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FEDERAL COMMUNICATIONS DEPARTMENT OF COMMERCE otherwise sensitive information COMMISSION submitted voluntarily by the sender will National Oceanic and Atmospheric be publicly accessible. NMFS will 47 CFR Part 73 Administration accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish [MB Docket No. 19–310 and 17–105; Report 50 CFR Part 218 to remain anonymous). Attachments to No. 3164; FRS 17301] [Docket No. 201207–0329] electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF Petition for Reconsideration of Action RIN 0648–BJ90 file formats only. in Proceedings FOR FURTHER INFORMATION CONTACT: Takes of Marine Mammals Incidental to Leah Davis, Office of Protected Specified Activities; Taking Marine AGENCY: Federal Communications Resources, NMFS, (301) 427–8401. Mammals Incidental to U.S. Navy Commission. Construction at Naval Station Norfolk SUPPLEMENTARY INFORMATION: ACTION: Petition for Reconsideration. in Norfolk, Virginia Availability AGENCY: National Marine Fisheries A copy of the Navy’s application and SUMMARY: Petition for Reconsideration Service (NMFS), National Oceanic and any supporting documents, as well as a (Petition) has been filed in the Atmospheric Administration (NOAA), list of the references cited in this Commission’s proceeding by Rachel Commerce. document, may be obtained online at: Stilwell and Samantha Gutierrez, on ACTION: Proposed rule; request for https://www.fisheries.noaa.gov/action/ behalf of REC Networks, musicFIRST comments. incidental-take-authorization-us-navy- Coalition and Future of Music Coalition. construction-naval-station-norfolk- SUMMARY: NMFS has received a request norfolk-virginia. In case of problems DATES: Oppositions to the Petition must from the U.S. Navy (Navy) for accessing these documents, please call be filed on or before January 5, 2021. authorization to take marine mammals the contact listed above (see FOR Replies to an opposition must be filed incidental to construction activities FURTHER INFORMATION CONTACT). on or before January 15, 2021. including marine structure Purpose and Need for Regulatory ADDRESSES: Federal Communications maintenance, pile replacement, and Action Commission, 45 L Street NE, select waterfront improvements at Naval Washington, DC 20554. Station Norfolk (NAVSTA Norfolk) over This proposed rule would establish a the course of five years (2021–2026). As framework under the authority of the FOR FURTHER INFORMATION CONTACT: required by the Marine Mammal MMPA (16 U.S.C. 1361 et seq.) to allow Jamile Kadre, Industry Analysis Protection Act (MMPA), NMFS is for the authorization of take of marine Division, Media Bureau, (202) 418– proposing regulations to govern that mammals incidental to the Navy’s 2245. take, and requests comments on the construction activities including marine proposed regulations. NMFS will structure maintenance, pile SUPPLEMENTARY INFORMATION: This is a replacement, and select waterfront summary of the Commission’s consider public comments prior to making any final decision on the improvements at NAVSTA Norfolk. document, Report No. 3164, released We received an application from the December 8, 2020. The full text of the issuance of the requested MMPA authorization and agency responses will Navy requesting five-year regulations Petition can be accessed online via the be summarized in the final notice of our and authorization to take multiple Commission’s Electronic Comment decision. species of marine mammals. Take Filing System at: http://apps.fcc.gov/ would occur by Level B harassment DATES: ecfs/. The Commission will not send a Comments and information must only incidental to impact and vibratory Congressional Review Act (CRA) be received no later than January 20, pile driving. Please see Background submission to Congress or the 2021. below for definitions of harassment. Government Accountability Office ADDRESSES: You may submit comments Legal Authority for the Proposed Action pursuant to the CRA, 5 U.S.C. on this document, identified by NOAA– 801(a)(1)(A), because no rules are being NMFS–2020–0154, by the following Section 101(a)(5)(A) of the MMPA (16 adopted by the Commission. method: U.S.C. 1371(a)(5)(A)) directs the • Electronic submission: Submit all Secretary of Commerce to allow, upon Subject: Amendment of Section electronic public comments via the request, the incidental, but not 73.3556 of the Commission’s Rules Federal e-Rulemaking Portal. Go to intentional taking of small numbers of Regarding Duplication of Programming www.regulations.gov/ marine mammals by U.S. citizens who on Commonly Owned Radio Stations; #!docketDetail;D=NOAA-NMFS-2020- engage in a specified activity (other than Modernization of Media Initiative, 0154, click the ‘‘Comment Now!’’ icon, commercial fishing) within a specified published at 85 FR 67303, October 22, complete the required fields, and enter geographical region for up to five years 2020, in MB Docket Nos. 19–310 and or attach your comments. if, after notice and public comment, the 17–105. This document is being Instructions: Comments sent by any agency makes certain findings and published pursuant to 47 CFR 1.429(e). other method, to any other address or issues regulations that set forth See also 47 CFR 1.4(b)(1) and 1.429(f), individual, or received after the end of permissible methods of taking pursuant (g). the comment period, may not be to that activity and other means of Number of Petitions Filed: 1. considered by NMFS. All comments effecting the ‘‘least practicable adverse Federal Communications Commission. received are a part of the public record impact’’ on the affected species or and will generally be posted for public stocks and their habitat (see the Marlene Dortch, viewing on www.regulations.gov discussion below in the Proposed Secretary, Office of the Secretary. without change. All personal identifying Mitigation section), as well as [FR Doc. 2020–28024 Filed 12–18–20; 8:45 am] information (e.g., name, address), monitoring and reporting requirements. BILLING CODE 6712–01–P confidential business information, or Section 101(a)(5)(A) of the MMPA and

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the implementing regulations at 50 CFR patterns, including, but not limited to, regulations would be valid for five years part 216, subpart I provide the legal migration, breathing, nursing, breeding, (2021–2026). basis for issuing this proposed rule feeding, or sheltering (Level B Description of Proposed Activity containing five-year regulations, and for harassment). Overview any subsequent letters of authorization National Environmental Policy Act (LOAs). As directed by this legal The Navy is proposing to conduct authority, this proposed rule contains To comply with the National Environmental Policy Act of 1969 construction activities at NAVSTA mitigation, monitoring, and reporting Norfolk on the Naval Station, and at requirements. (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) nearby facilities off of the lower Summary of Major Provisions Within 216–6A, NMFS must review our Chesapeake Bay. The Navy’s proposed the Proposed Rule proposed action (i.e., the promulgation activities include pile replacement at Following is a summary of the major of regulations and subsequent issuance the Morale, Welfare and Recreation provisions of this proposed rule of an incidental take authorization) with Marina, and installation of two new regarding Navy construction activities. respect to potential impacts on the floating docks at the V-area. Both areas These measures include: human environment. are located on the Naval Station. The • Required monitoring of the This action is consistent with Navy also proposes to conduct construction areas to detect the presence categories of activities identified in maintenance/repair activities at the of marine mammals before beginning Categorical Exclusion B4 of the Naval Station and neighboring Defense construction activities. Companion Manual for NOAA Fuel Supply Point Craney Island and • Shutdown of construction activities Administrative Order 216–6A, which do Lambert’s Point Deperming Station (see under certain circumstances to avoid not individually or cumulatively have Figure 1). The Navy has indicated injury of marine mammals. the potential for significant impacts on specific projects where existing needs • Soft start for impact pile driving to the quality of the human environment have been identified, as well as allow marine mammals the opportunity and for which we have not identified estimates for expected emergent or to leave the area prior to beginning any extraordinary circumstances that emergency repairs. The proposed impact pile driving at full power. would preclude this categorical project will include both vibratory pile exclusion. Accordingly, NMFS has driving and removal, and impact pile Background preliminarily determined that the driving (hereafter, collectively referred Section 101(a)(5)(A) of the MMPA (16 issuance of this proposed rule qualifies to as ‘‘pile driving’’) over approximately U.S.C. 1361 et seq.) directs the Secretary to be categorically excluded from 574 days over five years. of Commerce (as delegated to NMFS) to further NEPA review. Dates and Duration allow, upon request, the incidental, but Information in the Navy’s application not intentional, taking of small numbers and this document collectively provide The proposed regulations would be of marine mammals by U.S. citizens the environmental information related valid for a period of five years (2021– who engage in a specified activity (other to proposed issuance of these 2026). The specified activities may than commercial fishing) within a regulations and subsequent incidental occur at any time during the five-year specified geographical region if certain take authorization for public review and period of validity of the proposed findings are made, regulations are comment. We will review all comments regulations. The Navy expects pile issued, and notice is provided to the submitted in response to this document driving across all sites to occur on public. prior to concluding our NEPA process approximately 574 days over the five- Authorization for incidental takings or making a final decision on the year duration, with the greatest amount shall be granted if NMFS finds that the request for incidental take of work occurring during Year 1 taking will have a negligible impact on authorization. (approximately 208 days). The Navy the species or stock(s) and will not have plans to conduct all work during an unmitigable adverse impact on the Summary of Request daylight hours. availability of the species or stock(s) for In February 2020, NMFS received a Specific Geographic Region taking for subsistence uses (where request from the Navy for a proposed relevant), and if the permissible rule and LOA to take marine mammals NAVSTA Norfolk and the adjacent methods of taking and requirements incidental to construction activities facilities where the Navy has proposed pertaining to the mitigation, monitoring including marine structure to conduct construction (Craney Island and reporting of the takings are set forth. maintenance, pile replacement, and Fuel Depot and Lambert’s Point NMFS has defined ‘‘negligible select waterfront improvements at Deperming Station) are located at the impact’’ in 50 CFR 216.103 as an impact NAVSTA Norfolk. NMFS reviewed the confluence of the Elizabeth River, James resulting from the specified activity that Navy’s application, and the Navy River, Nansemond River, LaFayette cannot be reasonably expected to, and is provided an updated version addressing River, Willoughby Bay, and Chesapeake not reasonably likely to, adversely affect NMFS’ questions and comments on May Bay (Figure 1). the species or stock through effects on 22, 2020. The application was deemed Human-generated sound is a annual rates of recruitment or survival. adequate and complete and published significant contributor to the ambient Except with respect to certain for public review and comment on June acoustic environment surrounding activities not pertinent here, the MMPA 9, 2020 (85 FR 35267). We did not NAVSTA Norfolk, as it is located in defines ‘‘harassment’’ as: Any act of receive substantive comments on the close proximity to shipping channels as pursuit, torment, or annoyance which (i) NOR. well as several Port of Virginia facilities has the potential to injure a marine The Navy requests authorization to with frequent, noise-producing vessel mammal or marine mammal stock in the take a small number of five species of traffic. NAVSTA Norfolk is located in wild (Level A harassment); or (ii) has marine mammals by Level B harassment close proximity to shipping channels as the potential to disturb a marine only. Neither the Navy nor NMFS well as several Port of Virginia facilities mammal or marine mammal stock in the expects serious injury or mortality to that, altogether, have an annual average wild by causing disruption of behavioral result from this activity. The proposed of 1,459 vessel calls (Port of Virginia,

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2019). Other sources of human- commercial and recreational vessels, Navigation Channel occurs every two generated underwater sound not industrial ship noise, and noise from years (USACE and Port of Virginia, specific to naval installations include recreational boat engines. Additionally, 2018). sounds from echo sounders on on average, maintenance dredging of the BILLING CODE 3510–22–P

BILLING CODE 3510–22–C designs, and conducts maintenance and unknown for all emergent projects, Detailed Description of Specific Activity repairs. The inspection program also potential numbers of fender piles to be addresses repairs (emergent projects) extracted and installed were estimated The Navy’s existing waterfront required due to unforeseen events such by Navy waterfront infrastructure inspection program identifies fender as weather and vessel incidents. engineers based on historic emergent pile system deficiencies and prioritizes, Because construction details are

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maintenance pile driving actions and Fender Pile Replacement: NAVSTA Existing timber fender piles would be scheduled/forecasted maintenance. Norfolk Piers, Craney Island, and replaced by either composite (HDPE or The proposed action includes Lambert’s Point hollow core fiberglass) or timber fender piles (depending on availability of individual projects (where an existing All piles that the Navy plans to need has been identified) and estimates composite piles). Table 1 includes the replace in the NAVSTA Norfolk Piers, number and types of fender piles to be for emergent or emergency repairs. The Defense Fuel Supply Point (DFSP) removed and installed at each location Navy proposes to conduct marine Craney Island and Lambert’s Point areas during the five years of proposed MPU structure maintenance, pile are fender piles. Fender piles (or guide activities. Please see Figure 1–2 and replacement, and upgrades (MPU) piles) protect in-water structures from Figure 1–3 of the Navy’s application for activities over a five-year period. The direct contact with vessels and are not the detailed location of each pier. A full Navy would also upgrade waterfront load-bearing. In-water piles may be list of all pile replacement and removal facilities at two areas. treated timber, pre-stressed concrete, in each year of the overall MPU project high-density polyethylene (HDPE) is provided in Appendix A of the Navy’s plastic, or hollow core fiberglass. application.

TABLE 1—FENDER PILES TO BE REMOVED (12-INCH [IN] TIMBER PILES) AND INSTALLED (16-IN COMPOSITE PILES) AT NAVSTA NORFOLK PIERS, DFSP CRANEY ISLAND, AND LAMBERT’S POINT

Location Pile type 2021 2022 2023 2024 2025

NAVSTA Norfolk Piers ...... 12-in Timber ...... 630 555 100 405 948 16-in Composite ...... 208 196 0 267 845 DFSP Craney Island ...... 12-in Timber ...... 272 0 0 0 0 16-in Composite ...... 258 0 0 0 0 Lambert’s Point Deperming 12-in Timber ...... 29 0 0 0 0 Station. 16-in Composite ...... 29 0 0 0 0

Waterfront Improvements: Morale, The V-Area currently features a would occur in Year 1, with Welfare, and Recreation (MWR) Marina bulkhead, a breakwater, two floating maintenance replacements occurring and V-Area piers, and a boat ramp (see Figure 1–2 thereafter. Concrete piles are anticipated of the Navy’s application). Upgrades to to be fully impact driven. Composite The MWR Marina features 200 deep- this area would include the construction piles are anticipated to be impact or water slips, a boat ramp, and other of two additional floating docks, for a vibratory driven depending on pile recreational boating facilities (see Figure total addition of approximately 4,095 type—hollow core fiberglass piles may 2 1–2 of the Navy’s application). Upgrades square feet (ft ) 380.4 square meters of be impact or vibratory driven, while to the MWR Marina would consist of the dock space. These docks would be HDPE piles would be impact driven. replacement of timber load-bearing and constructed using 24-by-24-in (61-by 61- guide piles with 24-by-24-in (61-by 61- cm) square pre-stressed concrete for the The number of piles the Navy expects cm) square pre-stressed concrete and load-bearing piles and composite or to remove and install are included in composite or timber fender piles, timber fender/guide piles. Table 2 and Table 3, respectively. The respectively. For the purposes of this assessment, Navy does not plan to drive multiple the Navy assumed these upgrades piles concurrently.

TABLE 2—PILES TO BE REMOVED AT MWR MARINA AND V-AREA

Number of Location Pile size/type piles 1

MWR Marina ...... 12-in timber ...... 100 16-in composite ...... 40 V-Area ...... 16-in composite ...... 40 1 Includes piles for initial upgrade/construction as well as maintenance replacements over the five-year project span.

TABLE 3—PILES TO BE INSTALLED AT MWR MARINA AND V-AREA

Location Pile size/type Number of piles 1

MWR Marina ...... 24-by-24-in square concrete 2 ...... 50 16-in composite 3 ...... 90 V-Area ...... 24-by-24-in square concrete ...... 50 16-in composite 3 ...... 90 1 Includes piles for initial upgrade/construction as well as maintenance replacements over the five-year project span. 2 Concrete piles are anticipated to be fully impact driven. 3 The Navy may use timber piles if supply or funding issues prohibit the use of composite piles. However, as noted in Table 8, the sound source levels are expected to be the same for both pile types.

