2832 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XD572] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Port of 

Alaska’s North Extension Stabilization 

Step 1 Project in Anchorage, Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of an incidental 

harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an incidental 

harassment authorization (IHA) to the 

Port of Alaska (POA) to incidentally 

harass marine mammals during 

construction activities associated with 

the North Extension Stabilization Step 1 

(NES1) Project in Anchorage, Alaska. 

DATES: This authorization is effective 

from April 1, 2024, through March 31, 

2025. 

ADDRESSES: Electronic copies of the 

application and supporting documents, 

as well as a list of the references cited 

in this document, may be obtained 

online at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing 

these documents, please call the contact 

listed below. 

FOR FURTHER INFORMATION CONTACT: 

Reny Tyson Moore, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

proposed or, if the taking is limited to 

harassment, a notice of a proposed IHA 

is provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of the takings are set forth. 

The definitions of all applicable MMPA 

statutory terms cited above are included 

in the relevant sections below. 

Summary of Request 

On July 19, 2022, NMFS received a 

request from the POA for an IHA to take 

marine mammals incidental to 

construction activities related to the 

NES1 project in Anchorage, Alaska. 

Following NMFS’ review of the 

application, the POA submitted revised 

versions on December 27, 2022, July 28, 

2023, and August 31, 2023. The 

application was deemed adequate and 

complete on September 7, 2023. The 

POA submitted a final version 

addressing additional minor corrections 

on September 21, 2023. The Federal 

Register notice of the proposed IHA and 

request for comments was published on 

November 6, 2023 (88 FR 76576). The 

POA’s request is for take of seven 

species of marine mammals by Level B 

harassment and, for a subset of these 

species (i.e., harbor seal (Phoca vitulina) 

and harbor porpoise (Phocoena 

phocoena)), Level A harassment. 

Neither the POA nor NMFS expect 

serious injury or mortality to result from 

this activity and, therefore, an IHA is 

appropriate. 

NMFS previously issued IHAs to the 

POA for similar work (85 FR 19294, 

April 6, 2020; 86 FR 50057, September 

7, 2021). The POA complied with all the 

requirements (e.g., mitigation, 

monitoring, and reporting) of the 

previous IHAs, and information 

regarding their monitoring results may 

be found in the Effects of the Specified 

Activity on Marine Mammals and their 

Habitat section of the Federal Register 

notice of the proposed IHA (88 FR 

76576, November 6, 2023), the 

Estimated Take section in this notice of 

issuance, and online at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-constructionactivities. 

This IHA will cover 1-year of the 

ongoing Port of Alaska Modernization 

Program (PAMP) for which the POA 

obtained prior IHAs and intends to 

request additional take authorization for 

subsequent facets of the program. The 

PAMP involves construction activities 

related to the modernization of the 

POA’s marine terminals. 

Description of Specified Activity 

The POA, located on Knik Arm in 

upper Cook Inlet, provides critical 

infrastructure for the citizens of 

Anchorage and a majority of the citizens 

of Alaska. The North Extension at the 

POA is a failed bulkhead structure that 

was constructed between 2005 and 

2011. Parts of the North Extension 

bulkhead structure and the surrounding 

upland area are unstable and collapsing, 

and some of the sheet piles are visibly 

twisted and buckled. The structure 

presents safety hazards and logistical 

impediments to ongoing Port 

operations, and much of the upland area 

is currently unusable. The North 

Extension Stabilization (NES) project 

will result in removal of the failed sheet 

pile structure and reconfiguration and 

realignment of the shoreline within the 

North Extension, including the 

conversion of approximately 0.05 square 

kilometers (km2; 13 acres) of developed 

land back to intertidal and subtidal 

habitat within Knik Arm. The NES 

project will be completed in two 

distinct steps, NES1 and NES2, 

separated by multiple years and 

separate permitting efforts. This notice 

is applicable to an IHA for the 

incidental take of marine mammals 

during in-water construction associated 

with NES1. 

The NES1 project will involve the 

removal of portions of the failed sheet 

pile structure to stabilize the North 

Extension. The NES1 project will 

remove approximately half of the North 

Extension structure extending 

approximately 274-meters (m) north 

from the southern end of the North 

Extension. This project will also 

stabilize the remaining portion of the 

North Extension by creating an end-state 

embankment. While the majority of the 

Project will be demolition work, the 

term ‘‘construction’’ as used herein 

refers to both construction and 

demolition work. 

In-water construction associated with 

this project includes vibratory 

installation and removal of 81 24-inch 

(61-centimeter (cm)) or 36-inch (91-cm) 

temporary steel pipe stability template 

piles as well as vibratory removal, 

splitting (via a sheet pile splitter used in 


ddrumheller on DSK120RN23PROD with NOTICES2
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2833 

conjunction with a vibratory hammer), 

pile cutting (via hydraulic shears or 

underwater ultrathermic cutting) and 

possible impact removal of 

approximately 4,216 sheet piles from 

the structure tailwalls, cell faces 

(bulkhead), and closure walls. 

Demolition of the failed sheet pile 

structure will be accomplished through 

excavation and dredging of impounded 

soils (fill material), and cutting and 

removal of the existing sheet piles, most 

likely through use of a pile splitter and 

vibratory hammer. It is assumed that 

pile splitting will produce the same or 

similar sound levels to a vibratory 

hammer used without the splitter 

attachment. Therefore, the use of a 

vibratory hammer to remove sheet piles 

and the use of a splitter is combined 

into a single category (i.e., vibratory 

hammer removal) and treated the same 

in our analysis. 

The first attempt to extract the sheet 

piles will be with direct vertical pulling 

or with a vibratory hammer; however, 

there may be complications with the 

sheet pile interlocks, which could 

become seized, and other means of pile 

removal may be required (i.e., impact 

removal, shearing, or torching). In 

addition, to minimize potential impacts 

on marine mammals from in-water sheet 

pile removal, removal in the dry would 

be maximized as feasible. The 

demolition plan also includes 

stabilization of the face sheets through 

installation of temporary piles and 

dredging back into the cell to relieve 

pressure on the sheet piles and to 

eliminate any release of material into 

Cook Inlet beyond natural tidal forces. 

It is anticipated that 3 sets of 27 

temporary piles would be required for a 

total of 81 installations and 81 removals 

(table 1). Temporary piles would be 

installed and removed with a vibratory 

hammer. Sound produced by vibratory 

pile installation and removal and 

impact pile removal may result in the 

take of marine mammals, by harassment 

only. Sound produced by all other NES1 

project activities (e.g., hydraulic 

shearing, ultrathermic cutting) are not 

expected to result in the take of marine 

mammals and, therefore, are not 

discussed further. 

BILLING CODE 3510–22–P 


ddrumheller on DSK120RN23PROD with NOTICES2
BILLING CODE 3510–22–C 

A detailed description of the planned 

NES1 project is provided in the Federal 

Register notice for the proposed IHA (88 

that time, no changes have been made 

FR 76576, November 6, 2023). Since 

here. Please refer to that 

detailed description is not provided 

to the planned activities. Therefore, a 

Federal 

Register notice for the description of the 

specific activity. 

Dates and Duration 

The POA anticipates that NES1 inNovember 2024. In-water pile 

on April 1, 2024 and extend through 

water construction activities will begin 


EN16JA24.031</GPH>ddrumheller on DSK120RN23PROD with NOTICES2

Table 1 -- Estimated Timing and Duration by Month of Pile Installation and Remov

Activity April May June July August September October 

36-inch (91-cm) or 24- Piles 27 14 14 10 10 3 3 

inch (61-cm) stability 

template pile installation Hours 6.75 3.50 3.50 2.5 2.5 0.75 0.75 

36-inch (91-cm) or 24- Piles 0 27 13 13 13 10 4 

inch (61-cm) stability 

template pile removal Hours 0 6.75 3.25 3.25 3.25 2.5 1 

Sheet pile vibratory Piles - - - - - - - 

hammer removal 

Hours 10 45 60 60 13 12 4 

Total hours 16.75 55.25 66.75 65.75 18.75 15.25 5.75 
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2835 

installation and removal associated with 

the NES1 project is anticipated to take 

place over approximately 246.5 hours 

on 110 nonconsecutive days between 

these dates. While the exact sequence of 

demolition and construction is 

uncertain, an estimated schedule of 

sheet pile removal and temporary 

stability template pile installation and 

removal is shown in table 1. 

A detailed description of the timing 

and sequencing of the NES1 project is 

provided in the Federal Register notice 

for the proposed IHA (88 FR 76576, 

November 6, 2023). Since that time, no 

changes have been made to the dates or 

duration. Therefore, a detailed 

description is not provided here. Please 

refer to that Federal Register notice for 

more information regarding the dates 

and duration of the NES1 project. 

Specific Geographic Region 

The Municipality of Anchorage is 

located in the lower reaches of Knik 

Arm of upper Cook Inlet (see figure 2– 

1 in the POA’s application). The POA 

sits on the industrial waterfront of 

Anchorage, just south of Cairn Point and 

north of Ship Creek (lat. 61°15′ N, long. 

149°52′ W; Seward Meridian). Knik Arm 

and Turnagain Arm are the two 

branches of upper Cook Inlet, and 

Anchorage is located where the two 

arms join. The POA’s boundaries 

currently occupy an area of 

approximately 0.52 km2. 

A detailed description of the specific 

geographic region of the NES1 project is 

provided in the Federal Register notice 

for the proposed IHA (88 FR 76576, 

November 6, 2023). Since that time, no 

changes have been made to the specific 

geographic region. Therefore, a detailed 

description is not provided here. Please 

refer to that Federal Register notice for 

more information regarding the specific 

geographic region of the NES1 project. 

Comments and Responses 

A notice of NMFS’ proposal to issue 

an IHA to the POA was published in the 

Federal Register on November 6, 2023 

(88 FR 76576). That notice described, in 

detail, the POA’s activity, the marine 

mammal species that may be affected by 

the activity, and the anticipated effects 

on marine mammals. In that notice, we 

requested public input on the request 

for authorization described therein, our 

analyses, the proposed authorization, 

and any other aspect of the notice of 

proposed IHA, and requested that 

interested persons submit relevant 

information, suggestions, and 

comments. 

During the 30-day public comment 

period, NMFS received comments from 

the Center for Biological Diversity (CBD) 

and Eklutna, Inc. NMFS also received a 

letter from United States Geological 

Survey stating that they had no 

comment. All relevant, substantive 

comments, and NMFS’ responses, are 

provided below. The comments and 

recommendations are available online 

at: https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizationsconstruction-activities. Please see the 

comment submissions for full details 

regarding the recommendations and 

supporting rationale. 

Comment 1: The CBD opposed NMFS’ 

issuance of an IHA for construction and 

associated activities related to the NES1 

project, stating that the proposed actions 

would further imperil the already 

critically endangered Cook Inlet beluga 

whale (CIBW) and that ‘‘most of the 

proposed activities should not be 

authorized until and unless [NMFS] can 

ensure that take will not impede the 

survival and recovery of the [CIBW] 

population.’’ 

Response: NMFS shares CBD’s 

concern regarding the impacts of human 

activities on CIBWs and is committed to 

supporting the conservation and 

recovery of the species. Under section 

101(a)(5)(D) of the MMPA, NMFS 

considers the at risk status of CIBWs 

(and other species) in both the 

negligible impact analysis and through 

our consideration of impact 

minimization measures that support the 

least practicable adverse impact on 

those species. For example, the IHA for 

the NES1 project includes a requirement 

to implement shutdown zones for 

CIBWs that encompass the estimated 

Level B harassment zones. However, 

section 101(a)(5)(D) also mandates that 

NMFS ‘‘shall issue’’ an IHA if we are 

able to make the necessary findings for 

any specified activity for which 

incidental take is requested. 

In accordance with our implementing 

regulations at 50 CFR 216.104(c), we use 

the best available scientific evidence to 

determine whether the taking by the 

specified activity within the specified 

geographic region will have a negligible 

impact on the species or stock and will 

not have an unmitigable adverse impact 

on the availability of such species or 

stock for subsistence uses. Based on the 

best scientific evidence available, NMFS 

determined that the take incidental to 

POA’s NES1 project would have no 

more than a negligible impact on the 

affected species and stocks, including 

CIBW, and no unmitigable adverse 

impact on the availability of marine 

mammals for subsistence uses. 

Moreover, NMFS has required through 

the IHA implementation of mitigation 

and monitoring measures that balances 

the safety needs of this demolition 

project with reducing potential impacts 

to CIBWs and other marine mammals to 

the lowest level practicable, thereby 

providing the means of effecting the 

least practicable adverse impact on the 

affected species and stocks of marine 

mammals. 

Further, as described in the Federal 

Register notice of the proposed IHA (88 

FR 76576, November 6, 2023), data from 

several years of scientific monitoring at 

the POA during previous work 

involving pile driving (occurring April 

through November) demonstrate there is 

no significant difference in beluga 

whale sightings during and in absence 

of pile driving (Kendell and Cornick, 

2016). While we do anticipate some 

behavioral modifications to occur, these 

will likely be limited to increased travel 

speeds, reduced vocalizations, and 

potentially traveling in more cohesive 

groups (Kendell and Cornick, 2016). 

However, we anticipate behavior will 

return to normal after the whales move 

past the POA (e.g., when they reach 

productive foraging grounds north of the 

POA) as these areas would not be 

ensonified by pile driving noise. There 

is no evidence CIBWs have abandoned 

foraging in Knik Arm due to pile driving 

noise or that exposure to pile driving 

noise has resulted in more than a 

negligible impact to the CIBW 

population (e.g., 61N Environmental, 

2021, 2022a, 2022b, 2022c; EasleyAppleyard and Leonard, 2022). In light 

of the mitigation and monitoring 

measures and scientific data to date, we 

anticipate the impacts of any Level B 

harassment to CIBWs will be limited to 

short-term, mild to moderate behavioral 

changes and will not affect the fitness of 

any individuals. Therefore, NMFS’ 

negligible impact determination is well 

supported and the authorized take for 

the NES1 project is neither reasonably 

expected nor likely to adversely affect 

the stock through effects on annual rates 

of recruitment or survival and thus, will 

not contribute to or exacerbate the 

stock’s decline. Additionally, the NMFS 

Alaska Regional Office issued a 

Biological Opinion (BiOp) on December 

15, 2023, under section 7 of the 

Endangered Species Act (ESA), on the 

issuance of an IHA to the POA under 

section 101(a)(5)(D) of the MMPA by the 

NMFS Office of Protected Resources 

(OPR) that determined that the issuance 

of the IHA is not likely to jeopardize the 

continued existence of CIBWs. 

CBD cited a letter from the Marine 

Mammal Commission (MMC) submitted 

to NMFS in response to the issuance of 

an IHA for the POA’s Petroleum and 

Cement Terminal (PCT) project (MMC, 

2020) that specifically recommended for 


ddrumheller on DSK120RN23PROD with NOTICES2
2836 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

POA construction activities, that the 

Service ‘‘defer issuance of the final 

incidental harassment authorizations to 

[the POA] or any other applicant 

proposing to conduct sound-producing 

activities in Cook Inlet until [it] has a 

reasonable basis for determining that 

authorizing any additional incidental 

harassment takes of Cook Inlet beluga 

whales would not contribute to or 

exacerbate the stock’s decline.’’ NMFS 

responded to this recommendation in 

the Federal Register notice of the final 

IHA for the PCT project (e.g., 85 FR 

19294, April 1, 2020) and we 

incorporate that response by reference. 

In summary, that notice describes how 

there is no evidence that exposure to 

pile driving noise in Knik Arm has 

resulted in more than a negligible 

impact to the CIBW population. 

Therefore, NMFS negligible impact 

determination was well supported and 

the authorized take for the PCT project 

was neither reasonably expected nor 

likely to adversely affect the stock 

through effects on annual rates of 

recruitment or survival. Thus NMFS 

had a reasonable basis for determining 

that authorizing take incidental to the 

PCT project would not contribute to or 

exacerbate the stock’s decline. Since the 

publication of this notice, no new 

information has become available that 

would suggest that determination was 

incorrect. Similarly, NMFS’ 

independent evaluation of the best 

scientific evidence in this case supports 

our negligible impact determination and 

our finding that the authorized take for 

the NES1 project is neither reasonably 

expected nor likely to adversely affect 

the stock through effects on annual rates 

of recruitment or survival. Thus, NMFS 

has a reasonable basis for determining 

that authorizing take incidental to the 

NES1 project would not contribute to or 

exacerbate the stock’s decline. NMFS 

did not receive any recommendations 

from the MMC regarding the proposed 

IHA for the NES1 project. 

Finally, we also note CBD’s 

suggestion that this IHA authorizes the 

subject construction activities. We note 

that NMFS does not have authority 

under the MMPA or other statute to 

authorize the specified activity. NMFS’ 

authority pertains only to the 

authorization of marine mammal take 

incidental to that activity and to the 

prescription of appropriate mitigation, 

monitoring, and reporting requirements. 

Comment 2: The CBD expressed 

concern regarding uncertainty in the 

trends of the CIBW population status. 

They stated that ‘‘changes in survey 

methods bring into question the 

approach of determining any trend in 

population status.’’ They cited scientific 

studies that confirm a negative trend in 

the population status of CIBWs. 

Response: CBD is incorrect in that 

survey methods for detecting trends in 

CIBW population have changed; the 

survey field methods are essentially 

unchanged since 2004 (Paul Wade, 

personal communication, December 11, 

2023). The analysis methods used to 

detect trends in the CIBW population 

have been updated and implemented in 

recent studies examining the CIBW 

population, notably Sheldon and Wade 

(2019) and Goetz et al. (2023). 

Results of recent studies, including 

those cited by CBD, provide evidence 

that the CIBW population increased 

between 2004 and 2010, declined after 

2010, and increased again from 2016 to 

2022 (Jacobsen et al., 2020; Shelden and 

Wade, 2019; Warlick et al., 2023; Goetz 

et al., 2023). While there is some 

uncertainty around CIBW population 

trend analyses, the results of these four 

studies are consistent in showing 

general trends. Thus, while the CBD 

were correct that some studies confirm 

a negative trend in beluga whale 

abundance, recent studies, which NMFS 

considers the best scientific information 

available, suggest this trend may now be 

increasing. Additional data in the 

coming years will help to inform 

whether the recent positive trend in the 

CIBW population will continue. 

Comment 3: The CBD states that 

NMFS must conduct a comprehensive 

analysis of all CIBW take and asserts 

that NMFS should place an overall cap 

on authorizations for CIBW incidental 

take. They state that the various 

construction, vessel traffic, oil and gas, 

and other activities are cumulatively 

threatening the conservation and 

recovery of CIBWs. CBD also provides 

examples for the number of takes 

authorized by NMFS for various time 

periods, citing Migura and Bollini 

(2021) and recent authorizations to the 

POA. 

Response: We note first that the 

Migura and Bollini (2021) paper cited 

by CBD seems to have led to a 

misunderstanding of the takes 

authorized or permitted by NMFS. In 

summary, CBD asserts that NMFS 

authorized nearly 120,000 takes of 

CIBWs from 2017 to 2025 and that in 

2020 alone, NMFS authorized the 

equivalent of 50 percent of the entire 

CIBW population to be ‘‘incidentally’’ 

harassed by industrial projects in the 

Inlet, such as oil and gas development 

and pile driving activities. 

The vast majority of the asserted 

∼120,000 total takes (99 percent), 

including all of the very small amount 

of take by Level A harassment, were 

authorized under directed research or 

enhancement permits, which directly 

support research or actions identified in 

the Recovery Plan to address CIBW 

recovery goals. Further, the vast 

majority (∼99 percent) of the total 

permitted research or enhancement take 

numbers cited by CBD are low-level 

MMPA Level B harassment from remote 

or non-invasive procedures that are 

considered not likely to adversely affect 

listed species pursuant to the ESA (i.e., 

no associated take under the ESA is 

either expected to occur or exempted for 

those specific activities). 

Regarding the comprehensive 

evaluation and minimization of 

permitted takes, we reference the 

analysis that has already been 

completed through NMFS’ 2019 

Biological and Conference Opinion on 

the Proposed Implementation of a 

Program for the Issuance of Permits for 

Research and Enhancement Activities 

on Cetaceans in the Arctic, Atlantic, 

Indian, Pacific, and Southern Oceans 

(NMFS, 2019), which determined that 

the research and enhancement takes 

permitted by the program would not 

jeopardize the existence of any of the 

affected species. As part of our 

programmatic framework for permitting 

directed take of ESA species, the 

Permits and Conservation Division will 

continue to closely evaluate the number 

and manner of CIBW takes requested by 

each applicant, how the proposed 

research ties to recovery plan goals, and 

the collective number of authorized and 

requested takes to consider the potential 

cumulative impact of the activities to 

the population. Each directed take 

annual report is reviewed to understand 

how authorized takes were actually 

used and to closely monitor the impacts 

that permitted research methods are 

having on the target animals. 

Regarding the incidental takes 

authorized for 2020, those takes 

represent instances of exposure above 

the Level B harassment threshold that 

could occur within a day. In other 

words, if those approximately 130 takes 

were assumed to be 130 separate 

individual whales, it would mean that 

those individual whales were each 

behaviorally disturbed on one day in 

that year. The more likely scenario is 

that some of those 130 exposures were 

takes of the same whale on a few 

different days, and in fact a lesser 

number of individuals were taken, but 

still on only a few days within a year. 

In all cases, the necessary findings 

under MMPA and ESA were made prior 

to the authorization of the take. 

Neither the MMPA nor NMFS’ 

codified implementing regulations call 

for consideration of the take resulting 

from other activities in the negligible 


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Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2837 

impact analysis. The preamble for 

NMFS’ implementing regulations (54 FR 

40338, September 29, 1989) states, in 

response to comments, that the impacts 

from other past and ongoing 

anthropogenic activities are to be 

incorporated into the negligible impact 

analysis via their impacts on the 

baseline. Consistent with that direction, 

NMFS has factored into its negligible 

impact analysis the impacts of other 

past and ongoing anthropogenic 

activities via their impacts on the 

baseline (e.g., as reflected in the 

density/distribution and status of the 

species, population size and growth 

rate, and other relevant stressors (such 

as incidental mortality in commercial 

fisheries, Unusual Mortality Events 

(UMEs), and subsistence hunting); see 

the Negligible Impact Analyses and 

Determinations section of this notice of 

issuance). The 1989 final rule for the 

MMPA implementing regulations also 

addressed public comments regarding 

cumulative effects from future, 

unrelated activities. There, NMFS stated 

that such effects are not considered in 

making findings under section 101(a)(5) 

concerning negligible impact. In this 

case, this ITA as well as other ITAs 

currently in effect or proposed within 

the specified geographic region, are 

appropriately considered an unrelated 

activity relative to the others. The ITAs 

are unrelated in the sense that they are 

discrete actions under section 

101(a)(5)(D) issued to discrete 

applicants. 

Section 101(a)(5)(D) of the MMPA 

requires NMFS to make a determination 

that the take incidental to a ‘‘specified 

activity’’ will have a negligible impact 

on the affected species or stocks of 

marine mammals and will not have an 

unmitigable adverse impact on the 

availability of such species or stocks for 

taking for subsistence uses. NMFS’ 

implementing regulations require 

applicants to include in their request a 

detailed description of the specified 

activity or class of activities that can be 

expected to result in incidental taking of 

marine mammals (see 50 CFR 

216.104(a)(1)). Thus, the ‘‘specified 

activity’’ for which incidental take 

coverage is being sought under section 

101(a)(5)(D) is generally defined and 

described by the applicant. Here, the 

POA was the applicant for the IHA, and 

we are responding to the specified 

activity as described in that application 

(and making the necessary findings on 

that basis). Therefore, setting limits on 

the number and types of CIBW takes 

across all activities in Cook Inlet would 

not be an appropriate requirement of an 

MMPA ITA. The take estimates NMFS 

authorizes represent the upper limits for 

individuals and some instances of take 

may represent multiple exposures to a 

single individual. 

Separately, setting blanket take limits 

may not be meaningful, as the nature 

and intensity of impacts from a given 

activity can vary widely. For example, 

an animal exposed to noise levels just 

above our harassment threshold in a 

non-critical area may experience a small 

behavioral change with no biological 

consequence while an animal exposed 

to very loud noise levels (but lower than 

levels that would result in a permanent 

threshold shift (PTS)) in an area where 

active critical foraging occurs could 

result in behavioral changes that may be 

more likely to impact fitness. While 

both of these examples would be 

characterized as Level B harassment, the 

resulting impact on the population 

could be different. Context differences 

such as these are analyzed in our 

negligible impact analysis for each 

application under the MMPA. 

Through the response to public 

comments in the 1989 implementing 

regulations, NMFS also indicated (1) 

that we would consider cumulative 

effects that are reasonably foreseeable 

when preparing a National 

Environmental Policy Act (NEPA) 

analysis, and (2) that reasonably 

foreseeable cumulative effects would 

also be considered under section 7 of 

the ESA for ESA-listed species, as 

appropriate. Accordingly, NMFS has 

written an Environmental Assessment 

(EA) that addressed cumulative impacts 

of the NES1 project and all past, present 

and reasonably foreseeable future 

actions. Additionally, the NMFS Alaska 

Regional Office issued a BiOp on 

December 15, 2023, under section 7 of 

the ESA, on the issuance of an IHA to 

the POA under section 101(a)(5)(D) of 

the MMPA by the NMFS OPR that 

independently considered the 

reasonably foreseeable cumulative 

effects of activities on ESA-listed 

species. 

Comment 4: The CBD asserts that 

NMFS’s negligible impact determination 

is arbitrary and capricious and that the 

specified activities would have greater 

than a negligible impact on CIBWs. The 

CBD claims that NMFS failed to 

substantiate its assumption that impacts 

are negligible because CIBWs remained 

in the area during similar construction 

activities and that NMFS 

underestimated the impacts of pile 

driving on CIBWs. They state that pile 

driving threatens marine mammals by 

potentially displacing them from key 

foraging habitat, causing hearing loss, 

masking communications, and 

interfering with natural behaviors. They 

cite several studies regarding behavioral 

responses of marine mammals to pile 

driving. 

Response: NMFS disagrees with the 

CBD’s claim that NMFS failed to 

substantiate our assumptions that 

impacts to CIBWs are negligible in our 

determination. In the Negligible Impact 

Analysis and Determination section of 

the Federal Register notice of the 

proposed IHA (88 FR 76576, November 

6, 2023) and this notice of issuance, we 

describe how the take estimated and 

authorized for the NES1 project will 

have a negligible impact on all of the 

affected species, including CIBWs (as 

discussed above). We discussed how 

this determination is based upon the 

authorized number of CIBWs that might 

be exposed briefly during the 110 

nonconsecutive days of activity, the low 

level of behavioral harassment that 

might result from an instance of take 

that could occur within a year, and the 

likelihood that the mitigation measures 

required further lessen the likelihood of 

exposures. NMFS has considered the 

status of CIBWs in its analysis, as well 

as the importance of reducing impacts 

from anthropogenic noise, but 

nonetheless, there is no evidence that 

brief exposure to low level noise 

causing Level B harassment would have 

a greater than negligible impact on 

CIBWs. 

