§ 217.214 Mitigation requirements. ( a ) When conducting the activities identified in § 217.210(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 217.216 must be implemented. These mitigation measures shall include but are not limited to: ( 1 ) A copy of any issued LOA must be in the possession of HRCP, its designees, and work crew personnel operating under the authority of the issued LOA.
( 2 ) HRCP shall conduct briefings for construction supervisors and crews, the monitoring team, and HRCP staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures.
( 3 ) For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 meters (m), HRCP shall cease operations and reduce vessel speed to the minimum level required to maintain steerage and safe working conditions.
( 4 ) For all pile driving activity, HRCP shall implement a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
( 5 ) For all pile driving activity, HRCP shall implement shutdown zones with radial distances as identified in a LOA issued under §§ 216.106 of this chapter and 217.216. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.
( 6 ) HRCP shall deploy protected species observers (observers) as indicated in its Marine Mammal Monitoring Plan approved by NMFS.
( 7 ) For all pile driving activities, between one and four observers shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures.
( 8 ) Monitoring shall take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for 30 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone (*i.e.,* must leave of their own volition) and their behavior shall be monitored and documented. If a marine mammal is observed within the shutdown zone, a soft-start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. Monitoring shall occur throughout the time required to drive a pile. If in-water pile installation and removal work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones must commence. A determination that the shutdown zone is clear must be made during a period of good visibility (*i.e.,* the entire shutdown zone and surrounding waters must be visible to the naked eye).
( 9 ) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location shall be halted. In the event of a delay, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal.
( 10 ) Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone.
( 11 ) Should environmental conditions deteriorate (*e.g.,* fog, heavy rain) such that observers are unable to visibly detect marine mammals within the entire shutdown zone then HRCP shall delay pile driving and removal until observers are confident marine mammals within the shutdown zone could be detected.
( 12 ) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. HRCP shall adhere to the following additional observer qualifications: ( i ) Independent observers are required;
( ii ) At least one observer must have prior experience working as an observer;
( iii ) Other observers may substitute education (degree in biological science or related field) or training for experience;
( iv ) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
( v ) HRCP must submit PSO CVs for approval by NMFS prior to the beginning of pile driving and drilling.
( 13 ) HRCP shall use soft start techniques for impact pile driving. Soft start for impact driving requires HRCP and those persons it authorizes to provide an initial set of three strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy three-strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.
( 14 ) HRCP shall employ bubble curtain systems during impact driving of steel piles except under conditions where the water depth is less than 20 feet in depth. Bubble curtains must meet the following requirements: ( i ) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column.
( ii ) The lowest bubble ring must be in contact with the mudline and/or rock bottom for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline and/or rock bottom contact. No parts of the ring or other objects shall prevent full mudline and/or rock bottom contact.
( iii ) The bubble curtain must be operated such that there is proper (equal) balancing of air flow to all bubblers.
( iv ) HRCP shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers and corrections to the attenuation device to meet the performance standards specified in an LOA issued under §§ 216.106 of this chapter and § 217.216. This shall occur prior to the initiation of pile driving activities.
( b ) [Reserved]