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In extracting piles, the Navy would apparatus that operates similar to a set and pulling them directly from the primarily use a vibratory hammer. In of steel jaws, which grasps the pile as sediment with a crane. In some cases, cases where removal with a vibratory the attached crane pulls upward on the depending on access and location, piles hammer is not possible because piles pile. Lastly, depending on site may be cut at or below the mud-line. break or are damaged, a clamshell may conditions, piles may be removed by be used; a clamshell is a hinged steel wrapping the piles with a cable or chain

TABLE 4—ESTIMATED NUMBER OF PILE DRIVING DAYS EACH YEAR (574 DAYS TOTAL)

2021 2022 2023 2024 2025

Pile Driving Days ...... 208 84 18 76 188

In addition to pile driving, the Navy harass marine mammals and do not components. Components may include, also plans to conduct pile repair, discuss it further. but are not limited to the following: demolition of deck portions, wetwall Recoat Piles and Mooring Fittings— • Timber wave breaks; repair, recoating of piles and mooring The Navy is proposing to clean and • cross bracing members; fittings, installation of a passive recoat some piles and mooring fittings. • fender components, including but cathodic protection system, repair or All coatings would be applied to dry not limited to camels, chocks, and replacement of pile caps, concrete surfaces and limited to areas above whalers; spalling repairs, mooring foundation mean sea level (6.5 ft mean lower low • hand rails; • and substructure repair, repair or water). We do not expect these activities splash guards; • replacement of structural and non- to harass marine mammals and do not safety ladders; • structural components, rewrapping/ discuss them further. electrical conduit and wiring; replacement of steel cable straps on • light poles; Passive Cathodic Protection System— • dolphins, and construction access and The Navy is proposing to install a guide pile systems for floats (used project staging. passive cathodic protection system to secure a floating dock or barge to a Pile Repair—Several methods of pile which is a metallic rod (anode) attached pile but allow the floating dock or barge repair may be used, including stubbing, to a metal object to protect it from to move up and down with tidal wrapping, pile encapsulation, and corrosion. We do not expect installation changes); and • brows (small, movable, bridge-like welding. Pile stubbing is a process in of the system to harass marine mammals structures used to board or leave a which an existing, damaged length of and do not discuss it further. timber pile above the ground line is vessel) or gangways. Repair or Replacement of Pile Caps— removed and replaced with a new We do not expect repair or The Navy is proposing to repair and/or length of timber pile. All of the above replacement of these components to replace pile caps. Replacement concrete repair activities would either occur over harass marine mammals and they are pile caps may be cast-in-place, and the water or involve only minor in-water not discussed further. framework may be located below mean work, not including pile driving. We do Rewrap/Replace Steel Cable Straps on not expect these activities to harass higher high water. However, we do not Dolphins—The Navy is proposing to marine mammals and do not discuss expect repair or replacement of pile rewrap and/or replace steel cable straps them further. caps to harass marine mammals, and we that hold dolphin pile groupings Demolition of Deck Portions—A wire do not discuss it further. together. We do not expect these saw or other equipment would be used Concrete Spalling Repairs—Concrete activities to harass marine mammals to cut timber or concrete decks that are spalling occurs when concrete becomes and do not discuss them further. damaged or need replacement into chipped, scaled or flaked. Repair of Construction Access and Project sections. Sections would be removed spalled concrete involves removal of Staging—Barges would be used as with a crane. Debris would be captured damaged sections and installation of platforms for conducting in-water work using debris curtains/sheeting and new concrete. We do not expect activities and to haul materials and removed from the project area. Deck concrete spalling repairs to harass equipment to and from work sites. pieces would be hauled to a barge and marine mammals and do not discuss it Barges would be moored with spuds or then to an upland disposal site. Large further. anchors. Other than barges, no staging concrete deck areas requiring repair Mooring Foundation and Substructure sites have been identified. If staging would be cast-in-place with formwork, Repair—Repairs may involve removal areas for equipment and materials are and repairs of smaller areas would be and replacement of concrete mooring identified at a future date, they would performed using hand trowels. We do foundations and concrete substructure occur in currently developed lots or not expect these activities to harass on piers, wharfs, and quay walls. Work managed fields. marine mammals and do not discuss may include preservation of rebar and Proposed mitigation, monitoring, and them further. injection of epoxy, as required. We do reporting measures are described in Wetwall Repair—A wetwall is an not expect mooring foundation and detail later in this document (please see above-water, reinforced concrete substructure repair to harass marine Proposed Mitigation and Proposed encasement for a sanitary sewer lift mammals and do not discuss it further. Monitoring and Reporting). station pump. Repairs would occur by Repair or Replacement of removing failed and delaminated Components—Structural and non- Description of Marine Mammals in the concrete. The reinforced steel structural components of waterfront Area of Specified Activities substructure would then be repaired structures would be repaired or replaced Sections 3 and 4 of the Navy’s and new concrete applied, either using as required. Replacement of components application summarize available cast-in-place methods or hand trowels. would involve removal of existing information regarding status and trends, We do not expect wetwall repair to components and installation of new distribution and habitat preferences,

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and behavior and life history, of the (ESA) and potential biological removal make up a given stock or the total potentially affected species. Additional (PBR), where known. For taxonomy, we number estimated within a particular information regarding population trends follow Committee on Taxonomy (2020). study or survey area. NMFS’s stock and threats may be found in NMFS’s PBR is defined by the MMPA as the abundance estimates for most species Stock Assessment Reports (SARs; maximum number of animals, not represent the total estimate of https://www.fisheries.noaa.gov/ including natural mortalities, that may individuals within the geographic area, national/marine-mammal-protection/ be removed from a marine mammal if known, that comprises that stock. For marine-mammal-stock-assessments) stock while allowing that stock to reach some species, this geographic area may and more general information about or maintain its optimum sustainable extend beyond U.S. waters. All managed these species (e.g., physical and population (as described in NMFS’s stocks in this region are assessed in behavioral descriptions) may be found SARs). While no mortality is anticipated NMFS’s U.S. Atlantic and Gulf of on NMFS’s website (https:// or authorized here, PBR and annual www.fisheries.noaa.gov/find-species). serious injury and mortality from Mexico SARs (e.g., Hayes et al. 2020). Table 5 lists all species or stocks for anthropogenic sources are included here All values presented in Table 5 are the which take is expected and proposed for as gross indicators of the status of the most recent available at the time of authorization, and summarizes species and other threats. publication and are available in the information related to the population or Marine mammal abundance estimates 2019 SARs (Hayes et al. 2020). stock, including regulatory status under presented in this document represent the MMPA and Endangered Species Act the total number of individuals that TABLE 5—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA

ESA/ MMPA Stock abundance (CV, Nmin, Common name Scientific name Stock status; most recent abundance sur- PBR Annual M/SI 3 Strategic vey) 2 (Y/N) 1

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 12.15

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)

Family Delphinidae: Bottlenose dolphin ...... Tursiops truncatus ...... Western North Atlantic -,-; Y 6,639 (0.41; 4,759; 2011) .... 48 6.1–13.2 (WNA) Coastal, Northern Migratory. WNA Coastal, Southern Mi- -,-; Y 3,751 (0.06; 2,353; 2011) .... 23 0–14.3 gratory. Northern North Carolina Es- -,-; Y 823 (0.06; 782; 2013) ...... 7.8 0.8–18.2 tuarine System (NNCES). Family Phocoenidae (por- poises): Harbor porpoise ...... Phocoena phocoena ...... Gulf of Maine/Bay of Fundy -, -; N 95,543 (0.31; 74,034; see 851 217 SAR).

Order Carnivora—Superfamily Pinnipedia

Family Phocidae (earless seals): Harbor seal ...... Phoca vitulina ...... WNA ...... -; N 75,834 (0.15; 66,884, see 2,006 350 SAR). Gray seal ...... Halichoerus grypus ...... WNA ...... -; N 27,131 (0.19, 23,158, see 1,359 5,410 SAR). 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 fish- eries, ship strike). Annual Mortality/Serious Injury (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.

As indicated above, all five species temporal and/or spatial occurrence of migrations in the spring, fall, and winter (with seven managed stocks) in Table 5 these whales is such that take is not (CeTAP 1981, 1982; Niemeyer et al. temporally and spatially co-occur with expected to occur, and they are not 2008; Kahn et al. 2009; McLellan 2011b, the activity to the degree that take is discussed further beyond the 2013; Mallette et al. 2016a, 2016b, 2017, reasonably likely to occur, and we have explanation provided here. 2018a; Palka et al. 2017; Cotter 2019). proposed authorizing take. While North Based on sighting data and passive Right whales are known to frequent the Atlantic right whales (Eubalaena acoustic studies, the North Atlantic coastal waters of the mouth of the glacialis), minke whales (Balaenoptera right whale could occur off Virginia Chesapeake Bay (Knowlton et al. 2002) acutorostrata acutorostrata), and fin year-round (DoN 2009; Salisbury et al. and the area is a seasonal management whales (Balaenoptera physalus) have 2016). They have also been reported area (November 1–April 30) mandating been documented in the area, the seasonally off Virginia during reduced ship speeds out to

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approximately 20 nautical miles (37 project area, NMFS is not proposing to whales off the U.S. mid-Atlantic coast kilometers [km]) for the species; authorize take of this species. (New Jersey to North Carolina) from however, the project area is further Minke whales have been sighted off January through March suggest these inside the Bay. Virginia (CeTAP 1981, 1982; Hyrenbach waters may represent a supplemental North Atlantic right whales have et al. 2012; Barco 2013; Mallette et al. winter feeding ground used by juvenile stranded in Virginia, one each in 2001, 2016a, b; McLellan 2017; Engelhaupt et and mature humpback whales of U.S. 2002, 2004, 2005: Three during winter al. 2017, 2018; Cotter 2019), near the and Canadian North Atlantic stocks (February and March) and one in CBBT (Aschettino et al. 2018), but (LaBrecque et al. 2015). summer (September) (Costidis et al. sightings in the project area are from Humpback whales are most likely to 2017, 2019). In January 2018, a dead, strandings (Jensen and Silber 2004; occur near the mouth of the Chesapeake entangled North Atlantic right whale Barco 2013; DoN 2009). In August 1994, Bay and coastal waters of Virginia Beach was observed floating over 60 miles a ship strike incident involved a minke between January and March; however, (96.6 km) offshore of Virginia Beach whale in Hampton Roads (Jensen and they could be found in the area year- (Costidis et al. 2019). All North Atlantic Silber 2004; Barco 2013). It was reported round, based on shipboard sighting and right whale strandings in Virginia that the animal was struck offshore and stranding data (Barco and Swingle, waters have occurred on ocean-facing was carried inshore on the bow of a ship 2014; Aschettino et al. 2015; 2016; 2017; beaches along Virginia Beach and the (DoN 2009). Twelve strandings of minke 2018). Photo-identification data support barrier islands seaward of the lower whales have occurred in Virginia waters the repeated use of the mid-Atlantic Delmarva Peninsula (Costidis et al. from 1988 to 2016 (Costidis et al. 2017). region by individual humpback whales. 2017). Due to the low occurrence of There have been six minke whale Results of the vessel surveys show site North Atlantic right whales in the stranding from 2017 through 2020 in fidelity in the survey area for some project area, NMFS is not proposing to Virginia waters. Because all known individuals and a high level of authorize take of this species. minke whale occurrences in the project occurrence within shipping channels— Fin whales have been sighted off area are due to strandings, NMFS is not an important high-use area by both the proposing to authorize take of this Navy and commercial traffic (Aschettino Virginia (Cetacean and Turtle species. et al. 2015; 2016; 2017; 2018). Nearshore Assessment Program (CeTAP) 1981, surveys conducted in early 2015 1982; Swingle et al. 1993; DoN 2009; Humpback Whale reported 61 individual humpback whale Hyrenbach et al. 2012; Barco 2013; Humpback whales are distributed sightings, and 135 individual humpback Mallette et al. 2016a, b; Aschettino et al. worldwide in all major oceans and most whale sightings in late 2015 through 2018; Engelhaupt et al. 2017, 2018; seas. Most humpback whale sightings May 2016 (Aschettino et al. 2016). Cotter 2019), and in the Chesapeake Bay are in nearshore and continental shelf Subsequent surveys confirmed the (Bailey 1948; CeTAP 1981, 1982; waters; however, humpback whales occurrence of humpback whales in the Morgan et al. 2002; Barco 2013; frequently travel through deep oceanic nearshore survey area: 248 individuals Aschettino et al. 2018); however, they waters during migration (Calambokidis were detected in 2016–2017 surveys are not likely to occur in the project et al. 2001; Clapham, P.J. and Mattila, (Aschettino et al. 2017), 32 individuals area. Sightings have been documented D.K., 1990). Prior to 2016, humpback were detected in 2017–2018 surveys around the Chesapeake Bay Bridge whales were listed under the ESA as an (Aschettino et al. 2018), and 80 Tunnel (CBBT) during the winter endangered species worldwide. individuals were detected in 2019 months (CeTAP 1981, 1982; Barco 2013; Following a 2015 global status review surveys (Aschettino et al. 2019). Aschettino et al. 2018). (Bettridge et al. 2015), NMFS Sightings in the Hampton Roads area in Eleven fin whale strandings have established 14 DPSs with different the vicinity of NAVSTA Norfolk were occurred off Virginia from 1988 to 2016 listing statuses (81 FR 62259; September reported in nearshore surveys and mostly during the winter months of 8, 2016) pursuant to the ESA. through tracking of satellite-tagged February and March, followed by a few Humpback whales in the project area whales in 2016, 2017 and 2019. The in the spring and summer months are expected to be from the West Indies numbers of whales detected, most of (Costidis et al. 2017). Six of the DPS, which consists of the whales which were juveniles, reflect the strandings occurred in the Chesapeake whose breeding range includes the varying level of survey effort and Bay (three on eastern shore; three on Atlantic margin of the Antilles from changes in survey objectives from year western shore) with the remaining five Cuba to northern Venezuela, and whose to year, and do not indicate abundance occurring on the Atlantic coast (Costidis feeding range primarily includes the trends over time. et al. 2017. Documented strandings near Gulf of Maine, eastern Canada, and the project area have occurred: February western Greenland, was delisted. Bottlenose Dolphin 2012, a dead fin whale washed ashore Bettridge et al. (2003) estimated the size Along the U.S. East Coast and on Oceanview Beach in Norfolk of the West Indies DPS at 12,312 (95% northern Gulf of Mexico, the bottlenose (Swingle et al. 2013); December 2017, a CI 8,688–15,954) whales in 2004–05, dolphin stock structure is well studied. live fin whale stranded on a shoal in which is consistent with previous There are currently 53 management Newport News and died at the site population estimates of approximately stocks identified by NMFS in the (Swingle et al. 2018); February 2014, a 10,000–11,000 whales (Stevick et al. western North Atlantic and Gulf of dead fin whale stranded on a sand bar 2003; Smith et al. 1999) and the Mexico, including oceanic, coastal, and in Pocomoke Sound near Great Fox increasing trend for the West Indies DPS estuarine stocks (Hayes et al. 2017; Island, Accomack (Swingle et al. 2015); (Bettridge et al. 2015). Waring et al. 2015, 2016). and, March 2007, a dead fin whale near Although humpback whales are There are two morphologically and Craney Island, in the Elizabeth River, in migratory between feeding areas and genetically distinct bottlenose dolphin Norfolk (Barco 2013). Only stranded fin calving areas, individual variability in morphotypes (distinguished by physical whales have been documented in the the timing of migrations may result in differences) described as coastal and project area; no free-swimming fin the presence of individuals in high- offshore forms (Duffield et al. 1983; whales have been observed. Due to the latitude areas throughout the year Duffield, 1986). The offshore form is low occurrence of fin whales in the (Straley, 1990). Records of humpback larger in total length and skull length,