NMFS’ negligible impact finding 

considers a number of parameters 

including, but not limited to, the nature 

of the activities (e.g., duration, sound 

source), effects/intensity of the taking, 

the context of takes, and mitigation. For 

CIBWs, NMFS’ finding did account for 

data demonstrating that CIBWs are not 

discouraged from entering Knik Arm 

and traveling to critical foraging 

grounds to the north when pile driving 

activities, such as those proposed by 

NES1, are occurring (e.g., 61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022), 

but it also relied on other data that show 

at most, low-level behavioral responses 

of CIBWs to pile driving activities. For 

example, during the POA’s PCT and 

South Floating Dock (SFD) pile driving 

activities, CIBWs were more likely to 

display no reaction or to continue to 

move towards the POA during pile 

installation and removal (61N 

Environmental, 2021, 2022a, 2022b). In 

situations during which CIBWs showed 

a possible reaction to pile driving, 

individuals were observed either 

moving away from the pile driving 

activities or increasing their rate of 

travel (61N Environmental, 2021, 2022a, 

2022b). Other behavioral responses 

observed in relation to pile driving 

activities include moving silently 


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through the area, decreased sighting 

durations, and the formation of more 

cohesive groups (Kendall and Cornick, 

2015). 

NMFS understands that marine 

mammals will have varying responses to 

elevated noise levels resulting from pile 

driving activities such as masking of 

communication and foraging signals, 

avoidance behaviors, and more. 

However, NMFS disagrees with CBD 

that we have underestimated the 

impacts of pile driving on beluga 

whales. Marine mammal data collected 

at the POA during pile driving 

activities, as described above, provides 

evidence that effects of pile driving on 

CIBWs will be limited to temporary 

modifications in behavior such as 

increased swim speeds, tighter group 

formations, and cessation of 

vocalizations, but not through the loss 

of foraging capabilities or abandonment 

of habitat. Further, while masking of 

CIBW signals can have a profound 

impact on the communication of CIBWs 

(e.g., Brewer et al., 2023), the short-term 

duration and limited areas affected by 

the NES1 project make it very unlikely 

that the fitness of individual marine 

mammals would be impacted. In 

addition, the frequency range of pile 

driving activities is typically below 1 

kHz (Richardson et al., 1995), which is 

below the peak frequencies for many 

CIBW communication signals (Brewer et 

al., 2023). Therefore, while expected 

impacts to CIBWs from the NES1 project 

are considered Level B harassment 

events, they are events with relatively 

little consequence for individuals in 

terms of energetic effects or foregone 

opportunities to engage in important 

foraging or social behaviors. 

While exposure to elevated noise 

levels associated with the NES1 project 

may result in low-level behavioral 

changes in CIBWs, NMFS’ review of the 

best available scientific evidence, as 

summarized and cited herein, 

demonstrates that these responses do 

not rise to the level of having adverse 

effects on the reproduction or survival 

of CIBWs. CBD provides no evidence to 

the contrary. Therefore, NMFS has 

appropriately concluded that the 

activity will have a negligible impact on 

the CIBW population. 

Comment 5: The CBD expressed 

concern regarding the take estimates for 

CIBWs proposed by NMFS. They state 

that the take estimates fail to explain 

how pods of animals are accounted for 

and improperly discounts the estimated 

CIBW take with a 59 percent 

adjustment. They suggest that this 

supposed failure may result in a higher 

take than anticipated. They believe that 

take should be estimated without 

considering the demonstrated efficacy of 

the proposed mitigation requirements, 

with expected benefits of the mitigation 

requirements being described only 

separately. 

Response: CBD is concerned that 

exposure of one pod of whales to 

harassment by the construction could 

exceed the take authorized. They cite 

McGuire et al. (2020) which suggests 

CIBW groups can be between 61 and 

313 whales. CBD is correct that there 

have been large observations of CIBW 

pods, and that if one very large pod 

appeared near the POA during pile 

driving activities, it could result in the 

POA meeting or exceeding authorized 

take for this species. However, such 

large pods are not expected to be 

observed near the POA based on the 

best scientific information available, 

including recent marine mammal 

monitoring efforts. The mean (median, 

standard deviation) CIBW group size 

observed during the 2020 through 2022 

POA and NMFS marine mammal 

monitoring efforts in Knik Arm were 

4.28 (3, 4.86) whales (61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022). 

Further, the 95 percentile group size of 

CIBWs observed during these years was 

12.30 individuals. This means that of 

the 495 documented CIBW groups in 

these data sets, 95 percent consisted of 

fewer than 12.3 whales; 5 percent of the 

groups consisted of more than 12.3 

whales. Lastly, the largest group 

observed during these efforts was 53 

individuals. Therefore, NMFS believes 

that the 72 takes by Level B harassment 

authorized for CIBW during the 

authorized one-year period adequately 

accounts for the possibility of the POA 

taking multiple pods (or groups) of 

CIBWs. 

The CBD stated that the 59 percent 

adjustment is ‘‘based on one data point’’ 

from the PCT project monitoring 

program. This is incorrect. As described 

in the Estimated Take sections of the 

Federal Register notice of the proposed 

IHA (88 FR 76576, November 6, 2023) 

and this notice of issuance, this 

adjustment was calculated by including 

data from all observations from April to 

November for each year of the PCT 

project, the same time frame over which 

the POA will be conducting the NES1 

project. Between the two phases of the 

PCT project, 90 total Level B harassment 

takes were authorized and 53 were 

potentially realized (i.e., 53 CIBWs were 

observed within estimated Level B 

harassment zones), equating to an 

overall percentage of 59 percent (Note 

that simple occurrence within the 

estimated harassment zone in and of 

itself does not demonstrate that a take 

has occurred). In our calculations for 

estimating CIBW take in the Estimated 

Take sections of the Federal Register 

notice of the proposed IHA (88 FR 

76576, November 6, 2023) and this 

notice of issuance, NMFS did 

preliminarily calculate take for CIBWs 

without the 59% adjustment (i.e., 122 

instances of take). However, we disagree 

with the CBD that the adjustment for 

mitigation requirements should be 

described separately and not be 

considered in the take estimation. This 

59% adjustment is based on the 

effectiveness of monitoring during the 

PCT Phase 1 and PCT Phase 2 projects, 

which most accurately reflect the 

current POA marine mammal 

monitoring program, the current 

program’s effectiveness, and CIBW 

occurrence in the proposed project area. 

It is anticipated that the POA 

monitoring program during the NES1 

project will be similar to that of the 

program implemented during the PCT 

project. Therefore, NMFS has 

determined that it is appropriate to 

include the adjustment in our 

calculation of authorized take. 

Comment 6: The CBD assert that the 

root mean square (RMS) thresholds of 

120-decibels (dB) referenced to 1 

micropascal (re 1mPa) for continuous 

and 160 dB re 1mPa for impulsive or 

intermittent sources are insufficiently 

conservative to protect CIBWs. They cite 

Mooney et al. (2018), which suggests 

that wild beluga whales have highly 

sensitive hearing. They state that, at a 

minimum, NMFS should use a 120-dB 

threshold for all sound sources. 

Response: NMFS disagrees that we 

should apply a 120-dB threshold for 

Level B harassment from all sound 

sources based on beluga hearing 

sensitivity. First, we provide here some 

necessary background on 

implementation of acoustic thresholds. 

NMFS has historically used generalized 

acoustic thresholds based on received 

levels to predict the occurrence of 

behavioral disturbance rising to the 

level of Level B harassment, given the 

practical need to use a relatively simple 

threshold based on information that is 

available for most activities. Thresholds 

were selected largely in consideration of 

measured avoidance responses of 

mysticete whales to airgun signals and 

to industrial noise sources, such as 

drilling. The selected thresholds of 160- 

dB RMS sound pressure level (SPL) and 

120-dB RMS SPL, respectively, have 

been extended for use for estimation of 

behavioral disturbance rising to the 

level of Level B harassment associated 

with noise exposure from sources 

associated with other common 

activities. 


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Sound sources can be divided into 

broad categories based on various 

criteria or for various purposes. As 

discussed by Richardson et al. (1995), 

source characteristics include strength 

of signal amplitude, distribution of 

sound frequency and, importantly in 

context of these thresholds, variability 

over time. With regard to temporal 

properties, sounds are generally 

considered to be either continuous or 

transient (i.e., intermittent). Continuous 

sounds, which are produced by the 

industrial noise sources (such as 

vibratory pile driving) for which the 

120-dB behavioral threshold was 

selected, are simply those for which 

sound pressure levels remain above 

background sound during the 

observation period (ANSI, 2005). 

Intermittent sounds are defined as 

sounds with interrupted levels of low or 

no sound (NIOSH, 1998). Simply put, a 

continuous noise source produces a 

signal that continues over time, while 

an intermittent source produces signals 

of relatively short duration having an 

obvious start and end with predictable 

patterns of bursts of sound and silent 

periods (i.e., duty cycle) (Richardson 

and Malme, 1993). It is this fundamental 

temporal distinction that is most 

important for categorizing sound types 

in terms of their potential to cause a 

behavioral response. For example, 

Gomez et al. (2016) found a significant 

relationship between source type and 

marine mammal behavioral response 

when sources were split into continuous 

(e.g., shipping, icebreaking, drilling) 

versus intermittent (e.g., sonar, seismic, 

explosives) types. In addition, there 

have been various studies noting 

differences in responses to intermittent 

and continuous sound sources for other 

species (e.g., Neo et al., 2014; Radford 

et al., 2016; Nichols et al., 2015). 

Given the existing paradigm— 

dichotomous thresholds appropriate for 

generic use in evaluating the potential 

for behavioral disturbance rising to the 

level of Level B harassment resulting 

from exposure to continuous or 

intermittent sound sources—the CBD 

does not explain why potential 

harassment from an intermittent sound 

source (i.e., impact pile driving) should 

be evaluated using a threshold 

developed for use with continuous 

sound sources. As we have stated in 

prior responses to this recommendation, 

consideration of the preceding factors 

leads to a conclusion that the 160-dB 

threshold is more appropriate for use for 

intermittent sources such as impact pile 

driving than the 120-dB threshold. 

Further, any dB-based threshold itself 

is a step-function approach (i.e., animals 

exposed to received levels above the 

threshold are considered to be ‘‘taken’’ 

and those exposed to levels below the 

threshold are not); but, in reality, it is 

in fact intended as a sort of mid-point 

of likely behavioral responses (which 

are extremely complex depending on 

many factors including species, noise 

source, individual experience, and 

behavioral context). What this means is 

that, conceptually, the function 

recognizes that some animals exposed to 

levels below the threshold will in fact 

react in ways that are appropriately 

considered take, while others that are 

exposed to levels above the threshold 

will not. Use of a specific dB threshold 

allows for a simplistic quantitative 

estimate of take, while we can 

qualitatively address the variation in 

responses across different received 

levels in our discussion and analysis. 

Lastly, NMFS has acknowledged that 

the scientific evidence indicates that 

certain species are, in general, more 

acoustically sensitive than others. In 

particular, harbor porpoise and beaked 

whales are considered to be 

behaviorally sensitive, and it may be 

appropriate to consider use of lower 

Level B harassment thresholds for these 

species. Beluga whales have been 

observed to have sensitive hearing (<80 

dB) in the frequency range of 16 to 100 

kilohertz (kHz) (Mooney et al., 2018). 

However, noise from pile driving 

activities is typically below 1 kHz 

(Richardson et al., 1995), well outside 

this sensitive hearing range. Therefore, 

based on the best available science (i.e., 

Mooney et al., 2018), sensitivity in 

CIBW hearing does not support the 

application of a 120-dB threshold for 

Level B harassment from all pile driving 

sound sources. NMFS is currently 

engaged in an ongoing effort to develop 

updated guidance regarding the effects 

of anthropogenic sound on marine 

mammal behavior, and in this effort 

NMFS is considering this issue for 

assessing Level B harassment. However, 

until this work is completed and new 

guidelines are identified (if 

appropriate), NMFS will continue using 

the historical Level B harassment 

thresholds (or derivations thereof) and 

will appropriately evaluate behavioral 

disturbance rising to the level of Level 

B harassment due to intermittent sound 

sources relative to the 160-dB threshold. 

Comment 7: CBD states that NMFS 

should undertake the analysis using the 

framework provided by Southall et al. 

(2023) to determine the vulnerability of 

marine mammals to noise disturbance. 

Response: Southall et al. (2023) 

present an analytical framework for 

assessing the relative risk of 

anthropogenic disturbances, such as 

those resulting from noise, on marine 

vertebrates. This framework is based on 

both species-specific ‘vulnerability’ 

(which accounts for population, life 

history, auditory communication 

systems, and environmental factors) and 

species-specific and scenario-specific 

‘severity’ (which includes population 

modeling methods for acute (short-term, 

project specific) exposure events) and a 

spatial-temporal-spectral algorithm for 

estimating a disturbance magnitude 

metric from aggregate events (long-term, 

multiple years, and or multiple 

projects). For each species and exposure 

scenario, a vulnerability and severity 

risk rating are computed, which allows 

for the assessment of the overall risk of 

each scenario for each species. Lastly, in 

this framework a subjective 

consideration of confidence in the risk 

assessment scores is provided. The 

Southall et al. (2023) framework has 

been used to model results from the 

construction and operation of wind 

farms and seismic surveys. 

While the framework presented by 

Southall et al. (2023) is a useful tool for 

evaluating risk of marine mammals to 

exposure events, such as pile driving 

activities, it is intended to be used as a 

complementary tool to use when 

implementing marine policies. It is ‘‘not 

intended to replicate or supersede 

current regulatory guidelines for 

auditory or behavioral impact’’ 

(Southall et al., 2023). Furthermore, the 

framework presented by Southall et al. 

(2023) does not estimate defined 

impacts such as injury (equivalent to 

Level A harassment) or behavioral 

disturbance (equivalent to Level B 

harassment) that would inform take 

estimates. In the Federal Register notice 

of the proposed IHA (88 FR 76576, 

November 6, 2023) and this notice of 

issuance, NMFS discusses the 

anticipated impacts of the NES1 project 

activities in the context of species 

status, which included an assessment of 

species population trends, life history 

traits, auditory communication systems, 

and environmental factors as well as 

estimated impacts of project activities. 

Thus, for this action, NMFS has 

determined that the application of the 

framework proposed by Southall et al. 

(2023) would not provide meaningful 

additive information in our assessment 

of take or in our negligible impact 

determination, and therefore, we do not 

apply it here. 

Comment 8: The CBD states that 

NMFS’ negligible impact determination 

fails to adequately consider adverse 

impacts to CIBW critical habitat and 

biologically important areas (BIAs). In 

addition, they assert that the proposed 

NES1 project does not avoid or impose 


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any specific mitigation for the yearround CIBW BIA. 

Response: In our analysis, NMFS 

considered the potential for impacts to 

CIBWs and their habitat in general (see 

the Potential Effects of Specified 

Activities on Marine Mammals and their 

Habitat section of the Federal Register 

notice of the proposed IHA (88 FR 

76576, November 6, 2023). The CIBW 

Recovery Plan (NMFS, 2016b) 

determined that CIBWs having waters 

that do not restrict passage within or 

between critical habitat areas and 

having waters with in-water noise levels 

below levels resulting in abandonment 

of critical habitat were essential for the 

conservation of this species. While some 

marine mammals—largely harbor 

porpoise, which are generally 

considered as one of the most 

behaviorally sensitive marine mammal 

species—have been observed to 

abandon or reduce time spent in 

preferred habitat during periods of 

increased anthropogenic noise (e.g., 

Wartzok et al., 2003; Carstensen et al., 

2006; Da ̈hne et al., 2012; Forney et al., 

2017), CIBW presence in the project area 

has persisted during numerous periods 

of pile driving, dredging, and other 

construction activities at the POA. 

Previous monitoring data indicates that 

CIBWs are not abandoning critical 

habitat and are able to transit through 

the project area to primary foraging 

areas north of the Port. Instead, they 

travel more often and faster past the 

POA, more quietly, and in tighter 

groups (Kendall and Cornick, 2015; 61N 

Environmental, 2021, 2022a, 2022b). 

Moreover, marine mammal monitoring 

results from the POA and NMFS (e.g., 

61N Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022) 

suggest that the areas that are expected 

to be impacted by noise during the 

NES1 project are not particularly 

important feeding or calving areas for 

CIBWs. Rather CIBWs typically transit 

through the area adjacent to the POA to 

foraging areas located to the north (e.g., 

Six Mile Creek, Eagle River, Eklutna 

River). For these reasons, NMFS expects 

the effects that sounds from the NES1 

project will have on these essential 

features will be small (see NMFS, 

2023a). 

Concerning BIAs, CBD improperly 

cited Ferguson et al. (2015) when 

referring to the CIBW BIA. This BIA was 

updated by Wild et al. (2023) as part of 

the BIA II effort, which built upon the 

2015 study but used new methodology 

and structured expert elicitation 

principles to update existing BIAs, and 

identify and delineate new BIAs (see 

Harrison et al., 2023). In this new effort, 

Wild et al. (2023) defined a static, yearround, small and resident BIA for 

CIBWs whose boundary is consistent 

with NMFS’ critical habitat designation, 

(including excluding the area adjacent 

to POA, illustrating that the area is of 

low value) (Wild et al., 2023). 

In regards to specific mitigation 

requirements for this year-round BIA, 

the proposed IHA does include a 

measure that requires the POA to make 

all practicable efforts to complete 

construction activities between April 

and July when CIBWs are typically 

found in lower numbers near the POA. 

However, due to the design of the 

existing sheet pile wall, the need for 

demolition to occur in a sequential 

manner to prevent structural failure, 

and uncertainty regarding construction 

progress until work is initiated, the POA 

cannot commit to restricting pile driving 

to these months. Given that the location 

and sequencing of the activity cannot be 

changed, NMFS has prescribed 

mitigation measures that affect the least 

practicable adverse impact on the stock. 

CBD did not provide a specific 

recommendation for NMFS to consider. 

Comment 9: The CBD stresses that 

NMFS should have analyzed the 

potential impact on feeding of preferred 

prey in making its negligible impact 

determination. 

Response: NMFS provided this 

information in the Acoustic Impacts 

section of the Federal Register notice of 

the proposed IHA (88 FR 76576, 

November 6, 2023), and provides 

additional discussion in the Negligible 

Impact Analysis and Determination 

section for CIBWs of this notice. In 

summary, the habitat near the POA is 

not typically considered high quality 

foraging habitat for CIBWs and feeding 

is not a predominant behavior observed 

in CIBWs near the POA. Further, there 

is no evidence to suggest that CIBWs are 

restricted in transiting between 

preferred feeding areas during pile 

driving activities (e.g., 61N 

Environmental, 2021, 2022a, 2022b, 

2022c; Easley-Appleyard and Leonard, 

2022). Lastly, any impacts to preferred 

prey are anticipated to be temporary, 

and most likely limited to fish avoiding 

the action area. 

Comment 10: The CBD postulates that 

NMFS’ small numbers determination is 

flawed because the amount of take 

proposed to be authorized is greater 

than 12 percent of the CIBW population 

and that NMFS’ definition of small 

numbers ‘‘conflates this criterion with 

the negligible impact requirement.’’ 

CBD claims the incidental harassment 

authorization here violates the MMPA 

because it does not guarantee that only 

small numbers of CIBWs and other 

marine mammals impacted by the 

POA’s activities will be taken. 

Response: CBD suggests that by 

defining small numbers to be relative to 

the overall population the criterion ends 

up being similar to the negligible impact 

finding and that Congress’s intent was 

that the MMPA protect not only 

populations, but individual marine 

mammals. We disagree that our small 

numbers finding is conflated with our 

negligible impact finding. While ‘‘small 

numbers’’ is simply a percent of the 

population, our negligible impact 

finding considers a number of 

parameters including, but not limited to, 

the nature of the activities (e.g., 

duration, sound source), effects/ 

intensity of the taking, the context of 

takes, and mitigation. 

The reference to a take limit of 12 

percent for small numbers comes from 

a 2003 district court opinion (Natural 

Resources Defense Council v. Evans, 

279 F.Supp.2d 1129 (N.D. Cal. 2003)). 

However, given the particular 

administrative record and 

circumstances in that case, including 

the fact that our small numbers finding 

for the challenged incidental take rule 

was based on an invalid regulatory 

definition of small numbers, we view 

the district court’s opinion regarding 12 

percent as dicta. 

In NMFS’ Final Rule for taking of 

marine mammals incidental to 

geophysical surveys in the Gulf of 

Mexico (86 FR 5322, January 19, 2021), 

NMFS fully describes its interpretation 

and implementation of ‘‘small 

numbers’’. Included as part of that 

discussion, NMFS explains the concept 

of ‘‘small numbers’’ in recognition that 

there could also be quantities of 

individuals taken that would 

correspond with ‘‘medium’’ and ‘‘large’’ 

numbers. As such, NMFS has 

established that one-third of the most 

appropriate population abundance 

number—as compared with the 

assumed number of individuals taken— 

is an appropriate limit with regard to 

‘‘small numbers.’’ This relative 

approach is consistent with the 

statement from the legislative history 

that ‘‘[small numbers] is not capable of 

being expressed in absolute numerical 

limits’’ (H.R. Rep. No. 97–228, at 19 

(September 16, 1981)), and relevant case 

law (Center for Biological Diversity v. 

Salazar, 695 F.3d 893, 907 (9th Cir. 

2012) (holding that the U.S. Fish and 

Wildlife Service reasonably interpreted 

‘‘small numbers’’ by analyzing take in 

relative or proportional terms)). 

As described in the Small Numbers 

section of the Federal Register notice of 

the proposed IHA (88 FR 76576, 

November 6, 2023) and this notice of 


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issuance, NMFS is authorizing take of 

less than 2 percent for eight stocks and 

22 percent for one stock (i.e., CIBWs) 

and based on this analysis, NMFS finds 

that small numbers of marine mammals 

will be taken relative to the population 

size of the affected species or stocks. 

Comment 11: CBD asserts that NMFS 

relies on visual monitoring measures 

that it claims are ‘‘known to be 

ineffective and inadequate’’ to protect 

marine mammals. 

Response: NMFS disagrees the 

mitigation and monitoring measures 

included in this authorization are 

ineffective and inadequate and CBD 

does not provide additional information 

to support their claim. The IHA requires 

a minimum of two Protected Species 

Observer (PSO) stations, and that at 

each station, at least two PSOs must be 

on watch at any given time. Further, the 

PSO stations must be located so that the 

PSOs can fully monitor the shutdown 

zones and call for activities to be 

delayed when CIBWs are entering or 

observed within the Level B harassment 

zones. The POA has a demonstrated 

history of successfully implementing a 

rigorous monitoring program during 

recent construction projects in Knik 

Arm (i.e., PCT and SFD), and 

monitoring data from these projects 

provides evidence that their PSOs are 

capable of observing belugas out to 

11,057-m from the NES1 project site. 

This distance is dependent on several 

factors such as visual acuity, sea state, 

glare, animal behavior/body type, speed 

of travel for vessel and animal, etc.; but 

this demonstrates that it is possible for 

PSOs to detect and identify marine 

mammals to the species level several km 

from the source, including CIBWs. In 

addition, Easley-Appleyard and Leonard 

(2022) reported that PSOs who worked 

for the PCT monitoring program 

expressed that they were effective at 

detecting CIBWs from two monitoring 

stations despite occasional challenges 

related to the timing of the detection 

and the ability to track multiple CIBW 

groups. 

The majority of the work for this 

project will be the vibratory removal of 

sheet piles, which has an estimated 

Level B harassment distance of 1,954-m. 

The largest zones will be associated 

with the installation and removal of the 

temporary steel pipe piles, which could 

have estimated Level B harassment 

zones up to 6,861-m. These distances 

are well within the distances that PSOs 

at the POA have effectively detected 

CIBWs as described above. Further, 

there are mitigation measures 

preventing pile driving from occurring if 

visibility in any portion of the 

shutdown zone (i.e., the Level B 

harassment zone for CIBWs) is obscured 

by weather or sea state. Therefore, we 

find the visual monitoring plan can 

reasonably be expected to be an 

effective tool at detecting marine 

mammals, ensuring the mitigation 

measures are adhered to. 

Comment 12: CBD suggests that 

construction should be restricted from 

August through October, and further 

states that NMFS ‘‘should also consider 

time area restrictions that would further 

mitigate impacts to beluga whales and 

other marine mammals,’’ though it 

provides no recommendations. 

Response: Time-area restrictions were 

considered for this project, in addition 

to the PSO requirements. We note that 

August through November are months 

with high CIBW abundance, and NMFS 

expects that the POA will likely have to 

shut down pile driving activities more 

frequently during that time period due 

to the increased presence of CIBWs in 

Knik Arm. NMFS is requiring the POA 

to complete in-water work as early in 

the construction season as is 

practicable. However, the design of the 

existing sheet pile wall, the safety 

requirements of the demolition 

sequencing, and the likely highly 

adaptive nature of the field work once 

construction commences do not allow 

NMFS to practicably restrict pile driving 

to any specific time periods or areas 

(e.g., only allowing pile driving April 

through July). Furthermore, there are 

potential consequences of pausing or 

delaying the construction season, 

including de-rating the structural 

capacity of the existing docks, a 

shutdown of dock operations due to 

deteriorated conditions, or an actual 

collapse of one or more dock structures. 

The potential for collapse increases with 

schedule delays, due to both worsening 

deterioration and the higher probability 

of a significant seismic event occurring. 

Any of these scenarios could have dire 

consequences for the populations of 

Anchorage and Alaska who are served 

by the POA. In this context, NMFS has 

determined that the current mitigation 

and monitoring measures affect the least 

practicable adverse impact on marine 

mammal species and stocks. 

Comment 13: CDB states that NMFS 

failed to consider other mitigation 

measures to reduce the proposed 

activities’ impacts to the least 

practicable level such as bubble curtains 

placement configurations, pile caps, 

physical barrier technologies, such as 

dewatered cofferdams, passive acoustic 

monitoring (PAM), and sound source 

verification (SSV) studies. 

