will alert the lead PSO of the behavior patterns during observation, reasonably likely to, adversely affect the number and species sighted, so that no including direction of travel and species or stock through effects on unexpected marine mammals will estimated time spent within the Level A annual rates of recruitment or survival approach the construction site. This will and Level B harassment zones while the (50 CFR 216.103). A negligible impact minimize Level A harassment take of all source was active; finding is based on the lack of likely species. • Number of marine mammals adverse effects on annual rates of Decibel addition is not a detected within the harassment zones, recruitment or survival (i.e., population- consideration when sound fields do not by species; level effects). An estimate of the number overlap at the sound sources. • Detailed information about any of takes alone is not enough information Willoughby Bay is largely surrounded implementation of any mitigation on which to base an impact by land, and sound will be prevented triggered (e.g., shutdowns and delays), a determination. In addition to from propagating to other Project description of specific actions that considering estimates of the number of construction sites. Therefore, ensued, and resulting behavior of the marine mammals that might be ‘‘taken’’ Willoughby Bay will be treated as an animal, if any; and through harassment, NMFS considers independent site with its own • Description of attempts to other factors, such as the likely nature monitoring and shutdown zones, as well distinguish between the number of of any responses (e.g., intensity,

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duration), the context of any responses Localized noise exposures produced by exacerbate or compound upon the (e.g., critical reproductive time or project activities may cause short-term ongoing UME. location, migration), as well as effects behavioral modifications in affected With regard to humpback whales, the on habitat, and the likely effectiveness cetaceans and pinnipeds. However, as UME does not yet provide cause for of the mitigation. We also assess the described previously, the mitigation and concern regarding population-level number, intensity, and context of monitoring measures are expected to impacts. Despite the UME, the relevant estimated takes by evaluating this further reduce the likelihood of injury population of humpback whales (the information relative to population as well as reduce behavioral West Indies breeding population, or status. Consistent with the 1989 disturbances. distinct population segment (DPS)) preamble for NMFS’s implementing Effects on individuals that are taken remains healthy. Prior to 2016, regulations (54 FR 40338; September 29, by Level B harassment, on the basis of humpback whales were listed under the 1989), the impacts from other past and reports in the literature as well as ESA as an endangered species ongoing anthropogenic activities are monitoring from other similar activities, worldwide. Following a 2015 global incorporated into this analysis via their will likely be limited to reactions such status review (Bettridge et al., 2015), impacts on the environmental baseline as increased swimming speeds, NMFS established 14 DPSs with (e.g., as reflected in the regulatory status increased surfacing time, or decreased different listing statuses (81 FR 62259; of the species, population size and foraging (if such activity were occurring) September 8, 2016) pursuant to the ESA. growth rate where known, ongoing (e.g., Thorson and Reyff 2006). The West Indies DPS, which consists of sources of human-caused mortality, or Individual animals, even if taken the whales whose breeding range ambient noise levels). multiple times, will most likely move includes the Atlantic margin of the To avoid repetition, this introductory away from the sound source and be Antilles from Cuba to northern discussion of our analyses applies to all temporarily displaced from the areas of Venezuela, and whose feeding range of the species listed in Table 31, given pile driving, although even this reaction primarily includes the Gulf of Maine, that many of the anticipated effects of has been observed primarily only in eastern Canada, and western Greenland, this project on different marine mammal association with impact pile driving. was delisted. The status review stocks are expected to be relatively The pile driving activities analyzed here identified harmful algal blooms, vessel similar in nature. Where there are are similar to, or less impactful than, collisions, and fishing gear meaningful differences between species numerous other construction activities entanglements as relevant threats for or stocks in anticipated individual conducted along the Atlantic coast, this DPS, but noted that all other threats responses to activities, impact of which have taken place with no known are considered likely to have no or expected take on the population due to long-term adverse consequences from minor impact on population size or the differences in population status, or behavioral harassment. Furthermore, growth rate of this DPS (Bettridge et al., impacts on habitat, they are described many projects similar to this one are 2015). As described in Bettridge et al. independently in the analysis below. also believed to result in multiple takes (2015), the West Indies DPS has a Pile