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and has wider nasal bones than the Norfolk (Engelhaupt et al. 2014; 2015; Harbor Seal coastal form. Both inhabit waters in the 2016). The final results from this project The Western North Atlantic stock of western North Atlantic Ocean and Gulf confirmed earlier findings that harbor seals occurs in the MPU project of Mexico (Curry and Smith, 1997; bottlenose dolphins are common in the area. Harbor seal distribution along the Hersh and Duffield, 1990; Mead and study area, with highest densities in the U.S. Atlantic coast has shifted in recent Potter, 1995) along the U.S. Atlantic coastal waters in summer and fall years, with an increased number of seals coast. The coastal morphotype of months. However, bottlenose dolphins reported from southern New England to bottlenose dolphin is continuously do not completely leave this area during the mid-Atlantic region (DiGiovanni et distributed along the Atlantic coast colder months, with approximately al. 2011; Hayes et al. 2017; Kenney R. south of Long Island, New York, around 200–300 individuals still present in D. 2019; Waring et al. 2016). Regular the Florida peninsula, and along the winter and spring months (Engelhaupt sightings of seals in Virginia have Gulf of Mexico coast. This type typically et al. 2016). become a common occurrence in winter occurs in waters less than 25 meters and early spring (Costidis et al. 2019). deep (Waring et al. 2015). The range of Harbor Porpoise Winter haulout sites for harbor seals the offshore bottlenose dolphin includes have been documented in the waters beyond the continental slope Harbor porpoises inhabit cool Chesapeake Bay at the CBBT, on the (Kenney R.D., 1990), and offshore temperate-to-subpolar waters, often Virginia Eastern Shore, and near Oregon bottlenose dolphins may move between where prey aggregations are Inlet, North Carolina (Waring et al. the Gulf of Mexico and the Atlantic concentrated (Watts and Gaskin, 1985). 2016; Rees et al. 2016; Jones et al. 2018). (Wells et al. 1999). Thus, they are frequently found in Two coastal stocks are likely to be shallow waters, most often near shore, Harbor seals regularly haul out on present in the MPU project area: but they sometimes move into deeper rocks around the portal islands of the Western North Atlantic Northern offshore waters. Harbor porpoises are CBBT and on mud flats on the nearby Migratory Coastal stock and Western rarely found in waters warmer than 63 southern tip of the Eastern Shore from North Atlantic Southern Migratory degrees Fahrenheit (17 degrees Celsius) December through April (Rees et al. Coastal stock. Additionally, the (Read 1999) and closely follow the 2016; Jones et al. 2018). Seals captured Northern North Carolina Estuarine movements of their primary prey, in 2018 on the Eastern Shore and tagged System stock may occur in the project Atlantic herring (Gaskin 1992). with satellite-tracked tags that lasted from 2 to 5 months spent at least 60 area. In the western North Atlantic, harbor days in Virginia waters before departing Bottlenose dolphins are the most porpoise range from Cumberland Sound the area. All tagged seals returned abundant marine mammal along the on the east coast of Baffin Island, regularly to the capture site while in Virginia coast and within the southeast along the eastern coast of Virginia waters, but individuals utilized Chesapeake Bay, typically traveling in Labrador to Newfoundland and the Gulf offshore and Chesapeake Bay waters to groups of 2 to 15 individuals, but of St. Lawrence, then southwest to about different extents (Ampela et al. 2019). occasionally in groups of over 100 34 degrees North on the coast of North The area that was utilized most heavily individuals (Engelhaupt et al. 2014; Carolina (Waring et al. 2016). During was near the Eastern Shore capture site, 2015; 2016). Bottlenose dolphins of the winter (January to March), intermediate but some seals ranged into the Western North Atlantic Northern densities of harbor porpoises can be Chesapeake Bay. Migratory Coastal stock winter along the found in waters off New Jersey to North coast of North Carolina and migrate as Carolina, and lower densities are found Gray Seal far north as Long Island, New York, in in waters off New York to New The Western North Atlantic stock of the summer. They are rarely found Brunswick, Canada (Waring et al. 2016). north of North Carolina in the winter gray seal occurs in the project area. The Harbor porpoises sighted off the mid- western North Atlantic stock is centered (NMFS, 2018a). The Western North Atlantic during winter include Atlantic Southern Migratory Coastal in Canadian waters, including the Gulf porpoises from other western North stock occurs in waters of southern North of St. Lawrence and the Atlantic coasts Atlantic populations (Rosel et al. 1999). Carolina from October to December, of Nova Scotia, Newfoundland, and There does not appear to be a moving south during winter months and Labrador, Canada, and the northeast temporally coordinated migration or a north to North Carolina during spring U.S. continental shelf (Hayes et al. specific migratory route to and from the months. During July and August, the 2017). Gray seals range south into the Bay of Fundy region (Waring et al. Western North Atlantic Southern northeastern United States, with 2016). During fall (October to December) Migratory Coastal stock is presumed to strandings and sightings as far south as and spring (April to June), harbor occupy coastal waters north of Cape North Carolina (Hammill et al. 1998; porpoises are widely dispersed from Lookout, North Carolina, to the eastern Waring et al. 2004). Gray seal shore of Virginia (NMFS, 2018a). It is New Jersey to Maine, with lower distribution along the U.S. Atlantic possible that these animals also occur densities farther north and south coast has shifted in recent years, with an inside the Chesapeake Bay and in (LaBrecque et al. 2015). increased number of seals reported in nearshore coastal waters. The North Based on stranding reports, passive southern New England (DiGiovanni et Carolina Estuarine System stock acoustic recorders, and shipboard al. 2011; Kenney R.D., 2019; Waring et dolphins may also occur in the surveys, harbor porpoise occur in al. 2016). Recent sightings included a Chesapeake Bay during July and August coastal waters primarily in winter and gray seal in the lower Chesapeake Bay (NMFS, 2018a). spring months, but there is little during the winter of 2014 to 2015 (Rees Vessel surveys conducted along information on their presence in the et al. 2016). Along the coast of the coastal and offshore transects from Chesapeake Bay. They do not appear to United States, gray seals are known to NAVSTA Norfolk to Virginia Beach in be abundant in the NAVSTA Norfolk pup at three or more colonies in most months from August 2012 to area in most years, but this is Massachusetts and Maine. August 2015 reported bottlenose confounded by wide variations in Gray seals are uncommon in Virginia dolphins throughout the survey area, stranding occurrences over the past and in the Chesapeake Bay. Only 15 including the vicinity of NAVSTA decade. gray seal strandings were documented

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in Virginia from 1988 through 2013 numbers; therefore, the UME deleterious effects. To appropriately (Barco and Swingle, 2014). They are investigation now encompasses all seal assess the potential effects of exposure rarely found resting on the rocks around strandings from Maine to Virginia. to sound, it is necessary to understand the portal islands of the CBBT from Lastly, while take is not proposed for the frequency ranges marine mammals December through April alongside these species in this proposed rule, ice are able to hear. Current data indicate harbor seals. Seal observation surveys seals (harp and hooded seals) have also that not all marine mammal species conducted at the CBBT recorded one started stranding with clinical signs, have equal hearing capabilities (e.g., gray seal in each of the 2014/2015 and again not in elevated numbers, and Richardson et al. 1995; Wartzok and 2015/2016 seasons while no gray seals those two seal species have also been Ketten, 1999; Au and Hastings, 2008). were reported during the 2016/2017 and added to the UME investigation. To reflect this, Southall et al. (2007) 2017/2018 seasons (Rees et al. 2016, Additional information is available at recommended that marine mammals be Jones et al. 2018). Sightings have been https://www.fisheries.noaa.gov/new- reported off Virginia and near the england-mid-atlantic/marine-life- divided into functional hearing groups project area during the winter and distress/2018-2020-pinniped-unusual- based on directly measured or estimated spring (Barco 2013; Rees et al. 2016; mortality-event-along. hearing ranges on the basis of available Jones et al. 2018; Ampela et al. 2019). behavioral response data, audiograms Atlantic Humpback Whale UME derived using auditory evoked potential Unusual Mortality Events Since January 2016, elevated techniques, anatomical modeling, and An unusual mortality event (UME) is humpback whale mortalities have other data. Note that no direct defined under Section 410(6) of the occurred along the Atlantic coast from measurements of hearing ability have MMPA as a stranding that is Maine through Florida. This event has been successfully completed for unexpected; involves a significant die- been declared an UME. A portion of the mysticetes (i.e., low-frequency off of any marine mammal population; whales have shown evidence of pre- cetaceans). Subsequently, NMFS (2018) and demands immediate response. mortem vessel strike; however, this described generalized hearing ranges for Currently, ongoing UME investigations finding is not consistent across all these marine mammal hearing groups. are underway for pinnipeds along the whales examined, and additional Generalized hearing ranges were chosen Northeast coast, and humpback whales research is needed. Additional based on the approximately 65 decibel along the Atlantic coast. information is available at https:// (dB) threshold from the normalized www.fisheries.noaa.gov/national/ Northeast Pinniped UME marine-life-distress/2016-2020- composite audiograms, with the Since July 2018, elevated numbers of humpback-whale-unusual-mortality- exception for lower limits for low- harbor seal and gray seal mortalities event-along-atlantic-coast. frequency cetaceans where the lower have occurred across Maine, New bound was deemed to be biologically Hampshire and Massachusetts. This Marine Mammal Hearing implausible and the lower bound from event has been declared an UME. Hearing is the most important sensory Southall et al. (2007) retained. Marine Additionally, seals showing clinical modality for marine mammals mammal hearing groups and their signs have been stranding as far south underwater, and exposure to associated hearing ranges are provided as Virginia, although not in elevated anthropogenic sound can have in Table 6.

TABLE 6—MARINE MAMMAL HEARING GROUPS [NMFS, 2018]

Hearing group Generalized hearing 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 275 Hz to 160 kHz cruciger & L. 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 reasonable potential to co-occur with of the specified activity may impact group was modified from Southall et al. the proposed construction activities. marine mammals and their habitat. The (2007) on the basis of data indicating Please refer to Table 5. Of the cetacean Estimated Take section later in this that phocid species have consistently species that may be present, one is document includes a quantitative demonstrated an extended frequency classified as a low-frequency cetacean analysis of the number of individuals range of hearing compared to otariids, (i.e., humpback whale) one is classified that are expected to be taken by this especially in the higher frequency range as a mid-frequency cetacean (i.e., activity. The Negligible Impact Analysis (Hemila¨ et al. 2006; Kastelein et al. bottlenose dolphin), and one is and Determination section considers the 2009; Reichmuth and Holt, 2013). classified as a high-frequency cetacean content of this section, the Estimated For more detail concerning these (i.e., harbor porpoise). Take section, and the Proposed groups and associated frequency ranges, Mitigation section, to draw conclusions please see NMFS (2018) for a review of Potential Effects of Specified Activities regarding the likely impacts of these available information. Five marine on Marine Mammals and Their Habitat activities on the reproductive success or mammal species (three cetacean and This section includes a summary and survivorship of individuals and how two phocid pinniped species) have the discussion of the ways that components those impacts on individuals are likely

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to impact marine mammal species or with rapid rise time and rapid decay reactions (e.g., avoidance, temporary stocks. (ANSI 1986; NIOSH 1998; ANSI 2005; cessation of foraging and vocalizing, Acoustic effects on marine mammals NMFS 2018a). Non-impulsive sounds changes in dive behavior). Exposure to during the specified activity can occur (e.g. aircraft, machinery operations such anthropogenic noise can also lead to from vibratory and impact pile driving. as drilling or dredging, vibratory pile non-observable physiological responses The effects of underwater noise from the driving, and active sonar systems) can such an increase in stress hormones. Navy’s proposed activities have the be broadband, narrowband or tonal, Additional noise in a marine mammal’s potential to result in Level A and Level brief or prolonged (continuous or habitat can mask acoustic cues used by B harassment of marine mammals in the intermittent), and typically do not have marine mammals to carry out daily action area. the high peak sound pressure with raid functions such as communication and Description of Sound Sources rise/decay time that impulsive sounds predator and prey detection. The effects do (ANSI 1995; NIOSH 1998; NMFS of pile driving noise on marine The marine soundscape is comprised 2018a). The distinction between these mammals are dependent on several of both ambient and anthropogenic two sound types is important because factors, including, but not limited to, sounds. Ambient sound is defined as they have differing potential to cause sound type (e.g., impulsive vs. non- the all-encompassing sound in a given physical effects, particularly with regard impulsive), the species, age and sex place and is usually a composite of to hearing (e.g., Ward 1997 in Southall class (e.g., adult male vs. mom with sound from many sources both near and et al. 2007). calf), duration of exposure, the distance far. The sound level of an area is Two types of pile hammers would be between the pile and the animal, defined by the total acoustical energy used on this project: Impact and received levels, behavior at time of being generated by known and vibratory. Impact hammers operate by exposure, and previous history with unknown sources. These sources may repeatedly dropping a heavy piston onto exposure (Wartzok et al. 2004; Southall include physical (e.g., waves, wind, a pile to drive the pile into the substrate. et al. 2007). Here we discuss physical precipitation, earthquakes, ice, Sound generated by impact hammers is auditory effects (threshold shifts) atmospheric sound), biological (e.g., characterized by rapid rise times and followed by behavioral effects and sounds produced by marine mammals, high peak levels, a potentially injurious potential impacts on habitat. fish, and invertebrates), and combination (Hastings and Popper NMFS defines a noise-induced anthropogenic sound (e.g., vessels, 2005). Vibratory hammers install piles threshold shift (TS) as a change, usually dredging, aircraft, construction). by vibrating them and allowing the an increase, in the threshold of The sum of the various natural and weight of the hammer to push them into audibility at a specified frequency or anthropogenic sound sources at any the sediment. Vibratory hammers portion of an individual’s hearing range given location and time—which produce significantly less sound than above a previously established reference comprise ‘‘ambient’’ or ‘‘background’’ impact hammers. Peak sound pressure level (NMFS 2018). The amount of sound—depends not only on the source levels (SPLs) may be 180 dB or greater, threshold shift is customarily expressed levels (as determined by current but are generally 10 to 20 dB lower than in dB. A TS can be permanent or weather conditions and levels of SPLs generated during impact pile temporary. As described in NMFS biological and shipping activity) but driving of the same-sized pile (Oestman (2018), there are numerous factors to also on the ability of sound to propagate et al. 2009). Rise time is slower, consider when examining the through the environment. In turn, sound reducing the probability and severity of consequence of TS, including, but not propagation is dependent on the injury, and sound energy is distributed limited to, the signal temporal pattern spatially and temporally varying over a greater amount of time (Nedwell (e.g., impulsive or non-impulsive), properties of the water column and sea and Edwards 2002; Carlson et al. 2005). likelihood an individual would be floor, and is frequency-dependent. As a The likely or possible impacts of the exposed for a long enough duration or result of the dependence on a large Navy’s proposed activity on marine to a high enough level to induce a TS, number of varying factors, ambient mammals could involve both non- the magnitude of the TS, time to sound levels can be expected to vary acoustic and acoustic stressors. recovery (seconds to minutes or hours to widely over both coarse and fine spatial Potential non-acoustic stressors could days), the frequency range of the and temporal scales. Sound levels at a result from the physical presence of the exposure (i.e., spectral content), the given frequency and location can vary equipment and personnel; however, any hearing and vocalization frequency by 10–20 dB from day to day impacts to marine mammals are range of the exposed species relative to (Richardson et al. 1995). The result is expected to primarily be acoustic in the signal’s frequency spectrum (i.e., that, depending on the source type and nature. Acoustic stressors include how an animal uses sound within the its intensity, sound from the specified effects of heavy equipment operation frequency band of the signal; e.g., activity may be a negligible addition to during pile driving. Kastelein et al. 2014), and the overlap the local environment or could form a between the animal and the source (e.g., Acoustic Impacts distinctive signal that may affect marine spatial, temporal, and spectral). mammals. The introduction of anthropogenic Permanent Threshold Shift (PTS)— In-water construction activities noise into the aquatic environment from NMFS defines PTS as a permanent, associated with the project would pile driving is the primary means by irreversible increase in the threshold of include impact pile driving, vibratory which marine mammals may be audibility at a specified frequency or pile driving, and vibratory pile removal. harassed from the Navy’s specified portion of an individual’s hearing range The sounds produced by these activities activity. In general, animals exposed to above a previously established reference fall into one of two general sound types: natural or anthropogenic sound may level (NMFS 2018). Available data from Impulsive and non-impulsive. experience physical and psychological humans and other terrestrial mammals Impulsive sounds (e.g., explosions, effects, ranging in magnitude from none indicate that a 40 dB threshold shift gunshots, sonic booms, impact pile to severe (Southall et al. 2007). In approximates PTS onset (see Ward et al. driving) are typically transient, brief general, exposure to pile driving noise 1958, 1959; Ward 1960; Kryter et al. (less than 1 second), broadband, and has the potential to result in auditory 1966; Miller 1974; Ahroon et al. 1996; consist of high peak sound pressure threshold shifts and behavioral Henderson et al. 2008). PTS levels for