Response: CBD does not provide any 

specific information contradicting 

NMFS’ determinations concerning 

whether these measures should be 

included in the suite of mitigation 

requirements determined to provide the 

means of effecting the least practicable 

adverse impact on the affected species 

or stocks of marine mammals. CBD 

states that bubble curtains were required 

for previous POA pile driving activities, 

and recommends that one could be 

placed beyond the construction area for 

the NES1 site due to spacing and safety 

concerns. They also state that NMFS 

could consider other noise mitigation 

technologies such as pile caps, 

dewatered cofferdams, and other 

physical barrier mitigation. CBD is 

correct that NMFS has required the POA 

to use bubble curtains for other POA 

pile driving activities. During 

construction of the PCT, two different 

types of bubble curtain systems were 

utilized, confined bubble curtain 

systems and unconfined bubble curtain 

systems. Both bubble curtain systems 

were expensive to construct, maintain, 

and repair. It was necessary to build 

several versions of each model for each 

pile size in case of damage and so that 

two or more piles could be 

simultaneously staged and prepared for 

installation, which was done in an effort 

to save time. Both bubble curtain 

systems were time-consuming to deploy 

and retrieve, adding an average of 6 

hours (confined) and 4 hours 

(unconfined) of deployment and 

retrieval time to each pile. Thus, as 

described in the Proposed Mitigation 

section of the Federal Register notice of 

the proposed IHA (88 FR 76576, 

November 6, 2023), adding a 

requirement for a bubble curtain may 

hinder production of the NES1 project, 

which could push the in-water 

construction schedule further into the 

late summer months, which are known 

for higher CIBW abundance in lower 

Knik Arm, thus lengthening the 

duration of potential interactions 

between CIBW and in-water works. 

Lastly, data from prior SSV studies 

conducted during the PCT project (i.e., 

Illingworth & Rodkin (I&R), 2021a, 

2022b), yielded mixed results regarding 

the efficacy of bubble curtains for use 

with vibratory hammers (which makes 

up the majority of the NES1 project). 

Therefore, a requirement to use bubble 

curtains in this case (aside from the cost 

and safety concerns) would likely have 

a detrimental impact over the full scope 

of the project. 

Further, dredging associated with the 

NES1 project will frequently require 

barges and vessels to maneuver through 

the area between the sheet pile face and 

the disposal area located in the middle 

of Knik Arm. Additional barges to stage 


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air compressors for a bubble curtain 

would add multiple anchor lines that 

would present a logistical challenge to 

the frequent vessel transit and increase 

the risk of a safety incident, particularly 

if there were to be an uncontrolled 

release of sediments from a structure 

collapse. Additional vessels, air 

compressors, and crew also increase the 

cost and potential negative impacts of 

the project. The POA believes this 

combination of logistical challenges, 

time requirements, and safety 

considerations make it impractical for 

the POA to use a bubble curtain for this 

project. NMFS has considered input 

from the POA, as well as other 

information, and concurs that use of 

bubble curtains is not practicable in this 

case. Additional information regarding 

practicability and efficacy concerns 

with using bubble curtains during the 

NES1 project were included in the 

Proposed Mitigation section of the 

Federal Register notice of the proposed 

IHA (88 FR 76576, November 6, 2023) 

and the Mitigation section of this notice. 

Pile cap cushions are commonly used 

in conjunction with an impact hammer 

to reduce stress on a pile during 

hammer blows. Their efficacy as an 

underwater sound attenuation measure 

during pile installation remains 

uncertain. There are safety and logistical 

concerns with the use of a pile cap 

cushion as they have been known to 

combust from the friction created during 

impact pile driving. The NES1 project 

does not involve the installation of piles 

using an impact hammer. Pile cap 

cushions are not compatible with 

vibratory pile installation or removal, or 

with sheet pile installation or removal. 

Therefore, the inclusion of pile caps is 

not a feasible option for this project. 

Other physical barrier technologies, 

such as dewatered cofferdams, would 

substantially increase project risks, 

construction schedule and costs. 

Cofferdams are typically sheet pile 

structures supported by cylindrical steel 

piles that would require installation and 

removal of temporary sheet and 

cylindrical piles along the entire length 

of the NES1 face sheets, which would 

increase potential impacts on CIBWs 

and other marine species. Other 

physical barriers installed into Knik 

Arm would also need to be engineered 

to a level to resist the tidal forces of 

Knik Arm, and would likely require pile 

supports, increasing impacts, duration, 

and cost. Thus, NMFS has determined 

that the recommendation of applying 

other physical barriers to mitigate noise 

from construction activities is not an 

appropriate addition to the required 

suite of mitigation measures for the 

NES1 project. 

In addition, the CBD states that NMFS 

should require PAM for marine 

mammals. The use of PAM for real-time 

mitigation purposes has been used in 

Cook Inlet for some studies. These 

efforts have generally not resulted in 

successful deployment of PAM or useful 

detections of marine mammals to inform 

mitigation and monitoring during the 

activities due to the environmental 

conditions of the region. For example, a 

real-time PAM system implemented as 

part of the 2012 Apache 3D seismic 

survey program in lower- and mid-Cook 

Inlet only yielded six confirmed marine 

mammal detections. One of these 

detections was of a CIBW, however, it 

did not result in a shutdown procedure 

(Lomac-MacNair et al., 2013). Similarly, 

a real-time PAM program was required 

in the IHA for the 2015 SAExploration 

3D seismic program. This program only 

detected 15 marine mammal detections 

(including 2 from CIBWs) over 310 

hours. For these reasons, we have 

determined PAM is not likely to be 

sufficiently effective at detection for 

real-time mitigation for the POA’s 

construction activities and, therefore, is 

not included in the IHA. 

Researchers have begun to implement 

more effective passive acoustic monitors 

for research purposes at several places 

in Cook Inlet (e.g., Castellote et al., 

2020). However, the framework used by 

those researchers is impractical, 

particularly for the POA’s planned 

activity. An article on NOAA’s website 

(https://www.fisheries.noaa.gov/scienceblog/beluga-whale-acoustic-monitoringsurvey-post-3) illustrates the level of 

customization, expertise, and difficulty 

required to assemble a passive acoustic 

mooring to then deploy in the Inlet. 

Additionally, these instruments are 

stationary, which means to effectively 

use these monitors as a means of 

avoiding harassment of marine 

mammals during the POA’s, the POA 

would need to build and successfully 

deploy dozens (or more) of stationary 

monitors along a route of travel that is 

subject to change depending upon 

weather or other environmental and 

shipping restrictions. Additionally, the 

data stored on these types of moorings 

is not accessible until they are retrieved 

by the researcher who deployed them. 

In the future, if an established network 

of passive acoustic monitors with 

shared access to the data is available, 

this could be a useful tool for 

implementing mitigation measures, but 

is currently not practicable. NMFS looks 

forward to advances in technology that 

could make real-time PAM a practicable 

mitigation measure in these areas in the 

future. 

Lastly, CBD recommends that NMFS 

should require that in-situ SSV studies 

be conducted to ensure that the Level A 

and Level B harassment zones are 

sufficient. Lessons learned from prior 

SSV studies carried out at the POA (e.g., 

I&R, 2021a, 2022b) indicate that Knik 

Arm is a very challenging environment 

to collect high quality acoustic data 

usable by NMFS, the POA, and others 

due to the presence of strong tidal 

currents, which can create substantial 

flow noise in recordings, and prevalent 

anthropogenic noise, which can mask 

acoustic signals of interest. Specifically 

during the NES1 project, multiple 

barges, tugs, and other support vessels, 

which can obscure signals of interest, 

will be within the action area at all 

times during the project. Further, active 

dredging and removal of above-water 

soils, and vessels with generators 

running will be present at all times. 

While both the POA and NMFS believe 

sound source data would be valuable, 

this measure is not practicable given the 

known challenges of the area. 

Comment 14: CBD asserts that NMFS 

should require larger exclusion zones. 

Response: CBD did not provide any 

additional information for NMFS to 

consider to support this 

recommendation. The exclusion zones 

proposed in the Federal Register notice 

of the proposed IHA (88 FR 76576, 

November 6, 2023) (referred to as 

shutdown zones) are equivalent to the 

estimated Level B harassment zone for 

CIBWs. This is consistent with 

shutdown zones required in other recent 

ITAs issued to the POA for construction 

activities at the Port including the PCT 

(85 FR 19284, April 6, 2020) and SFD 

(86 FR 50057, September 7, 2021) 

projects, which resulted in the number 

of CIBWs occurring within estimated 

harassment zones being 59 percent and 

7 percent of the authorized take for each 

project, respectively. Therefore, NMFS 

disagrees that the final IHA should 

include larger exclusion zones and 

requires the exclusion zones proposed 

in the Federal Register notice of the 

proposed IHA (88 FR 76576, November 

6, 2023) in the final IHA. 

Comment 15: The CBD asserts that a 

1-year renewal should require new 

permitting and programmatic analysis of 

impacts. 

Response: NMFS disagrees with this 

assertion. NMFS’ IHA Renewal process 

meets all statutory requirements. All 

IHAs issued, whether an initial IHA or 

a Renewal IHA, are valid for a period of 

not more than 1-year. Renewal IHAs are 

limited to another year of identical or 

nearly identical activities in the same 

location or the same activities that were 

not completed within the 1-year period 


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of the initial IHA. Should a Renewal 

request be made, additional 

documentation would be required from 

the POA that NMFS would make 

publicly available and would use to 

verify that the activities are identical to 

those in the initial IHA, are nearly 

identical such that the changes would 

have either no effect on impacts to 

marine mammals or decrease those 

impacts, or are a subset of activities 

already analyzed and authorized but not 

completed under the initial IHA. NMFS 

would also confirm, among other things, 

that the activities would occur in the 

same location; involve the same species 

and stocks; provide for continuation of 

the same mitigation, monitoring, and 

reporting requirements; and that no new 

information had been received that 

would alter the prior analysis. If new 

information has been received that 

would alter the prior analysis, that 

information would be analyzed in the 

notice of the proposed Renewal IHA. A 

Renewal request would also contain a 

preliminary monitoring report, 

specifically to verify that effects from 

the activities do not indicate impacts of 

a scale or nature not previously 

analyzed. Any Renewal request is 

subject to an additional 15-day public 

comment period that provides the 

public an opportunity to review these 

few documents, provide any additional 

pertinent information and comment on 

whether they think the criteria for a 

Renewal have been met. Between the 

initial 30-day comment period on these 

same activities and the additional 15 

days, the total comment period for a 

Renewal is 45 days. 

In addition to the IHA Renewal 

process being consistent with all 

requirements under section 101(a)(5)(D), 

it is also consistent with Congress’ 

intent for issuance of IHAs to the extent 

reflected in statements in the legislative 

history of the MMPA. Through the 

provision for Renewals in the 

regulations, description of the process 

and express invitation to comment on 

specific potential Renewals in the 

Request for Public Comments section of 

each proposed IHA, the description of 

the process on NMFS’ website, further 

elaboration on the process through 

responses to comments such as these, 

posting of substantive documents on the 

agency’s website, and provision of 30 or 

45 days for public review and comment 

on all proposed initial IHAs and 

Renewals respectively, NMFS has 

ensured that the public ‘‘is invited and 

encouraged to participate fully in the 

agency decision-making process.’’ 

Regarding a programmatic analysis, 

we refer to our response to Comment 3. 

Comment 16: CBD asserts that the 

proposed activities will have an 

unmitigable adverse impact on 

subsistence uses. CBD states that the 

proposed activities may have an adverse 

impact on the availability of beluga 

whales, harbor seals, and Steller sea 

lions for Native Alaskan subsistence 

harvest. They also state that the IHA 

should require consultation with Native 

Alaskan communities to ensure 

adequate mitigation for subsistence 

harvest for harbor seals and Steller sea 

lions. 

Response: The POA sent letters to and 

conducted follow-up calls with the 

Kenaitze, Tyonek, Knik, Eklutna, 

Ninilchik, Salamatof, and Chickaloon 

Tribes informing them of the proposed 

project (i.e., timing, location, and 

features), the availability of the notice of 

proposed IHA for public comment, and 

inquiring about any marine mammal 

subsistence concerns they have. The 

POA also explained the measures that 

have been taken or will be taken to 

minimize any adverse effects of NES1 

on the availability of marine mammals 

for subsistence uses. No Tribes or 

affected subsistence communities/users 

expressed concern over subsistence use 

during the 30-day public comment 

period for the proposed IHA. One letter 

was received from Eklutna Inc. 

requesting that Alaska Native residents 

with traditional knowledge about 

marine mammals and the local marine 

environment be involved in the 

monitoring and support roles related to 

the project (i.e., as PSOs) (see Comment 

22 Response), but it did not suggest 

concerns regarding unmitigable adverse 

impact on subsistence uses. The POA 

adequately communicated with 

representative Alaska Native 

subsistence users and Tribal members to 

ensure any concerns they had regarding 

marine mammal subsistence uses would 

be addressed, hence fulfilling any 

requirements provided by the MMPA. 

Overall, there is little subsistence use 

of marine mammals near the project 

area. There has been no subsistence 

harvest of CIBWs since 2005 (NMFS, 

2022d) and subsistence harvest of other 

marine mammals in upper Cook Inlet is 

limited to harbor seals. Steller sea lions 

are rare in upper Cook Inlet; therefore, 

subsistence use of this species is not 

common. Residents of the Native Village 

of Tyonek are the primary subsistence 

users in the upper Cook Inlet area, 

however no NES1 activities will take 

place in or near Tyonek’s identified 

traditional subsistence hunting areas. 

Additionally, the harvest of marine 

mammals in upper Cook Inlet is 

historically a small portion of the total 

subsistence harvest, and the number of 

marine mammals harvested in upper 

Cook Inlet is expected to remain low. 

The potential impacts from harassment 

on stocks that are harvested in Cook 

Inlet would be limited to minor 

behavioral changes (e.g., increased swim 

speeds, changes in dive time, temporary 

avoidance near the POA) within the 

vicinity of the POA or slight PTS. NMFS 

has found that the taking of marine 

mammals incidental to the NES1 project 

would have a negligible impact on the 

population, meaning we do not 

anticipate there to be adverse impacts 

on the annual rates of recruitment or 

survival. Therefore, the taking would 

not impede recovery of CIBW for 

potential future subsistence use. The 

full explanation and support for this 

finding is described further in the 

Unmitigable Adverse Impact 

Determination section of this notice. 

NMFS has required rigorous 

mitigation and monitoring measures in 

the IHA to reduce impacts to CIBWs, 

Steller sea lions, and harbor seals 

including shutdown measures at the 

Level B harassment zone for CIBWs and 

Level A harassment zone for harbor 

seals and Steller sea lions if pile driving 

is occurring and an animal enters the 

zone. These measures are expected to 

reduce both the scope and severity of 

potential harassment takes by reducing 

the potential for exposure above 

harassment thresholds. In addition to 

the mitigation measures, the POA will 

monitor from elevated platforms at a 

minimum of two locations dispersed 

throughout lower Knik Arm. All stations 

will have at least two NMFS-approved 

observers on-watch at any given time. 

Therefore, marine mammal detection 

effectiveness is expected to be high. In 

accordance with our implementing 

regulations at 50 CFR 216.104(c), we use 

the best available scientific evidence to 

determine whether the taking by the 

specified activity within the specified 

geographic region will have a negligible 

impact on the species or stock and will 

not have an unmitigable adverse impact 

on the availability of such species or 

stock for subsistence uses. Based on the 

scientific evidence available, NMFS 

determined that the impacts of the 

authorized take incidental to pile 

driving would result in a negligible 

impact and no unmitigable adverse 

impact on availability of marine 

mammals for subsistence uses. 

Comment 17: CBD states that NMFS 

must prepare a programmatic 

environmental impact statement (EIS) 

for its CIBW take authorizations. They 

state that at a minimum, NMFS should 

analyze the PAMP in a single NEPA 

review that considers all cumulative, 


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indirect, and direct environmental 

effects. 

Response: For clarity, NMFS’ 

authorization does not ‘‘approve 

activities’’; that permitting 

responsibility lies with the United 

States Army Corps of Engineers 

(USACE). Rather, NMFS authorizes 

unintentional take of marine mammals 

incidental to specified activities. 

Therefore, under NEPA, NMFS must 

evaluate the impacts of our issuance of 

the ITA to the POA for the NES1 

activities. 

NMFS originally declared its intent to 

prepare an EIS for oil and gas activities 

in Cook Inlet, Alaska (79 FR 61616, 

October 14, 2014). However, in a 2017 

Federal Register notice (82 FR 41939, 

September 5, 2017), NMFS indicated 

that due to a reduced number of ITA 

requests in the region, combined with 

funding constraints at that time, we 

were postponing any potential 

preparation of an EIS for oil and gas 

activities in Cook Inlet. As stated in the 

2017 Federal Register notice, should the 

number of ITA requests, or anticipated 

requests, noticeably increase, NMFS 

will re-evaluate whether preparation of 

an EIS is necessary. Currently, the 

number of ITA requests for activities 

that may affect marine mammals in 

Cook Inlet is at such a level that 

preparation of an EIS is not yet 

necessary. Nonetheless, under NEPA, 

NMFS is required to consider 

cumulative effects of other potential 

activities in the same geographic area, 

and these are discussed in greater detail 

in the Final EA prepared for this 

issuance of an IHA to the POA for the 

NES1 project, which supports our 

finding that NMFS’ issuance of the POA 

IHA will not have a significant impact 

on the human environment. 

CBD assert that NMFS should analyze 

the PAMP in a single NEPA review and 

comment that ‘‘[NMFS] has already 

segmented analysis of the [PCT] and 

[SFD] and, here, the NES1 

construction’’. NMFS has appropriately 

analyzed and captured all past, present 

and reasonably foreseeable future 

actions under NEPA. This includes the 

projects associated with the PAMP, 

which each have independent utility 

and require separate authorizations and 

NEPA analyses. The EAs for each PAMP 

activity appropriately analyze the 

cumulative, indirect, and direct 

environmental effects of each specified 

action. They include an evaluation of 

each action’s affected area, the scale and 

geographic extent of each action, and 

the degree of cumulative effects on 

resources (including the duration of 

impact, and whether the impacts were 

adverse and/or beneficial and their 

magnitude) under NEPA. 

CBD is correct that Federal agencies 

generally prepare an EIS for a major 

Federal action significantly affecting the 

quality of the human environment. 

While CBD acknowledges that 

significance is determined by 

considering the potential affected 

environment and the degree of the 

action (40 CFR 1501.3(b)), CBD argues 

that if this factor is met, then the agency 

must prepare an EIS. CBD further argues 

that, ‘‘the impacts on an endangered 

species like the environmentally and 

culturally significant Cook Inlet beluga 

and its designated critical habitat is 

sufficient to trigger a full EIS.’’ NMFS 

disagrees. NMFS can prepare an EA so 

long as the record supports the 

conclusion that potential impacts are 

not ‘‘significant’’ per 40 CFR 1501.3(b) 

for the purposes of NEPA. Based on the 

information presented in the application 

and NMFS’ Policy and Procedures for 

Compliance with the NEPA and Related 

Authorities (Companion Manual (CM) 

for NOAA Administrative Order (NAO) 

216–6A) (NOAA 2017), sections 3 and 7, 

NMFS’ determination to prepare an EA 

is appropriate and in compliance with 

NEPA and 40 CFR 1501.3. NMFS 

appropriately signed a Finding of No 

Significant Impact (FONSI) for the 

issuance of the IHA for incidental take 

associated with the POA’s NES1 project 

in support of this determination. The 

FONSI concluded that NMFS’ proposed 

action, the issuance of an IHA to the 

POA, will not meaningfully contribute 

to significant impacts to specific 

resources, given the limited scope of 

NMFS’ action and required mitigation 

measures. Accordingly, preparation of 

an EIS for this action is not necessary. 

Comment 18: CBD believes the draft 

EA for the NES1 project fails to comply 

with the requirements of NEPA. They 

stipulate that the draft EA fails to 

consider a reasonable range of 

alternatives and lacks a meaningful 

environmental and cumulative impacts 

analysis. 

Response: In accordance with the 

NEPA and the Council on 

Environmental Quality (CEQ) 

Regulations, NMFS is required to 

consider a reasonable range of 

alternatives to a Proposed Action, as 

well as a No Action Alternative. 

Reasonable alternatives are viable 

options for meeting the purpose and 

need for the proposed action. The 

evaluation of alternatives under NEPA 

assists NMFS with understanding, and 

as appropriate, minimizing impacts 

through an assessment of alternative 

ways to achieve the purpose and need 

for our Proposed Action. Reasonable 

alternatives are carried forward for 

detailed evaluation under NEPA while 

alternatives considered but determined 

not to meet the purpose and need are 

not carried forward. For the purposes of 

this EA, an alternative will only meet 

the purpose and need if it satisfies the 

requirements of section 101(a)(5)(D) of 

the MMPA. 

In accordance with NOAA’s 

implementing procedures, the CM for 

NAO 216–6A, Section 6.B.i, NMFS is 

defining the No Action alternative as 

not authorizing the requested incidental 

take of marine mammals under Section 

101(a)(5)(D) of the MMPA. This is 

consistent with our statutory obligation 

under the MMPA to either: (1) Deny the 

requested authorization; or (2) grant the 

requested authorization and prescribe 

mitigation, monitoring, and reporting 

requirements. The Preferred Alternative 

(i.e., issuance of the IHA) includes 

mandatory mitigation, monitoring, and 

reporting requirements for POA to 

achieve the MMPA standard of effecting 

the least practicable adverse impact on 

each species or stock of marine mammal 

and their habitat, paying particular 

attention to rookeries, mating grounds, 

and other areas of similar significance. 

Since NMFS is required to prescribe 

mitigation to effect the least practicable 

adverse impact on marine mammals, 

mitigation that reduces impacts on 

marine mammals is inherently included 

in Alternative 2 (the proposed action) 

and is included as part of the analysis 

of alternative(s) in the Environmental 

Consequences chapter in the EA. NMFS 

described both the No Action 

Alternative and Preferred Alternative in 

the EA. We have also included an 

‘‘Alternatives Considered but 

Eliminated from Further Consideration’’ 

section in the final EA that considered 

whether other alternatives could meet 

the purpose and need while supporting 

this applicant’s proposal to demolish 

the NES. There is no requirement under 

NEPA to consider more than two 

alternatives, or to consider alternatives 

that are substantially similar to other 

alternatives or which have substantially 

similar consequences. NMFS’ range of 

alternatives is based on the proposed 

action and the purpose and need, which 

are linked to NMFS’ authorities under 

the MMPA. For the purposes of analysis 

under NEPA in the EA, an alternative 

will only meet the purpose and need if 

it satisfies the requirements under 

section 101(a)(5)(D) of the MMPA. 

Therefore, NMFS determined that, 

based on our authorities and criteria 

under the MMPA, which included 

criteria regarding mitigation measures, 

appropriate considerations were applied 


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to identify which alternatives to carry 

forward for analysis. 

CBD comments that the 

environmental and cumulative impacts 

section of the EA is not sufficient. CBD 

asserts that NMFS does not evaluate 

what the level of take will have on 

individual whales or the population, 

and fails to take into account any impact 

to CIBW pods. In addition, they state 

that NMFS does not include the most 

recent available information regarding 

the impacts of noise on marine 

mammals, and new information about 

CIBWs. In the draft EA, NMFS described 

both the general effects to marine 

mammals from exposure to noise (e.g., 

pile driving) and scientific literature 

identifying responses of CIBWs to pile 

driving at the POA in Chapter 4 of the 

EA. This includes, as described in the 

Federal Register notice of proposed IHA 

(88 FR 76576, November 6, 2023) and in 

our response to Comment 1, data from 

several years of recent scientific 

monitoring at the POA during previous 

work involving pile driving (e.g., 

Kendall and Cornick, 2016; 61N 

Environmental, 2021, 2022a, 2022b, 

2022c; Easley-Appleyard and Leonard, 

2022). In Chapter 3 of the EA we also 

describe anticipated impacts on marine 

mammal habitat and their prey. We 

believe these descriptions are sufficient 

with regard to the requirements of 

NEPA and the CEQ regulations. 

NMFS disagrees that we did not 

include the most recent available 

information about noise on marine 

mammals or new information about 

CIBWs. As described above, the EA 

includes an analysis of CIBW 

observations directly in relation to inwater construction, including pile 

driving activities from 2020 through 

2021 that took place at the POA (61N 

Environmental, 2021, 2022a, 2022b, 

2022c; Easley-Appleyard and Leonard, 

2022). Chapter 4 of the EA also includes 

an assessment on the impacts on marine 

mammals to noise that includes recent 

information on permanent and 

temporary threshold shifts, avoidance or 

abandonment behaviors, changes in 

vocalizations, and the masking of 

communication and foraging signals. 

The impacts of the NES1 project on 

marine mammals, including CIBWs, are 

expected to represent short-term, 

localized, negligible, adverse, direct 

impacts. For CIBWs, NMFS anticipates 

these impacts will manifest as whales 

moving more quickly and silently 

through the area, in more cohesive 

groups, but not by habitat abandonment 

or ceasing traveling through Knik Arm. 

CBD also states that the draft EA fails 

to evaluate the cumulative impacts of 

other proposed projects and ongoing 

activities in Cook Inlet. In Chapter 4 of 

the draft EA, NMFS evaluated the 

cumulative impacts of the past, present, 

and reasonably foreseeable future 

actions in the action area, including 

projects associated with PAMP and the 

Alaska LNG project, which the CBD 

mentioned should be included, and 

research activities. These instances do 

not change NMFS’ overall 

determination regarding the cumulative 

impacts of the NES1 project on marine 

mammals or marine mammal habitat. As 

stated in the draft EA, while 

consideration of activities in sum 

suggests an increase in industrialization 

of Cook Inlet, many of the past, present, 

and reasonably foreseeable future 

actions are spatially and temporally 

limited and do not permanently reduce 

or degrade the habitat available to 

marine mammals or their prey species. 

While the NES1 project would add an 

incremental contribution to the 

combined environmental impacts of 

other past, present, and reasonably 

foreseeable future actions; those direct 

and indirect adverse impacts are 

expected to be mainly short-term, 

localized, and minor, as described in the 

draft EA. None of the harassment 

authorized by NMFS in other ITAs 

would overlap in time or space with 

impacts from the NES1 Project. 

The CBD postulates that NMFS’ 

consideration of climate change is 

inadequate. However, CBD improperly 

states that the proposed project is for 

cement and petroleum. That is incorrect 

as the proposed project is for the 

demolition of portions of the failed NES 

sheet pile structure and reconfiguration 

and realignment of the shoreline within 

the North Extension. NMFS considers 

climate change in its EA. However, as 

mentioned above NMFS does not 

authorize any of the POA’s activities but 

rather take of marine mammals 

incidental to the POA’s activities. While 

changes in environmental conditions 

due to climate change could result in 

prey distribution changes or loss for 

beluga whales or other marine 

mammals, the NES1 project is planned 

to occur during a 1-year period, during 

which time the impacts of climate 

change on marine mammals are likely to 

remain at baseline levels. 