driving activities associated with of individual animals without any substantial population size (i.e., 12,312 the project, as outlined previously, have documented long-term adverse effects. (95 percent CI 8,688–15,954) whales in the potential to disturb or displace Level B harassment will be minimized 2004–05 (Bettridge et al. 2003)), and marine mammals. Specifically, the through use of mitigation measures appears to be experiencing consistent specified activities may result in take, in described herein and, if sound produced growth. Further, NMFS is authorizing the form of Level B harassment from by project activities is sufficiently no more than 37 takes by Level A and underwater sounds generated by pile disturbing, animals are likely to simply Level B harassment annually of driving. Potential takes could occur if avoid the area while the activity is humpback whale. marine mammals are present in zones occurring, particularly as the project is For the WNA stock of harbor seals, ensonified above the thresholds for located on a busy waterfront with high the estimated abundance is 75,834 Level B harassment, identified above, amounts of vessel traffic. individuals. The estimated M/SI for this while activities are underway. No As previously described, UMEs have stock (350) is well below the PBR serious injury or mortality would be been declared for Northeast pinnipeds (2,006). As such, authorized Level A expected even in the absence of (including harbor seal and gray seal) and Level B harassment takes of harbor mitigation measures. and Atlantic humpback whales. seal are not expected to exacerbate or A limited number of animals could However, we do not expect authorized compound upon the ongoing UMEs. experience Level A harassment in the takes to exacerbate or compound upon The project is also not expected to form of PTS if they remain within the these ongoing UMEs. As noted have significant adverse effects on Level A harassment zone long enough previously, no injury, serious injury, or affected marine mammals’ habitats. The during certain impact driving scenarios. mortality is expect or authorized, and project activities will not modify However, the number of animal affected Level A and Level B harassment takes existing marine mammal habitat for a and the degree of injury is expected to of humpback whale, harbor seal and significant amount of time. The be limited to, at most, mild PTS. gray seal will be reduced to the level of activities may cause some fish to leave Furthermore, the reproduction or least practicable adverse impact through the area of disturbance, thus temporarily survival of the individual animals is not the incorporation of the required impacting marine mammals’ foraging likely to affected. It is expected that, if mitigation measures. For the WNA stock opportunities in a limited portion of the hearing impairments occurs, most likely of gray seal, the estimated stock foraging range; but, because of the the affected animal would lose a few dB abundance is 451,431 animals, relatively small area of the habitat that in its hearing sensitivity, which in most including the Canadian portion of the may be affected (with no known cases is not likely to affect its survival stock (estimated 27,131 animals in the particular importance to marine and recruitment. U.S. portion of the stock). Given that mammals), the impacts to marine HRCP’s planned pile driving activities only 7 takes by Level B harassment and mammal habitat are not expected to and associated impacts will occur two takes by Level A harassment are cause significant or long-term negative within a limited portion of the authorized for this stock annually, we consequences. Furthermore, there are no confluence of the Chesapeake Bay area. do not expect this authorization to known biologically important areas

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(BIAs), ESA-designated critical habitat, harbor seal, and gray seal comprises less coastal waters north of Cape Lookout, rookeries, or features of special than one-third of the best available stock North Carolina, to Assateague, Virginia, significance for foraging or abundance estimate for each of these including the Chesapeake Bay. There is reproduction. stocks (Table 31). The maximum likely some overlap between the In summary and as described above, number of animals authorized to be northern and southern migratory stocks the following factors primarily support taken from these stocks would be during spring and fall migrations, but our determination that the impacts considered small relative to the relevant the extent of overlap is unknown. resulting from this activity are not stock’s abundances even if each The Chesapeake Bay and waters expected to adversely affect the species estimated taking occurred to a new offshore of its mouth are located on the or stock through effects on annual rates individual, which is an unlikely periphery of the migratory ranges of of recruitment or survival: scenario. both coastal stocks (although during • No serious injury or mortality is Three bottlenose dolphin stocks could different seasons). Additionally, each of anticipated or authorized; occur in the project area: WNA Coastal the migratory coastal stocks are likely to • Authorized Level A harassment Northern Migratory, WNA Coastal be located in the vicinity of the would be limited and of low degree; Southern Migratory, and NNCES stocks. Chesapeake