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marine mammals are estimates, as with leucas), harbor porpoise, and Yangtze areas where sound sources are located. the exception of a single study finless porpoise (Neophocoena Pinnipeds may increase their haul out unintentionally inducing PTS in a asiaeorientalis)) and five species of time, possibly to avoid in-water harbor seal (Kastak et al. 2008), there are pinnipeds exposed to a limited number disturbance (Thorson and Reyff 2006). no empirical data measuring PTS in of sound sources (i.e., mostly tones and Behavioral responses to sound are marine mammals largely due to the fact octave-band noise) in laboratory settings highly variable and context-specific and that, for various ethical reasons, (Finneran 2015). TTS was not observed any reactions depend on numerous experiments involving anthropogenic in trained spotted (Phoca largha) and intrinsic and extrinsic factors (e.g., noise exposure at levels inducing PTS ringed (Pusa hispida) seals exposed to species, state of maturity, experience, are not typically pursued or authorized impulsive noise at levels matching current activity, reproductive state, (NMFS 2018). previous predictions of TTS onset auditory sensitivity, time of day), as Temporary Threshold Shift (TTS)— (Reichmuth et al. 2016). In general, well as the interplay between factors TTS is a temporary, reversible increase harbor seals and harbor porpoises have (e.g., Richardson et al. 1995; Wartzok et in the threshold of audibility at a a lower TTS onset than other measured al. 2003; Southall et al. 2007; Weilgart specified frequency or portion of an pinniped or cetacean species (Finneran 2007; Archer et al. 2010). Behavioral individual’s hearing range above a 2015). Additionally, the existing marine reactions can vary not only among previously established reference level mammal TTS data come from a limited individuals but also within an (NMFS 2018). Based on data from number of individuals within these individual, depending on previous cetacean TTS measurements (see species. No data are available on noise- experience with a sound source, Southall et al. 2007), a TTS of 6 dB is induced hearing loss for mysticetes. For context, and numerous other factors considered the minimum threshold shift summaries of data on TTS in marine (Ellison et al. 2012), and can vary clearly larger than any day-to-day or mammals or for further discussion of depending on characteristics associated session-to-session variation in a TTS onset thresholds, please see with the sound source (e.g., whether it subject’s normal hearing ability Southall et al. (2007), Finneran and is moving or stationary, number of (Schlundt et al. 2000; Finneran et al. Jenkins (2012), Finneran (2015), and sources, distance from the source). In 2000, 2002). As described in Finneran Table 5 in NMFS (2018). Installing piles general, pinnipeds seem more tolerant (2015), marine mammal studies have requires a combination of impact pile of, or at least habituate more quickly to, shown the amount of TTS increases driving and vibratory pile driving. For potentially disturbing underwater sound with cumulative sound exposure level this project, these activities would not than do cetaceans, and generally seem (SELcum) in an accelerating fashion: At occur at the same time and there would to be less responsive to exposure to low exposures with lower SELcum, the be pauses in activities producing the industrial sound than most cetaceans. amount of TTS is typically small and sound during each day. Given these Please see Appendices B–C of Southall the growth curves have shallow slopes. pauses and that many marine mammals et al. (2007) for a review of studies At exposures with higher SELcum, the are likely moving through the involving marine mammal behavioral growth curves become steeper and ensonified area and not remaining for responses to sound. approach linear relationships with the extended periods of time, the potential Disruption of feeding behavior can be noise SEL. for TS declines. difficult to correlate with anthropogenic Depending on the degree (elevation of Behavioral Harassment—Exposure to sound exposure, so it is usually inferred threshold in dB), duration (i.e., recovery noise from pile driving and removal also by observed displacement from known time), and frequency range of TTS, and has the potential to behaviorally disturb foraging areas, the appearance of the context in which it is experienced, marine mammals. Available studies secondary indicators (e.g., bubble nets TTS can have effects on marine show wide variation in response to or sediment plumes), or changes in dive mammals ranging from discountable to underwater sound; therefore, it is behavior. As for other types of serious (similar to those discussed in difficult to predict specifically how any behavioral response, the frequency, auditory masking, below). For example, given sound in a particular instance duration, and temporal pattern of signal a marine mammal may be able to readily might affect marine mammals presentation, as well as differences in compensate for a brief, relatively small perceiving the signal. If a marine species sensitivity, are likely amount of TTS in a non-critical mammal does react briefly to an contributing factors to differences in frequency range that takes place during underwater sound by changing its response in any given circumstance a time when the animal is traveling behavior or moving a small distance, the (e.g., Croll et al. 2001; Nowacek et al. through the open ocean, where ambient impacts of the change are unlikely to be 2004; Madsen et al. 2006; Yazvenko et noise is lower and there are not as many significant to the individual, let alone al. 2007). A determination of whether competing sounds present. the stock or population. However, if a foraging disruptions incur fitness Alternatively, a larger amount and sound source displaces marine consequences would require longer duration of TTS sustained during mammals from an important feeding or information on or estimates of the a time when communication is critical breeding area for a prolonged period, energetic requirements of the affected for successful mother/calf interactions impacts on individuals and populations individuals and the relationship could have more serious impacts. We could be significant (e.g., Lusseau and between prey availability, foraging effort note that reduced hearing sensitivity as Bejder 2007; Weilgart 2007; NRC 2005). and success, and the life history stage of a simple function of aging has been Disturbance may result in changing the animal. observed in marine mammals, as well as durations of surfacing and dives, Stress responses—An animal’s humans and other taxa (Southall et al. number of blows per surfacing, or perception of a threat may be sufficient 2007), so we can infer that strategies moving direction and/or speed; to trigger stress responses consisting of exist for coping with this condition to reduced/increased vocal activities; some combination of behavioral some degree, though likely not without changing/cessation of certain behavioral responses, autonomic nervous system cost. activities (such as socializing or responses, neuroendocrine responses, or Currently, TTS data only exist for four feeding); visible startle response or immune responses (e.g., Seyle 1950; species of cetaceans (bottlenose aggressive behavior (such as tail/fluke Moberg 2000). In many cases, an dolphin, beluga whale (Delphinapterus slapping or jaw clapping); avoidance of animal’s first and sometimes most

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economical (in terms of energetic costs) it is possible that some of these would here. Cetaceans are not expected to be response is behavioral avoidance of the be classified as ‘‘distress.’’ In addition, exposed to airborne sounds that would potential stressor. Autonomic nervous any animal experiencing TTS would result in harassment as defined under system responses to stress typically likely also experience stress responses the MMPA. involve changes in heart rate, blood (NRC, 2003), however distress is an Marine Mammal Habitat Effects pressure, and gastrointestinal activity. unlikely result of this project based on These responses have a relatively short observations of marine mammals during The Navy’s construction activities duration and may or may not have a previous, similar projects in the area. could have localized, temporary impacts significant long-term effect on an Masking—Sound can disrupt behavior on marine mammal habitat by animal’s fitness. through masking, or interfering with, an increasing in-water sound pressure Neuroendocrine stress responses often animal’s ability to detect, recognize, or levels and slightly decreasing water involve the hypothalamus-pituitary- discriminate between acoustic signals of quality. Construction activities are of adrenal system. Virtually all interest (e.g., those used for intraspecific short duration and would likely have neuroendocrine functions that are communication and social interactions, temporary impacts on marine mammal affected by stress—including immune prey detection, predator avoidance, habitat through increases in underwater competence, reproduction, metabolism, navigation) (Richardson et al. 1995). sound. Increased noise levels may affect and behavior—are regulated by pituitary Masking occurs when the receipt of a acoustic habitat (see masking discussion hormones. Stress-induced changes in sound is interfered with by another above) and adversely affect marine the secretion of pituitary hormones have coincident sound at similar frequencies mammal prey in the vicinity of the been implicated in failed reproduction, and at similar or higher intensity, and project area (see discussion below). altered metabolism, reduced immune may occur whether the sound is natural During impact and vibratory pile competence, and behavioral disturbance (e.g., snapping shrimp, wind, waves, driving, elevated levels of underwater (e.g., Moberg 1987; Blecha 2000). precipitation) or anthropogenic (e.g., noise would ensonify the project area Increases in the circulation of pile driving, shipping, sonar, seismic where both fish and mammals may glucocorticoids are also equated with exploration) in origin. The ability of a occur and could affect foraging success. stress (Romano et al. 2004). noise source to mask biologically Additionally, marine mammals may The primary distinction between important sounds depends on the avoid the area during construction, stress (which is adaptive and does not characteristics of both the noise source however, displacement due to noise is normally place an animal at risk) and and the signal of interest (e.g., signal-to- expected to be temporary and is not ‘‘distress’’ is the cost of the response. noise ratio, temporal variability, expected to result in long-term effects to During a stress response, an animal uses direction), in relation to each other and the individuals or populations. glycogen stores that can be quickly to an animal’s hearing abilities (e.g., A temporary and localized increase in replenished once the stress is alleviated. sensitivity, frequency range, critical turbidity near the seafloor would occur In such circumstances, the cost of the ratios, frequency discrimination, in the immediate area surrounding the stress response would not pose serious directional discrimination, age or TTS area where piles are installed (and fitness consequences. However, when hearing loss), and existing ambient removed in the case of the temporary an animal does not have sufficient noise and propagation conditions. piles). The sediments on the sea floor energy reserves to satisfy the energetic Masking of natural sounds can result will be disturbed during pile driving; costs of a stress response, energy when human activities produce high however, suspension will be brief and resources must be diverted from other levels of background sound at localized and is unlikely to measurably functions. This state of distress will last frequencies important to marine affect marine mammals or their prey in until the animal replenishes its mammals. Conversely, if the the area. In general, turbidity associated energetic reserves sufficient to restore background level of underwater sound with pile installation is localized to normal function. is high (e.g., on a day with strong wind about a 25-ft (7.6-meter) radius around Relationships between these and high waves), an anthropogenic the pile (Everitt et al. 1980). Cetaceans physiological mechanisms, animal sound source would not be detectable as are not expected to be close enough to behavior, and the costs of stress far away as would be possible under the pile driving areas to experience responses are well studied through quieter conditions and would itself be effects of turbidity, and any pinnipeds controlled experiments and for both masked. could avoid localized areas of turbidity. laboratory and free-ranging animals Airborne Acoustic Effects—Although Therefore, we expect the impact from (e.g., Holberton et al. 1996; Hood et al. pinnipeds are known to haul-out increased turbidity levels to be 1998; Jessop et al. 2003; Krausman et al. regularly on man-made objects in the discountable to marine mammals and 2004; Lankford et al. 2005). Stress vicinity of some of the potential project do not discuss it further. responses due to exposure to sites, we believe that incidents of take anthropogenic sounds or other stressors resulting solely from airborne sound are In-Water Construction Effects on and their effects on marine mammals unlikely. There is a possibility that an Potential Foraging Habitat have also been reviewed (Fair and animal could surface in-water, but with The proposed activities would not Becker 2000; Romano et al. 2002b) and, head out, within the area in which result in permanent impacts to habitats more rarely, studied in wild populations airborne sound exceeds relevant used directly by marine mammals (e.g., Romano et al. 2002a). For example, thresholds and thereby be exposed to except for the actual footprint of the Rolland et al. (2012) found that noise levels of airborne sound that we project. The total seafloor area affected reduction from reduced ship traffic in associate with harassment, but any such by pile installation and removal is a the Bay of Fundy was associated with occurrence would likely be accounted very small area compared to the vast decreased stress in North Atlantic right for in our estimation of incidental take foraging area available to marine whales. These and other studies lead to from underwater sound. Therefore, mammals in the project area and lower a reasonable expectation that some authorization of incidental take Chesapeake Bay. marine mammals will experience resulting from airborne sound for Avoidance by potential prey (i.e., fish) physiological stress responses upon pinnipeds is not warranted, and of the immediate area due to the exposure to acoustic stressors and that airborne sound is not discussed further temporary loss of this foraging habitat is