Comment 19: CBD states that NMFS 

must comply with the ESA but asserts 

that NMFS should not issue take 

authorization under the ESA because 

such taking would jeopardize the 

continued existence of CIBWs. 

Response: In the Federal Register 

notice of the proposed IHA (88 FR 

76576, November 6, 2023), NMFS 

indicated that we requested section 7 

consultation under the ESA. CBD 

indicates they believe the proposed 

taking would jeopardize the recovery 

and survival of CIBWs but did not 

further explain how they reached this 

conclusion. NMFS has fully complied 

with the ESA. NMFS Alaska Region 

issued a BiOp on December 15, 2023 

concluding that issuance of take, by 

harassment, of CIBW, humpback whales 

(Mexico Distinct Population Segment 

(DPS) and Western DPS), and Steller sea 

lions would not jeopardize the 

continued existence of those stocks and 

the takings would not adversely modify 

critical habitat. The full analysis 

supporting these conclusions can be 

found in the BiOp (NMFS, 2023a). 

Comment 20: In their letter, CBD 

stated they did not believe NMFS 

should authorize take of CIBWs and 

other marine mammals but, if NMFS did 

take action to do so, we must impose 

stringent mitigation measures to ensure 

the least practicable adverse impact on 

protected species. 

Response: The proposed IHA 

included a suite of mitigation measures, 

which have been carried forward into 

the final IHA, which NMFS determined 

to effect the least practicable adverse 

impact on marine mammals, in 

accordance with the MMPA (see the 

Mitigation section). 

Comment 21: A commenter from 

Eklutna, Inc. representing the 

indigenous Dena’ina people of the 

Anchorage, Alaska area requested that 

Dena’ina individuals from the local area 

be trained and employed as NMFSapproved PSOs. They stated that the 

Dena’ina people possess a deep-seated 

knowledge and understanding of the 

local marine ecosystem, particularly 

concerning the marine mammals that 

NMFS aims to protect through its 

monitoring efforts. Given the 

significance of these species to their 

way of life and the potential impacts of 

the NES1 project, the commenter 

proposed that members of their 

community be actively involved in the 

monitoring and support roles related to 

the project. They stressed that this 

initiative would not only ensure 

effective monitoring of marine 

mammals, but also foster a sense of 

ownership and participation among the 

indigenous community in the 

conservation efforts. 

Response: NMFS agrees that Alaska 

Native residents with traditional 

knowledge about marine mammals and 

the local marine environment hold 

valuable knowledge and skills that are 

critical to the effectiveness of a PSO. In 

the final IHA, NMFS requires at least 

one PSO to have at least 1-year of prior 

experience performing the duties of a 

PSO during construction activity 


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pursuant to a NMFS-issued ITA or 

Letter of Concurrence. Other PSOs may 

substitute other relevant experience, 

education (degree in biological science 

or related field), or training for prior 

experience performing the duties of a 

PSO during construction activity 

pursuant to a NMFS-issued ITA. For 

this project, in consideration of valuable 

traditional ecological knowledge that 

many community members hold, PSOs 

may also substitute relevant Alaska 

native traditional knowledge for 

experience. Regarding hiring preference 

for regional residents with traditional 

ecological knowledge, NMFS cannot 

require an IHA-holder to employ certain 

individuals, though it does require that 

an applicant request NMFS approval for 

all PSOs so that NMFS can confirm that 

they meet the requirements outlined in 

the IHA. NMFS has passed this 

recommendation on to the POA for its 

consideration and has suggested that the 

POA send letters to the Kenaitze, 

Tyonek, Knik, Eklutna, Ninilchik, 

Salamatof, and Chickaloon Tribes 

informing them of the hiring process 

when known. 

Changes From the Proposed IHA to 

Final IHA 

As a result of the public comments 

received from CBD and Eklutna, Inc. 

(and summarized above), provisions 

were added to the final IHA and this 

Federal Register notice of issuance that 

incorporates additional discussion 

regarding impacts to CIBW preferred 

prey, and our clarification of 

requirements related to PSO 

qualifications (i.e., making clear that 

relevant Alaska native traditional 

knowledge can be considered as a 

substitute for relevant experience when 

considering prospective PSOs for the 

NES1 project). 

Since the Federal Register notice of 

the proposed IHA was published (88 FR 

76576, November 6, 2023), NMFS 

became aware of an error in the 

calculation of the RMS SPLs that were 

used as proxies for unattenuated 

vibratory pile removal of steel pipe piles 

for this project. NMFS has recalculated 

these levels and has revised the 

Estimated Take section accordingly. 

Specifically, the RMS SPL proxy for the 

vibratory removal of 24-inch (61-cm) 

piles changed from 168-dB to 169-dB. 

The RMS SPL for the vibratory removal 

of 36-inch (91-cm) piles did not change 

(i.e., it remains 159-dB RMS). As a result 

of the change to the 24-inch (61-cm) 

RMS SPL, the Level B harassment zone 

for this activity increased from 5,967-m 

to 6,861-m, and the Level A harassment 

zones for low-frequency cetaceans, midfrequency cetaceans, high-frequency 

cetaceans, and phocid pinniped 

increased slightly (i.e., between 1-m to 

7-m increases). Given the shutdown 

zone for CIBWs is equivalent to the 

Level B harassment zone (see the 

Mitigation section of this Federal 

Register notice of issuance), the 

shutdown zone for this activity has 

increased from 6,000-m to 6,900-m 

(6,861-m rounded up) for this species. 

The shutdown zone for low-frequency 

cetaceans also increased from 40-m to 

50-m due to this change. 

In the proposed IHA, NMFS proposed 

to require the POA to submit interim 

weekly and monthly monitoring reports 

(that include raw electronic data sheets) 

during the NES1 construction season. 

Since the Federal Register notice of the 

proposed IHA published (88 FR 76576, 

November 6, 2023), the POA has 

expressed concern that the inclusion of 

raw electronic data sheets with weekly 

and monthly reports will not be feasible 

for their monitoring program. In 

addition, the raw data will need to be 

reviewed and corrected for any errors. 

Rather, the POA has agreed to submit 

the final electronic data sheets with the 

final draft summary report. NMFS has 

accepted this request and has revised 

the final IHA to indicate that the final 

electronic data sheets must be submitted 

with the final draft summary report 

instead of with the required weekly and 

monthly monitoring reports. This is 

consistent with reporting requirements 

for the PCT and SFD IHAs. 

Typographical errors identified in 

tables 2 and 13 in the Federal Register 

notice of the proposed IHA have been 

corrected in this Federal Register notice 

of issuance (see tables 1 and 10, 

respectively). In addition, some 

clarifying language regarding source 

levels proposed for impact pile removal 

and pile splitting has been added to the 

Estimated Take section. Lastly, in the 

Endangered Species Act section of the 

Federal Register notice of the proposed 

IHA, NMFS omitted reference to the 

Western North Pacific DPS of humpback 

whales as a listed species under the ESA 

for which NMFS OPR was requesting 

ESA section 7 consultation. However, 

this species was considered in the 

formal consultation and is assessed in 

the BiOp issued by the NMFS Alaska 

Regional Office on December 15, 2023. 

No other changes have been made from 

the proposed IHA to the final IHA. 

Description of Marine Mammals in the 

Area of Specified Activities 

There are seven species of marine 

mammals that may be found in upper 

Cook Inlet during the planned 

construction and demolition activities. 

Sections 3 and 4 of the IHA application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history of the potentially 

affected species. NMFS fully considered 

all of this information, and we refer the 

reader to these descriptions, instead of 

reprinting the information. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

Stock Assessment Reports (SARs; 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessments) 

and more general information about 

these species (e.g., physical and 

behavioral descriptions) may be found 

on NMFS’ website (https://

www.fisheries.noaa.gov/find-species). 

Additional information on CIBWs 

may be found in NMFS’ 2016 Recovery 

Plan for the CIBW, available online at 

https://www.fisheries.noaa.gov/ 

resource/document/recovery-plan-cookinlet-beluga-whale-delphinapterusleucas, and NMFS’ 2023 report on the 

abundance and trend of CIBWs in Cook 

Inlet in June 2021 and June 2022, 

available online at https://

www.fisheries.noaa.gov/resource/ 

document/abundance-and-trendbelugas-delphinapterus-leucas-cookinlet-alaska-june-2021-and. 

Table 2 lists all species or stocks for 

which take is expected and authorized 

for this activity, and summarizes 

information related to the population or 

stock, including regulatory status under 

the MMPA and ESA and potential 

biological removal (PBR), where known. 

PBR is defined by the MMPA as the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population (as described in NMFS’ 

SARs). While no serious injury or 

mortality is anticipated or authorized 

here, PBR and annual serious injury and 

mortality from anthropogenic sources 

are included here as gross indicators of 

the status of the species or stocks and 

other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’ U.S. Alaska and Pacific SARs 

(e.g., Carretta, et al., 2023; Young et al., 


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2023). Values presented in table 2 are 

the most recent available at the time of 

publication and are available online at: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessments. 

The most recent abundance estimate for 

CIBWs, however, is available from Goetz 

et al. (2023) and available online at 

https://www.fisheries.noaa.gov/featurestory/new-abundance-estimateendangered-cook-inlet-beluga-whales. 

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Table 2 -- Species Likely Impacted by the Specified Activities 

ESA/M Stock abundance 

Common MPA Nbest, (CV, Nmin, most Annua 

Scientific name MMPAStock status; PBR 1 

name Strategic recent abundance M/SI3 

(YIN)] survey)2 

Order Cetartiodactyla- Cetacea - Superfamily Mysticeti (baleen whales) 

Family Eschrichtiidae 

Gray whale Eschrichtius Eastern North -I-; N 26,960 (0.05, 25,849, 801 131 robustus Pacific 2016) 

Family Balaenopteridae (rorquals) 

Hawaii -, -, N 11,278 (0.56, 7,265, 127 27.09 2020) 

Humpback Megaptera 

whale novaeangliae Mexico- T,D,Y NIA (NIA, NIA, UND 0.57 North Pacific 2006) 5 

Order Cetartiodactyla- Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Delphinidae 

Beluga Delphinapterus Cook Inlet E/D;Y 331 (0.076, 290, 0.53 0 whale leucas 2022)4 

Eastern North 

Killer Orcinus orca Pacific -I-; N 1,920 (NIA, 1,920, 19 1.3 whale Alaska 2019) 

Resident 
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On June 15, 2023, NMFS released an 

updated abundance estimate for 

endangered CIBWs in Alaska (Goetz et 

al., 2023) that incorporates aerial survey 

data from June 2021 and 2022, but 

which is not included in the most recent 

SAR (Young et al., 2023). Data collected 

during NMFS recent aerial survey effort 

suggest that the whale population is 

stable or may be increasing slightly. 

Goetz et al. (2023) estimated that the 

population size is currently between 

290 and 386, with a median best 

estimate of 331. In accordance with the 

MMPA, this population estimate will be 

incorporated into the next draft CIBW 

SAR, which will be reviewed by an 

independent panel of experts, the 

Alaska Scientific Review Group. After 

this review, the SAR will be made 

available as a draft for public review 

before being finalized. We have 

determined that it is appropriate to 

consider the CIBW estimate of 

abundance reported by Goetz et al. 

(2023) in our analysis rather than the 

older estimate currently available from 

the Alaska SAR (Young et al., 2023) 

because it is based on the most recent 

and best available science. 

As indicated above, all seven species 

(with nine managed stocks) in table 2 

temporally and spatially co-occur with 

the activity to the degree that take is 

reasonably likely to occur. Minke 

whales (Balaenoptera acutorostrata) and 

Dall’s porpoises (Phocoenoides dalli) 

also occur in Cook Inlet; however, the 

spatial occurrence of these species is 

such that take is not expected to occur, 

and they are not discussed further 

beyond the explanation provided here. 

Data from the Alaska Marine Mammal 

Stranding Network database (NMFS, 

unpublished data) provide additional 

support for these determinations. From 

2011 to 2020, only one minke whale and 

one Dall’s porpoise were documented as 

stranded in the portion of Cook Inlet 

north of Point Possession. Both were 

dead upon discovery; it is unknown if 

they were alive upon their entry into 

upper Cook Inlet or drifted into the area 

with the tides. With very few 

exceptions, minke whales and Dall’s 

porpoises do not occur in upper Cook 

Inlet, and therefore take of these species 

is considered unlikely. 

In addition, sea otters (Enhydra lutris) 

may be found in Cook Inlet. However, 

sea otters are managed by the U.S. Fish 

and Wildlife Service (USFWS) and are 

not considered further in this document. 

A detailed description of the species 

likely to be affected by the NES1 project, 

including a brief introduction to the 

affected stock as well as available 

information regarding population trends 


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Eastern North 

Pacific Gulf 

of Alaska, -I-; N 587 (NIA, 587, 2012) 5.9 0.8 Aleutian 

Islands and 

Bering Sea 

Transient 

Family Phocoenidae (porpoises) 

Harbor Phocoena Gulf of -I-; y 

31,046 (0.214, NIA, UND 72 porpoise phocoena Alaska 1998) 5 

Order Camivora - Superfamily Pinnipedia 

Family Otariidae (eared seals and sea lions) 

Steller sea Eumetopias Western E/D;Y 52,932 (NIA, 52,932 318 255 lion jubatus 2019) 

Family Phocidae (earless seals) 

Cook Inlet/ 28,411 (NIA, 26,907, Harbor seal Phoca vitulina Shelikof -I-; N 2018) 807 107 

Strait 

1 - 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 MMP A. Under the MMP A, 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 MMP A as depleted and as a strategic 

stock. 

2 - NMFS marine mammal stock assessment reports online at: 

https:/lwww.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. 

CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not 

applicable (N.A.). 

3 - These values, found in NMFS 's SARs, represent annual levels of human-caused mortality plus serious 

injury (M/SI) from all sources combined (e.g., commercial fisheries, ship strike). Annual MISI often cannot 

be determined precisely and is in some cases presented as a minimum value or range. A CV associated with 

estimated mortality due to commercial fisheries is presented in some cases. 

4 - This abundance estimate is from Goetz et al. (2023). 

5 - UND means undetermined. 
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2849 

and threats, and information regarding 

local occurrence, were provided in the 

Federal Register notice of the proposed 

IHA (88 FR 76576, November 6, 2023). 

Since that time, we are not aware of any 

changes in the status of these species 

and stocks; therefore, detailed 

descriptions are not provided here. 

Please refer to that Federal Register 

notice for these descriptions. Please also 

refer to NMFS’ website (https://

www.fisheries.noaa.gov/find-species) for 

generalized species accounts. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Not all marine mammal 

species have equal hearing capabilities 

(e.g., Richardson et al., 1995; Wartzok 

and Ketten, 1999; Au and Hastings, 

2008). To reflect this, Southall et al. 

(2007, 2019) recommended that marine 

mammals be divided into hearing 

groups based on directly measured 

(behavioral or auditory evoked potential 

techniques) or estimated hearing ranges 

(behavioral response data, anatomical 

modeling, etc.). Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65-dB 

threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in table 3. Specific to this action, gray 

whales and humpback whales are 

considered low-frequency (LF) 

cetaceans, CIBWs, and killer whales are 

considered mid-frequency (MF) 

cetaceans, harbor porpoises are 

considered high-frequency (HF) 

cetaceans, Steller sea lions are otariid 

pinnipeds, and harbor seals are phocid 

pinnipeds. 

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The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009; Reichmuth and Holt, 2013). This 

division between phocid and otariid 

pinnipeds is now reflected in the 

updated hearing groups proposed in 

Southall et al. (2019). 

For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018) for a review of 

available information. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The effects of underwater noise from 

the POA’s construction activities have 

the potential to result in harassment of 

marine mammals in the vicinity of the 

POA. The Federal Register notice of the 

proposed IHA (88 FR 76576, November 

6, 2023) included a discussion of the 


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Table 3 -- Marine Mammal Hearing Groups (NMFS, 2018) 

Hearing Group Generalized Hearing 

Range* 

Low-frequency (LF) cetaceans 7 Hz to 35 kHz (baleen whales) 

Mid-frequency (MF) cetaceans 

(dolphins, toothed whales, beaked whales, bottlenose 150 Hz to 160 kHz 

whales) 

High-frequency (HF) cetaceans 

(true porpoises, Kogia, river dolphins, Cephalorhynchid, 275 Hz to 160 kHz 

Lagenorhynchus cruciger & L. australis) 

Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz (true seals) 

Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz (sea lions and fur seals) 

* 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). 
2850 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

effects of anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from the POA’s 

construction activities on marine 

mammals and their habitat. That 

information and analysis is referenced 

in this notice of issuance of the final 

IHA and is not repeated here; please 

refer to the notice of the proposed IHA 

(88 FR 76576, November 6, 2023). 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through the IHA, which will 

inform both NMFS’ consideration of 

‘‘small numbers,’’ and the negligible 

impact determinations. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 

MMPA defines ‘‘harassment’’ as any act 

of pursuit, torment, or annoyance, 

which (i) has the potential to injure a 

marine mammal or marine mammal 

stock in the wild (Level A harassment); 

or (ii) has the potential to disturb a 

marine mammal or marine mammal 

stock in the wild by causing disruption 

of behavioral patterns, including, but 

not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

(Level B harassment). 

Authorized takes will primarily be by 

Level B harassment, as use of the 

acoustic sources (i.e., vibratory and 

impact pile driving) has the potential to 

result in disruption of behavioral 

patterns for individual marine 

mammals. There is also some potential 

for auditory injury (Level A harassment) 

to result, primarily for HF cetaceans and 

phocids because predicted auditory 

injury zones are larger than for MF 

cetaceans and otariids. Auditory injury 

is unlikely to occur for mysticetes, MF 

cetaceans, and otariids due to measures 

described in the Mitigation section. The 

mitigation and monitoring measures are 

expected to minimize the severity of the 

taking to the extent practicable. As 

described previously, no serious injury 

or mortality is anticipated or authorized 

for this activity. Below we describe how 

the take numbers were estimated. 

For acoustic impacts, generally 

speaking, we estimate take by 

considering: (1) acoustic thresholds 

above which NMFS believes the best 

available science indicates marine 

mammals will be behaviorally harassed 

or incur some degree of permanent 

hearing impairment; (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 

density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) the number of days of activities. 

We note that while these factors can 

contribute to a basic calculation to 

provide an initial prediction of potential 

takes, additional information that can 

qualitatively inform take estimates is 

also sometimes available (e.g., previous 

monitoring results or average group 

size). Below, we describe the factors 

considered here in more detail and 

present the take estimates. 

Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Level B Harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source or exposure 

context (e.g., frequency, predictability, 

duty cycle, duration of the exposure, 

signal-to-noise ratio, distance to the 

source), the environment (e.g., 

bathymetry, other noises in the area, 

predators in the area), and the receiving 

animals (hearing, motivation, 

experience, demography, life stage, 

depth) and can be difficult to predict 

(e.g., Southall et al., 2007, 2021; Ellison 

et al., 2012). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a metric that is both predictable and 

measurable for most activities, NMFS 

typically uses a generalized acoustic 

threshold based on received level to 

estimate the onset of behavioral 

harassment. NMFS generally predicts 

that marine mammals are likely to be 

behaviorally harassed in a manner 

considered to be Level B harassment 

when exposed to underwater 

anthropogenic noise above RMS SPL of 

120-dB re 1 mPa for continuous (e.g., 

vibratory pile driving, drilling) and 

above RMS SPL 160-dB re 1 mPa for 

non-explosive impulsive (e.g., seismic 

airguns) or intermittent (e.g., scientific 

sonar) sources. Generally speaking, 

Level B harassment take estimates based 

on these behavioral harassment 

thresholds are expected to include any 

likely takes by temporary threshold shift 

(TTS) as, in most cases, the likelihood 

of TTS occurs at distances from the 

source less than those at which 

behavioral harassment is likely. TTS of 

a sufficient degree can manifest as 

behavioral harassment, as reduced 

hearing sensitivity and the potential 

reduced opportunities to detect 

important signals (conspecific 

communication, predators, prey) may 

result in changes in behavior patterns 

that would not otherwise occur. 

The POA’s planned activity includes 

the use of continuous (vibratory pile 

driving) and intermittent (impact pile 

driving) noise sources, and therefore the 

RMS SPL thresholds of 120- and 160-dB 

re 1 mPa are applicable. 

Level A Harassment. NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0; 

NMFS, 2018) identifies dual criteria to 

assess auditory injury (Level A 

harassment) to five different marine 

mammal groups (based on hearing 

sensitivity) as a result of exposure to 

noise from two different types of 

sources (impulsive or non-impulsive). 

The POA’s planned activity includes the 

use of impulsive (impact pile driving) 

and non-impulsive (vibratory driving) 

sources. 

These thresholds are provided in the 

table below. The references, analysis, 

and methodology used in the 

development of the thresholds are 

described in NMFS’ 2018 Technical 

Guidance, which may be accessed at: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 

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Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that are used in estimating the area 

ensonified above the acoustic 

thresholds, including source levels and 

transmission loss (TL) coefficient. 

The sound field in the project area is 

the existing background noise plus 

additional construction noise from the 

planned project. Marine mammals are 

expected to be affected via sound 

generated by the primary components of 

the project (i.e., impact pile removal and 

vibratory pile installation and removal). 

Calculation of the area ensonified by the 

specified action is dependent on the 

background sound levels at the project 

site, the source levels of the planned 

activities, and the estimated 

transmission loss coefficients for the 

planned activities at the site. These 

factors are addressed in order, below. 

Background Sound Levels at the Port 

of Alaska. As noted in the Potential 

Effects of Specified Activities on Marine 

Mammals and Their Habitat section of 

the Federal Register notice of the 

proposed IHA (88 FR 76576, November 

6, 2023), the POA is an industrial 

facility in a location with high levels of 

commercial vessel traffic, port 

operations (including dredging), and 

extreme tidal flow. Previous 

measurements of background noise at 

the POA have recorded a background 

SPL of 122.2-dB RMS (Austin et al., 

2016). NMFS concurred that this SPL 

reasonably represents background noise 

near the project area, and therefore we 

have used 122.2-dB RMS as the 

threshold for Level B harassment 

(instead of 120-dB RMS). 


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Table 4 -- Thresholds Identifying the Onset of Permanent Threshold Shift 

PTS Onset Acoustic Thresholds* 

(Received Level) 

Hearing Group Impulsive Non-impulsive 

Low-Frequency (LF) Cell l Cell 2 

Lpk,flat: 219 dB LE,LF,24h: 199 dB Cetaceans 

LE,LF,24h.' 183 dB 

Mid-Frequency (MF) Cell 3 Cell 4 

Lpk,flat: 23 0 dB LE,},,,!F,24h: 198 dB Cetaceans 

fa,},,,!F,24h: 185 dB 

High-Frequency (HF) Cell 5 Cell 6 

Lpk,flat: 202 dB LE,HF,24h: 173 dB Cetaceans 

LE,HF,24h: 155 dB 

Phocid Pinnipeds (PW) Cell 7 Cell 8 

Lpk,flat: 218 dB LE,PW,24h: 201 dB (Underwater) 

LE,PW,24h: 185 dB 

Otariid Pinnipeds (OW) Cell 9 Cell JO 

Lpk,flat: 23 2 dB LE,OW,24h: 219 dB (Underwater) 

LE,OW,24h: 203 dB 

* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for 

calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure 

level thresholds associated with impulsive sounds, these thresholds should also be considered. 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level 

(LE) has a reference value of lμPa2s. 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 NMFS' 2018 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. 
2852 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

Sound Source Levels of Specified 

Activities. The intensity of pile driving 

sounds is greatly influenced by factors 

such as the type of piles (material and 

diameter), hammer type, and the 

physical environment (e.g., sediment 

type) in which the activity takes place. 

In order to calculate the distances to the 

Level A harassment and the Level B 

harassment sound thresholds for the 

methods and piles being used in this 

project, the POA used acoustic 

monitoring data from sound source 

verification studies to develop proxy 

source levels for the various pile types, 

sizes and methods (table 5). While sitespecific sound source verification 

studies have been conducted at the 

POA, the vast majority of the 

measurements recorded in those studies 

were made when bubble curtains were 

deployed around the sound source, 

which act to attenuate sound levels 

(Austin et al., 2016; I&R, 2021a, 2021b). 

Bubble curtains are not a feasible 

mitigation measure for the NES1 project 

due to the demolition and sequencing 

nature of the project (see the Mitigation 

section of this notice for additional 

discussion), and therefore the majority 

of the proxy values for this project are 

based on measurements recorded from 

locations other than the POA. 

Underwater sound was measured in 

2008 at the POA for the Marine 

Terminal Redevelopment Project 

(MTRP) during installation of sheet 

piles to assess potential impacts of 

sound on marine species. Sound levels 

for installation of sheet piles measured 

at 10-m typically ranged from 147- to 

161-dB RMS, with a mean of 

approximately 155-dB RMS (James 

Reyff, unpublished data). An SPL of 

162-dB RMS was reported in (California 

Department of Transportation 

(CALTRANS), 2020) summary tables for 

24-inch (61-cm) steel sheet piles. This is 

a more rigid type of sheet pile that 

requires a large vibratory driver (James 

Reyff, personal communication, August 

26, 2020). Based on the 2008 

measurements at the POA and the 

CALTRANS data, a value of 160-dB 

RMS was assumed for vibratory removal 

of sheet piles. 

NMFS concurred that the source 

levels proposed by the POA for all pile 

sizes during impact removal and 

vibratory installation of all pile types 

are appropriate to use for calculating 

harassment isopleths for the POA’s 

planned NES1 activities (table 5). 

Impact removal is the process of hitting 

a pile with an impact hammer with a 

small number of strikes (up to 50 per 

pile) to loosen it from the soil so that it 

can be removed via other means such as 

direct pulling or with a vibratory 

hammer. There are no data to our 

knowledge available on impact removal 

of this nature. The POA proposed to use 

SPL values measured during the impact 

installation of 24-inch (61-cm) AZ steel 

sheet piles from the Berth 23, Port of 

Oakland Project (CALTRANS, 2020) for 

this activity. Given this is the best 

available information, NMFS has 

accepted the POA’s proposed SPLs for 

this activity. 

However, the source levels proposed 

by the POA for vibratory pile removal 

were based on limited data collected at 

the POA. Therefore, NMFS considered 

and evaluated all data related to 

unattenuated vibratory removal of 24- 

inch (61-cm) and 36-inch (91-cm) steel 

pipe piles available, including sound 

source verification data measured at the 

POA during the PCT project (Reyff et al., 

2021a) and elsewhere (i.e., Coleman, 

2011; U.S. Navy, 2012; I&R, 2017). 

NMFS gathered data from publicly 

available reports that reported driving 

conditions and specified vibratory 

removal for certain piles. If vibratory 

removal was not specifically noted for a 

given pile, we excluded that data from 

the analysis. Mean RMS SPLs reported 

by these studies were converted into 

pressure values, and pressure values for 

piles from each project were averaged to 

give a single SPL for each project. The 

calculated project means were then 

averaged and converted back into dBs to 

give a single recommended SPL 

(rounded to the nearest whole dB) for 

each pile type. 