Bay for relatively short • The intensity of anticipated takes Therefore, the estimated takes of timeframes. Given the limited number by Level B harassment is relatively low bottlenose dolphin by Level B of animals from each migratory coastal for all stocks; harassment would likely be portioned stock likely to be found at the seasonal • The number of anticipated takes is among these stocks. Based on the stocks’ migratory boundaries of their respective very low for humpback whale, harbor respective occurrence in the area, NMFS ranges, in combination with the short porpoise, and gray seal; estimated that there would be no more time periods (∼two months) animals • The specified activity and than 200 takes from the NNCES stock might remain at these boundaries, it is associated ensonifed areas are very each year over the five-year period, with reasonable to assume that takes are small relative to the overall habitat the remaining takes evenly split likely to occur to only a small portion ranges of all species and do not include between the northern and southern of either of the migratory coastal stocks. habitat areas of special significance; migratory coastal stocks. Based on Both migratory coastal stocks likely • The lack of anticipated significant consideration of various factors overlap with the NNCES stock at or long-term negative effects to marine described below, we have determined various times during their seasonal mammal habitat; and the maximum number of individuals migrations. The NNCES stock is defined • The presumed efficacy of the taken per year would likely comprise as animals that primarily occupy waters mitigation measures in reducing the less than one-third of the best available of the Pamlico Sound estuarine system effects of the specified activity. population abundance estimate of either (which also includes Core, Roanoke, Based on the analysis contained coastal migratory stock. and Albemarle sounds, and the Neuse herein of the likely effects of the Both the WNA Coastal Northern River) during warm water months (July- specified activity on marine mammals Migratory and WNA Coastal Southern August). Animals from this stock also and their habitat, and taking into Migratory stocks have expansive ranges use coastal waters (≤1 km from shore) of consideration the implementation of the and they are the only dolphin stocks North Carolina from Beaufort north to planned monitoring and mitigation thought to make broad-scale, seasonal Virginia Beach, Virginia, including the measures, NMFS finds that the total migrations in coastal waters of the lower Chesapeake Bay. Comparison of marine mammal take from the planned western North Atlantic. Given the large dolphin photo-identification data activity will have a negligible impact on ranges associated with these stocks it is confirmed that limited numbers of all affected marine mammal species or unlikely that large segments of either individual dolphins observed in stocks. stock would approach the project area Roanoke Sound have also been sighted and enter into the Chesapeake Bay. The in the Chesapeake Bay (Young, 2018). Small Numbers majority of both stocks are likely to be Like the migratory coastal dolphin As noted above, only small numbers found widely dispersed across their stocks, the NNCES stock covers a large of incidental take may be authorized respective habitat ranges and unlikely to range. The spatial extent of most small under section 101(a)(5)(A) of the MMPA be concentrated in or near the and resident bottlenose dolphin for specified activities other than Chesapeake Bay. populations is on the order of 500 km2, military readiness activities. The MMPA Furthermore, the Chesapeake Bay and while the NNCES stock occupies over does not define small numbers and so, nearby offshore waters represent the 8,000 km2 (LeBrecque et al., 2015). in practice, where estimated numbers boundaries of the ranges of each of the Given this large range, it is again are available, NMFS compares the two coastal stocks during migration. The unlikely that a preponderance of number of individuals taken to the most WNA Coastal Northern Migratory stock animals from the NNCES stock would appropriate estimation of abundance of occurs during warm water months from depart the North Carolina estuarine the relevant species or stock in our coastal Virginia, including the system and travel to the northern extent determination of whether an Chesapeake Bay to Long Island, New of the stock’s range. However, recent authorization is limited to small York. The stock migrates south in late evidence suggests that there is likely a numbers of marine mammals. When the summer and fall. During cold-water small resident community of NNCES predicted number of individuals to be months, dolphins may occur in coastal dolphins of indeterminate size that taken is fewer than one third of the waters from Cape Lookout, North inhabits the Chesapeake Bay year-round species or stock abundance, the take is Carolina, to the North Carolina/Virginia (E. Patterson, NMFS, pers. comm.). considered to be of small numbers. border. During January–March, the Many of the dolphin observations in Additionally, other qualitative factors WNA Coastal Southern Migratory stock the Bay are likely repeated sightings of may be considered in the analysis, such appears to move as far south as northern the same individuals. The Potomac- as the temporal or spatial scale of the Florida. From April to June, the stock Chesapeake Dolphin Project has activities. moves back north to North Carolina. observed over 1,200 unique animals The maximum annual take of take of During the warm water months of July– since observations began in 2015. Re- humpback whale, harbor porpoise, August, the stock is presumed to occupy sightings of the same individual can be