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also possible. The duration of fish costs (e.g., Fewtrell and McCauley, marine mammal or marine mammal avoidance of this area after pile driving 2012; Pearson et al. 1992; Skalski et al. stock in the wild (Level A harassment); stops is unknown, but we anticipate a 1992; Santulli et al. 1999; Paxton et al. or (ii) has the potential to disturb a rapid return to normal recruitment, 2017). However, some studies have marine mammal or marine mammal distribution and behavior. Any shown no or slight reaction to impulse stock in the wild by causing disruption behavioral avoidance by fish of the sounds (e.g., Pena et al. 2013; Wardle et of behavioral patterns, including, but disturbed area would still leave large al. 2001; Jorgenson and Gyselman, 2009; not limited to, migration, breathing, areas of fish and marine mammal Cott et al. 2012). nursing, breeding, feeding, or sheltering foraging habitat in the nearby vicinity in SPLs of sufficient strength have been (Level B harassment). the project area and lower Chesapeake known to cause injury to fish and fish Authorized takes would be by Level B Bay. mortality. However, in most fish harassment only, in the form of species, hair cells in the ear disruption of behavioral patterns and Effects on Potential Prey continuously regenerate and loss of potential TTS for individual marine Sound may affect marine mammals auditory function likely is restored mammals resulting from exposure to through impacts on the abundance, when damaged cells are replaced with pile driving and removal. Based on the behavior, or distribution of prey species new cells. Halvorsen et al. (2012a) nature of the activity and the (e.g., fish). Marine mammal prey varies showed that a TTS of 4–6 dB was anticipated effectiveness of the by species, season, and location. Here, recoverable within 24 hours for one mitigation measures (i.e., shutdown we describe studies regarding the effects species. Impacts would be most severe zones) discussed in detail below in of noise on known marine mammal when the individual fish is close to the Proposed Mitigation section, Level A prey. source and when the duration of harassment is neither anticipated nor Fish utilize the soundscape and exposure is long. Injury caused by proposed to be authorized. components of sound in their barotrauma can range from slight to As described previously, no mortality environment to perform important severe and can cause death, and is most is anticipated or proposed to be functions such as foraging, predator likely for fish with swim bladders. authorized for this activity. Below we avoidance, mating, and spawning (e.g., Barotrauma injuries have been describe how the take is estimated. Zelick et al. 1999; Fay, 2009). documented during controlled exposure Generally speaking, we estimate take Depending on their hearing anatomy to impact pile driving (Halvorsen et al. by considering: (1) Acoustic thresholds and peripheral sensory structures, 2012b; Casper et al. 2013). above which NMFS believes the best which vary among species, fishes hear The most likely impact to fish from available science indicates marine sounds using pressure and particle pile driving activities at the project mammals will be behaviorally harassed motion sensitivity capabilities and areas would be temporary behavioral or incur some degree of permanent detect the motion of surrounding water avoidance of the area. The duration of hearing impairment; (2) the area or (Fay et al. 2008). The potential effects of fish avoidance of an area after pile volume of water that will be ensonified noise on fishes depends on the driving stops is unknown, but a rapid above these levels in a day; (3) the overlapping frequency range, distance return to normal recruitment, density or occurrence of marine from the sound source, water depth of distribution and behavior is anticipated. mammals within these ensonified areas; exposure, and species-specific hearing The area impacted by the project is and, (4) the number of days of activities. sensitivity, anatomy, and physiology. relatively small compared to the We note that while these factors can Key impacts to fishes may include available habitat in the remainder of the contribute to a basic calculation to behavioral responses, hearing damage, project area and the lower Chesapeake provide an initial prediction of takes, barotrauma (pressure-related injuries), Bay, and there are no areas of particular additional information that can and mortality. importance that would be impacted by qualitatively inform take estimates is Fish react to sounds which are this project. Any behavioral avoidance also sometimes available (e.g., previous especially strong and/or intermittent by fish of the disturbed area would still monitoring results or average group low-frequency sounds, and behavioral leave significantly large areas of fish and size). Below, we describe the factors responses such as flight or avoidance marine mammal foraging habitat in the considered here in more detail and are the most likely effects. Short nearby vicinity. As described in the present the proposed take estimate. duration, sharp sounds can cause overt preceding, the potential for the Navy’s Acoustic Thresholds or subtle changes in fish behavior and construction to affect the availability of local distribution. The reaction of fish to prey to marine mammals or to NMFS recommends the use of noise depends on the physiological state meaningfully impact the quality of acoustic thresholds that identify the of the fish, past exposures, motivation physical or acoustic habitat is received level of underwater sound (e.g., feeding, spawning, migration), and considered to be insignificant. above which exposed marine mammals other environmental factors. Hastings would be reasonably expected to be and Popper (2005) identified several Estimated Take behaviorally harassed (equated to Level studies that suggest fish may relocate to This section provides an estimate of B harassment) or to incur PTS of some avoid certain areas of sound energy. the number of incidental takes proposed degree (equated to Level A harassment). Additional studies have documented for authorization, which will inform Level B Harassment for non-explosive effects of pile driving on fish, although both NMFS’ consideration of ‘‘small sources—Though significantly driven by several are based on studies in support numbers’’ and the negligible impact received level, the onset of behavioral of large, multiyear bridge construction determination. disturbance from anthropogenic noise projects (e.g., Scholik and Yan, 2001, Harassment is the only type of take exposure is also informed to varying 2002; Popper and Hastings, 2009). expected to result from these activities. degrees by other factors related to the Several studies have demonstrated that Except with respect to certain activities source (e.g., frequency, predictability, impulse sounds might affect the not pertinent here, section 3(18) of the duty cycle), the environment (e.g., distribution and behavior of some MMPA defines ‘‘harassment’’ as any act bathymetry), and the receiving animals fishes, potentially impacting foraging of pursuit, torment, or annoyance, (hearing, motivation, experience, opportunities or increasing energetic which (i) has the potential to injure a demography, behavioral context) and

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can be difficult to predict (Southall et al. impulsive (e.g., seismic airguns) or hearing sensitivity) as a result of 2007, Ellison et al. 2012). Based on what intermittent (e.g., scientific sonar) exposure to noise from two different the available science indicates and the sources. types of sources (impulsive or non- practical need to use a threshold based The Navy’s construction includes the impulsive). The Navy’s proposed on a factor that is both predictable and use of continuous (vibratory pile construction includes the use of measurable for most activities, NMFS driving) and impulsive (impact pile impulsive (impact pile driving) and uses a generalized acoustic threshold driving) sources, and therefore the 120 non-impulsive (vibratory pile driving) based on received level to estimate the and 160 dB re 1 mPa (rms) are sources. onset of behavioral harassment. NMFS applicable. These thresholds are provided in the predicts that marine mammals are likely Level A harassment for non-explosive table below. The references, analysis, to be behaviorally harassed in a manner sources—NMFS’ Technical Guidance and methodology used in the we consider Level B harassment when for Assessing the Effects of development of the thresholds are exposed to underwater anthropogenic Anthropogenic Sound on Marine described in NMFS 2018 Technical noise above received levels of 120 dB re Mammal Hearing (Version 2.0) Guidance, which may be accessed at 1 mPa (rms) (microPascal, root mean (Technical Guidance, 2018) identifies https://www.fisheries.noaa.gov/ square) for continuous (e.g., vibratory dual criteria to assess auditory injury national/marine-mammal-protection/ pile-driving, drilling) and above 160 dB (Level A harassment) to five different marine-mammal-acoustic-technical- re 1 mPa (rms) for non-explosive marine mammal groups (based on guidance.

TABLE 7—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * (received level) Hearing group 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-impul- sive 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 The sound field in the project area is calculated Level B harassment zone the existing background noise plus extends 7.2 km (4.5 mi) from the source Here, we describe operational and additional construction noise from the (though truncated by land in some environmental parameters of the activity proposed project. Marine mammals are directions), with an area of 4.7 km2 (1.8 that will feed into identifying the area expected to be affected via sound mi2), as calculated using geographic ensonified above the acoustic generated by the primary components of information system (GIS) data as thresholds, which include source levels. the project (i.e., impact pile driving and determined by the transmission loss vibratory pile driving). The largest modeling.

TABLE 8—PROJECT SOUND SOURCE LEVELS

Installation Pile size and type method RMS SPL Peak SPL SEL Source

24-in Square Concrete ...... Impact ...... 176 189 163 Illingworth and Rodkin, 2017. 16-in Composite ...... Impact ...... 165 177 157 Caltrans, 2015.1 Vibratory ...... 158 ...... Illingworth and Rodkin, 2017. 12-in Timber ...... Vibratory ...... 2 158 ...... Illingworth and Rodkin, 2017. 1 These source levels are from a 12-inch timber pile (Table 2–2, page 2–16). 2 NMFS typically recommends a proxy source level of 152dB RMS SPL for installation and removal of 12-in timber piles; however, the Navy’s application included specialized modeling (described below) using 158dB RMS SPL. Given that modeling and that 158dB RMS SPL is a more conservative source level, NMFS concurred with the use of 158dB RMS SPL as the proxy source level for 12-in timber piles.

The Navy contracted the University of modeling for the project. The APL’s full with the modeling in the report, and has Washington, Applied Physics report is included in Appendix B of the adopted the resulting isopleths for the Laboratory (APL) to conduct site- Navy’s application. NMFS project, as included in Table 9. specific acoustic transmission loss independently reviewed and concurred

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TABLE 9—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS

Level A harassment isopleth Level B (m) harassment Site Pile size and type isopleth LF cetacean MF cetacean HF cetacean Phocid (m) 1

Impact Pile Driving

Pier 3 ...... 16-in Composite ...... 18 <10m 27 Pier 12 ...... 16-in Composite ...... 18 24 MWR Marina ...... 24-in Concrete ...... 52 59 16-in Composite ...... 11 18 V-Area ...... 24-in Concrete ...... 42 47 16-in Composite ...... 11 17 Craney Island ...... 16-in Composite ...... 16 21 Lambert’s Point ...... 16-in Composite ...... 19 28

Vibratory Pile Driving

Pier 3 ...... 16-in Composite/12-in Timber ...... <10m 5,615 Pier 12 ...... 4,159 MWR Marina ...... 469 V-Area ...... 382 Craney Island ...... 3,001 Lambert’s Point ...... 7,161 1 Please refer to Tables 6–5 and 6–6 in the Navy’s application for the areas of the Level B harassment zones.

Marine Mammal Occurrence and Take each year (Table 4), NMFS is proposing areas near Virginia Beach, Virginia, from Calculation and Estimation to authorize a total of 24 takes by Level August 2012 through August 2015 In this section we provide the B harassment of humpback whale over (Engelhaupt et al. 2016). To calculate information about the presence, density, the five-year authorization, with no Level B harassment takes of bottlenose or group dynamics of marine mammals more than eight takes by Level B dolphin, NMFS used the Chesapeake that will inform the take calculations. harassment in one year. Bay density of 1.38 dolphins/km2 We describe how the information The largest Level A harassment zone (Engelhaupt et al. 2016). This density provided above is brought together to for low-frequency cetaceans extends includes sightings inshore of the produce a quantitative take estimate. approximately 52 m from the source Chesapeake Bay from NAVSTA Norfolk during impact pile driving of 24-in west to the Thimble Shoals Bridge, and Humpback Whale concrete piles at the MWR Marina is the most representative density for Humpback whales occur in the mouth (Table 9). For most activities, the Level the project area. NMFS conservatively of the Chesapeake Bay and nearshore A harassment zone is less than 20 m. multiplied the density of 1.38 dolphins/ waters of Virginia during winter and The Navy is planning to implement a km2 by the largest Level B harassment spring months. Most detections during 50-m shutdown zone for humpback zone for each project location (Table 11) shipboard surveys were of one or two whales during impact pile driving of 24- and then by the proportional number of juveniles per sighting. Although two in concrete piles, and shutdown zones estimated pile driving days at each individuals were detected in the that include the entire Level A location for each year (Table 10). For vicinity of MPU project activities, there harassment isopleth for all activities, as example, to calculate Level B is no evidence that they linger for indicated in Table 15. Therefore, the harassment takes associated with work multiple days. Because no density Navy did not request, and NMFS does at Pier 3 in 2021, NMFS multiplied the estimates are available for the species in not propose to authorize Level A density (1.38 dolphins/km2) by largest this area, the Navy estimated one take harassment take of humpback whale. Level B harassment zone for Pier 3 (10.3 for every 60 days of pile driving. km2) by the proportional number of pile Bottlenose Dolphin However, given the potential group size driving days at Pier 3 in 2021 (24.6) for of two, as indicated by the sightings The expected number of bottlenose a total of 350 Level B harassment takes referenced above, NMFS has estimated dolphins in the project area was at Pier 3 in 2021. Therefore, NMFS that two humpback whales may be estimated using inshore seasonal proposes to authorize 7,566 takes by taken by Level B harassment for every densities provided in Engelhaupt et al. Level B harassment of bottlenose 60 days of pile driving. Therefore, given (2016) from vessel line-transect surveys dolphin across all five years, with no the number of project days expected in near NAVSTA Norfolk and adjacent more than 2,742 in one year.

TABLE 10—ESTIMATED NUMBER OF PILE DRIVING DAYS AT EACH PROJECT LOCATION

Estimated Proportional number of pile driving days 3 number of Location 1 pile driving days 2021 2022 2023 2024 2025 (all seasons)

Pier 3 ...... 68 24.6 10.0 2.1 9.0 22.3 Pier 12 ...... 352 127.6 51.5 11.0 46.6 115.3 MWR Marina...... 52 18.8 7.6 1.6 6.9 17.0 V-Area ...... 44 15.9 6.4 1.4 5.8 14.4 Craney Island...... 52 18.8 7.6 1.6 6.9 17.0 Lambert’s Point...... 8 2.9 1.2 0.3 1.1 2.6

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TABLE 10—ESTIMATED NUMBER OF PILE DRIVING DAYS AT EACH PROJECT LOCATION—Continued

Estimated Proportional number of pile driving days 3 number of Location 1 pile driving days 2021 2022 2023 2024 2025 (all seasons)

Estimated Total Pile Driving Days per Year ...... 2 574 208 84 18 76 188

Percentage of Total Pile Driving Days ...... 36 15 3 13 33 1 While the Navy plans to conduct work at additional locations not listed here, these locations are assumed to be representative of the overall project site (ex: all pile driving lumped together at Lambert’s Point Deperming Station), as noted in Appendix A of the Navy’s application. Pile driving at these additional locations is included in the total number of pile driving days assumed here. 2 NMFS recognizes that due to rounding, the sum of the estimated number of work days at each location is 576, not 574. However, as men- tioned previously, the Navy expects construction to last 574 days across all five years. 3 The number of pile driving days indicated per year at each location is intended to inform our assessment of both the total and maximum an- nual taking allowable under the rule. NMFS does not expect that the Navy will conduct exactly the fractional number of days of pile driving indi- cated for each year in each location.

TABLE 11—ANNUAL LEVEL B HARASSMENT TAKES OF BOTTLENOSE DOLPHIN BY PROJECT LOCATION

Largest Level B harassment takes 1 Level B Location harassment zone 2021 2022 2023 2024 2025 Total (km2)

Pier 3...... 10.3 350.2 141.4 30.3 128.0 316.6 966.6 Pier 12...... 13.1 2,305.9 931.2 199.6 842.5 2,084.2 6,363.5 MWR Marina...... 0.2 5.2 2.1 0.5 1.9 4.7 14.4 V-Area ...... 0.2 4.4 1.8 0.4 1.6 4.0 12.1 Craney Island ...... 2.2 57.2 23.1 5.0 20.9 51.7 157.9 Lambert’s Point...... 4.7 18.8 7.6 1.6 6.9 17.0 51.9

Total Level B Harassment Takes per Year ...... 2,742 1,107 237 1,002 2,478 7,566

Annual Takes as Percentage of Five- Year Total ...... 36.2 14.6 3.1 13.2 32.8 ...... 1 Note actual calculations were not rounded at each step as they are shown in Table 10 and Table 11.

The Level A harassment zones for data collected by the U.S. Navy near activities (Table 9). Given the small size mid-frequency cetaceans extend less NAVSTA Norfolk and Virginia Beach of the Level A harassment zones, we do than 10 m from the source during all from 2012 to 2015 (Engelhaupt et al. not expect take by Level A harassment activities (Table 9). Given the small size 2014; 2015; 2016) did not produce of harbor porpoise. Additionally, the of the Level A harassment zones, we do enough sightings to calculate densities. Navy is planning to implement a 10 m not expect Level A harassment take of One group of two harbor porpoises was shutdown zone for during pile driving bottlenose dolphins. Additionally, the seen during spring 2015 (Engelhaupt et and other in-water activities (Table 15). Navy is planning to implement a 10 m al. 2016). Elsewhere in their range, Therefore, the Navy did not request, and shutdown zone for bottlenose dolphins harbor porpoises typically occur in NMFS does not propose to authorize during all pile driving and other in- groups of two to three individuals take by Level A harassment of harbor water activities (Table 15), which (Carretta et al. 2001; Smultea et al. porpoise. includes the entire Level A harassment 2017). zone for all pile driving activities. Because there are no density estimates Harbor Seal Therefore, the Navy did not request, and for the species in the MPU project area, NMFS does not propose to authorize the Navy conservatively estimated two The expected number of harbor seals Level A harassment take of bottlenose takes of harbor porpoise by Level B in the project area was estimated using dolphin. harassment per 60 pile driving days systematic, land- and vessel-based (Table 4), resulting in 20 takes by Level survey data for in-water and hauled-out Harbor Porpoise B harassment across the five year rule, seals collected by the U.S. Navy at the Harbor porpoises are known to occur and no more than 7 takes by Level B CBBT rock armor and portal islands in the coastal waters near Virginia harassment in one year (Table 13). from 2014 through 2019 (Jones et al. Beach (Hayes et al. 2019). Density data NMFS concurs with this estimate and 2020). The average daily seal count from for this species within the project proposes to authorize 20 takes by Level the 2014 through 2019 field seasons vicinity do not exist or were not B harassment of harbor porpoise. ranged from 8 to 23, with an average of calculated because sample sizes were The Level A harassment zones for 13.6 harbor seals across all the field too small to produce reliable estimates high-frequency cetaceans extend less seasons (Table 12) (rounded up to 14 of density. Harbor porpoise sighting than 10 m from the source during all seals).