Ten measurements were available for 

unattenuated vibratory removal of 24- 

inch (61-cm) piles: 3 from Columbia 

River Crossing in Oregon (mean RMS 

SPL of 173-dB; Coleman, 2011), 5 from 

Joint Expeditionary Base Little Creek in 

Norfolk, Virginia (mean RMS SPL of 

148-dB; I&R, 2017), and 2 from the PCT 

project at the POA (mean RMS SPL of 

169-dB; I&R, 2021a, 2023). The 

calculated average SPL for unattenuated 

vibratory removal of 24-inch (61-cm) 

steel pipe piles from these studies was 

169-dB RMS (table 5). Forty 

measurements were available for 

unattenuated vibratory removal of 36- 

inch (91-cm) piles: 38 from the U.S. 

Navy Test Pile Program at Naval Base 

Kitsap in Bangor, Washington (mean 

RMS SPL of 160-dB; U.S. Navy, 2012), 

and 2 from the PCT project at the POA 

(mean RMS SPL of 159-dB; I&R, 2021, 

2023). The calculated average SPL for 

unattenuated vibratory removal of 36- 

inch (91-cm) steel pipe piles from these 

studies was 159-dB RMS (table 5). Note 

that the proxy values in table 5 

represent SPL referenced at a distance of 

10- m from the source. 

Interestingly, the RMS SPLs for the 

unattenuated vibratory removal of 24- 

inch (61-cm) piles were much louder 

than the unattenuated vibratory removal 

of 36-inch (91-cm) piles, and even 

louder than the unattenuated vibratory 

installation of 24-inch piles. I&R (2023) 

suggest that at least for data recorded at 

the POA, the higher 24-inch (61-cm) 

removal levels are likely due to the piles 

being removed at rates of 1,600 to 1,700 

revolutions per minute (rpm), while 36- 

inch (91-cm) piles, which are 

significantly heavier than 24-inch (61- 

cm) piles), were removed at a rate of 

1,900 rpm. The slower rates combined 

with the lighter piles would cause the 

hammer to easily ‘‘jerk’’ or excite the 24- 

inch (61-cm) piles as they were 

extracted, resulting in a louder rattling 

sound and louder sound levels. This did 

not occur for the 36-inch (91-cm) piles, 

which were considerably heavier due to 

increased diameter, longer length, and 

greater thickness. 


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Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2853 

A splitter will be used in conjunction 

with a vibratory hammer to make 

vertical cuts in sheet piles as necessary 

to help with their removal. The POA 

assumes that a pile splitter will produce 

the same or similar sound levels as a 

vibratory hammer without the splitter 

attachment; therefore, the POA 

combined use of a vibratory hammer to 

remove sheet pile and use of a splitter 

into a single category (i.e., vibratory 

hammer removal). NMFS is currently 

unaware of any hydroacoustic 

measurements of pile splitting with a 

vibratory hammer. NMFS specifically 

requested comments on the proposed 

SPL values for vibratory pile splitting in 

the Federal Register notice of the 

proposed IHA (88 FR 76576, November 

6, 2023). No additional data or 

recommendations for proxy SPLs for 

these activities were received during the 

public comment period. Given this is 

the best available information, NMFS 

has accepted the POA’s proposed SPLs 

and assessments. 

Transmission Loss. For unattenuated 

impact pile driving, the POA proposed 

to use 15 as the TL coefficient, meaning 

they assumed practical spreading loss 

(i.e., the POA assumes TL = 

15*Log10(range)); NMFS concurred with 

this value and has used the practical 

spreading loss model for impact driving 

in this analysis. 

The TL coefficient that the POA 

proposed for unattenuated vibratory 

installation and removal of piles is 16.5 

(i.e., TL = 16.5*Log10(range)). This value 

is an average of measurements obtained 

from two 48-inch (122-cm) piles 

installed via an unattenuated vibratory 

hammer in 2016 (Austin et al., 2016). To 

assess the appropriateness of this TL 

coefficient to be used for the NES1 

project, NMFS examined and analyzed 

additional TL measurements recorded at 

the POA. This included a TL coefficient 

of 22 (deep hydrophone measurement) 

from the 2004 unattenuated vibratory 

installation of one 36-inch (91-cm) pile 

in Knik Arm (Blackwell, 2004), as well 

as TL coefficients ranging from 10.3 to 

18.2 from the unattenuated vibratory 

removal of 24-inch (61 cm) and 36-inch 

(91-cm) piles and the unattenuated 

vibratory installation of one 48-inch 

(122-cm) pile at the POA in 2021 (I&R 

2021, 2023). To account for statistical 

interdependence due to temporal 

correlations and equipment issues 

across projects, values were averaged 

first within each individual project, and 

then across projects. The mean and 

median value of the measured TL 

coefficients for unattenuated vibratory 

piles in Knik Arm by project were equal 

to 18.9 and 16.5, respectively. NMFS 

used the project median TL coefficient 

of 16.5 during unattenuated vibratory 

installation and removal of all piles 

during the NES1 project. This value is 

representative of all unattenuated 

vibratory measurements in the Knik 

Arm. Further, 16.5 is the mean of the 

2016 measurements, which were made 

closer to the NES1 project area than 

other measurements and were 

composed of measurements from 

multiple directions (both north and 

south/southwest). 

Estimated Harassment Isopleths. All 

estimated Level B harassment isopleths 

are reported in table 6. At POA, Level 

B harassment isopleths from the NES1 

project will be limited by the coastline 

along Knik Arm along and across from 

the project site. The maximum 

predicted isopleth distance is 6,861-m 

during vibratory removal of 24-inch (61- 

cm) steel pipe piles. 

The ensonified area associated with 

Level A harassment is more technically 

challenging to predict due to the need 

to account for a duration component. 

Therefore, NMFS developed an optional 

User Spreadsheet tool to accompany the 

Technical Guidance that can be used to 

relatively simply predict an isopleth 

distance for use in conjunction with 

marine mammal density or occurrence 

to help predict potential takes. We note 

that because of some of the assumptions 

included in the methods underlying this 

optional tool, we anticipate that the 

resulting isopleth estimates are typically 

going to be overestimates of some 

degree, which may result in an 

overestimate of potential take by Level 

A harassment. However, this optional 

tool offers the best way to estimate 

isopleth distances when more 

sophisticated modeling methods are not 

available or practical. For stationary 

sources such as pile driving, the 

optional User Spreadsheet tool predicts 

the distance at which, if a marine 

mammal remained at that distance for 

the duration of the activity, it would be 


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T a e bl 5 S -- ummarv o fU na tt enua t d I W t e n- a er P'l I e D r1vm1 • • P roxv L I eves (. a t 10 m 1) 

Peak RMS 

Pile Type Installation or SPL SPL SEL1 (re 1 Source Removal (re 1 (re 1 μPa2-sec) 

μPa) μPa) 

Impact driving 

Sheet pile Removal 205 189 179 CAL TRANS (2020) 

Vibratory driving 

Sheet pile Removal (hammer 160 CALTRANS (2015, 2020) or splitter) 

Installation 161 U.S. Navy (2015) 24-inch (61-cm) Coleman (2011), I&R steel pipe Removal NA 169 NA (2017, 2021, 2023) 

Installation 166 U.S. Navy (2015) 36-inch (91-cm 

U.S. Navy (2012), I&R steel pipe Removal 159 (2021, 2023) 

1 Sound Exposure Level 
2854 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

expected to incur PTS. Inputs used in 

the User Spreadsheet are reported in 

table 6 and the resulting isopleths and 

ensonified areas are reported in table 7. 

BILLING CODE 3510–22–P 


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Table 6 -- NMFS User Spreadsheet Inputs 

Impact Pile Vibratory Pile Driving Driving 

Sheet Pile Sheet Pile 24-inch (61-cm) steel pipe 36-inch (91-cm) steel pipe 

Removal Removal Installation Removal Installation Removal 

Spreadsheet E.1) Al) Non- Al) Non- Al) Non- Al) Non- Al) NonTab Used Impact pile Impul, Impul, Stat, Impul, Impul, Stat, Impul, 

driving Stat, Cont. Cont. Stat, Cont. Cont. Stat, Cont. 

Source Level 179 dB 160 dB 161 dB RMS 169 dB 166 dB RMS 159 dB 

(SPL) SEL RMS RMS RMS 

Transmission 

Loss 15 16.5 16.5 16.5 16.5 16.5 

Coefficient 

Weighting 

Factor 2 2.5 2.5 2.5 2.5 2.5 Adjustment 

(kHz) 

Time to install 

I remove 5 15 15 15 15 single pile -- (minutes) 

Number of 50 strikes per pile -- -- -- -- --

Piles per day 3 24 12 12 12 12 

Distance of 

sound 

pressure level 10 10 10 10 10 10 

measurement 

(m) 
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2855 

BILLING CODE 3510–22–C 

Marine Mammal Occurrence and Take 

Estimation 

In this section we provide information 

about the occurrence of marine 

mammals, including density or other 

relevant information which informed 

the take calculation. We also describe 

how the information provided above 

was synthesized to produce a 

quantitative estimate of the take that is 

reasonably likely to occur and is 

authorized. 

Gray Whale 

Sightings of gray whales in the project 

area are rare. Few, if any, gray whales 

are expected to approach the project 

area. However, based on three separate 

sightings of single gray whales near the 

POA in 2020 and 2021 (61N 

Environmental, 2021, 2022a; EasleyAppleyard and Leonard, 2022), the POA 

anticipates that up to six individuals 

could be within estimated harassment 

zones during NES1 project activities. 

Therefore, NMFS authorized six takes 

by Level B harassment for gray whales 

during the NES1 project. Take by Level 

A harassment is not anticipated or 

authorized. The Level A harassment 

zones (table 7) are smaller than the 

required shutdown zones (see the 

Mitigation section). It is unlikely that a 

gray whale will enter and remain within 

the Level A harassment zone long 

enough to incur PTS. 

Humpback Whale 

Sightings of humpback whales in the 

project area are rare, and few, if any, 

humpback whales are expected to 

approach the project area. However, 

there have been a few observations of 

humpback whales near the POA as 

described in the Description of Marine 

Mammals in the Area of Specified 

Activities section of the Federal 

Register notice of the proposed IHA (88 

FR 76576, November 6, 2023). Based on 

the two sightings in 2017 of what was 

likely a single individual at the 

Anchorage Public Boat Dock at Ship 

Creek (ABR, Inc., 2017) south of the 

project area, the POA requested 

authorization of six takes of humpback 

whales. However, given the maximum 

number of humpback whales observed 

within a single construction season was 

two (in 2017), NMFS instead anticipates 

that only up to four humpback whales 

could be exposed to project-related 

underwater noise during the NES1 

project. Therefore, NMFS authorized 

four takes by Level B harassment for 

humpback whales during the NES1 

project. Take by Level A harassment is 

not anticipated or authorized. The Level 

A harassment zones (table 7) are smaller 

than the required shutdown zones (see 

the Mitigation section), therefore, it is 

unlikely that a humpback whale will 

enter and remain within the Level A 

harassment zone long enough to incur 

PTS. 

Killer Whale 

Few, if any, killer whales are expected 

to approach the NES1 project area. No 

killer whales were sighted during 

previous monitoring programs for POA 

construction projects, including the 

2016 TPP, 2020 PCT, and 2022 SFD 

projects (Prevel-Ramos et al., 2006; 

Markowitz and McGuire, 2007; Cornick 

and Saxon-Kendall, 2008, 2009; Cornick 

et al., 2010, 2011; ICRC, 2009, 2010, 

2011, 2012; Cornick and Pinney, 2011; 

Cornick and Seagars, 2016; 61N 

Environmental, 2021, 2022b), until PCT 

construction in 2021, when two killer 

whales were sighted (61N 

Environmental, 2022a). Previous 

sightings of transient killer whales have 

documented pod sizes in upper Cook 

Inlet between one and six individuals 

(Shelden et al., 2003). Therefore, the 

POA conservatively estimated that no 

more than one small pod (assumed to be 

six individuals) could be within 

estimated harassment zones during 

NES1 project activities. 

Take by Level A harassment is not 

anticipated or authorized due to the 

implementation of shutdown zones, 

which will be larger than the Level A 

harassment zones (described below in 

the Mitigation section), and the low 

likelihood that killer whales will 

approach this distance for sufficient 

duration to incur PTS. Therefore, NMFS 

authorized six takes by Level B 

harassment for killer whales. 


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Table 7 -- Calculated Distance and Areas of Level A and Level B Harassment Per 

Pile Type and Pile Driving Method 

Level A harassment distance LevelB LevelB 

Pile (m) harassmen harassmen 

t distance tarea Activity Type/ p (m) all (km2) all Size LF MF HF w ow hearing hearing 

groups groups 

Impact Sheet 153 6 182 82 6 858 1.44 Removal pile 

24-inch 14 2 20 9 1 2,247 8.39 Vibratory (61-cm) 

Installation 36-inch 28 4 40 18 2 4,514 26.13 (91-cm) 

Vibratory Sheet 

or Splitter pile 10 1 14 6 1 1,954 6.47 

Removal 

24-inch 42 5 60 27 3 6,861 37.64 Vibratory (61-cm) 

Removal 36-inch 11 2 15 7 1 1,700 4.99 (91-cm) 
2856 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

Harbor Porpoise 

Monitoring data recorded from 2005 

through 2022 were used to evaluate 

hourly sighting rates for harbor 

porpoises in the NES1 project area (see 

table 4–3 in the POA’s application). 

During most years of monitoring, no 

harbor porpoises were observed. 

However, there has been an increase in 

harbor porpoise sightings in upper Cook 

Inlet in recent decades (e.g., 61N 

Environmental, 2021, 2022a; Shelden et 

al., 2014). The highest sighting rate for 

any recorded year during in-water pile 

installation and removal was an average 

of 0.037 harbor porpoises per hour 

during PCT construction in 2021, when 

observations occurred across most 

months. Given the uncertainty around 

harbor porpoise occurrence at the POA 

and potential that occurrence is 

increasing, it is estimated that 

approximately 0.07 harbor porpoises per 

hour (the 2021 rate of 0.037 harbor 

porpoises per hour doubled) may be 

observed near the NES1 project area per 

hour of hammer use. With 246.5 hours 

of in-water pile installation and 

removal, the POA estimated that there 

could be 18 instances where harbor 

porpoises (0.07 harbor porpoises per 

hour * 246.5 hours = 17.3 harbor 

porpoises rounded up to 18 harbor 

porpoises) could be within estimated 

harassment zones during NES1 project 

activities. 

Harbor porpoises are small, lack a 

visible blow, have low dorsal fins, an 

overall low profile, and a short surfacing 

time, making them difficult to observe 

(Dahlheim et al., 2015). To account for 

the possibility that a harbor porpoise 

could enter a Level A harassment zone 

and remain there for sufficient duration 

to incur PTS before activities were shut 

down, the POA assumed that 5 percent 

of estimated harbor porpoise takes (1 

take of harbor porpoise; 5 percent of 18 

= 0.9, rounded up to 1) could be taken 

by Level A harassment. In its request, 

the POA rounded this estimate up to 

two to account for the average group 

size of this species, However, NMFS has 

determined such adjustments are 

generally unnecessary for purposes of 

estimating potential incidents of Level 

A harassment and did not concur with 

the request. At relatively close 

distances, NMFS believes it unlikely 

that groups will necessarily adhere to 

each other for sufficient duration for the 

entire group to incur PTS. While it is 

unlikely that a harbor porpoise could 

enter a Level A harassment zone for 

sufficient duration to incur PTS given 

the required shutdown measures (see 

the Mitigation section for more 

information) and potential for avoidance 

behavior, this species moves quickly 

and can be difficult to detect and track, 

therefore, NMFS authorized 1 take by 

Level A harassment and 17 takes by 

Level B harassment for harbor 

porpoises, for a total of 18 instances of 

take. 

Steller Sea Lion 

Steller sea lions are anticipated to 

occur in low numbers within the NES1 

project area as summarized in the 

Description of Marine Mammals in the 

Area of Specified Activities section of 

the Federal Register of the proposed 

IHA (88 FR 76576, November 6, 2023). 

Similar to the approach used above for 

harbor porpoises, the POA used 

previously recorded sighting rates of 

Steller sea lions near the POA to 

estimate requested take for this species. 

During SFD construction in May and 

June of 2022, the hourly sighting rate for 

Steller sea lions was 0.028. The hourly 

sighting rate for Steller sea lions in 

2021, the most recent year with 

observations across most months, was 

approximately 0.01. Given the 

uncertainty around Steller sea lion 

occurrence at the POA and potential 

that occurrence is increasing, the POA 

estimated that approximately 0.06 

Steller sea lions per hour (the May and 

June 2022 rate of 0.028 Steller sea lions 

per hour doubled) may be observed near 

the NES1 project areas per hour of 

hammer use. With 246.5 hours of inwater pile installation and removal, the 

POA estimates that 15 Steller sea lions 

(0.06 sea lions per hour * 246.5 hours 

= 14.79 sea lions rounded up to 15) 

could be within estimated harassment 

zones during NES1 project activities. 

However, the highest number of Steller 

sea lions that have been observed during 

the 2020–2022 monitoring efforts at the 

POA was nine individuals (eight during 

PCT Phase 1 monitoring and one during 

NMFS 2021 monitoring). Given the 

POA’s estimate assumes a higher Steller 

sea lion sighting rate (0.06) than has 

been observed at the POA and results in 

an estimate that is much larger than the 

number of Steller sea lions observed in 

a year, NMFS believed that the 15 

estimated takes requested by the POA 

overestimated potential exposures of 

this species. NMFS instead authorized 

nine takes by Level B harassment for 

Steller sea lions during the NES1 

project. 

The largest Level A harassment zone 

for Steller sea lions is 6-m. While it is 

unlikely that a Steller sea lion will enter 

a Level A harassment zone for sufficient 

duration to incur PTS, the POA is aware 

of a Steller sea lion that popped up next 

to a work skiff during the TPP in 2016, 

which was documented as a potential 

take by Level A harassment by the PSOs 

on duty at the time. Pile driving, 

however, was not occurring at the time 

the event was recorded and a brief 

observation of an animal within a Level 

A harassment zone does not necessarily 

mean the animal experienced Level A 

harassment (other factors such as 

duration within the harassment zone 

need to be taken into consideration). 

However, as a result of the 

aforementioned event, the POA 

requested authorization of an additional 

two takes of Steller sea lions by Level 

A harassment. Given the small Level A 

harassment zone (6-m), and shutdown 

zones of ≥ 10-m (see the Mitigation 

section), NMFS believes that it is 

unlikely that a Steller sea lion will be 

within the Level A harassment zone for 

sufficient duration to incur PTS. 

Therefore, NMFS did not authorize take 

by Level A harassment for Steller sea 

lions. Rather, all nine estimated takes 

are authorized as Level B harassment. 

Harbor Seal 

No known harbor seal haulout or 

pupping sites occur in the vicinity of 

the POA. In addition, harbor seals are 

not known to reside in the NES1 project 

area, but they are seen regularly near the 

mouth of Ship Creek when salmon are 

running, from July through September. 

With the exception of newborn pups, all 

ages and sexes of harbor seals may occur 

in the NES1 project area. Any 

harassment of harbor seals during inwater pile installation and removal will 

involve a limited number of individuals 

that may potentially swim through the 

NES1 project area or linger near Ship 

Creek. 

The POA evaluated marine mammal 

monitoring data to calculate hourly 

sighting rates for harbor seals in the 

NES1 project area (see table 4–1 in the 

POA’s application). Of the 524 harbor 

seal sightings in 2020 and 2021, 93.7 

percent of the sightings were of single 

individuals; only 5.7 percent of 

sightings were of 2 individual harbor 

seals, and only 0.6 percent of sightings 

reported 3 harbor seals. Sighting rates of 

harbor seals were highly variable and 

appeared to have increased during 

monitoring between 2005 and 2022. It is 

unknown whether any potential 

increase was due to local population 

increases or habituation to ongoing 

construction activities. The highest 

individual hourly sighting rate recorded 

for a previous year was used to quantify 

take of harbor seals for in-water pile 

installation and removal associated with 

NES1. This occurred in 2021 during 

PCT Phase 2 construction, when harbor 

seals were observed from May through 

September. A total of 220 harbor seal 


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Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2857 

sightings were observed over 734.9 

hours of monitoring, at an average rate 

of 0.30 harbor seal sightings per hour. 

The maximum monthly sighting rate 

occurred in September 2020 and was 

0.51 harbor seal sightings per hour. 

Based on these data, the POA estimated 

that approximately one harbor seal (the 

maximum monthly sighting rate (0.51) 

rounded up) may be observed near the 

NES1 project per hour of hammer use. 

This approximate sighting rate of one 

harbor seal per hour was also used to 

calculate potential exposures of harbor 

seals for the SFD project (86 FR 50057, 

September 7, 2021). Therefore, the POA 

estimated that during the 246.5 hours of 

anticipated in-water pile installation 

and removal, up to 247 harbor seals (1 

harbor seal per hour * 246.5 hours = 

246.5 harbor seals, rounded up to 247) 

could be within estimated harassment 

zones. 

Harbor seals often appear curious 

about onshore activities and may 

approach closely. The mouth of Ship 

Creek, where harbor seals linger, is 

about 2,500-m from the southern end of 

the NES1 and is therefore outside of the 

Level A harassment zones calculated for 

harbor seals (table 7). However, given 

the potential difficulty of tracking 

individual harbor seals along the face of 

the NES1 site and their consistent lowlevel use of the POA area, NMFS 

anticipates the potential for some take 

by Level A harassment for harbor seals. 

For the SFD project, NMFS authorized 

8.6 percent of estimated harbor seal 

takes as potential Level A harassment 

based on the proportion of previous 

harbor seal sightings within the 

estimated Level A harassment zones for 

that project (86 FR 50057, September 7, 

2021), but the NES1 Project is more 

distant from Ship Creek than SFD. 

NMFS therefore anticipated that a 

smaller proportion of takes by Level A 

harassment may occur during the NES1 

project, and reduced this percentage to 

5 percent. Therefore, NMFS authorized 

13 harbor seal takes (5 percent of 247 

exposures) by Level A harassment and 

234 takes (247 exposures minus 13) by 

Level B harassment, for a total of 247 

takes. 

Beluga Whale 

For the POA’s PCT and SFD projects, 

NMFS used a sighting rate methodology 

to calculate potential exposure (equated 

to take) of CIBWs to sound levels above 

harassment criteria produced by the 

POA’s construction activities (85 FR 

19294, April 6, 2020; 86 FR 50057, 

September 7, 2021, respectively). For 

the PCT project, NMFS used data 

collected during marine mammal 

observations from 2005 to 2009 (Kendall 

and Cornick, 2015) and the total number 

of monthly observation hours during 

these efforts to derive hourly sighting 

rates of CIBWs per month of observation 

(April through November) (85 FR 19294, 

April 6, 2020). For the SFD project, 

observation data from 2020 PCT 

construction were also incorporated into 

the analysis (86 FR 50057, September 7, 

2021; 61N Environmental, 2021). 

The marine mammal monitoring 

programs for the PCT and SFD projects 

produced a unique and comprehensive 

data set of CIBW locations and 

movements (table 8; 61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022) 

that is the most current data set 

available for Knik Arm. During the PCT 

and SFD projects, the POA’s marine 

mammal monitoring programs included 

11 PSOs working from 4 elevated, 

specially designed monitoring stations 

located along a 9-km stretch of coastline 

surrounding the POA. The number of 

days data was collected varied among 

years and project, with 128 days during 

PCT Phase 1 in 2020, 74 days during 

PCT Phase 2 in 2021, and 13 days 

during SFD in 2022 (see table 6–7 in the 

POA’s application for additional 

information regarding CIBW monitoring 

data). PSOs during these projects used 

25-power ‘‘big-eye’’ and hand-held 

binoculars to detect and identify marine 

mammals, and theodolites to track 

movements of CIBW groups over time 

and collect location data while they 

remained in view. 

These POA monitoring programs were 

supplemented in 2021 with a NMFSfunded visual marine mammal 

monitoring project that collected data 

during non-pile driving days during 

PCT Phase 2 (table 8; Easley-Appleyard 

and Leonard, 2022). NMFS replicated 

the POA monitoring efforts, as feasible, 

including use of 2 of the POA’s 

monitoring platforms, equipment (Big 

Eye binoculars, theodolite, 7x50 reticle 

binoculars), data collection software, 

monitoring and data collection protocol, 

and observers; however, the NMFSfunded program utilized only 4 PSOs 

and 2 observation stations along with 

shorter (4- to 8-hour) observation 

periods compared to PCT or SFD data 

collection, which included 11 PSOs, 4 

observation stations, and most 

observation days lasting close to 10 

hours. Despite the differences in effort, 

the NMFS dataset fills in gaps during 

the 2021 season when CIBW presence 

began to increase from low presence in 

July and is thus valuable in this 

analysis. NMFS’ PSO’s monitored for 

231.6 hours on 47 non-consecutive days 

in July, August, September, and 

October. 

Distances from CIBW sightings to the 

project site from the POA and NMFSfunded monitoring programs ranged 

from less than 10-m up to nearly 15-km 

during these monitoring programs. 

These robust marine mammal 

monitoring programs in place from 2020 

through 2022 located, identified, and 

tracked CIBWs at greater distances from 

the NES1 project site than previous 

monitoring programs (i.e., Kendall and 

Cornick, 2015), and contributed to a 

better understanding of CIBW 

movements in upper Cook Inlet (e.g., 

Easley-Appleyard and Leonard, 2022). 

Given the evolution of the best 

available data of CIBW presence in 

upper Cook Inlet, particularly regarding 

the distances at which CIBWs were 

being observed and documented (which 

increased during the PCT and SFD 

compared to earlier monitoring efforts), 

the POA proposed, and NMFS 

concurred, that the original sighting rate 

methodology used for the PCT and SFD 

projects was no longer the best approach 

for calculating potential take of CIBWs 

for the NES1 project. The recent and 

comprehensive data set of CIBW 

locations and movements from the PCT 

and SFD projects (61N Environmental, 

2021, 2022a, 2022b; Easley-Appleyard 

and Leonard, 2022) provided the 

opportunity for refinement of the 

previously used sighting rate 

methodology with updated data. Data 

for 2020, 2021, and 2022 were selected 

for the updated sighting rate analysis for 

the NES1 project because they are the 

most current data available and are 

therefore most likely to accurately 

represent future CIBW occurrence at the 

project site, which may be affected by 

CIBW population size, CIBW movement 

patterns through Knik Arm, 

environmental change (including 

climate change), differences in salmon 

and other prey abundance among years, 

and other factors (table 8). The data 

from 2005 to 2009 (Kendall and 

Cornick, 2015), which were used by 

NMFS for the sighting rate analyses for 

the PCT and SFD IHAs, were not 

included in this analysis due to the 

changes in observation programs and 

age of the data collected. Monitoring 

data from the 2016 TPP (Cornick and 

Seagars, 2016) were also not included in 

the analysis because of limited hours 

observed, limited seasonal coverage, 

and differences in the observation 

programs. 