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highly variable. Some dolphins are such species or stocks for taking for Endangered Species Act observed once per year, while others are subsistence purposes. Section 7(a)(2) of the Endangered highly regular with greater than 10 Adaptive Management Species Act of 1973 (ESA: 16 U.S.C. sightings per year (J. Mann, Potomac- 1531 et seq.) requires that each Federal The regulations governing the take of Chesapeake Dolphin Project, pers. agency insure that any action it marine mammals incidental to HRCP comm.). Similarly, using available authorizes, funds, or carries out is not construction activities would contain an photo-identification data, Engelhaupt et likely to jeopardize the continued adaptive management component. The al. (2016) determined that specific existence of any endangered or reporting requirements associated with individuals were often observed in close threatened species or result in the this final rule are designed to provide proximity to their original sighting destruction or adverse modification of NMFS with monitoring data from locations and were observed multiple designated critical habitat. To ensure completed projects to allow times in the same season or same year. ESA compliance for the issuance of consideration of whether any changes Ninety-one percent of re-sighted incidental take authorizations, NMFS are appropriate. The use of adaptive individuals (100 of 110) in the study consults internally whenever we management allows NMFS to consider area were recorded less than 30 km from propose to authorize take for new information from different sources the initial sighting location. Multiple endangered or threatened species. sightings of the same individual would to determine (with input from HRCP No incidental take of ESA-listed considerably reduce the number of regarding practicability) on an annual or species is planned for authorization or individual animals that are taken by biennial basis if mitigation or expected to result from this activity. Level B harassment. Furthermore, the monitoring measures should be Therefore, NMFS has determined that existence of a resident dolphin modified (including additions or formal consultation under section 7 of population in the Bay would increase deletions). Mitigation measures could be the ESA is not required for this action. the percentage of dolphin takes that are modified if new data suggests that such Classification actually re-sightings of the same modifications would have a reasonable individuals in any given year. likelihood of reducing adverse effects to Pursuant to the procedures marine mammals and if the measures In summary and as described above, established to implement Executive are practicable. the following factors primarily support Order 12866, the Office of Management The following are some of the and Budget has determined that this our determination regarding the possible sources of applicable data to be incidental take of small numbers of the rule is not significant. considered through the adaptive Pursuant to section 605(b) of the affected stocks of bottlenose dolphin: management process: (1) Results from • Potential bottlenose dolphin takes Regulatory Flexibility Act (RFA), the monitoring reports, as required by Chief Counsel for Regulation of the in the project area are likely to be MMPA authorizations; (2) results from allocated among three distinct stocks; Department of Commerce certified to general marine mammal and sound the Chief Counsel for Advocacy of the • Bottlenose dolphin stocks in the research; and (3) any information which Small Business Administration at the project area have extensive ranges and reveals that marine mammals may have proposed rule stage that this action will it would be unlikely to find a high been taken in a manner, extent, or not have a significant economic impact percentage of any one stock number not authorized by these on a substantial number of small concentrated in a relatively small area regulations or subsequent LOAs. entities. HRCP is the sole entity that such as the project area or the would be subject to the requirements in Chesapeake Bay; National Environmental Policy Act • these final regulations, and HRCP is not The Chesapeake Bay represents the To comply with the National a small governmental jurisdiction, small migratory boundary for each of the Environmental Policy Act of 1969 organization, or small business, as specified dolphin stocks and it would (NEPA; 42 U.S.C. 4321 et seq.) and defined by the RFA. No comments were be unlikely to find a high percentage of NOAA Administrative Order (NAO) received regarding this certification or any stock concentrated at such 216–6A, NMFS must review the on the economic impacts of the rule boundaries; and proposed action (i.e., the promulgation • more generally. As a result, a regulatory Many of the takes would likely be of regulations and subsequent issuance flexibility analysis is not required and repeats of the same animals and likely of an incidental