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TABLE 12—HARBOR SEAL COUNTS AT CHESAPEAKE BAY BRIDGE TUNNEL

Average Field season ‘‘In season’’ Total daily seal Max daily survey days seal count 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 ...... 13.6 34.8 Source: Jones et al. 2020.

The Navy expects, and NMFS activities (Table 15), which includes the days (half of the year). To account for concurs, that harbor seals are likely to entire Level A harassment zone for all the expected seasonal presence of gray be present from November to April. pile driving activities. Therefore, the seals, NMFS calculated take based on NMFS calculated take by Level B Navy did not request, and NMFS does 183 project days for years which have harassment by multiplying 14 seals by not propose to authorize take by Level more than 183 expected project days the number of pile driving days A harassment of harbor seal. (2021, 2025). Therefore, NMFS is expected in each year if fewer than 183 proposing to authorize nine takes by Gray Seal project days (half of the year) were Level B harassment of gray seals over expected. To account for seasonal Very little information is available the five-year duration of the rule, with occurrence (November to April), NMFS about the occurrence of gray seals in the no more than three takes by Level B calculated take based on 183 project Chesapeake Bay and coastal waters. harassment in one year (Table 13). days for years which have more than Although the population of the United The Level A harassment zones for 183 expected project days (2021, 2025). States may be increasing, there are only phocids extend less than 10 m from the Therefore, NMFS proposes to authorize a few records at known haulout sites in source during all activities (Table 9). 7,616 takes by Level B harassment of Virginia used by harbor seals, strandings Given the small size of the Level A harbor seals across the five-year are rare, and they have not been harassment zones and the low duration of this rule, with no more than reported in shipboard surveys. occurrence of gray seals in the project 2,562 takes by Level B harassment in Assuming that they may utilize the area, we do not expect Level A one year (Table 13). Chesapeake Bay waters, the Navy harassment take of gray seal. The Level A harassment zones for conservatively estimates that one gray Additionally, the Navy is planning to phocids extend less than 10 m from the seal may be exposed to noise levels implement a 10 m shutdown zone for source during all activities (Table 9). above the Level B harassment threshold during pile driving and other in-water Given the small size of the Level A for every 60 days of vibratory pile activities (Table 15), which includes the harassment zones, we do not expect take driving during the six month period entire Level A harassment zone for all by Level A harassment of harbor seal. when they are most likely to be present. pile driving activities. Therefore, the Additionally, the Navy is planning to NMFS concurs, and calculated take Navy did not request, and NMFS does implement a 10 m shutdown zone for based on the number of project days for not propose to authorize take by Level during pile driving and other in-water years which have fewer than 183 project A harassment of gray seal. TABLE 13—ESTIMATED TAKE BY LEVEL B HARASSMENT, BY SPECIES

Species 2021 2022 2023 2024 2025 Total

Humpback whale ...... 6 4 2 4 8 24 Bottlenose dolphin...... 2,742 1,107 237 1,002 2,478 7,566 Harbor porpoise ...... 7 3 1 3 6 20 Harbor seal...... 2,562 1,176 252 1,064 2,562 7,616 Gray seal ...... 3 1 1 1 3 9

TABLE 14—ESTIMATED TAKE BY LEVEL B HARASSMENT (GREATEST ANNUAL TAKE EXPECTED), BY SPECIES AND STOCK IN COMPARISON TO STOCK ABUNDANCE

Level B Species Stock Stock harassment Percent abundance take of stock

Humpback Whale ...... Gulf of Maine ...... b 12,312 8 0.6 Bottlenose Dolphin ...... WNA Coastal, Northern Migratory a ...... 6,639 1,353 20.4 WNA Coastal, Southern Migratory a ...... 3,751 ...... 1,353 36.1 NNCES a ...... 823 ...... 36 4.4 Harbor Porpoise ...... Gulf of Maine/Bay of Fundy ...... 95,543 7 0.007 Harbor Seal ...... Western North Atlantic ...... 75,834 2,562 3.4 Gray Seal ...... Western North Atlantic ...... d 27,131 3 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. 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 un- known). Please see the Small Numbers section for additional information. d This stock abundance estimate includes only the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the population, is esti- mated to be approximately 451,431 animals.

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Proposed Mitigation maintain steerage and safe working driving days. Monitoring zones provide conditions; utility for observing by establishing Under section 101(a)(5)(A) of the • MMPA, NMFS must set forth the The Navy will conduct briefings monitoring protocols for areas adjacent permissible methods of taking pursuant between construction supervisors and to the shutdown zones. Monitoring to the activity, and other means of crews and the marine mammal zones enable observers to be aware of effecting the least practicable impact on monitoring team prior to the start of all and communicate the presence of the species or stock and its habitat, pile driving activity and when new marine mammals in the project area paying particular attention to rookeries, personnel join the work, to explain outside the shutdown zone and thus mating grounds, and areas of similar responsibilities, communication prepare for a potential cessation of significance, and on the availability of procedures, marine mammal monitoring activity should the animal enter the the species or stock for taking for certain protocol, and operational procedures; shutdown zone. • subsistence uses (latter not applicable For those marine mammals for Pre-activity Monitoring—Prior to the for this action). NMFS regulations which Level B harassment take has not start of daily in-water construction require applicants for incidental take been requested, in-water pile activity, or whenever a break in pile authorizations to include information installation/removal will shut down driving/removal of 30 minutes or longer about the availability and feasibility immediately if such species are occurs, PSOs will observe the shutdown (economic and technological) of observed within or entering the Level B and monitoring zones for a period of 30 equipment, methods, and manner of harassment zone; and • minutes. The shutdown zone will be conducting the activity or other means If take reaches the authorized limit considered cleared when a marine of effecting the least practicable adverse for an authorized species, pile mammal has not been observed within impact upon the affected species or installation/removal will shut down the zone for that 30-minute period. If a stocks and their habitat (50 CFR immediately if these species approach marine mammal is observed within the 216.104(a)(11)). the Level B harassment zone to avoid shutdown zone, a soft-start cannot In evaluating how mitigation may or additional take. proceed until the animal has left the may not be appropriate to ensure the The following mitigation measures zone or has not been observed for 15 least practicable adverse impact on apply to the Navy’s in-water minutes. When a marine mammal for species or stocks and their habitat, as construction activities. which Level B harassment take is well as subsistence uses where Establishment of Shutdown Zones— authorized is present in the Level B applicable, we carefully consider two The Navy will establish shutdown zones harassment zone, activities may begin primary factors: for all pile driving and removal and Level B harassment take will be (1) The manner in which, and the activities. The purpose of a shutdown recorded. If the entire Level B degree to which, the successful zone is generally to define an area harassment zone is not visible at the implementation of the measure(s) is within which shutdown of the activity start of construction, pile driving expected to reduce impacts to marine would occur upon sighting of a marine activities can begin. If work ceases for mammals, marine mammal species or mammal (or in anticipation of an animal more than 30 minutes, the pre-activity stocks, and their habitat. This considers entering the defined area). Shutdown monitoring of the shutdown zones will the nature of the potential adverse zones will vary based on the activity commence. A determination that the impact being mitigated (likelihood, type and marine mammal hearing group shutdown zone is clear must be made scope, range). It further considers the (Table 15). during a period of good visibility (i.e., likelihood that the measure will be Protected Species Observers (PSOs)— the entire shutdown zone and effective if implemented (probability of The placement of PSOs during all pile surrounding waters must be visible to accomplishing the mitigating result if driving and removal activities the naked eye). implemented as planned), the (described in the Proposed Monitoring Soft Start—Soft-start procedures are likelihood of effective implementation and Reporting section) will ensure that believed to provide additional (probability implemented as planned), the entire shutdown zone is visible protection to marine mammals by and; during pile driving and removal. Should (2) The practicability of the measures environmental conditions deteriorate providing warning and/or giving marine for applicant implementation, which such that marine mammals within the mammals a chance to leave the area may consider such things as cost, entire shutdown zone would not be prior to the hammer operating at full impact on operations, and, in the case visible (e.g., fog, heavy rain), pile capacity. For impact pile driving, of a military readiness activity, driving and removal must be delayed contractors will be required to provide personnel safety, practicality of until the PSO is confident marine an initial set of three strikes from the implementation, and impact on the mammals within the shutdown zone hammer at reduced energy, followed by effectiveness of the military readiness could be detected. a 30-second waiting period. This activity. Monitoring for Level B Harassment— procedure will be conducted three times In addition to the measures described The Navy will monitor the Level B before impact pile driving begins. Soft later in this section, the Navy will harassment zones (areas where SPLs are start will be implemented at the start of employ the following mitigation equal to or exceed the 160 dB rms each day’s impact pile driving and at measures: threshold for impact driving and the 120 any time following cessation of impact • For in-water heavy machinery work dB rms threshold during vibratory pile pile driving for a period of 30 minutes other than pile driving, if a marine driving) to the extent practicable, and or longer. mammal comes within 10 m, operations the Level A harassment zones. The Navy The Navy does not plan to use a pile shall cease and vessels shall reduce will monitor at least a portion of the driving energy attenuator during speed to the minimum level required to Level B harassment zone on all pile construction.

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TABLE 15—SHUTDOWN ZONES DURING PILE INSTALLATION AND REMOVAL

Shutdown Zone Site Pile size and type LF cetacean MF cetacean HF cetacean Phocid

Pier 3 ...... 16-in Composite ...... 20 10m Pier 12 ...... 16-in Composite ...... 20 MWR Marina ...... 24-in Concrete ...... 50 16-in Composite ...... 20 V-Area ...... 24-in Concrete ...... 50 16-in Composite ...... 20 Craney Island ...... 16-in Composite ...... 20 Lambert’s Point ...... 16-in Composite ...... 20

Pier 3 ...... 16-in Composite/12-in Timber ...... 10m Pier 12. MWR Marina. V-Area. Craney Island. Lambert’s Point.

Based on our evaluation of the Navy’s action; or (4) biological or behavioral designated. The lead observer must have proposed measures, as well as other context of exposure (e.g., age, calving or prior experience working as a marine measures considered by NMFS, NMFS feeding areas). mammal observer during construction. has preliminarily determined that the • Individual marine mammal PSOs must have the following proposed mitigation measures provide responses (behavioral or physiological) additional qualifications: the means effecting the least practicable to acoustic stressors (acute, chronic, or • Ability to conduct field impact on the affected species or stocks cumulative), other stressors, or observations and collect data according and their habitat, paying particular cumulative impacts from multiple to assigned protocols; • attention to rookeries, mating grounds, stressors. Experience or training in the field and areas of similar significance. • How anticipated responses to identification of marine mammals, stressors impact either: (1) Long-term including the identification of Proposed Monitoring and Reporting fitness and survival of individual behaviors; • In order to issue an LOA for an marine mammals; or (2) populations, Sufficient training, orientation, or activity, section 101(a)(5)(A) of the species, or stocks. experience with the construction • MMPA states that NMFS must set forth Effects on marine mammal habitat operation to provide for personal safety requirements pertaining to the (e.g., marine mammal prey species, during observations; • Writing skills sufficient to prepare a monitoring and reporting of such taking. acoustic habitat, or other important report of observations including but not NMFS’ MMPA implementing physical components of marine limited to the number and species of regulations further describe the mammal habitat). • marine mammals observed; dates and information that an applicant should Mitigation and monitoring times when in-water construction provide when requesting an effectiveness. activities were conducted; dates, times, authorization (50 CFR 216.104 (a)(13)), The Navy will submit a Marine and reason for implementation of including the means of accomplishing Mammal Monitoring Plan to NMFS for mitigation (or why mitigation was not the necessary monitoring and reporting approval in advance of the start of implemented when required); and that will result in increased knowledge construction. marine mammal behavior; and of the species and the level of taking or Visual Monitoring • Ability to communicate orally, by impacts on populations of marine Marine mammal monitoring during radio or in person, with project mammals. pile driving and removal must be personnel to provide real-time Monitoring and reporting conducted by PSOs meeting NMFS’ information on marine mammals requirements prescribed by NMFS standards and in a manner consistent observed in the area as necessary. should contribute to improved with the following: At least two PSOs will monitor all understanding of one or more of the • Independent PSOs (i.e., not pile driving activities. Depending on following: construction personnel) who have no available resources, and depending on • Occurrence of marine mammal other assigned tasks during monitoring the size of the zone associated with the species or stocks in the area in which periods must be used; activity, additional PSOs may be take is anticipated (e.g., presence, • At least one PSO must have prior utilized as necessary. PSOs will be abundance, distribution, density). experience performing the duties of a placed at the best vantage point(s) • Nature, scope, or context of likely PSO during construction activity practicable to monitor for marine marine mammal exposure to potential pursuant to a NMFS-issued incidental mammals and implement shutdown/ stressors/impacts (individual or take authorization; delay procedures. (See Figure 13–1 of cumulative, acute or chronic), through • Other PSOs may substitute the Navy’s application for example better understanding of: (1) Action or education (degree in biological science representative monitoring locations.) environment (e.g., source or related field) or training for Monitoring will be conducted 30 characterization, propagation, ambient experience; and minutes before, during, and 30 minutes noise); (2) affected species (e.g., life • Where a team of three or more PSOs after pile driving activities. In addition, history, dive patterns); (3) co-occurrence is required, a lead observer or observers shall record all incidents of of marine mammal species with the monitoring coordinator must be marine mammal occurrence, regardless