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2858 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

The sighting rate methodology used 

for the PCT (85 FR 19294, April 6, 2020) 

and SFD (86 FR 50057, September 7, 

2021) projects used observations of 

CIBWs recorded in Knik Arm, regardless 

of observation distance to the POA, to 

produce a single monthly sighting rate 

that was then used to calculate potential 

CIBW take for all activities, regardless of 

the size of the ensonified areas for the 

project activities (i.e., take was 

calculated solely based on the monthly 

sighting rates and the estimated hours of 

planned activities, and did not consider 

the estimated sizes of the ensonified 

areas). This method may have 

overestimated potential CIBW takes 

when harassment zones were small 

because distant CIBWs will have been 

included in the sighting rate. This 

method also resulted in takes estimates 

that were identical for installation and 

removal of all pile sizes, regardless of 

pile driving method used (e.g., 

vibratory, impact) or implementation of 

attenuation systems, since the 

calculation did not consider the size of 

the ensonified areas. 

NMFS and the POA collaboratively 

developed a new sighting rate 

methodology for the NES1 project that 

incorporated a spatial component for 

CIBW observations, which allows for 

more accurate estimation of potential 

take of CIBWs for this project. NMFS 

proposes to use this approach to 

estimate potential takes of CIBW for 

authorization. During the POA’s and 

NMFS’ marine mammal monitoring 

programs for the PCT and SFD projects, 

PSOs had an increased ability to detect, 

identify, and track CIBWs groups at 

greater distances from the project work 

site when compared with previous years 

because of the POA’s expanded 

monitoring program as described above. 

This meant that observations of CIBWs 

in the 2020–2022 dataset (table 8) 

include sightings of individuals at 

distances far outside the ensonified 

areas estimated for the NES1 project 

(table 7). Therefore, it is not appropriate 

to group all CIBW observations from 

these datasets into a single sighting rate 

as was done for the PCT and SFD 

projects. Rather, CIBW observations 

should be considered in relation to their 

distance to the NES1 project site when 

determining appropriate sighting rates 

to use when estimating take for this 

project. This helps to ensure that the 

sighting rates used to estimate take are 

representative of CIBW presence in the 

NES1 ensonified areas. 

To incorporate a spatial component 

into the sighting rate methodology, the 

POA calculated each CIBW group’s 

closest point of approach (CPOA) 

relative to the NES1 project site. The 

2020–2022 marine mammal monitoring 

programs (table 8) enabled the 

collection, in many cases, of multiple 

locations of CIBW groups as they 

transited through Knik Arm, which 

allowed for track lines to be interpolated 

for many groups. The POA used these 

track lines, or single recorded locations 

in instances where only one sighting 

location was available, to calculate each 

group’s CPOA. CPOAs were calculated 

in ArcGIS software using the Global 

Positioning System (GPS) coordinates 

provided for documented sightings of 

each group (for details on data 

collection methods, see 61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022) 

and the NES1 location midpoint, 

centered on the project site. A CIBW 

group was defined as a sighting of one 

or more CIBWs as determined during 

data collection. The most distant CPOA 

location to NES1 was 11,057-m and the 

closest CPOA location was 15-m. 

The cumulative density distribution 

of CPOA values represents the 

percentage of CIBW observations that 

were within various distances to the 

NES1 action site (figure 1). This 

distribution shows how CIBW 

observations differed with distances to 

the NES1 site and was used to infer 

appropriate distances within which to 

estimate spatially-derived CIBW 

sighting rates (figure 1). The POA 


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Table 8 -- Marine Mammal Monitoring Data Used for CIBW Sighting Rate 

Calculations 

Year Monitoring Type and Number of Number of Number of 

Data Source CIBW group CIBW groups CIBWs 

fixes 

2020 PCT: POA Construction 2,653 245 987 

Monitoring 

61N Environmental, 2021 

2021 PCT: NMFS Monitoring 694 1091 575 

Easley-Appleyard and 

Leonard, 2022 

2021 PCT: POA Construction 1,339 132 517 

Monitoring 

61N Environmental, 2021, 

2022a 

2022 SFD: POA Construction 151 9 41 

Monitoring 

61N Environmental, 2022b 

1 This number differs slightly from table 6-8 in the POA's application due to our removal of a few duplicate data 

points in the NMFS data set. 
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2859 

implemented a piecewise regression 

model that detected breakpoints (i.e., 

points within the CPOA data at which 

statistical properties of the sequence of 

observational distances changed) in the 

cumulative density distribution of the 

CPOA locations, which they proposed 

to represent spatially-based sighting rate 

bins for use in calculating CIBW 

sighting rates. The POA used the 

‘‘Segmented’’ package (Muggeo, 2020) in 

the R Statistical Software Package (R 

Core Team, 2022) to determine 

statistically significant breakpoints in 

the linear distances of the CIBW data 

using this regression method (see 

section 6.5.5.3 of the POA’s application 

for more details regarding this statistical 

analysis). This analysis identified 

breakpoints in the CPOA locations at 

74-, 1,651-, 2,808-, and 7,368-m (figure 

1). 

Piecewise regression is a common tool 

for modeling ecological thresholds 

(Lopez et al., 2020; Whitehead et al., 

2016; Atwood et al., 2016). In a similar 

scenario to the one outlined above, 

Mayette et al. (2022) used piecewise 

regression methods to model the 

distances between two individual 

CIBWs in a group in a nearshore and a 

far shore environment. For the POA’s 

analysis, the breakpoints (i.e., 74-, 

1,651-, 2,808-, and 7,368-m) detect a 

change in the frequency of CIBW groups 

sighted and the slope of the line 

between two points indicates the 

magnitude of change. A greater positive 

slope indicates a greater accumulation 

of sightings over the linear distance (xaxis) between the defining breakpoints, 

whereas a more level slope (i.e., closer 

to zero) indicates a lower accumulation 

of sightings over that linear distance (xaxis) between those defining 

breakpoints (figure 1; see table 6–8 in 

the POA’s application for the slope 

estimates for the empirical cumulative 

distribution function). 

The breakpoints identified by the 

piecewise regression analysis are in 

agreement with what is known about 

CIBW behavior in Knik Arm based on 

recent monitoring efforts (61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022). 

Observation location data collected 

during POA monitoring programs 

indicate that CIBWs were consistently 

found in higher numbers in the 

nearshore areas, along both shorelines, 

and were found in lower numbers in the 

center of the Arm. Tracklines of CIBW 

group movements collected from 2020 

to 2022 show that CIBWs displayed a 

variety of movement patterns that 

included swimming close to shore past 

the POA on the east side of Knik Arm 

(defined by breakpoint 1 at 74-m), with 

fewer CIBWs swimming in the center of 

Knik Arm (breakpoints 1 to 2, at 74- to 

1,651-m). CIBWs commonly swam past 

the POA close to shore on the west side 

of Knik Arm, with no CIBWs able to 

swim farther from the POA in that area 

than the far shore (breakpoints 2 to 3, 

at 1,651- to 2,808-m). Behaviors and 

locations beyond breakpoint 4 (7,368-m) 

include swimming past the mouth of 

Knik Arm between the Susitna River 

area and Turnagain Arm; milling at the 

mouth of Knik Arm but not entering the 

Arm; and milling to the northwest of the 

POA without exiting Knik Arm. The 

shallowness of slope 5, at distances 

greater than 7,368-m, could be due to 

detection falloff from a proximity 

(distance) bias, which occurs when 

PSOs are less likely to detect CIBW 

groups that are farther away than groups 

that are closer. 

The POA, in collaboration with 

NMFS, used the distances detected by 

the breakpoint analysis to define five 

sighting rate distance bins for CIBWs in 

the NES1 project area. Each breakpoint 

(74-, 1,651-, 2,808-, and 7,368-m, and 

the complete data set of observations 

[>7,368-m]) was rounded to the nearest 

meter and considered the outermost 

limit of each sighting rate bin, resulting 

in five identified bins (table 9). All 

CIBW observations less than or equal to 


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Breakpoints by piecewise linear regression 

' I 

too ,: l 

'I' :-r· 

' : ' I , I 

I' I 

I' I -- r ':'I 

" ' I 

l I I 

I I I 

0.75, ' ' ,,, 

I I 1' ,, 0, ' " I 

C l I 

0 ' I 

ii ,, ,, I ,: 

~ I' ' ,,: II) r , I B o.5:0 ; 

0 ' ,, 

1S ,, I 

I 

' ,-,, 

.. ';{!/_ ' I ' I I 

I I I 

I ' I 

1125 : ' '' '' ,I 

I I I 

I ' ,, I ' ': 

' ' I 

"' ,l 1,, ,, 

I I I 

I I I 

I I I 

l l I 

000 "'"' I I, 

I ,, l 

0 1000 .2000 3000 4000 6000 1000 8000 9000 11000 

Distance to NES1 [ml 

Figure 1 -- Percent of CIBW CPOA Observations in Relation to Distance from the 

NESl Project Site and Associated Breakpoints Determined by Piecewise Linear 

Regression 
2860 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

each bin’s breakpoint distance were 

used to calculated that bin’s respective 

monthly sighting rates (e.g., all sightings 

from 0- to 74-m are included in the 

sighting rates calculated for bin number 

1, all sightings from 0 to 1,651-m are 

included in the sighting rates calculated 

for bin number 2, and so on). NES1 

construction is anticipated to take place 

from April through November 2024, 

therefore monthly sighting rates were 

only derived for these months (table 9). 

Potential exposures (equated with 

takes) of CIBWs were calculated by 

multiplying the total number of 

vibratory installation or removal hours 

per month for each sized/shaped pile 

based on the anticipated construction 

schedule (table 1) with the 

corresponding sighting rate month and 

sighting rate distance bin (table 10). For 

example, the Level B harassment 

isopleth distance for the vibratory 

installation of 24-inch (61-cm) piles is 

2,245-m, which falls within bin number 

3 (table 9). Therefore, take for this 

activity was calculated by multiplying 

the total number of hours estimated 

each month to install 24-inch (61-cm) 

piles via a vibratory hammer by the 

monthly CIBW sighting rates calculated 

for bin number 3 (table 10). The 

resulting estimated CIBW exposures 

were totaled for all activities in each 

month (table 11). 

In their calculation of CIBW take, the 

POA assumed that only 24-inch (61-cm) 

template piles will be installed (rather 

than 36-inch (91-cm)) and removed 

during the project. If 36-inch (91-cm) 

piles are used for temporary stability 

template piles, it is assumed that the 

potential impacts of this alternate 

construction scenario and method on 

marine mammals are fungible (i.e., that 

potential impacts of installation and 

removal of 36-inch (91-cm) steel pipe 

piles will be similar to the potential 

impacts of installation and removal of 

24-inch (61-cm) steel pipe piles based 

on the estimated ensonified areas and 

relevant sighting rate bins). Using the 

monthly activity estimates in hours 

(table 1) and monthly calculated 

sighting rates (CIBWs/hour) for the 

spatially derived distance bins (table 

10), the POA estimated that there could 

be up to 122 (121.1 rounded up to 122) 

instances of CIBW take where during 

the NES1 project (table 11). 

BILLING CODE 3510–22–P 


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Table 9 -- CIBW Monthly Sighting Rates for Different Spatially-Based Bin Sizes 

CIBW/Hour1 

Bin Distance April May June July August September October November Number (m) 

1 :::; 74 0.09 0.06 0.10 0.04 0.83 0.62 0.51 0.11 

2 :::; 1,651 0.25 0.14 0.13 0.06 1.43 1.32 1.15 0.70 

3 :::; 2,808 0.36 0.22 0.21 0.07 2.08 1.90 2.04 0.73 

4 :::; 7,368 0.67 0.33 0.29 0.13 2.25 2.19 2.42 0.73 

5 > 7,368 0.71 0.39 0.30 0.13 2.29 2.23 2.56 0.73 

1 Observation hours have been totaled from the PCT 2020 and 2021 programs, the NMFS 2021 data 

collection effort, and the SFD 2022 program (61N Environmental 2021, 2022a, 2022b; EasleyAppleyard and Leonard, 2022). 
BILLING CODE 3510–22–C 

For the PCT (85 FR 19294, April 6, 

2020) and SFD (86 FR 50057, September measures (

the implementation of mitigation 

7, 2021) projects, NMFS accounted for 

e.g., shutdown procedures harassment zone) by applying an 

approached the estimated Level B 

implemented when CIBWs entered or 


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Table 10 --Allocation of Each Level B Harassment Isopleth to a Sighting Rate Bin and C

Rates for Different Pile Sizes and Hammer Types 

Level B Sighting CIBWs/Hour Harassmen Rate Bin 

t Isopleth Number 

Distance and April May June July August September October Novemb

(m) Distance 

24-inch 3 Vibratory 2,247 (2,808 m) 0.36 0.22 0.21 0.07 2.08 1.90 2.04 0.73 Installation 

24-inch 

4 Vibratory 6,861 (7,368 m) 0.67 0.33 0.29 0.13 2.25 2.19 2.42 0.73 Removal 

36-inch 4 

Vibratory 4,514 (7,368 m) 0.67 0.33 0.29 0.13 2.25 2.19 2.42 0.73 Installation 

36-inch 3 Vibratory 1,699 (2,808 m) 0.36 0.22 0.21 0.07 2.08 1.90 2.04 0.73 Removal 

Sheet Pile 3 Vibratory 1,954 (2,808 m) 0.36 0.22 0.21 0.07 2.08 1.90 2.04 0.73 Removal 

ObsetVation Hours/Month1: 87.9 615.1 571.6 246.9 224.5 326.2 109.5 132.0 

1 ObsetVation hours have been totaled from the PCT 2020 and 2021 programs, the NMFS 2021 data collection effort, and the 

SFD 2022 program (61N Environmental, 2021, 2022a, 2022b; Easley-Appleyard and Leonard, 2022). 
2862 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

adjustment factor to CIBW take 

estimates. This was based on the 

assumption that some Level B 

harassment takes will likely be avoided 

based on required shutdowns for CIBWs 

at the Level B harassment zones (see the 

Mitigation section of those notices for 

more information). For the PCT project, 

NMFS compared the number of realized 

takes at the POA to the number of 

authorized takes for previous projects 

from 2008 to 2017 and found the 

percentage of realized takes ranged from 

12 to 59 percent with an average of 36 

percent (85 FR 19294, April 6, 2020). 

NMFS then applied the highest 

percentage of previous realized takes (59 

percent during the 2009–2010 season) to 

ensure potential takes of CIBWs were 

fully evaluated. In doing so, NMFS 

assumed that approximately 59 percent 

of the takes calculated would be 

realized during PCT and SFD 

construction (85 FR 19294, April 6, 

2020; 86 FR 50057, September 7, 2021) 

and that 41 percent of the calculated 

CIBW Level B harassment takes would 

be avoided by successful 

implementation of required mitigation 

measures. 

The POA calculated the adjustment 

for successful implementation of 

mitigation measures for NES1 using the 

percentage of realized takes for the PCT 

project (see table 6–12 in the POA’s 

application). The recent data from PCT 

Phase 1 and PCT Phase 2 most 

accurately reflected the current marine 

mammal monitoring program, the 

current program’s effectiveness, and 

CIBW occurrence in the NES1 project 

area. Between the 2 phases of the PCT 

project, 90 total Level B harassment 

takes were authorized and 53 were 

potentially realized (i.e., number of 

CIBWs observed within estimated Level 

B harassment zones), equating to an 

overall percentage of 59 percent. The 

SFD Project, during which only 7 

percent of authorized take was 

potentially realized, represented 

installation of only 12 piles during a 

limited time period and does not 

represent the much higher number of 

piles and longer construction season 

anticipated for NES1. 

NMFS has determined that the 59- 

percent adjustment accurately accounts 

for the efficacy of the POA’s marine 

mammal monitoring program and 

required shutdown protocols. NMFS 

therefore assumes that approximately 59 

percent of the takes calculated for NES1 

may actually be realized. This adjusts 

the potential takes by Level B 

harassment of CIBWs authorized from 

122 to 72 (table 11). Take by Level A 

harassment is not anticipated or 

authorized because the POA will be 

required to shutdown activities when 

CIBWs approach and or enter the Level 

B harassment zone (see the Mitigation 

section for more information). 

BILLING CODE 3510–22–P 

In summary, the total amount of Level 

A harassment and Level B harassment 

authorized for each marine mammal 

stock is presented in table 12. 


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T a e bl 11 -- E s f 1ma t d M e on thl CIBW L I B H t E '"' eve arassmen xposures 

April May June July Au!!llst September October November Total 

24-inch Vibratory 

Installation and 2.4 3.0 1.7 0.6 12.5 6.9 4.0 0.2 31.3 

Removal 

Sheet Pile 3.6 9.9 12.6 4.2 27.0 22.8 8.2 1.5 89.8 Removal 

Total Estimated Level B Harassment Exposures for All Activities: 121.1 

Total Estimated Level B Harassment Exposures with 59% Correction Factor (Rounded): 72 
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2863 

BILLING CODE 3510–22–C 

Mitigation 

In order to issue an IHA under section 

101(a)(5)(D) of the MMPA, NMFS must 

set forth the permissible methods of 

taking pursuant to the activity, and 

other means of effecting the least 

practicable impact on the species or 

stock and its habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance, and on 

the availability of the species or stock 

for taking for certain subsistence uses 

(latter not applicable for this action). 

NMFS regulations require applicants for 

ITAs to include information about the 

availability and feasibility (economic 

and technological) of equipment, 

methods, and manner of conducting the 

activity or other means of effecting the 

least practicable adverse impact upon 

the affected species or stocks, and their 

habitat (50 CFR 216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, NMFS considers two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned), 

and; 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, and 

impact on operations. 

The POA presented mitigation 

measures in section 11 of their 

application that were modeled after the 

requirements included in the IHAs 

issued for Phase 1 and Phase 2 PCT 

construction (85 FR 19294, April 6, 

2020) and for SFD construction (86 FR 

50057, September 7, 2021), which were 

designed to minimize the total number, 

intensity, and duration of harassment 

events for CIBWs and other marine 

mammal species during those projects 

(61N Environmental, 2021, 2022a, 

2022b). NMFS concurred that these 

proposed measures reduce the potential 

for CIBWs, and other marine mammals, 

to be adversely impacted by the planned 

activity. 

The POA must employ the following 

mitigation measures: 

• Ensure that construction 

supervisors, crews, contractors, other 

personnel operating at the site, the 

monitoring team, and relevant POA staff 

are trained on all mitigation, 

monitoring, and reporting requirements, 

and all implementing protocols or 

procedures, as relevant to their 

respective role or position prior to the 

start of all pile installation and removal 

activities, so that responsibilities, 

communication procedures, monitoring 

protocols, and operational procedures 


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Table 12 -- Amount of Take Authorized as a Percentage of Stock Abundance, by 

Stock and Harassment Type 

Authorized Take 

Species Level A LevelB Total Stock Percent of Stock 

Gray whale 0 6 6 Eastern North Pacific 0.02 

Hawai'i 0.041 

Humpback whale 0 4 4 

Mexico-North Pacific UNKl,2 

Beluga whale 0 72 72 Cook Inlet 21.75 

Eastern North Pacific Alaska 0.311 

Resident 

Killer whale 0 6 6 Eastern North Pacific Gulf of 

Alaska, Aleutian Islands and 1.021 

Bering Sea Transient 

Hamor porpoise 1 17 18 Gulf of Alaska 0.06 

Steller sea lion 0 9 9 Western 0.02 

Hamor seals 13 234 247 Cook Inlet/ Shelikof Strait 0.87 

1 NMFS conservatively assumes that all takes occur to each stock 2 NMFS does not have an official abundance estimate for this stock and the minimum population 

estimate is considered to be unknown (Young et al., 2023) 
2864 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 

are clearly understood. New personnel 

joining during the project must be 

trained prior to commencing work; 

• Employ PSOs and establish 

monitoring locations as described in 

section 5 of the IHA and the POA’s 

Marine Mammal Monitoring and 

Mitigation Plan (see appendix B of the 

POA’s application). The POA must 

monitor the project area to the 

maximum extent possible based on the 

required number of PSOs, required 

monitoring locations, and 

environmental conditions; 

• The POA, construction supervisors 

and crews, PSOs, and relevant POA staff 

must avoid direct physical interaction 

with marine mammals during 

construction activities. If a marine 

mammal comes within 10-m of such 

activity, operations shall cease and 

vessels must reduce speed to the 

minimum level required to maintain 

steerage and safe working conditions, as 

necessary to avoid direct physical 

interaction; 

• Monitoring must take place from 30 

minutes prior to initiation of pile 

driving (i.e., pre-start clearance 

monitoring) through 30 minutes postcompletion of pile driving; 

• Pre-start clearance monitoring must 

be conducted during periods of 

visibility sufficient for the lead PSO to 

determine that the shutdown zones 

indicated in table 13 are clear of marine 

mammals. Pile driving may commence 

following 30 minutes of observation 

when the determination is made that the 

shutdown zones are clear of marine 

mammals or when the mitigation 

measures required specifically for 

CIBWs (below) are satisfied; 

• For all construction activities, 

shutdown zones must be established 

following table 13. The purpose of a 

shutdown zone is generally to define an 

area within which shutdown of activity 

will occur upon sighting of a marine 

mammal (or in anticipation of an animal 

entering the defined area). In addition to 

the shutdown zones specified in table 

13 and the minimum shutdown zone of 

10-m described above, requirements 

included in NMFS’ IHA, the POA will 

implement a minimum 100-m shutdown 

zone around the active NES1 project 

work site, including around activities 

other than pile installation or removal 

that NMFS has determined do not 

present a reasonable potential to cause 

take of marine mammals. Shutdown 

zones for pile installation and removal 

will vary based on the type of 

construction activity and by marine 

mammal hearing group (table 13). Here, 

shutdown zones are larger than or equal 

to the calculated Level A harassment 

isopleths shown in table 6 for species 

other than CIBW and are equal to the 

estimated Level B harassment isopleths 

for CIBWs; 

• Marine mammals observed 

anywhere within visual range of the 

PSO must be tracked relative to 

construction activities. If a marine 

mammal is observed entering or within 

the shutdown zones indicated in table 

13, pile driving must be delayed or 

halted. If pile driving is delayed or 

halted due to the presence of a marine 

mammal, the activity may not 

commence or resume until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zone (table 13, or 15 minutes 

(non-CIBWs) or 30 minutes (CIBWs) 

have passed without re-detection of the 

animal; 

• The POA must use soft start 

techniques when impact pile driving. 

Soft start requires contractors to provide 

an initial set of three strikes at reduced 

energy, followed by a 30-second waiting 

period, then two subsequent reducedenergy strike sets. A soft start must 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 30 minutes or 

longer. PSOs shall begin observing for 

marine mammals 30 minutes before 

‘‘soft start’’ or in-water pile installation 

or removal begins; and 

• 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. 

The following additional mitigation 

measures are required for CIBWs: 

• The POA must make all practicable 

efforts to complete construction 

activities between April and July, when 

CIBWs are typically found in lower 

numbers near the NES1 site; 


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Table 13 -- Shutdown Zones during Project Activities 

Shutdown Zone (m) 

Pile NonActivity Type/ LF CIBW CIBWs HF PW ow Size cetaceans MF cetaceans 

cetaceans 

Impact Sheet 160 10 900 190 90 10 Removal pile 

24-inch 20 10 2,300 20 10 10 Vibratoiy (61-cm) 

Installation 36-inch 30 10 4,600 40 20 10 (91-cm) 

Sheet 10 10 2,000 20 10 10 pile 

Vibratoiy 24-inch 50 10 6,900 60 30 10 Removal (61-cm) 

36-inch 20 10 1,700 20 10 10 (91-cm) 

Notes: cm= centimeter(s), m- meter(s) 
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2865 

• Prior to the onset of pile driving or 

removal, should a CIBW be observed 

within the estimated Level B 

harassment zone (table 7) (i.e. the 

CIBWs shutdown zone column in table 

13), pile driving must not commence 

until the whale(s) has voluntarily 

traveled at least 100-m beyond the 

estimated Level B harassment zone and 

is on a path away from such zone, or the 

whale has not been re-sighted within 30 

minutes; 

• If pile installation or removal has 

commenced, and a CIBW(s) is observed 

within or likely to enter the estimated 

Level B harassment zone, pile 

installation or removal must be delayed. 

Pile driving may not commence until 

the whale has voluntarily traveled at 

least 100-m beyond the Level B 

harassment zone and is on a path away 

from such zone, or until no CIBW has 

been observed in the Level B 

harassment zone for 30 minutes; and 

• If during installation and removal of 

piles, PSOs can no longer effectively 

monitor the entirety of the CIBW Level 

B harassment zone due to 

environmental conditions (e.g., fog, rain, 

wind), pile driving may continue only 

until the current segment of the pile is 

driven; no additional sections of pile or 

additional piles may be driven until 

conditions improve such that the Level 

B harassment zone can be effectively 

monitored. If the Level B harassment 

zone cannot be monitored for more than 

15 minutes, the entire Level B 

harassment zone will be cleared again 

for 30 minutes prior to pile driving. 

In addition to these additional 

mitigation measures, NMFS had 

requested that the POA restrict all pile 

driving and removal work to April to 

July, when CIBWs are typically found in 

lower numbers. However, given the 

safety and environmental concerns of 

collapse of the Northern Extension once 

removal work commences, required 

sequencing of pile installation and 

removal and fill removal, and 

uncertainties and adaptive nature of the 

work, the POA stated that it cannot 

commit to restricting pile driving and 

removal to April to July. Instead, as 

required in the mitigation measures, 

NMFS will require the POA to complete 

as much work as is practicable in April 

to July to reduce the amount of pile 

driving and removal activities needed in 

August through November. 