take authorization) with none has been prepared. from a resident population of the respect to potential impacts on the Notwithstanding any other provision Chesapeake Bay. human environment. of law, no person is required to respond Based on the analysis contained This action is consistent with to nor shall a person be subject to a herein of the planned activity (including categories of activities identified in penalty for failure to comply with a the planned mitigation and monitoring Categorical Exclusion B4 (Incidental collection of information subject to the measures) and the anticipated take of harassment authorizations (IHAs) with requirements of the Paperwork marine mammals, NMFS finds that no anticipated serious injury or Reduction Act (PRA) unless that small numbers of marine mammals will mortality) of the Companion Manual for collection of information displays a be taken relative to the population size NOAA Administrative Order 216–6A, currently valid OMB control number. of the affected species or stocks. which do not individually or This final rule contains collection-of- cumulatively have the potential for information requirements subject to the Unmitigable Adverse Impact Analysis significant impacts on the quality of the and Determination provisions of the PRA. These human environment and for which we requirements have been approved by There are no relevant subsistence uses have not identified any extraordinary OMB under control number 0648–0151 of the affected marine mammal stocks or circumstances that would preclude this and include applications for regulations, species implicated by this action. categorical exclusion. Accordingly, subsequent LOAs, and reports. Therefore, NMFS has determined that NMFS has determined that the issuance the total taking of affected species or of regulations and the LAO qualifies to Waiver of Delay in Effective Date stocks would not have an unmitigable be categorically excluded from further The Assistant Administrator for adverse impact on the availability of NEPA review. Fisheries has determined that there is

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good cause under the Administrative Subpart W—Taking and Importing authorized by an LOA issued under Procedure Act to waive the 30-day delay Marine Mammals Incidental to §§ 216.106 of this chapter and 217.216, in the effective date (5 U.S.C. 553(d)(3)) Hampton Roads Connector Partners it is unlawful for any person to do any of the final rule. HRCP is the only entity Construction at Norfolk, Virginia of the following in connection with the subject to the regulations, and it has activities described in § 217.210: Sec. (1) Violate, or fail to comply with, the informed NMFS that it requests that this 217.210 Specified activity and geographical final rule take effect by March 2021 in terms, conditions, and requirements of region. this subpart or a LOA issued under order to prevent serious impacts that 217.211 Effective dates. would result from any stoppage in the 217.212 Permissible methods of taking. §§ 216.106 of this chapter and 217.216; (2) Take any marine mammal not project construction schedule. Any 217.213 Prohibitions. specified in such LOA; delay of enacting the final rule would 217.214 Mitigation requirements. (3) Take any marine mammal result in either: (1) Suspension of 217.215 Requirements for monitoring and reporting. specified in such LOA in any manner construction on a major road transport 217.216 Letters of Authorization. that is not authorized by the LOA; or infrastructure project at significantly 217.217 Renewals and modifications of (4) Take a marine mammal specified increased cost; or (2) HRCP’s procedural Letters of Authorization. in such LOA if NMFS determines such non-compliance with the MMPA 217.218–217.219 [Reserved] taking results in more than a negligible (should HRCP conduct pile driving and impact on the species or stocks of such Subpart W—Taking and Importing removal without an LOA), thereby marine mammal. Marine Mammals Incidental to resulting in the potential for (b) [Reserved] unauthorized takes of marine mammals. Hampton Roads Connector Partners Due to a project design change occurring Construction at Norfolk, Virginia § 217.214 Mitigation requirements. in September 2020, HRCP requested to § 217.210 Specified activity and (a) When conducting the activities transfer a portion of pile installation geographical region. identified in § 217.210(a), the mitigation measures contained in any LOA issued from the rulemaking/LOA application to (a) Regulations in this subpart apply under §§ 216.106 of this chapter and the recently issued IHA (85 FR 48153; only to the Hampton Roads Connector 217.216 must be implemented. These August 10, 2020). This resulted in the Partners (HRCP) and those persons it mitigation measures shall include but need for submitting a revised authorizes or funds to conduct activities are not limited to: application including re-calculation of on its behalf for the taking of marine (1) A copy of any issued LOA must be estimated take. Given this delay, NMFS mammals that occurs in the areas in the possession of HRCP, its was unable to accommodate the 30-day outlined in paragraph (b) of this section designees, and work crew personnel delay of effectiveness period and issue and that occurs incidental to operating under the authority of the construction activities including marine the LOA to HRCP in time to prevent