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of distance from activity, and shall • Detailed information about any level effects). An estimate of the number document any behavioral reactions in implementation of any mitigation of takes alone is not enough information concert with distance from piles being triggered (e.g., shutdowns and delays), a on which to base an impact driven or removed. Pile driving description of specific actions that determination. In addition to activities include the time to install or ensued, and resulting behavior of the considering estimates of the number of remove a single pile or series of piles, animal, if any. marine mammals that might be ‘‘taken’’ as long as the time elapsed between uses • Description of attempts to through harassment, NMFS considers of the pile driving equipment is no more distinguish between the number of other factors, such as the likely nature than 30 minutes. individual animals taken and the of any responses (e.g., intensity, number of incidences of take, such as duration), the context of any responses Acoustic Monitoring ability to track groups or individuals. (e.g., critical reproductive time or The Navy intends to conduct a sound If no comments are received from location, migration), as well as effects source verification (SSV) study for all NMFS within 30 days, the draft report on habitat, and the likely effectiveness pile types other than concrete and will constitute the final report. If of the mitigation. We also assess the timber piles and will follow accepted comments are received, a final report number, intensity, and context of methodological standards to achieve addressing NMFS comments must be estimated takes by evaluating this their objectives. The Navy will submit submitted within 30 days after receipt of information relative to population an acoustic monitoring plan to NMFS comments. status. Consistent with the 1989 for approval prior to the start of In the event that personnel involved preamble for NMFS’s implementing construction. in the construction activities discover regulations (54 FR 40338; September 29, an injured or dead marine mammal, the 1989), the impacts from other past and Reporting Navy shall report the incident to the ongoing anthropogenic activities are The Navy would submit a draft report Office of Protected Resources (OPR) incorporated into this analysis via their to NMFS within 45 workdays of the (301–427–8401), NMFS and to the impacts on the environmental baseline completion of required monitoring for Greater Atlantic Region New England/ (e.g., as reflected in the regulatory status each MPU project. The report will detail Mid-Atlantic Regional Stranding of the species, population size and the monitoring protocol and summarize Coordinator as soon as feasible. If the growth rate where known, ongoing the data recorded during monitoring. death or injury was clearly caused by sources of human-caused mortality, or Specifically, the report must include: the specified activity, the Navy must ambient noise levels). • Dates and times (begin and end) of immediately cease the specified To avoid repetition, this introductory all marine mammal monitoring. activities until NMFS is able to review discussion of our analyses applies to all • Construction activities occurring the circumstances of the incident and of the species listed in Table 5, given during each daily observation period, determine what, if any, additional that many of the anticipated effects of including how many and what type of measures are appropriate to ensure this project on different marine mammal piles were driven or removed and by compliance with the terms of the stocks are expected to be relatively what method (i.e., impact or vibratory). authorization. The Navy must not similar in nature. Where there are • Environmental conditions during resume their activities until notified by meaningful differences between species monitoring periods (at beginning and NMFS. or stocks in anticipated individual end of PSO shift and whenever The report must include the following responses to activities, impact of conditions change significantly), information: expected take on the population due to including Beaufort sea state and any i. Time, date, and location (latitude/ differences in population status, or other relevant weather conditions longitude) of the first discovery (and impacts on habitat, they are described including cloud cover, fog, sun glare, updated location information if known independently in the analysis below. and applicable); and overall visibility to the horizon, and Pile driving activities associated with ii. Species identification (if known) or estimated observable distance (if less the project, as outlined previously, have than the harassment zone distance). description of the animal(s) involved; iii. Condition of the animal(s) the potential to disturb or displace • The number of marine mammals (including carcass condition if the marine mammals. Specifically, the observed, by species, relative to the pile animal is dead); specified activities may result in take, in location and if pile driving or removal iv. Observed behaviors of the the form of Level B harassment from was occurring at time of sighting. underwater sounds generated by pile • animal(s), if alive; Age and sex class, if possible, of all v. If available, photographs or video driving. Potential takes could occur if marine mammals observed. footage of the animal(s); and marine mammals are present in zones • PSO locations during marine vi. General circumstances under ensonified above the thresholds for mammal monitoring. which the animal was discovered. Level B harassment, identified above, • Distances and bearings of each while activities are underway. marine mammal observed to the pile Negligible Impact Analysis and No serious injury or mortality would being driven or removed for each Determination be expected even in the absence of the sighting (if pile driving or removal was NMFS has defined negligible impact proposed mitigation measures. For all occurring at time of sighting). as an impact resulting from the species other than humpback whale, no • Description of any marine mammal specified activity that cannot be Level A harassment is anticipated given behavior patterns during observation, reasonably expected to, and is not the nature of the activities. For including direction of travel and reasonably likely to, adversely affect the humpback whale, no Level A estimated time spent within the Level A species or stock through effects on harassment is anticipated due to the and Level B harassment zones while the annual rates of recruitment or survival proposed mitigation measures, which source was active. (50 CFR 216.103). A negligible impact we expect the Navy will be able to • Number of marine mammals finding is based on the lack of likely effectively implement given the small detected within the harassment zones, adverse effects on annual rates of Level A harassment zone sizes and high by species. recruitment or survival (i.e., population- visibility of humpback whales.

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The Navy’s proposed pile driving stock (estimated 27,131 animals in the particular importance to marine activities and associated impacts will U.S. portion of the stock). Given that mammals), the impacts to marine occur within a limited portion of the only 1 to 3 takes by Level B harassment mammal habitat are not expected to confluence of the Chesapeake Bay area. are proposed for this stock annually, we cause significant or long-term negative Localized noise exposures produced by do not expect this proposed consequences. project activities may cause short-term authorization to exacerbate or In summary and as described above, behavioral modifications in affected compound upon the ongoing UME. the following factors primarily support cetaceans and pinnipeds. However, as With regard to humpback whales, the our preliminary determination that the described previously, the mitigation and UME does not yet provide cause for impacts resulting from this activity are monitoring measures are expected to concern regarding population-level not expected to adversely affect the further reduce the likelihood of injury impacts. Despite the UME, the relevant species or stock through effects on as well as reduce behavioral population of humpback whales (the annual rates of recruitment or survival: disturbances. West Indies breeding population, or • No mortality is anticipated or Effects on individuals that are taken distinct population segment (DPS)) authorized; by Level B harassment, on the basis of remains healthy. Prior to 2016, • No Level A harassment is reports in the literature as well as humpback whales were listed under the anticipated or authorized; monitoring from other similar activities, ESA as an endangered species • The intensity of anticipated takes will likely be limited to reactions such worldwide. Following a 2015 global by Level B harassment is relatively low as increased swimming speeds, status review (Bettridge et al. 2015), for all stocks; increased surfacing time, or decreased NMFS established 14 DPSs with • The number of anticipated takes is foraging (if such activity were occurring) different listing statuses (81 FR 62259; very low for humpback whale, harbor (e.g., Thorson and Reyff 2006). September 8, 2016) pursuant to the ESA. porpoise, and gray seal; Individual animals, even if taken The West Indies DPS, which consists of • The specified activity and multiple times, will most likely move the whales whose breeding range associated ensonifed areas are very away from the sound source and be includes the Atlantic margin of the small relative to the overall habitat temporarily displaced from the areas of Antilles from Cuba to northern ranges of all species and do not include pile driving, although even this reaction Venezuela, and whose feeding range habitat areas of special significance has been observed primarily only in primarily includes the Gulf of Maine, (Biologically Important Areas or ESA- association with impact pile driving. eastern Canada, and western Greenland, designated critical habitat); The pile driving activities analyzed here was delisted. The status review • are similar to, or less impactful than, identified harmful algal blooms, vessel The lack of anticipated significant numerous other construction activities collisions, and fishing gear or long-term negative effects to marine mammal habitat; and conducted along both Atlantic and entanglements as relevant threats for • Pacific coasts, which have taken place this DPS, but noted that all other threats The presumed efficacy of the with no known long-term adverse are considered likely to have no or mitigation measures in reducing the consequences from behavioral minor impact on population size or the effects of the specified activity. harassment. Furthermore, many projects growth rate of this DPS (Bettridge et al. Based on the analysis contained similar to this one are also believed to 2015). As described in Bettridge et al. herein of the likely effects of the result in multiple takes of individual (2015), the West Indies DPS has a specified activity on marine mammals animals without any documented long- substantial population size (i.e., 12,312 and their habitat, and taking into term adverse effects. Level B harassment (95% CI 8,688–15,954) whales in 2004– consideration the implementation of the will be minimized through use of 05 (Bettridge et al. 2003)), and appears proposed monitoring and mitigation mitigation measures described herein to be experiencing consistent growth. measures, NMFS preliminarily finds and, if sound produced by project Further, NMFS is proposing to authorize that the total marine mammal take from activities is sufficiently disturbing, no more than eight takes by Level B the proposed activity will have a animals are likely to simply avoid the harassment annually of humpback negligible impact on all affected marine area while the activity is occurring, whale. mammal species or stocks. particularly as the project is located on For the WNA stock of harbor seals, Small Numbers a busy waterfront with high amounts of the estimated abundance is 75,834 vessel traffic. individuals. The estimated M/SI for this As noted above, only small numbers As previously described, UMEs have stock (350) is well below the PBR of incidental take may be authorized been declared for Northeast pinnipeds (2,006). As such, the proposed Level B under sections 101(a)(5)(A) of the (including harbor seal and gray seal) harassment takes of harbor seal are not MMPA for specified activities other and Atlantic humpback whales. expected to exacerbate or compound than military readiness activities. The However, we do not expect takes upon the ongoing UMEs. MMPA does not define small numbers proposed for authorization in this action The project is also not expected to and so, in practice, where estimated to exacerbate or compound upon these have significant adverse effects on numbers are available, NMFS compares ongoing UMEs. As noted previously, no affected marine mammals’ habitats. The the number of individuals taken to the injury, serious injury, or mortality is project activities will not modify most appropriate estimation of expect or proposed for authorization, existing marine mammal habitat for a abundance of the relevant species or and Level B harassment takes of significant amount of time. The stock in our determination of whether humpback whale, harbor seal and gray activities may cause some fish to leave an authorization is limited to small seal will be reduced to the level of least the area of disturbance, thus temporarily numbers of marine mammals. When the practicable adverse impact through the impacting marine mammals’ foraging predicted number of individuals to be incorporation of the proposed opportunities in a limited portion of the taken is fewer than one third of the mitigation measures. For the WNA stock foraging range; but, because of the short species or stock abundance, the take is of gray seal, the estimated stock duration of the activities and the considered to be of small numbers. abundance is 451,431 animals, relatively small area of the habitat that Additionally, other qualitative factors including the Canadian portion of the may be affected (with no known may be considered in the analysis, such

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as the temporal or spatial scale of the warm water months of July-August, the since observations began in 2015. Re- activities. stock is presumed to occupy coastal sightings of the same individual can be The authorized instances of take of waters north of Cape Lookout, North highly variable. Some dolphins are humpback whale, harbor porpoise, Carolina, to Assateague, Virginia, observed once per year, while others are harbor seal, and gray seal comprises less including the Chesapeake Bay. There is highly regular with greater than 10 than one-third of the best available stock likely some overlap between the sightings per year (J. Mann, Potomac- abundance (Table 14). The number of northern and southern migratory stocks Chesapeake Dolphin Project, pers. animals authorized to be taken from during spring and fall migrations, but comm.). Similarly, using available these stocks would be considered small the extent of overlap is unknown. photo-identification data, Engelhaupt et relative to the relevant stock’s The Chesapeake Bay and waters al. (2016) determined that specific abundances even if each estimated offshore of its mouth are located on the individuals were often observed in close taking occurred to a new individual, periphery of the migratory ranges of proximity to their original sighting which is an unlikely scenario. both coastal stocks (although during locations and were observed multiple Three bottlenose dolphin stocks could different seasons). Additionally, each of times in the same season or same year. occur in the project area: WNA Coastal the migratory coastal stocks are likely to Ninety-one percent of re-sighted Northern Migratory, WNA Coastal be located in the vicinity of the individuals (100 of 110) in the study Southern Migratory, and NNCES stocks. Chesapeake Bay for relatively short area were recorded less than 30 km from Therefore, the estimated takes of timeframes. Given the limited number the initial sighting location. Multiple bottlenose dolphin by Level B of animals from each migratory coastal sightings of the same individual would harassment would likely be portioned stock likely to be found at the seasonal considerably reduce the number of among these stocks. Based on the stocks’ migratory boundaries of their respective individual animals that are taken by respective occurrence in the area, NMFS ranges, in combination with the short Level B harassment. Furthermore, the estimated that there would be 100 takes time periods (∼two months) animals existence of a resident dolphin from the NNCES stock over the five-year might remain at these boundaries, it is population in the Bay would increase period (no more than 36 in one year), reasonable to assume that takes are the percentage of dolphin takes that are with the remaining takes evenly split likely to occur to only a small portion actually re-sightings of the same between the northern and southern of either of the migratory coastal stocks. individuals. migratory coastal stocks. Based on Both migratory coastal stocks likely In summary and as described above, consideration of various factors overlap with the NNCES stock at the following factors primarily support described below, we have determined various times during their seasonal our determination regarding the the numbers of individuals taken would migrations. The NNCES stock is defined incidental take of small numbers of the likely comprise less than one-third of as animals that primarily occupy waters affected stocks of bottlenose dolphin: the best available population abundance of the Pamlico Sound estuarine system • Potential bottlenose dolphin takes estimate of either coastal migratory (which also includes Core, Roanoke, in the project area are likely to be stock. and Albemarle sounds, and the Neuse allocated among three distinct stocks; Both the WNA Coastal Northern River) during warm water months (July- • Bottlenose dolphin stocks in the Migratory and WNA Coastal Southern August). Animals from this stock also project area have extensive ranges and Migratory stocks have expansive ranges use coastal waters (≤1 km from shore) of it would be unlikely to find a high and they are the only dolphin stocks North Carolina from Beaufort north to percentage of any one stock thought to make broad-scale, seasonal Virginia Beach, Virginia, including the concentrated in a relatively small area migrations in coastal waters of the lower Chesapeake Bay. Comparison of such as the project area or the western North Atlantic. Given the large dolphin photo-identification data Chesapeake Bay; ranges associated with these stocks it is confirmed that limited numbers of • The Chesapeake Bay represents the unlikely that large segments of either individual dolphins observed in migratory boundary for each of the stock would approach the project area Roanoke Sound have also been sighted specified dolphin stocks and it would and enter into the Chesapeake Bay. The in the Chesapeake Bay (Young, 2018). be unlikely to find a high percentage of majority of both stocks are likely to be Like the migratory coastal dolphin any stock concentrated at such found widely dispersed across their stocks, the NNCES stock covers a large boundaries; and respective habitat ranges and unlikely to range. The spatial extent of most small • Many of the takes would likely be be concentrated in or near the and resident bottlenose dolphin repeats of the same animals and likely Chesapeake Bay. populations is on the order of 500 km2, from a resident population of the Furthermore, the Chesapeake Bay and while the NNCES stock occupies over Chesapeake Bay. nearby offshore waters represent the 8,000 km2 (LeBrecque et al. 2015). Based on the analysis contained boundaries of the ranges of each of the Given this large range, it is again herein of the proposed activity two coastal stocks during migration. The unlikely that a preponderance of (including the proposed mitigation and WNA Coastal Northern Migratory stock animals from the NNCES stock would monitoring measures) and the occurs during warm water months from depart the North Carolina estuarine anticipated take of marine mammals, coastal Virginia, including the system and travel to the northern extent NMFS preliminarily finds that small Chesapeake Bay and Long Island, New of the stock’s range. However, recent numbers of marine mammals will be York. The stock migrates south in late evidence suggests that there is likely a taken relative to the population size of summer and fall. During cold-water small resident community of NNCES the affected species or stocks. months, dolphins may occur in coastal dolphins of indeterminate size that waters from Cape Lookout, North inhabits the Chesapeake Bay year-round Unmitigable Adverse Impact Analysis Carolina, to the North Carolina/Virginia. (E. Patterson, NMFS, pers. comm.). and Determination During January-March, the WNA Coastal Many of the dolphin observations in There are no relevant subsistence uses Southern Migratory stock appears to the Chesapeake Bay are likely repeated of the affected marine mammal stocks or move as far south as northern Florida. sightings of the same individuals. The species implicated by this action. From April to June, the stock moves Potomac-Chesapeake Dolphin Project Therefore, NMFS has determined that back north to North Carolina. During the has observed over 1,200 unique animals the total taking of affected species or