For previous IHAs issued to the POA 

(PCT: 85 FR 19294, April 6, 2020; SFD: 

86 FR 50057, September 7, 2021), the 

use of a bubble curtain to reduce noise 

has been required as a mitigation 

measure for certain pile driving 

scenarios. The POA did not propose to 

use a bubble curtain system during the 

NES1 project, stating that it is not a 

practicable mitigation measure for this 

demolition project. NMFS concurred 

with this determination. Practicability 

concerns include the following: 

• NES1 construction activities 

include installation of round, 

temporary, stability template piles to 

shore up the filled NES1 structure while 

fill material and sheet piles are 

removed. Stability template piles that 

will be required for demolition of the 

sheet pile structure are located in 

proximity of the sheet piles. A bubble 

curtain will not physically fit between 

the sheet piles and the template piles; 

• Bubble curtains cannot be installed 

around the sheet piles as they are 

removed because the structure consists 

of sheet piles that are connected to one 

another and used to support fillmaterial. It will not be possible to place 

a bubble curtain system along the sheet 

pile face for similar reasons, including 

lack of space for the bubble curtain and 

the structures and equipment that will 

be needed to install and operate it, and 

the high likelihood that it could not 

function or be retrieved; and 

• NES1 is a failed structure, and has 

been deemed ‘‘globally unstable’’ and 

poses significant risk for continued 

deterioration and structural collapse. If 

the existing structure were to collapse 

during deconstruction and sheet pile 

removal, there is risk of a significant 

release of impounded fill material into 

CIBW habitat, the POA’s vessel 

operating and mooring areas, and the 

USACE Anchorage Harbor Project. Due 

to the stability risk of the existing 

impounded material, it is expected that 

construction and demolition means and 

methods will be highly adaptive once 

actual field work commences, and use 

of a bubble curtain with deconstruction 

will limit operations in the field and 

create significant health and safety 

issues. 

The POA also has efficacy concerns 

about requiring a bubble curtain for 

NES1 construction activities. Adding a 

requirement for a bubble curtain may 

hinder production, due to the time 

required to install and remove the 

bubble curtain itself. This has the 

potential to drive the in-water 

construction schedule further into the 

late summer months, which are known 

for higher CIBW abundance in lower 

Knik Arm, thus lengthening the 

duration of potential interactions 

between CIBW and in-water work. 

Therefore, NMFS is concerned that use 

of a bubble curtain may not be an 

effective measure, given the potential 

that bubble curtain use could ultimately 

result in increased impacts to CIBW, in 

addition to the aforementioned 

practicability issues. 

Based on our evaluation of the 

applicant’s planned measures, as well as 

other measures considered by NMFS, 

NMFS has determined that the 

mitigation measures required herein 

provide the means of effecting the least 

practicable impact on the affected 

species or stocks and their habitat, 

paying particular attention to rookeries, 

mating grounds, and areas of similar 

significance. 

Monitoring and Reporting 

In order to issue an IHA for an 

activity, section 101(a)(5)(D) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present while conducting the activities. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

activity; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 


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acoustic habitat, or other important 

physical components of marine 

mammal habitat); and 

• Mitigation and monitoring 

effectiveness. 

The POA will implement a marine 

mammal monitoring and mitigation 

strategy intended to avoid and minimize 

impacts to marine mammals (see 

appendix B of the POA’s application for 

their Marine Mammal Monitoring and 

Mitigation Plan). Marine mammal 

monitoring will be conducted at all 

times when in-water pile installation 

and removal is taking place. 

Additionally, PSOs will be on-site 

monitoring for marine mammals during 

in-water cutting of sheet piles with 

shears or an ultrathermic torch. 

The marine mammal monitoring and 

mitigation program that is planned for 

NES1 construction is modeled after the 

stipulations outlined in the IHAs for 

Phase 1 and Phase 2 PCT construction 

(85 FR 19294, April 6, 2020) and the 

IHA for SFD construction (86 FR 50057, 

September 7, 2021). 

Visual Monitoring 

Monitoring must be conducted by 

qualified, NMFS-approved PSOs, in 

accordance with the following: 

• PSOs must be independent of the 

activity contractor (e.g., employed by a 

subcontractor) and have no other 

assigned tasks during monitoring 

periods. At least one PSO must have 

prior experience performing the duties 

of a PSO during construction activity 

pursuant to a NMFS-issued ITA or 

Letter of Concurrence. Other PSOs may 

substitute other relevant experience 

(including relevant Alaska native 

traditional knowledge), education 

(degree in biological science or related 

field), or training for prior experience 

performing the duties of a PSO. PSOs 

must be approved by NMFS prior to 

beginning any activity subject to this 

IHA; 

• The POA must employ PSO stations 

at a minimum of two locations from 

which PSOs can effectively monitor the 

shutdown zones (table 13). Concerns 

about the stability of the NES1 project 

area preclude determination of the exact 

number and locations of PSO stations 

until the Construction Contractor 

develops their Construction Work Plan. 

PSO stations must be positioned at the 

best practical vantage points that are 

determined to be safe. Likely locations 

include the Anchorage Public Boat Dock 

at Ship Creek to the south of the NES1 

project site, and a location to the north 

of the project site, such as the northern 

end of POA property near Cairn Point 

(see North Extension area on figure 12– 

1 in the POA’s application) or at Port 

MacKenzie across Knik Arm (see figure 

12–1 in the POA’s application for 

potential locations of PSO stations). A 

location near the construction activity 

may not be possible given the risk of 

structural collapse as outlined in the 

POA’s IHA application. Placing a PSO 

on the northernmost portion of 

Terminal 3 will also be considered if 

deemed safe. Areas near Cairn Point or 

Port MacKenzie have safety, security, 

and logistical issues, which will need to 

be considered. Cairn Point proper is 

located on military land and has bear 

presence, and restricted access does not 

allow for the location of an observation 

station at this site. Tidelands along 

Cairn Point are accessible only during 

low tide conditions and have inherent 

safety concerns of being trapped by 

rising tides. Port MacKenzie is a secure 

port that is relatively remote, creating 

safety, logistical, and physical staffing 

limitations due to lack of nearby lodging 

and other facilities. The roadway travel 

time between port sites is approximately 

2–3 hours. An adaptive management 

measure is planned for a monitoring 

location north of the project site, once 

the Construction Contractor has been 

selected and more detailed discussions 

can occur. Temporary staffing of a 

northerly monitoring station during 

peak marine mammal presence time 

periods and/or when shutdown zones 

are large will be considered; 

• PSOs stations must be elevated 

platforms constructed on top of 

shipping containers or a similar base 

that is at least 8’ 6’’ high (i.e., the 

standard height of a shipping container) 

that can support up to three PSOs and 

their equipment. The platforms must be 

stable enough to support use of a 

theodolite and must be located to 

optimize the PSO’s ability to observe 

marine mammals and the harassment 

zones; 

• Each PSO station must have at least 

two PSOs on watch at any given time; 

one PSO must be observing, one PSO 

must be recording data (and observing 

when there are no data to record). 

Teams of three PSOs must include at 

least one PSO who must be observing 

and one PSO who must be recording 

data (and observing when there are no 

data to record). The third PSO may help 

to observe, record data, or rest. In 

addition, if POA is conducting nonNES1-related in-water work that 

includes PSOs, the NES1 PSOs must be 

in real-time contact with those PSOs, 

and both sets of PSOs must share all 

information regarding marine mammal 

sightings with each other; 

• A designated lead PSO must always 

be on site. The lead observer must have 

prior experience performing the duties 

of a PSO during in-water construction 

activities pursuant to a NMFS-issued 

ITA or Letter of Concurrence. Each PSO 

station must also have a designated lead 

PSO specific to that station and shift; 

• PSOs will use a combination of 

equipment to perform marine mammal 

observations and to verify the required 

monitoring distance from the project 

site, including 7 by 50 binoculars, 20x/ 

40x tripod mounted binoculars, 25 by 

150 ‘‘big eye’’ tripod mounted 

binoculars, and theodolites; and 

• PSOs must record all observations 

of marine mammals, regardless of 

distance from the pile being driven. 

PSOs shall document any behavioral 

responses in concert with distance from 

piles being driven or removed. 

PSOs must have the following 

additional qualifications: 

• Ability to conduct field 

observations and collect data according 

to assigned protocols; 

• Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors; 

• Sufficient training, orientation, or 

experience with the construction 

operation to provide for personal safety 

during observations; 

• Writing skills sufficient to record 

required information including but not 

limited to the number and species of 

marine mammals observed; dates and 

times when in-water construction 

activities were conducted; dates, times, 

and reason for implementation of 

mitigation (or why mitigation was not 

implemented when required); and 

marine mammal behavior; and 

• Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real-time 

information on marine mammals 

observed in the area as necessary. 

Reporting 

NMFS will require the POA to submit 

interim weekly and monthly monitoring 

reports during the NES1 construction 

season. These reports must include a 

summary of marine mammal species 

and behavioral observations, 

construction shutdowns or delays, and 

construction work completed. They also 

must include an assessment of the 

amount of construction remaining to be 

completed (i.e., the number of estimated 

hours of work remaining), in addition to 

the number of CIBWs observed within 

estimated harassment zones to date. 

A draft summary marine mammal 

monitoring report (that includes final 

electronic data sheets) must be 

submitted to NMFS within 90 days after 

the completion of all construction 

activities, or 60 days prior to a requested 


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date of issuance of any future ITA for 

projects at the same location, whichever 

comes first. The report will include an 

overall description of work completed, 

a narrative regarding marine mammal 

sightings, and associated PSO data 

sheets. PSO data sheets should be 

submitted in a format that can be 

queried such as a spreadsheet or 

database (i.e., digital images of data 

sheets are not sufficient). Specifically, 

the report must include: 

• Dates and times (begin and end) of 

all marine mammal monitoring; 

• Construction activities occurring 

during each daily observation period, 

including the number and type of piles 

driven or removed and by what method 

(i.e., impact or vibratory), the total 

equipment duration for vibratory 

installation and removal, and the total 

number of strikes for each pile during 

impact driving; 

• PSO locations during marine 

mammal monitoring; 

• Environmental conditions during 

monitoring periods (at beginning and 

end of PSO shift and whenever 

conditions change significantly), 

including Beaufort sea state and any 

other relevant weather conditions 

including cloud cover, fog, sun glare, 

and overall visibility to the horizon, and 

estimated observable distance; 

• Upon observation of a marine 

mammal, the following information: 

name of PSO who sighted the animal(s) 

and PSO location and activity at time of 

sighting; time of sighting; identification 

of the animal(s) (e.g., genus/species, 

lowest possible taxonomic level, or 

unidentified), PSO confidence in 

identification, and the composition of 

the group if there is a mix of species; 

distance and bearing of each marine 

mammal observed relative to the pile 

being driven for each sighting (if pile 

driving was occurring at time of 

sighting); estimated number of animals 

(minimum, maximum, and best 

estimate); estimated number of animals 

by cohort (adults, juveniles, neonates, 

group composition, sex class, etc.); 

animal’s closest point of approach and 

estimated time spent within the 

harassment zone; group spread and 

formation (for CIBWs only); description 

of any marine mammal behavioral 

observations (e.g., observed behaviors 

such as feeding or traveling), including 

an assessment of behavioral responses 

that may have resulted from the activity 

(e.g., no response or changes in 

behavioral state such as ceasing feeding, 

changing direction, flushing, or 

breaching); 

• Number of marine mammals 

detected within the harassment zones 

and shutdown zones, by species; and 

• Detailed information about any 

implementation of any mitigation 

triggered (e.g., shutdowns and delays), a 

description of specific actions that 

ensued, and resulting changes in 

behavior of the animal(s), if any. 

If no comments are received from 

NMFS within 30 days, the draft final 

report will constitute the final report. If 

comments are received, a final report 

addressing NMFS comments must be 

submitted within 30 days after receipt of 

comments. 

Reporting Injured or Dead Marine 

Mammals 

In the event that personnel involved 

in the construction activities discover 

an injured or dead marine mammal, the 

IHA-holder must immediately cease the 

specified activities and report the 

incident to OPR, NMFS 

(PR.ITP.MonitoringReports@noaa.gov), 

and to the Alaska Regional Stranding 

Coordinator as soon as feasible. If the 

death or injury was clearly caused by 

the specified activity, the POA must 

immediately cease the specified 

activities until NMFS is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the IHA. 

The POA must not resume their 

activities until notified by NMFS. The 

report must include the following 

information: 

• Time, date, and location (latitude 

and longitude) of the first discovery 

(and updated location information if 

known and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• General circumstances under which 

the animal was discovered. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any impacts or responses (e.g., 

intensity, duration), the context of any 

impacts or responses (e.g., critical 

reproductive time or location, foraging 

impacts affecting energetics), as well as 

effects on habitat, and the likely 

effectiveness of the mitigation. We also 

assess the number, intensity, and 

context of estimated takes by evaluating 

this information relative to population 

status. Consistent with the 1989 

preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the baseline (e.g., as 

reflected in the regulatory status of the 

species, population size and growth rate 

where known, ongoing sources of 

human-caused mortality, or ambient 

noise levels). 

To avoid repetition, this introductory 

discussion of our analysis applies to all 

the species listed in table 12, except 

CIBWs, given that many of the 

anticipated effects of this project on 

different marine mammal stocks are 

expected to be relatively similar in 

nature. For CIBWs, there are meaningful 

differences in anticipated individual 

responses to activities, impact of 

expected take on the population, or 

impacts on habitat; therefore, we 

provide a separate detailed analysis for 

CIBWs following the analysis for other 

species for which we authorize take. 

NMFS has identified key factors 

which may be employed to assess the 

level of analysis necessary to conclude 

whether potential impacts associated 

with a specified activity should be 

considered negligible. These include 

(but are not limited to) the type and 

magnitude of taking, the amount and 

importance of the available habitat for 

the species or stock that is affected, the 

duration of the anticipated effect to the 

species or stock, and the status of the 

species or stock. The potential effects of 

the specified actions on gray whales, 

humpback whales, killer whales, harbor 

porpoises, Steller sea lions, and harbor 

seals are discussed below. Some of these 

factors also apply to CIBWs; however, a 

more detailed analysis for CIBWs is 

provided in a separate sub-section 

below. 

Pile driving associated with the 

project, as outlined previously, has the 

potential to disturb or displace marine 

mammals. Specifically, the specified 

activities may result in take, in the form 

of Level B harassment and, for some 


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species, Level A harassment, from 

underwater sounds generated by pile 

driving. Potential takes could occur if 

marine mammals are present in zones 

ensonified above the thresholds for 

Level B harassment or Level A 

harassment, identified above, while 

activities are underway. 

The POA’s planned activities and 

associated impacts will occur within a 

limited, confined area of the stocks’ 

range. The work will occur in the 

vicinity of the NES1 site and sound 

from the planned activities will be 

blocked by the coastline along Knik 

Arm along the eastern boundaries of the 

site, and for those harassment isopleths 

that extend more than 3,000-m (i.e., the 

vibratory installation of 36-inch (91-cm) 

piles and vibratory removal of 24-inch 

(61-inch) piles), directly across the Arm 

along the western shoreline (see figure 

6–4 in the POA’s application)). The 

intensity and duration of take by Level 

A and Level B harassment will be 

minimized through use of mitigation 

measures described herein. Further the 

amount of take authorized is small 

when compared to stock abundance (see 

table 12). In addition, NMFS does not 

anticipate that serious injury or 

mortality will occur as a result of the 

POA’s planned activity given the nature 

of the activity, even in the absence of 

required mitigation. 

Exposures to elevated sound levels 

produced during pile driving may cause 

behavioral disturbance of some 

individuals. Behavioral responses of 

marine mammals to pile driving at the 

NES1 project site are expected to be 

mild, short term, and temporary. Effects 

on individuals that are taken by Level 

B harassment, as enumerated in the 

Estimated Take section, on the basis of 

reports in the literature as well as 

monitoring from other similar activities 

at the POA and elsewhere, will likely be 

limited to reactions such as increased 

swimming speeds, increased surfacing 

time, or decreased foraging (if such 

activity were occurring; e.g., Ridgway et 

al., 1997; Nowacek et al., 2007; Thorson 

and Reyff, 2006; Kendall and Cornick, 

2015; Goldbogen et al., 2013b; Piwetz et 

al., 2021). Marine mammals within the 

Level B harassment zones may not show 

any visual cues they are disturbed by 

activities or they could become alert, 

avoid the area, leave the area, or display 

other mild responses that are not 

observable such as changes in 

vocalization patterns or increased haul 

out time (e.g., Tougaard et al., 2003; 

Carstensen et al., 2006; Thorson and 

Reyff, 2006; Parks et al., 2007; Brandt et 

al., 2011; Graham et al., 2017). However, 

as described in the Potential Effects of 

Specified Activities on Marine 

Mammals and Their Habitat section of 

the Federal Register notice of the 

proposed IHA (88 FR 76576, November 

6, 2023), marine mammals, excepting 

CIBWs, observed within Level A and 

Level B harassment zones related to 

recent POA construction activities have 

not shown any acute observable 

reactions to pile driving activities that 

have occurred during the PCT and SFD 

projects (61N Environmental, 2021, 

2022a, 2022b). 

Some of the species present in the 

region will only be present temporarily 

based on seasonal patterns or during 

transit between other habitats. These 

temporarily present species will be 

exposed to even smaller periods of 

noise-generating activity, further 

decreasing the impacts. Most likely, 

individual animals will simply move 

away from the sound source and be 

temporarily displaced from the area. 

Takes may also occur during important 

feeding times. The project area though 

represents a small portion of available 

foraging habitat and impacts on marine 

mammal feeding for all species should 

be minimal. 

The activities analyzed here are 

similar to numerous other construction 

activities conducted in Alaska (e.g., 86 

FR 43190, August 6, 2021; 87 FR 15387, 

March 18, 2022), including the PCT and 

SFD projects within Upper Knik Arm 

(85 FR 19294, April 6, 2020; 86 FR 

50057, September 7, 2021, respectively) 

which have taken place with no known 

long-term adverse consequences from 

behavioral harassment. Any potential 

reactions and behavioral changes are 

expected to subside quickly when the 

exposures cease and, therefore, no such 

long-term adverse consequences should 

be expected (e.g., Graham et al., 2017). 

For example, harbor porpoises returned 

to a construction area between piledriving events within several days 

during the construction of offshore wind 

turbines near Denmark (Carstensen et 

al., 2006). The intensity of Level B 

harassment events will be minimized 

through use of mitigation measures 

described herein, which were not 

quantitatively factored into the take 

estimates. The POA will use PSOs 

stationed strategically to increase 

detectability of marine mammals during 

in-water construction activities, 

enabling a high rate of success in 

implementation of shutdowns to avoid 

or minimize injury for most species. 

Further, given the absence of any major 

rookeries and haulouts within the 

estimated harassment zones, we assume 

that potential takes by Level B 

harassment will have an 

inconsequential short-term effect on 

individuals and will not result in 

population-level impacts. 

As stated in the mitigation section, 

the POA will implement shutdown 

zones that equal or exceed the Level A 

harassment isopleths shown in table 7. 

Take by Level A harassment is 

authorized for some species (harbor 

seals and harbor porpoises) to account 

for the potential that an animal could 

enter and remain within the Level A 

harassment zone for a duration long 

enough to incur PTS. Any take by Level 

A harassment is expected to arise from, 

at most, a small degree of PTS because 

animals will need to be exposed to 

higher levels and/or longer duration 

than are expected to occur here in order 

to incur any more than a small degree 

of PTS. 

Due to the levels and durations of 

likely exposure, animals that experience 

PTS will likely only receive slight PTS, 

i.e., minor degradation of hearing 

capabilities within regions of hearing 

that align most completely with the 

frequency range of the energy produced 

by POA’s in-water construction 

activities (i.e., the low-frequency region 

below 2 kHz), not severe hearing 

impairment or impairment in the ranges 

of greatest hearing sensitivity. If hearing 

impairment does occur, it is most likely 

that the affected animal will lose a few 

dBs in its hearing sensitivity, which in 

most cases is not likely to meaningfully 

affect its ability to forage and 

communicate with conspecifics. There 

are no data to suggest that a single 

instance in which an animal accrues 

PTS (or TTS) and is subject to 

behavioral disturbance will result in 

impacts to reproduction or survival. If 

PTS were to occur, it will be at a lower 

level likely to accrue to a relatively 

small portion of the population by being 

a stationary activity in one particular 

location. Additionally, and as noted 

previously, some subset of the 

individuals that are behaviorally 

harassed could also simultaneously 

incur some small degree of TTS for a 

short duration of time. Because of the 

small degree anticipated, though, any 

PTS or TTS potentially incurred here is 

not expected to adversely impact 

individual fitness, let alone annual rates 

of recruitment or survival. 

Theoretically, repeated, sequential 

exposure to pile driving noise over a 

long duration could result in more 

severe impacts to individuals that could 

affect a population (via sustained or 

repeated disruption of important 

behaviors such as feeding, resting, 

traveling, and socializing; Southall et 

al., 2007). Alternatively, marine 

mammals exposed to repetitious 

construction sounds may become 


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habituated, desensitized, or tolerant 

after initial exposure to these sounds 

(reviewed by Richardson et al., 1995; 

Southall et al., 2007). Given that marine 

mammals still frequent and use Knik 

Arm despite being exposed to pile 

driving activities across many years, 

these severe population level impacts 

are not anticipated. The absence of any 

pinniped haulouts or other known nonCIBW home-ranges in the NES1 action 

area further decreases the likelihood of 

severe population level impacts. 

The NES1 project is also not expected 

to have significant adverse effects on 

any marine mammal habitat. The project 

activities will occur within the same 

footprint as existing marine 

infrastructure, and when construction is 

complete, subtidal and intertidal 

habitats previously lost at the project 

site will be restored. Impacts to the 

immediate substrate are anticipated, but 

these will be limited to minor, 

temporary suspension of sediments, 

which can impact water quality and 

visibility for a short amount of time but 

which will not be expected to have any 

effects on individual marine mammals. 

While the area is generally not high 

quality habitat, it is expected to be of 

higher quality to marine mammals and 

fish after NES1 construction is complete 

as the site returns to its natural state and 

is colonized by marine organisms. 

Further, there are no known BIAs near 

the project zone, except for CIBWs, that 

will be impacted by the POA’s planned 

activities. 

Impacts to marine mammal prey 

species are also expected to be minor 

and temporary and to have, at most, 

short-term effects on foraging of 

individual marine mammals, and likely 

no effect on the populations of marine 

mammals as a whole. Overall, the area 

impacted by the NES1 project is very 

small compared to the available 

surrounding habitat, and does not 

include habitat of particular importance. 

The most likely impact to prey will be 

temporary behavioral avoidance of the 

immediate area. During construction 

activities, it is expected that some fish 

and marine mammals will temporarily 

leave the area of disturbance, thus 

impacting marine mammals’ foraging 

opportunities in a limited portion of 

their foraging range. But, because of the 

relatively small area of the habitat that 

may be affected, and lack of any habitat 

of particular importance, the impacts to 

marine mammal habitat are not 

expected to cause significant or longterm negative consequences. Further, as 

described above, additional habitat for 

marine mammal prey will be available 

after the completion of the POA’s 

construction activities likely providing 

additional foraging, migrating, and 

rearing habitats to fish and foraging 

habitat to marine mammals. 

In summary and as described above, 

the following factors support our 

negligible impact determinations for the 

affected stocks of gray whales, 

humpback whales, killer whales, harbor 

porpoises, Steller sea lions, and harbor 

seals: 

• No takes by mortality or serious 

injury are anticipated or authorized; 

• Any acoustic impacts to marine 

mammal habitat from pile driving 

(including to prey sources as well as 

acoustic habitat, and including resulting 

behavioral impacts e.g., from masking) 

are expected to be temporary and 

minimal; 

• Take will not occur in places and/ 

or times where take will be more likely 

to accrue to impacts on reproduction or 

survival, such as within ESA-designated 

or proposed critical habitat, BIAs, or 

other habitats critical to recruitment or 

survival (e.g., rookery); 

• The project area represents a very 

small portion of the available foraging 

area for all potentially impacted marine 

mammal species; 

• Take will only occur within upper 

Cook Inlet—a limited, confined area of 

any given stock’s home range; 

• Monitoring reports from similar 

work in Knik Arm have documented 

little to no observable effect on 

individuals of the same species 

impacted by the specified activities; 

• The required mitigation measures 

(i.e., soft starts, pre-clearance 

monitoring, shutdown zones) are 

expected to be effective in reducing the 

effects of the specified activity by 

minimizing the numbers of marine 

mammals exposed to injurious levels of 

sound, and by ensuring that any take by 

Level A harassment is, at most, a small 

degree of PTS and of a lower degree that 

will not impact the fitness of any 

animals; and 

• The intensity of anticipated takes 

by Level B harassment is low for all 

stocks consisting of, at worst, temporary 

modifications in behavior, and will not 

be of a duration or intensity expected to 

result in impacts on reproduction or 

survival. 

Cook Inlet Beluga Whales. For CIBWs, 

we further discuss our negligible impact 

findings in the context of potential 

impacts to this endangered stock based 

on our evaluation of the take authorized 

(table 12). 

As described in the Recovery Plan for 

the CIBW (NMFS, 2016b), NMFS 

determined the following physical or 

biological features are essential to the 

conservation of this species: (1) 

Intertidal and subtidal waters of Cook 

Inlet with depths less than 9-m mean 

lower low water and within 8-km of 

high and medium flow anadromous fish 

streams; (2) Primary prey species 

consisting of four species of Pacific 

salmon (Chinook, sockeye, chum, and 

coho), Pacific eulachon, Pacific cod, 

walleye pollock, saffron cod, and 

yellowfin sole; (3) Waters free of toxins 

or other agents of a type and amount 

harmful to CIBWs; (4) Unrestricted 

passage within or between the critical 

habitat areas; and (5) Waters with inwater noise below levels resulting in the 

abandonment of critical habitat areas by 

CIBWs. The NES1 project will not 

impact essential features 1–3 listed 

above. All construction will be done in 

a manner implementing best 

management practices to preserve water 

quality, and no work will occur around 

creek mouths or river systems leading to 

prey abundance reductions. In addition, 

no physical structures will restrict 

passage; however, impacts to the 

acoustic habitat are relevant and 

discussed here. 

Monitoring data from the POA suggest 

pile driving does not discourage CIBWs 

from entering Knik Arm and traveling to 

critical foraging grounds such as those 

around Eagle Bay (e.g., 61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022). 

As described in the Potential Effects of 

Specified Activities on Marine 

Mammals and Their Habitat section of 

the Federal Register notice of the 

proposed IHA (88 FR 76576, November 

6, 2023), sighting rates were not 

different in the presence or absence of 

pile driving (Kendall and Cornick, 

2015). In addition, large numbers of 

CIBWs have continued to use Knik Arm 

and pass through the area during pile 

driving projects that have taken place at 

the POA during the past two decades 

(Funk et al., 2005; Prevel-Ramos et al., 

2006; Markowitz and McGuire, 2007; 

Cornick and Saxon-Kendall, 2008, 2009; 

ICRC, 2009, 2010, 2011, 2012; Cornick 

et al., 2010, 2011; Cornick and Pinney, 

2011; Cornick and Seagars, 2016; POA, 

2019), including during the recent PCT 

and SFD construction projects (61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022). 