a issued LOA. work stoppage and associated delay in structure maintenance, pile (2) HRCP shall conduct briefings for the project schedule. Moreover, HRCP is replacement, and select waterfront construction supervisors and crews, the ready to implement the rule improvements at the Hampton Roads monitoring team, and HRCP staff prior immediately. For these reasons, the Bridge Tunnel Expansion Project to the start of all pile driving activity, Assistant Administrator finds good (HRBT). and when new personnel join the work, (b) The taking of marine mammals by cause to waive the 30-day delay in the in order to explain responsibilities, HRCP may be authorized in a Letter of effective date. communication procedures, the marine Authorization (LOA) only if it occurs at mammal monitoring protocol, and List of Subjects in 50 CFR Part 217 the Hampton Roads Bridge Tunnel operational procedures. Expansion project location in the James Administrative practice and (3) For in-water heavy machinery River between Norfolk, VA and work other than pile driving, if a marine procedure, Marine mammals, Oil and Hampton, VA. gas exploration, Penalties, Reporting mammal comes within 10 meters (m), and recordkeeping requirements. § 217.211 Effective dates. HRCP shall cease operations and reduce vessel speed to the minimum level Dated: March 19, 2021. Regulations in this subpart are effective from April 2, 2021 through required to maintain steerage and safe Samuel D. Rauch, III, April 2, 2026. working conditions. Deputy Assistant Administrator for (4) For all pile driving activity, HRCP Regulatory Programs, National Marine § 217.212 Permissible methods of taking. shall implement a minimum shutdown Fisheries Service. (a) Under an LOA issued pursuant to zone of a 10 m radius around the pile. §§ 216.106 of this chapter and 217.216, If a marine mammal comes within or For reasons set forth in the preamble, the Holder of the LOA (hereinafter approaches the shutdown zone, such 50 CFR part 217 is amended as follows: ‘‘HRCP’’) may incidentally, but not operations shall cease. (5) For all pile driving activity, HRCP PART 217—REGULATIONS intentionally, take marine mammals within the area described in shall implement shutdown zones with GOVERNING THE TAKING AND radial distances as identified in a LOA IMPORTING OF MARINE MAMMALS § 217.210(b) by Level A and Level B harassment associated with construction issued under §§ 216.106 of this chapter and 217.216. If a marine mammal comes ■ activities, provided the activity is in 1. The authority citation for part 217 compliance with all terms, conditions, within or approaches the shutdown continues to read as follows: and requirements of the regulations in zone, such operations shall cease. Authority: 16 U.S.C. 1361 et seq., unless this subpart and the applicable LOA. (6) HRCP shall deploy protected otherwise noted. (b) [Reserved] species observers (observers) as indicated in its Marine Mammal ■ 2. Add subpart W, consisting of § 217.213 Prohibitions. Monitoring Plan approved by NMFS. §§ 217.210 through 217.219, to read as (a) Except for the takings (7) For all pile driving activities, follows: contemplated in § 217.22 and between one and four observers shall be

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stationed at the best vantage points mammals and implement shutdown or (b) [Reserved] practicable to monitor for marine delay procedures when applicable mammals and implement shutdown/ through communication with the § 217.215 Requirements for monitoring and reporting. delay procedures. equipment operator. HRCP shall adhere (8) Monitoring shall take place from to the following additional observer (a) HRCP shall submit a Marine 30 minutes prior to initiation of pile qualifications: Mammal Monitoring Plan to NMFS for driving activity through 30 minutes (i) Independent observers are approval in advance of construction. post-completion of pile driving activity. required; (b) HRCP shall deploy observers as Pre-activity monitoring shall be (ii) At least one observer must have indicated in its approved Marine conducted for 30 minutes to ensure that prior experience working as an observer; Mammal Monitoring Plan. the shutdown zone is clear of marine (iii) Other observers may substitute (c) Observers shall be trained in mammals, and pile driving may education (degree in biological science marine mammal identification and commence when observers have or related field) or training for behaviors. Observers shall have no other declared the shutdown zone clear of experience; construction-related tasks while marine mammals. In the event of a delay (iv) Where a team of three or more conducting monitoring. or shutdown of activity resulting from observers are required, one observer (d) HRCP shall monitor the Level B marine mammals in the shutdown zone, shall be designated as lead observer or harassment zones and Level A animals shall be allowed to remain in monitoring coordinator. The lead harassment zones extending beyond the the shutdown zone (i.e., must leave of observer must have prior experience designated shutdown zones to the their own volition) and their behavior working as an observer; and extent practicable. shall be monitored and documented. If (v) HRCP must submit PSO CVs for (e) HRCP shall monitor the shutdown a marine mammal is observed within approval by NMFS prior to the zones during all pile driving and the shutdown zone, a soft-start cannot