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stocks would not have an unmitigable and the proposed regulations (see PART 218—REGULATIONS adverse impact on the availability of ADDRESSES). All comments will be GOVERNING THE TAKING AND such species or stocks for taking for reviewed and evaluated as we prepare a IMPORTING OF MARINE MAMMALS subsistence purposes. final rule and make final determinations on whether to issue the requested ■ 1. The authority citation for part 218 Adaptive Management authorization. This proposed rule and continues to read as follows: The regulations governing the take of referenced documents provide all Authority: 16 U.S.C. 1361 et seq., unless marine mammals incidental to Navy environmental information relating to otherwise noted. maintenance construction activities our proposed action for public review. ■ 2. Add subpart A to part 218 to read would contain an adaptive management as follows: component. Classification The reporting requirements associated Pursuant to the procedures Subpart A—Taking and Importing with this proposed rule are designed to established to implement Executive Marine Mammals Incidental to U.S. provide NMFS with monitoring data Order 12866, the Office of Management Navy Construction at Naval Station from completed projects to allow and Budget has determined that this Norfolk in Norfolk, Virginia consideration of whether any changes proposed rule is not significant. are appropriate. The use of adaptive Sec. management allows NMFS to consider Pursuant to section 605(b) of the 218.1 Specified activity and geographical new information from different sources Regulatory Flexibility Act (RFA), the region. to determine (with input from the Navy Chief Counsel for Regulation of the 218.2 Effective dates. regarding practicability) on an annual or Department of Commerce has certified 218.3 Permissible methods of taking. to the Chief Counsel for Advocacy of the 218.4 Prohibitions. biennial basis if mitigation or 218.5 Mitigation requirements. monitoring measures should be Small Business Administration that this 218.6 Requirements for monitoring and modified (including additions or proposed rule, if adopted, would not reporting. deletions). Mitigation measures could be have a significant economic impact on 218.7 Letters of Authorization. modified if new data suggests that such a substantial number of small entities. 218.8 Renewals and modifications of modifications would have a reasonable The U.S. Navy is the sole entity that Letters of Authorization. likelihood of reducing adverse effects to would be subject to the requirements in 218.9 [Reserved] marine mammals and if the measures these proposed regulations, and the Subpart A—Taking and Importing are practicable. Navy is not a small governmental Marine Mammals Incidental to U.S. The following are some of the jurisdiction, small organization, or small Navy Construction at Naval Station possible sources of applicable data to be business, as defined by the RFA. Norfolk in Norfolk, Virginia considered through the adaptive Because of this certification, a management process: (1) Results from regulatory flexibility analysis is not § 218.1 Specified activity and geographical monitoring reports, as required by required and none has been prepared. region. MMPA authorizations; (2) results from This proposed rule does not contain (a) Regulations in this subpart apply general marine mammal and sound a collection-of-information requirement only to the U.S. Navy (Navy) and those research; and (3) any information which subject to the provisions of the persons it authorizes or funds to reveals that marine mammals may have Paperwork Reduction Act (PRA) conduct activities on its behalf for the been taken in a manner, extent, or because the applicant is a federal taking of marine mammals that occurs number not authorized by these agency. Notwithstanding any other in the areas outlined in paragraph (b) of regulations or subsequent LOAs. provision of law, no person is required this section and that occurs incidental Endangered Species Act to respond to nor shall a person be to construction activities including subject to a penalty for failure to comply marine structure maintenance, pile Section 7(a)(2) of the ESA (16 U.S.C. with a collection of information subject replacement, and select waterfront 1531 et seq.) requires that each Federal to the requirements of the PRA unless improvements at Naval Station agency insure that any action it that collection of information displays a (NAVSTA) Norfolk. authorizes, funds, or carries out is not currently valid OMB control number. (b) The taking of marine mammals by likely to jeopardize the continued These requirements have been approved the Navy may be authorized in a Letter existence of any endangered or by OMB under control number 0648– of Authorization (LOA) only if it occurs threatened species or result in the 0151 and include applications for at NAVSTA Norfolk and adjacent Navy destruction or adverse modification of regulations, subsequent LOAs, and facilities. designated critical habitat. To ensure reports. ESA compliance for the issuance of § 218.2 Effective dates. incidental take authorizations, NMFS List of Subjects in 50 CFR Part 218 Regulations in this subpart are consults internally whenever we effective from [EFFECTIVE DATE OF propose to authorize take for Exports, Fish, Imports, Indians, THE FINAL RULE] to [DATE 5 YEARS endangered or threatened species. Labeling, Marine mammals, Penalties, AFTER EFFECTIVE DATE OF THE No incidental take of ESA-listed Reporting and recordkeeping FINAL RULE]. species is proposed for authorization or requirements, Seafood, Transportation. expected to result from this activity. Dated: December 8, 2020. § 218.3 Permissible methods of taking. Therefore, NMFS has determined that Samuel D. Rauch, III, Under an LOA issued pursuant to § 216.106 of this chapter and § 218.7, formal consultation under section 7 of Deputy Assistant Administrator for the ESA is not required for this action. Regulatory Programs, National Marine the Holder of the LOA (hereinafter Fisheries Service. ‘‘Navy’’) may incidentally, but not Request for Information intentionally, take marine mammals NMFS requests interested persons to For reasons set forth in the preamble, within the area described in § 218.1(b) submit comments, information, and 50 CFR part 218 is proposed to be by Level B harassment associated with suggestions concerning the Navy request amended as follows: construction activities, provided the

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activity is in compliance with all terms, within or approaches the shutdown met, entering or within the harassment conditions, and requirements of the zone, such operations shall cease. zone. regulations in this subpart and the (5) For all pile driving activity, the (11) Should environmental conditions applicable LOA. Navy shall implement shutdown zones deteriorate such that marine mammals with radial distances as identified in a within the entire shutdown zone would § 218.4 Prohibitions. LOA issued under § 216.106 of this not be visible (e.g., fog, heavy rain), the (a) Except for the takings chapter and § 218.7. If a marine Navy shall delay pile driving and contemplated in § 218.3 and authorized mammal comes within or approaches removal until observers are confident by a LOA issued under § 216.106 of this the shutdown zone, such operations marine mammals within the shutdown chapter and § 218.7, it is unlawful for shall cease. zone could be detected. any person to do any of the following (6) The Navy shall deploy protected (12) Monitoring shall be conducted by in connection with the activities species observers (observers) as trained observers, who shall have no described in § 218.1 may: indicated in its Marine Mammal other assigned tasks during monitoring (1) Violate, or fail to comply with, the Monitoring Plan approved by NMFS. periods. Trained observers shall be terms, conditions, and requirements of (7) For all pile driving activities, a placed at the best vantage point(s) this subpart or a LOA issued under minimum of two observers shall be practicable to monitor for marine § 216.106 of this chapter and § 218.7; stationed at the best vantage points mammals and implement shutdown or (2) Take any marine mammal not practicable to monitor for marine delay procedures when applicable specified in such LOA; mammals and implement shutdown/ through communication with the (3) Take any marine mammal delay procedures. equipment operator. The Navy shall specified in such LOA in any manner (8) Monitoring shall take place from adhere to the following additional other than as specified; 30 minutes prior to initiation of pile observer qualifications: (4) Take a marine mammal specified driving activity through 30 minutes (i) Independent observers are in such LOA if NMFS determines such post-completion of pile driving activity. required. taking results in more than a negligible Pre-activity monitoring shall be (ii) At least one observer must have impact on the species or stocks of such conducted for 30 minutes to ensure that prior experience working as an observer. marine mammal; or the shutdown zone is clear of marine (iii) Other observers may substitute (5) Take a marine mammal specified mammals, and pile driving may education (degree in biological science in such LOA if NMFS determines such commence when observers have or related field) or training for taking results in an unmitigable adverse declared the shutdown zone clear of experience. impact on the species or stock of such marine mammals. In the event of a delay (iv) Where a team of three or more marine mammal for taking for or shutdown of activity resulting from observers are required, one observer subsistence uses. marine mammals in the shutdown zone, shall be designated as lead observer or (b) [Reserved] animals shall be allowed to remain in monitoring coordinator. The lead the shutdown zone (i.e., must leave of § 218.5 Mitigation requirements. observer must have prior experience their own volition) and their behavior working as an observer. (a) When conducting the activities shall be monitored and documented. If (v) Personnel who are engaged in identified in § 218.20(a), the mitigation a marine mammal is observed within construction activities may not serve as measures contained in any LOA issued the shutdown zone, a soft-start cannot observers. under § 216.106 of this chapter and proceed until the animal has left the (13) The Navy shall use soft start § 218.7 must be implemented. These zone or has not been observed for 15 techniques for impact pile driving. Soft mitigation measures shall include but minutes. Monitoring shall occur start for impact drivers requires the are not limited to: throughout the time required to drive a Navy and those persons it authorizes or (1) A copy of any issued LOA must be pile. If work ceases for more than 30 funds to provide an initial set of three in the possession of the Navy, its minutes, the pre-activity monitoring of strikes at reduced energy, followed by a designees, and work crew personnel the shutdown zones must commence. A 30-second waiting period, then two operating under the authority of the determination that the shutdown zone is subsequent reduced energy three-strike issued LOA. clear must be made during a period of sets. Soft start shall be implemented at (2) The Navy shall conduct briefings good visibility (i.e., the entire shutdown the start of each day’s impact pile for construction supervisors and crews, zone and surrounding waters must be driving and at any time following the monitoring team, and Navy staff visible to the naked eye). cessation of impact pile driving for a prior to the start of all pile driving (9) If a marine mammal approaches or period of thirty minutes or longer. activity, and when new personnel join enters the shutdown zone, all pile (b) [Reserved] the work, in order to explain driving activities at that location shall responsibilities, communication be halted. If pile driving is halted or § 218.6 Requirements for monitoring and procedures, the marine mammal delayed due to the presence of a marine reporting. monitoring protocol, and operational mammal, the activity may not (a) The Navy shall submit a Marine procedures. commence or resume until either the Mammal Monitoring Plan to NMFS for (3) For in-water heavy machinery animal has voluntarily left and been approval in advance of construction. work other than pile driving, if a marine visually confirmed beyond the (b) The Navy shall deploy observers mammal comes within 10 m, the Navy shutdown zone or fifteen minutes have as indicated in its approved Marine shall cease operations and reduce vessel passed without re-detection of the Mammal Monitoring Plan. speed to the minimum level required to animal. (c) Observers shall be trained in maintain steerage and safe working (10) Pile driving activity must be marine mammal identification and conditions. halted upon observation of either a behaviors. Observers shall have no other (4) For all pile driving activity, the species for which incidental take is not construction-related tasks while Navy shall implement a minimum authorized or a species for which conducting monitoring. shutdown zone of a 10 m radius around incidental take has been authorized but (d) For all pile driving activities, a the pile. If a marine mammal comes the authorized number of takes has been minimum of two observers shall be

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stationed at the active pile driving site travel and estimated time spent within (c) If an LOA expires prior to the or in reasonable proximity in order to the Level A and Level B harassment expiration date of these regulations, the monitor the shutdown zone. zones while the source was active. Navy may apply for and obtain a (e) The Navy shall monitor the Level (9) Number of marine mammals renewal of the LOA. B harassment zones (areas where SPLs detected within the harassment zones, (d) In the event of projected changes are equal to or exceed the 160 dB rms by species. to the activity or to mitigation and threshold for impact driving and the 120 (10) Detailed information about any monitoring measures required by an dB rms threshold during vibratory pile implementation of any mitigation LOA, the Navy must apply for and driving) to the extent practicable and triggered (e.g., shutdowns and delays), a obtain a modification of the LOA as the shutdown zones. The Navy shall description of specific actions that described in § 218.8. monitor at least a portion of the Level ensued, and resulting behavior of the (e) The LOA shall set forth the B harassment zone on all pile driving animal, if any. following information: days. (11) Description of attempts to (1) Permissible methods of incidental (f) The Navy shall conduct distinguish between the number of taking; hydroacoustic data collection (sound individual animals taken and the (2) Means of effecting the least source verification and propagation number of incidences of take, such as practicable adverse impact (i.e., loss) in accordance with a ability to track groups or individuals. mitigation) on the species, its habitat, hydroacoustic monitoring plan that (h) The Navy shall report the and on the availability of the species for must be approved by NMFS in advance hydroacoustic data collected as required subsistence uses; and of construction. by a LOA issued under § 216.106 of this (3) Requirements for monitoring and (g) The Navy shall submit a draft chapter and § 218.7. reporting. monitoring report to NMFS within 45 (i) In the event that personnel (f) Issuance of the LOA shall be based work days of the completion of required involved in the construction activities on a determination that the level of monitoring for each marine structure discover an injured or dead marine taking will be consistent with the maintenance, pile replacement, and mammal, the Navy shall report the findings made for the total taking upgrades project. The report must detail incident to the Office of Protected allowable under these regulations. the monitoring protocol and summarize Resources (OPR) (301–427–8401), (g) Notice of issuance or denial of an the data recorded during monitoring. If NMFS and to the Greater Atlantic LOA shall be published in the Federal no comments are received from NMFS Region New England/Mid-Atlantic Register within 30 days of a within 30 days, the draft report will Regional Stranding Coordinator as soon determination. constitute the final report. If comments as feasible. If the death or injury was are received, a final report addressing § 218.8 Renewals and modifications of clearly caused by the specified activity, Letters of Authorization. NMFS comments must be submitted the Navy must immediately cease the within 30 days after receipt of specified activities until NMFS is able (a) An LOA issued under § 216.106 of comments. Specifically, the report must to review the circumstances of the this chapter and § 218.7 for the activity include: incident and determine what, if any, identified in § 218.1(a) shall be renewed (1) Dates and times (begin and end) of additional measures are appropriate to or modified upon request by the all marine mammal monitoring. ensure compliance with the terms of the applicant, provided that: (2) Construction activities occurring authorization. The Navy must not (1) The proposed specified activity during each daily observation period, resume their activities until notified by and mitigation, monitoring, and including how many and what type of NMFS. reporting measures, as well as the piles were driven or removed and by (1) The report must include the anticipated impacts, are the same as what method (i.e., impact or vibratory). following information: those described and analyzed for these (3) Environmental conditions during (i) Time, date, and location (latitude/ regulations, and monitoring periods (at beginning and longitude) of the first discovery (and (2) NMFS determines that the end of observer shift and whenever updated location information if known mitigation, monitoring, and reporting conditions change significantly), and applicable); measures required by the previous LOA including Beaufort sea state and any (ii) Species identification (if known) under these regulations were other relevant weather conditions or description of the animal(s) involved; implemented. including cloud cover, fog, sun glare, (iii) Condition of the animal(s) (b) For LOA modification or renewal and overall visibility to the horizon, and (including carcass condition if the requests by the applicant that include estimated observable distance (if less animal is dead); changes to the activity or the mitigation, than the harassment zone distance). (iv) Observed behaviors of the monitoring, or reporting that do not (4) The number of marine mammals animal(s), if alive; change the findings made for the observed, by species, relative to the pile (v) If available, photographs or video regulations or result in no more than a location and if pile driving or removal footage of the animal(s); and minor change in the total estimated was occurring at time of sighting. (vi) General circumstances under number of takes (or distribution by (5) Age and sex class, if possible, of which the animal was discovered. species or years), NMFS may publish a all marine mammals observed. (2) [Reserved] notice of proposed LOA in the Federal (6) Observer locations during marine Register, including the associated mammal monitoring. § 218.7 Letters of Authorization. analysis of the change, and solicit (7) Distances and bearings of each (a) To incidentally take marine public comment before issuing the LOA. marine mammal observed to the pile mammals pursuant to these regulations, (c) An LOA issued under § 216.106 of being driven or removed for each the Navy must apply for and obtain an this chapter and § 218.7 for the activity sighting (if pile driving or removal was LOA. identified in § 218.1(a) may be modified occurring at time of sighting). (b) An LOA, unless suspended or by NMFS under the following (8) Description of any marine revoked, may be effective for a period of circumstances: mammal behavior patterns during time not to exceed the expiration date (1) NMFS may modify (including observation, including direction of of these regulations. augment) the existing mitigation,

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monitoring, or reporting measures (after (B) Results from other marine (2) If NMFS determines that an consulting with Navy regarding the mammal and/or sound research or emergency exists that poses a significant practicability of the modifications) if studies. risk to the well-being of the species or doing so creates a reasonable likelihood (C) Any information that reveals stocks of marine mammals specified in of more effectively accomplishing the marine mammals may have been taken a LOA issued pursuant to § 216.106 of goals of the mitigation and monitoring in a manner, extent or number not this chapter and § 218.7, a LOA may be set forth in the preamble for these authorized by these regulations or modified without prior notice or regulations. subsequent LOAs. opportunity for public comment. Notice (i) Possible sources of data that could (ii) If, through adaptive management, would be published in the Federal contribute to the decision to modify the the modifications to the mitigation, Register within 30 days of the action. mitigation, monitoring, or reporting monitoring, or reporting measures are measures in a LOA: substantial, NMFS will publish a notice § 218.9 [Reserved] (A) Results from Navy’s monitoring of proposed LOA in the Federal [FR Doc. 2020–27300 Filed 12–18–20; 8:45 am] from previous years. Register and solicit public comment. BILLING CODE 3510–22–P

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