These findings are not surprising as 

food is a strong motivation for marine 

mammals. As described in Forney et al. 

(2017), animals typically favor 

particular areas because of their 

importance for survival (e.g., feeding or 

breeding), and leaving may have 

significant costs to fitness (reduced 

foraging success, increased predation 

risk, increased exposure to other 

anthropogenic threats). Consequently, 


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animals may be highly motivated to 

maintain foraging behavior in historical 

foraging areas despite negative impacts 

(e.g., Rolland et al., 2012). Previous 

monitoring data indicates CIBWs are 

responding to pile driving noise, but not 

through abandonment of critical habitat, 

including primary foraging areas north 

of the port. Instead, they travel more 

often and faster past the POA, more 

quietly, and in tighter groups (Kendall 

and Cornick, 2015; 61N Environmental, 

2021, 2022a, 2022b). 

While the habitat near the POA is not 

typically considered high quality 

foraging habitat for CIBWs and feeding 

is not a predominant behavior observed 

in CIBWs near the POA (61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022), 

CIBWs have been observed exhibiting 

foraging behaviors during pile driving 

activities in the action area. For 

example, Saxon-Kendall et al. (2013) 

recorded echolocation clicks (which can 

be indicative of feeding behavior) 

during the MTRP both while pile 

driving was occurring and when it was 

not. While the action area is located 

within designated essential fish habitat 

(EFH) for chum, coho, Chinook, 

sockeye, and pink salmon; there are no 

designated areas of particular concern in 

the vicinity of the POA. Still, increased 

turbidity, elevation in noise levels 

during pile driving, and small spills 

have the potential to impact fish, 

including preferred prey of CIBWs 

including Pacific salmon (Chinook, 

sockeye, chum, and coho), Pacific 

eulachon, Pacific cod, walleye pollock, 

saffron cod, and yellowfin sole. 

However, CIBWs are known to typically 

forage in or near river mouths (e.g., Six 

Mile Creek, Eagle River, Eklutna River) 

from late spring through summer, which 

contain predictable salmon runs, and in 

nearshore bays and estuaries in the fall, 

when anadromous fish runs decline. 

Further, there is no evidence to suggest 

that CIBWs are restricted in transiting 

between preferred feeding areas during 

pile driving activities (e.g., 61N 

Environmental, 2021, 2022a, 2022b, 

2022c; Easley-Appleyard and Leonard, 

2022). Thus, while there may be some 

impacts to CIBW prey and CIBW 

foraging behaviors in the action area, 

NMFS anticipates that these impacts 

would be temporary, and most likely 

related to fish avoiding the action area. 

NMFS does not anticipate that these 

impacts would rise to the level of 

adversely impacting annual rates of 

recruitment or survival. 

During PCT and SFD construction 

monitoring, little variability was evident 

in CIBW behaviors recorded from month 

to month, or between sightings that 

coincided with in-water pile installation 

and removal and those that did not (61N 

Environmental, 2021, 2022a, 2022b; 

Easley-Appleyard and Leonard, 2022). 

Of the 386 CIBWs groups sighted during 

PCT and SFD construction monitoring, 

10 groups were observed during or 

within minutes of in-water impact pile 

installation and 56 groups were 

observed during or within minutes of 

vibratory pile installation or removal 

(61N Environmental, 2021, 2022a, 

2022b). In general, CIBWs were more 

likely to display no reaction or to 

continue to move towards the PCT or 

SFD during pile installation and 

removal. In the situations during which 

CIBWs showed a possible reaction (6 

groups during impact driving and 13 

groups during vibratory driving), CIBWs 

were observed either moving away 

immediately after the pile driving 

activities started or were observed 

increasing their rate of travel. 

NMFS funded a visual marine 

mammal monitoring project in 2021 

(described in the Potential Effects of 

Specified Activities on Marine 

Mammals and Their Habitat of the 

Federal Register notice of the proposed 

IHA; 88 FR 76576, November 6, 2023) 

to supplement sighting data collected by 

the POA monitoring program during 

non-pile driving days in order to further 

evaluate the impacts of anthropogenic 

activities on CIBWs (Easley-Appleyard 

and Leonard, 2022). Preliminary results 

suggest that group size ranged from 1 to 

34 whales, with an average of 3 to 5.6, 

depending on the month. September 

had the highest sighting rate with 4.08 

whales per hour, followed by October 

and August (3.46 and 3.41, 

respectively). Traveling was recorded as 

the primary behavior for 80 percent of 

the group sightings and milling was the 

secondary behavior most often recorded. 

Sighting duration varied from a single 

surfacing lasting less than 1 minute to 

380 minutes. Preliminary findings 

suggest these results are consistent with 

the results from the POA’s PCT and SFD 

monitoring efforts. For example, group 

sizes ranged from 2.38 to 4.32 

depending on the month and the highest 

sighting rate was observed in September 

(1.75). In addition, traveling was the 

predominant behavior observed for all 

months and categories of construction 

activity (i.e., no pile driving, before pile 

driving, during pile driving, between 

pile driving, or after pile driving), being 

recorded as the primary behavior for 86 

percent of all sightings, and either the 

primary or secondary behavior for 95 

percent of sightings. 

Easley-Appleyard and Leonard (2022) 

also asked PSOs to complete a 

questionnaire post-monitoring that 

provided NMFS with qualitative data 

regarding CIBW behavior during 

observations. Specifically during pile 

driving events, the PSOs noted that 

CIBW behaviors varied; however, 

multiple PSOs noted seeing behavioral 

changes specifically during impact pile 

driving (which will only be used when 

necessary to loosen piles for vibratory 

removal or direct pulling during the 

NES1 project) and not during vibratory 

pile driving. CIBWs were observed 

sometimes changing direction, turning 

around, or changing speed during 

impact pile driving. There were 

numerous instances where CIBWs were 

seen traveling directly towards the POA 

during vibratory pile driving before 

entering the Level B harassment zone 

(POA was required to shutdown prior to 

CIBWs entering the Level B harassment 

zone), which is consistent with findings 

during the POA’s PCT and SFD 

monitoring efforts (61N Environmental, 

2021, 2022a, 2022b). The PSOs also 

reported that it seemed more likely for 

CIBWs to show more cryptic behavior 

during pile driving (e.g., surfacing 

infrequently and without clear 

direction), though this seemed to vary 

across months (Easley-Appleyard and 

Leonard, 2022). 

We anticipate that disturbance to 

CIBWs will manifest in the same 

manner when they are exposed to noise 

during the NES1 project: whales will 

move quickly and silently through the 

area in more cohesive groups. We do not 

believe exposure to elevated noise levels 

during transit past the POA has adverse 

effects on reproduction or survival as 

the whales continue to access critical 

foraging grounds north of the POA, even 

if having shown a potential reaction 

during pile driving, and tight 

associations help to mitigate the 

potential for any contraction of 

communication space for a group. We 

also do not anticipate that CIBWs will 

abandon entering or exiting Knik Arm, 

as this is not evident based on previous 

years of monitoring data (e.g., Kendall 

and Cornick, 2015; 61N Environmental, 

2021, 2022a, 2022b; Easley-Appleyard 

and Leonard, 2022), and the pre-pile 

driving clearance mitigation measure is 

designed to further avoid any potential 

abandonment. Finally, as described in 

the Potential Effects of Specified 

Activities on Marine Mammals and 

Their Habitat of the Federal Register 

notice of the proposed IHA (88 FR 

76576, November 6, 2023), both 

telemetry (tagging) and acoustic data 

suggest CIBWs likely stay in upper Knik 

Arm (i.e., north of the NES1 project site) 

for several days or weeks before exiting 

Knik Arm. Specifically, a CIBW 


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instrumented with a satellite link time/ 

depth recorder entered Knik Arm on 

August 18, 1999 and remained in Eagle 

Bay until September 12, 1999 (Ferrero et 

al., 2000). Further, a recent detailed reanalysis of the satellite telemetry data 

confirms how several tagged whales 

exhibited this same movement pattern: 

whales entered Knik Arm and remained 

there for several days before exiting 

through lower Knik Arm (Shelden et al., 

2018). This longer-term use of upper 

Knik Arm will avoid repetitive 

exposures from pile driving noise. 

There is concern that exposure to pile 

driving at the POA could result in 

CIBWs avoiding Knik Arm and thereby 

not accessing the productive foraging 

grounds north of POA such as Eagle 

River flats thus, impacting essential 

feature number five above. Although the 

data previously presented demonstrate 

CIBWs are not abandoning the area (i.e., 

no significant difference in sighting rate 

with and without pile driving), results 

of an expert elicitation (EE) at a 2016 

workshop, which predicted the impacts 

of noise on CIBW survival and 

reproduction given lost foraging 

opportunities, helped to inform our 

assessment of impacts on this stock. The 

2016 EE workshop used conceptual 

models of an interim population 

consequences of disturbance (PCoD) for 

marine mammals (NRC, 2005; New et 

al., 2014; Tollit et al., 2016) to help in 

understanding how noise-related 

stressors might affect vital rates 

(survival, birth rate and growth) for 

CIBW (King et al., 2015). NMFS (2016b) 

suggests that the main direct effects of 

noise on CIBW are likely to be through 

masking of vocalizations used for 

communication and prey location and 

habitat degradation. The 2016 workshop 

on CIBWs was specifically designed to 

provide regulators with a tool to help 

understand whether chronic and acute 

anthropogenic noise from various 

sources and projects are likely to be 

limiting recovery of the CIBW 

population. The full report can be found 

at https://www.smruconsulting.com/ 

publications/ with a summary of the EE 

portion of the workshop below. 

For each of the noise effect 

mechanisms chosen for EE, the experts 

provided a set of parameters and values 

that determined the forms of a 

relationship between the number of 

days of disturbance a female CIBW 

experiences in a particular period and 

the effect of that disturbance on her 

energy reserves. Examples included the 

number of days of disturbance during 

the period April, May, and June that 

would be predicted to reduce the energy 

reserves of a pregnant CIBW to such a 

level that she is certain to terminate the 

pregnancy or abandon the calf soon after 

birth, the number of days of disturbance 

in the period April–September required 

to reduce the energy reserves of a 

lactating CIBW to a level where she is 

certain to abandon her calf, and the 

number of days of disturbance where a 

female fails to gain sufficient energy by 

the end of summer to maintain 

themselves and their calves during the 

subsequent winter. Overall, median 

values ranged from 16 to 69 days of 

disturbance depending on the question. 

However, for this elicitation, a ‘‘day of 

disturbance’’ was defined as any day on 

which an animal loses the ability to 

forage for at least one tidal cycle (i.e., it 

forgoes 50–100 percent of its energy 

intake on that day). The day of 

disturbance considered in the context of 

the report is notably more severe than 

the Level B harassment expected to 

result from these activities, which as 

described is expected to be comprised 

predominantly of temporary 

modifications in the behavior of 

individual CIBWs (e.g., faster swim 

speeds, more cohesive group structure, 

decreased sighting durations, cessation 

of vocalizations). Also, NMFS 

authorized 72 instances of takes, with 

the instances representing disturbance 

events within a day—this means that 

either 72 different individual CIBWs are 

disturbed on no more than 1 day each, 

or some lesser number of individuals 

may be disturbed on more than 1 day, 

but with the product of individuals and 

days not exceeding 72. Given the overall 

anticipated take, it is unlikely that any 

one CIBW will be disturbed on more 

than a few days. Further, the mitigation 

measures NMFS has prescribed for the 

NES1 project are designed to avoid the 

potential that any animal will lose the 

ability to forage for one or more tidal 

cycles should they be foraging in the 

NES1 project area, which is not known 

to be a particularly important feeding 

area for CIBWs. While Level B 

harassment (behavioral disturbance) 

will be authorized, the POA’s mitigation 

measures will limit the severity of the 

effects of that Level B harassment to 

behavioral changes such as increased 

swim speeds, tighter group formations, 

and cessation of vocalizations, not the 

loss of foraging capabilities. Regardless, 

this elicitation recognized that pregnant 

or lactating females and calves are 

inherently more at risk than other 

animals, such as males. NMFS has 

determined all CIBWs warrant pile 

driving shutdown to be protective of 

potential vulnerable life stages, such as 

pregnancy, that cannot be determined 

from observations, and to avoid more 

severe behavioral reaction. 

NMFS has prescribed mitigation 

measures to minimize exposure to 

CIBWs, specifically, shutting down pile 

driving should a CIBW approach or 

enter the Level B harassment zone. 

These measures are designed to ensure 

CIBWs will not abandon critical habitat 

and exposure to pile driving noise will 

not result in adverse impacts on the 

reproduction or survival of any 

individuals. The location of the PSOs 

will allow for detection of CIBWs and 

behavioral observations prior to CIBWs 

entering the Level B harassment zone. 

Further, impact driving appeared to 

cause behavioral reactions more readily 

than vibratory hammering (61N 

Environmental, 2021, 2022a, 2022b), 

which will only be used in situations 

where sheet piles remain seized in the 

sediments and cannot be loosened or 

broken free with a vibratory hammer, 

which is expected to be uncommon 

during the NES1 project. If impact 

driving does occur, the POA must 

implement soft starts, which ideally 

allows animals to leave a disturbed area 

before the full-power driving 

commences (Tougaard et al., 2012). 

Although NMFS does not anticipate 

CIBWs will abandon entering Knik Arm 

in the presence of pile driving with the 

required mitigation measures, PSOs will 

be integral to identifying if CIBWs are 

potentially altering pathways they 

would otherwise take in the absence of 

pile driving. Finally, take by mortality, 

serious injury, or Level A harassment of 

CIBWs is not anticipated or authorized. 

In summary and as described above, 

the following factors primarily support 

our determination that the impacts 

resulting from this activity are not 

expected to adversely affect the CIBWs 

through effects on annual rates of 

recruitment or survival: 

• No mortality is anticipated or 

authorized; 

• The area of exposure will be limited 

to habitat primarily used as a travel 

corridor. Data demonstrates Level B 

harassment of CIBWs typically 

manifests as increased swim speeds past 

the POA, tighter group formations, and 

cessation of vocalizations, rather than 

through habitat abandonment; 

• No critical foraging grounds (e.g., 

Eagle Bay, Eagle River, Susitna Delta) 

will be impacted by pile driving; and 

• While animals may be harassed 

more than once, exposures are not likely 

to exceed more than a few per year for 

any given individual and are not 

expected to occur on sequential days; 

thereby decreasing the likelihood of 

physiological impacts caused by chronic 

stress or masking. 

Based on the analysis contained 

herein of the likely effects of the 


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specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

required monitoring and mitigation 

measures, NMFS finds that the total 

marine mammal take from the specified 

activity will have a negligible impact on 

all affected marine mammal species or 

stocks. 

Small Numbers 

As noted previously, only take of 

small numbers of marine mammals may 

be authorized under sections 

101(a)(5)(A) and (D) of the MMPA for 

specified activities other than military 

readiness activities. The MMPA does 

not define small numbers and so, in 

practice, where estimated numbers are 

available, NMFS compares the number 

of individuals taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one-third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

For all stocks, except for the MexicoNorth Pacific stock of humpback whales 

whose abundance estimate is unknown, 

the amount of taking is less than onethird of the best available population 

abundance estimate (in fact it is less 

than 2 percent for all stocks, except for 

CIBWs whose authorized take is 22 

percent of the stock; table 12). The 

number of animals authorized to be 

taken from these stocks would be 

considered small relative to the relevant 

stock’s abundances even if each 

estimated take occurred to a new 

individual. The amount of take 

authorized likely represents smaller 

numbers of individual harbor seals and 

Steller sea lions. Harbor seals tend to 

concentrate near Ship Creek and have 

small home ranges. It is possible that a 

single individual harbor seal may linger 

near the POA, especially near Ship 

Creek, and be counted multiple times 

each day as it moves around and 

resurfaces in different locations. 

Previous Steller sea lion sightings 

identified that if a Steller sea lion is 

within Knik Arm, it is likely lingering 

to forage on salmon or eulachon runs 

and may be present for several days. 

Therefore, the amount of take 

authorized likely represents repeat 

exposures to the same animals. For all 

species, PSOs will count individuals as 

separate unless they cannot be 

individually identified. 

Abundance estimates for the MexicoNorth Pacific stock of humpback whales 

are based upon data collected more than 

8 years ago and, therefore, current 

estimates are considered unknown 

(Young et al., 2023). The most recent 

minimum population estimates (NMIN) 

for this population include an estimate 

of 2,241 individuals between 2003 and 

2006 (Martinez-Aguilar, 2011) and 766 

individuals between 2004 and 2006 

(Wade, 2021). NMFS’ Guidelines for 

Assessing Marine Mammal Stocks 

suggest that the NMIN estimate of the 

stock should be adjusted to account for 

potential abundance changes that may 

have occurred since the last survey and 

provide reasonable assurance that the 

stock size is at least as large as the 

estimate (NMFS, 2023b). The abundance 

trend for this stock is unclear; therefore, 

there is no basis for adjusting these 

estimates (Young et al., 2023). 

Assuming the population has been 

stable, the 4 takes of this stock 

authorized represents small numbers of 

this stock (0.18 percent of the stock 

assuming a NMIN of 2,241 individuals 

and 0.52 percent of the stock assuming 

an NMIN of 766 individuals). 

Based on the analysis contained 

herein of the planned activity (including 

the required mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals will 

be taken relative to the population size 

of the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

In order to issue an IHA, NMFS must 

find that the specified activity will not 

have an ‘‘unmitigable adverse impact’’ 

on the subsistence uses of the affected 

marine mammal species or stocks by 

Alaskan Natives. NMFS has defined 

‘‘unmitigable adverse impact’’ in 50 CFR 

216.103 as an impact resulting from the 

specified activity: (1) That is likely to 

reduce the availability of the species to 

a level insufficient for a harvest to meet 

subsistence needs by: (i) Causing the 

marine mammals to abandon or avoid 

hunting areas; (ii) Directly displacing 

subsistence users; or (iii) Placing 

physical barriers between the marine 

mammals and the subsistence hunters; 

and (2) That cannot be sufficiently 

mitigated by other measures to increase 

the availability of marine mammals to 

allow subsistence needs to be met. 

While no significant subsistence 

activity currently occurs within or near 

the POA, Alaska Natives have 

traditionally harvested subsistence 

resources, including marine mammals, 

in upper Cook Inlet for millennia. 

CIBWs are more than a food source; they 

are important to the cultural and 

spiritual practices of Cook Inlet Native 

communities (NMFS, 2008b). Dena’ina 

Athabascans, currently living in the 

communities of Eklutna, Knik, Tyonek, 

and elsewhere, occupied settlements in 

Cook Inlet for the last 1,500 years and 

have been the primary traditional users 

of this area into the present. 

NMFS estimated that 65 CIBWs per 

year (range 21–123) were killed between 

1994 and 1998, including those 

successfully harvested and those struck 

and lost. NMFS concluded that this 

number was high enough to account for 

the estimated 14 percent annual decline 

in population during this time (Hobbs et 

al., 2008); however, given the difficulty 

of estimating the number of whales 

struck and lost during the hunts, actual 

mortality may have been higher. During 

this same period, population abundance 

surveys indicated a population decline 

of 47 percent, although the reason for 

this decline should not be associated 

solely with subsistence hunting and 

likely began well before 1994 (Rugh et 

al., 2000). 

In 1999, a moratorium was enacted 

(Pub. L. 106–31) prohibiting the 

subsistence harvest of CIBWs except 

through a cooperative agreement 

between NMFS and the affected Alaska 

Native organizations. NMFS began 

working cooperatively with the Cook 

Inlet Marine Mammal Council (CIMMC), 

a group of tribes that traditionally 

hunted CIBWs, to establish sustainable 

harvests. CIMMC voluntarily curtailed 

its harvests in 1999. In 2000, NMFS 

designated the Cook Inlet stock of 

beluga whales as depleted under the 

MMPA (65 FR 34590, May 31, 2000). 

NMFS and CIMMC signed CoManagement of the Cook Inlet Stock of 

Beluga Whales agreements in 2000, 

2001, 2002, 2003, 2005, and 2006. CIBW 

harvests between 1999 and 2006 

resulted in the strike and harvest of five 

whales, including one whale each in 

2001, 2002, and 2003, and two whales 

in 2005 (NMFS, 2008b). No hunt 

occurred in 2004 due to higher-thannormal mortality of CIBWs in 2003, and 

the Native Village of Tyonek agreed to 

not hunt in 2007. Since 2008, NMFS has 

examined how many CIBWs could be 

harvested during 5-year intervals based 

on estimates of population size and 

growth rate and determined that no 

harvests would occur between 2008 and 

2012 and between 2013 and 2017 

(NMFS, 2008b). The CIMMC was 

disbanded by unanimous vote of the 

CIMMC member Tribes’ representatives 

in June 2012, and a replacement group 

of Tribal members has not been formed 


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Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices 2873 

to date. There has been no subsistence 

harvest of CIBWs since 2005 (NMFS, 

2022d). 

Subsistence harvest of other marine 

mammals in upper Cook Inlet is limited 

to harbor seals. Steller sea lions are rare 

in upper Cook Inlet; therefore, 

subsistence use of this species is not 

common. However, Steller sea lions are 

taken for subsistence use in lower Cook 

Inlet. Residents of the Native Village of 

Tyonek are the primary subsistence 

users in the upper Cook Inlet area. 

While harbor seals are hunted for 

subsistence purposes, harvests of this 

for traditional and subsistence uses by 

Native peoples have been low in upper 

Cook Inlet (e.g., 33 harbor seals were 

harvested in Tyonek between 1983 and 

2013; see table 8–1 in the POA’s 

application), although these data are not 

currently being collected and 

summarized. As the POA’s planned 

project activities will take place within 

the immediate vicinity of the POA, no 

activities will occur in or near Tyonek’s 

identified traditional subsistence 

hunting areas. As the harvest of marine 

mammals in upper Cook Inlet is 

historically a small portion of the total 

subsistence harvest, and the number of 

marine mammals using upper Cook 

Inlet is proportionately small, the 

number of marine mammals harvested 

in upper Cook Inlet is expected to 

remain low. 

The potential impacts from 

harassment on stocks that are harvested 

in Cook Inlet will be limited to minor 

behavioral changes (e.g., increased swim 

speeds, changes in dive time, temporary 

avoidance near the POA, etc.) within the 

vicinity of the POA. Some PTS may 

occur; however, the shift is likely to be 

slight due to the implementation of 

mitigation measures (e.g., shutdown 

zones, pre-clearance monitoring, soft 

starts) and the shift will be limited to 

lower pile driving frequencies, which 

are on the lower end of phocid and 

otariid hearing ranges. In summary, any 

impacts to harbor seals will be limited 

to those seals within Knik Arm (outside 

of any hunting area) and the very few 

takes of Steller sea lions in Knik Arm 

will be far removed in time and space 

from any hunting in lower Cook Inlet. 

The POA will communicate with 

representative Alaska Native 

subsistence users and Tribal members to 

identify and explain the measures that 

have been taken or will be taken to 

minimize any adverse effects of NES1 

on the availability of marine mammals 

for subsistence uses. In addition, the 

POA will adhere to the following 

procedures during Tribal consultation 

regarding marine mammal subsistence 

use within the Project area: 

(1) Send letters to the Kenaitze, 

Tyonek, Knik, Eklutna, Ninilchik, 

Salamatof, and Chickaloon Tribes 

informing them of the planned project 

(i.e., timing, location, and features). 

Include a map of the planned project 

area; identify potential impacts to 

marine mammals and mitigation efforts, 

if needed, to avoid or minimize impacts; 

and inquire about possible marine 

mammal subsistence concerns they 

have; 

(2) Follow up with a phone call to the 

environmental departments of the seven 

Tribal entities to ensure that they 

received the letter, understand the 

project, and have a chance to ask 

questions. Inquire about any concerns 

they might have about potential impacts 

to subsistence hunting of marine 

mammals; 

(3) Document all communication 

between the POA and Tribes; and 

(4) If any Tribes express concerns 

regarding project impacts to subsistence 

hunting of marine mammals, propose a 

Plan of Cooperation between the POA 

and the concerned Tribe(s). 

The NES1 project features and 

activities, in combination with a 

number of actions to be taken by the 

POA during project implementation, 

should avoid or mitigate any potential 

adverse effects on the availability of 

marine mammals for subsistence uses. 

Furthermore, although construction will 

occur within the traditional area for 

hunting marine mammals, the project 

area is not currently used for 

subsistence activities. In-water pile 

installation and removal will follow 

mitigation procedures to minimize 

effects on the behavior of marine 

mammals, and impacts will be 

temporary. 

The POA has expressed, if desired, 

regional subsistence representatives 

may support project marine mammal 

biologists during the monitoring 

program by assisting with collection of 

marine mammal observations and may 

request copies of marine mammal 

monitoring reports. 

Based on the description of the 

specified activity, the measures 

described to minimize adverse effects 

on the availability of marine mammals 

for subsistence purposes, and the 

required mitigation and monitoring 

measures, NMFS has determined that 

there will not be an unmitigable adverse 

impact on subsistence uses from the 

POA’s planned activities. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (ESA; 16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

IHAs, NMFS OPR consults internally 

whenever we propose to authorize take 

for endangered or threatened species, in 

this case with the NMFS Alaska 

Regional Office. 

There are three marine mammal 

species (the Mexico DPS and Western 

North Pacific DPS of humpback whale, 

CIBWs, and western DPS Steller sea 

lion) with confirmed occurrence in the 

project area that are listed as 

endangered or threatened under the 

ESA. The NMFS Alaska Regional Office 

issued a BiOp on December 15, 2023, 

under section 7 of the ESA, on the 

issuance of an IHA to the POA under 

section 101(a)(5)(D) of the MMPA by the 

NMFS OPR. The BiOp concluded that 

the specified action is not likely to 

jeopardize the continued existence of 

the Mexico DPS and Western North 

Pacific DPS of humpback whale, CIBWs, 

or western DPS Steller sea lions, and is 

not likely to destroy or adversely modify 

CIBW critical habitat. There is no 

critical habitat designated for humpback 

whales or Steller sea lions in the action 

area. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and NAO 

216–6A, NMFS must review our 

proposed action (i.e., the issuance of an 

IHA) with respect to potential impacts 

on the human environment. 

Accordingly, NMFS prepared an 

Environmental Assessment (EA). The 

EA supported a FONSI. A copy of the 

EA and FONSI is available at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-constructionactivities. 

Authorization 

NMFS has issued an IHA to the POA 

for the potential harassment of small 

numbers of seven marine mammal 

species incidental to the NES1 project in 

Anchorage, Alaska, that includes the 

previously explained mitigation, 

monitoring and reporting requirements. 

Dated: January 8, 2024. 

Kimberly Damon-Randall, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2024–00511 Filed 1–12–24; 8:45 am] 

BILLING CODE 3510–22–P 


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