beginning of pile driving and drilling. removal activities. proceed until the animal has left the (13) HRCP shall use soft start (f) HRCP shall submit a draft annual zone or has not been observed for 15 techniques for impact pile driving. Soft monitoring report to NMFS within 90 minutes. Monitoring shall occur start for impact driving requires HRCP work days of the completion of annual throughout the time required to drive a and those persons it authorizes to marine mammal monitoring. The report pile. If in-water pile installation and provide an initial set of three strikes at must detail the monitoring protocol and removal work ceases for more than 30 reduced energy, followed by a thirty- summarize the data recorded during minutes, the pre-activity monitoring of second waiting period, then two monitoring. If no comments are received the shutdown zones must commence. A subsequent reduced energy three-strike from NMFS within 30 days, the draft determination that the shutdown zone is sets. Soft start shall be implemented at report will constitute the final report. If clear must be made during a period of the start of each day’s impact pile comments are received, a final report good visibility (i.e., the entire shutdown driving and at any time following addressing NMFS comments must be zone and surrounding waters must be cessation of impact pile driving for a submitted within 30 days after receipt of visible to the naked eye). period of thirty minutes or longer. comments. Specifically, the report must (9) If a marine mammal approaches or (14) HRCP shall employ bubble include: enters the shutdown zone, all pile curtain systems during impact driving (1) Dates and times (begin and end) of driving activities at that location shall of steel piles except under conditions all marine mammal monitoring; be halted. In the event of a delay, the where the water depth is less than 20 (2) Construction activities occurring activity may not commence or resume feet in depth. Bubble curtains must meet during each daily observation period, until either the animal has voluntarily the following requirements: including how many and what type of left and been visually confirmed beyond (i) The bubble curtain must distribute piles were driven or removed and by the shutdown zone or fifteen minutes air bubbles around 100 percent of the what method (i.e., impact or vibratory); have passed without re-detection of the piling perimeter for the full depth of the (3) Environmental conditions during animal. water column. monitoring periods (at beginning and (10) Pile driving activity must be (ii) The lowest bubble ring must be in end of PSO shift and whenever halted upon observation of either a contact with the mudline and/or rock conditions change significantly), species for which incidental take is not bottom for the full circumference of the including Beaufort sea state and any authorized or a species for which ring, and the weights attached to the other relevant weather conditions incidental take has been authorized but bottom ring shall ensure 100 percent including cloud cover, fog, sun glare, the authorized number of takes has been mudline and/or rock bottom contact. No and overall visibility to the horizon, met, entering or within the harassment parts of the ring or other objects shall estimated observable distance (if less zone. prevent full mudline and/or rock bottom than the harassment zone distance), and (11) Should environmental conditions contact. percentages of Level A and Level B deteriorate (e.g., fog, heavy rain) such (iii) The bubble curtain must be harassment zones that are not visible; that observers are unable to visibly operated such that there is proper (4) The number of marine mammals detect marine mammals within the (equal) balancing of air flow to all observed, by species, relative to the pile entire shutdown zone then HRCP shall bubblers. location and if pile driving or removal delay pile driving and removal until (iv) HRCP shall require that was occurring at time of sighting; observers are confident marine construction contractors train personnel (5) Age and sex class, if possible, of mammals within the shutdown zone in the proper balancing of air flow to the all marine mammals observed; could be detected. bubblers and corrections to the (6) PSO locations during marine (12) Monitoring shall be conducted by attenuation device to meet the mammal monitoring; trained observers, who shall have no performance standards specified in an (7) Distances and bearings of each other assigned tasks during monitoring LOA issued under §§ 216.106 of this marine mammal observed to the pile periods. Trained observers shall be chapter and § 217.216. This shall occur being driven or removed for each placed at the best vantage point(s) prior to the initiation of pile driving sighting (if pile driving or removal was practicable to monitor for marine activities. occurring at time of sighting);

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(8) Description of any marine HRCP must apply for and obtain an regulations or result in no more than a mammal behavior patterns during LOA. minor change in the total estimated observation, including direction of (b) An LOA, unless suspended or number of takes (or distribution by travel and estimated time spent within revoked, may be effective for a period of species or years), NMFS may publish a the Level A and Level B harassment time not to exceed the expiration date notice of proposed LOA in the Federal zones while the source was active; of these regulations. Register, including the associated (9) Number of marine mammals (c) If an LOA expires prior to the analysis of the change, and solicit detected within the harassment zones, expiration date of these regulations, public comment before issuing the LOA. by species; HRCP may apply for and obtain a (c) An LOA issued under §§ 216.106 (10) Detailed information about any renewal of the LOA. of this chapter and 217.216 for the implementation of any mitigation (d) In the event of projected changes activity identified in § 217.210(a) may triggered (e.g., shutdowns and delays), a to the activity or to mitigation and be modified by NMFS under the description of specific actions that monitoring measures required by an following circumstances: ensued, and resulting behavior of the LOA, HRCP must apply for and obtain animal, if any; and (1) HRCP may modify (including a modification of the LOA as described augment) the existing mitigation, (11) Description of attempts to in § 217.217. distinguish between the number of monitoring, or reporting measures (after (e) The LOA shall set forth the consulting with NMFS regarding the individual animals taken and the following information: number of incidences of take, such as practicability of the modifications) if (1) Permissible methods of incidental doing so creates a reasonable likelihood ability to track groups or individuals; taking; (g) In the event that personnel of more effectively accomplishing the (2) Means of effecting the least goals of the mitigation and monitoring involved in the construction activities practicable adverse impact (i.e., discover an injured or dead marine set forth in the preamble for these mitigation) on the species, its habitat, regulations; mammal, HRCP shall report the incident and on the availability of the species for to the Office of Protected Resources subsistence uses; and (i) Possible sources of data that could (OPR) (301–427–8401), NMFS and to (3) Requirements for monitoring and contribute to the decision to modify the the Greater Atlantic Region New reporting. mitigation, monitoring, or reporting England/Mid-Atlantic Regional (f) Issuance of the LOA shall be based measures in a LOA: Stranding Coordinator as soon as on a determination that the level of (A) Results from HRCP’s monitoring feasible. If the death or injury was taking will be consistent with the from previous years; clearly caused by the specified activity, findings made for the total taking (B) Results from other marine HRCP must immediately cease the allowable under these regulations. mammal and/or sound research or specified activities until NMFS is able (g) Notice of issuance or denial of an studies; and to review the circumstances of the LOA shall be published in the Federal incident and determine what, if any, (C) Any information that reveals Register within thirty days of a additional measures are appropriate to marine mammals may have been taken determination. ensure compliance with the terms of the in a manner, extent or number not authorized by these regulations or authorization. HRCP must not resume § 217.217 Renewals and modifications of their activities until notified by NMFS. Letters of Authorization. subsequent LOAs; The report must include the following (a) An LOA issued under §§ 216.106 (ii) If, through adaptive management, information: of this chapter and 217.216 for the the modifications to the mitigation, (1) Time, date, and location (latitude/ activity identified in § 217.210(a) shall monitoring, or reporting measures are longitude) of the first discovery (and be renewed or modified upon request by substantial, NMFS will publish a notice updated location information if known the applicant, provided that: of proposed LOA in the Federal and applicable); (1) The planned specified activity and Register and solicit public comment. (2) Species identification (if known) mitigation, monitoring, and reporting (2) If NMFS determines that an or description of the animal(s) involved; measures, as well as the anticipated emergency exists that poses a significant (3) Condition of the animal(s) impacts, are the same as those described risk to the well-being of the species or (including carcass condition if the and analyzed for these regulations; and stocks of marine mammals specified in animal is dead); a LOA issued pursuant to §§ 216.106 of (4) Observed behaviors of the (2) NMFS determines that the mitigation, monitoring, and reporting this chapter and 217.216, a LOA may be animal(s), if alive; modified without prior notice or (5) If available, photographs or video measures required by the previous LOA under these regulations were opportunity for public comment. Notice footage of the animal(s); and would be published in the Federal (6) General circumstances under implemented. Register within thirty days of the action. which the animal was discovered. (b) For LOA modification or renewal requests by the applicant that include § 217.218–§ 217.219 [Reserved] § 217.216 Letters of Authorization. changes to the activity or the mitigation, (a) To incidentally take marine monitoring, or reporting that do not [FR Doc. 2021–06132 Filed 4–1–21; 8:45 am] mammals pursuant to these regulations, change the findings made for the BILLING CODE 3510–22–P

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