[Federal Register Volume 87, Number 54 (Monday, March 21, 2022)]
[Notices]
[Pages 15945-15963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05851]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB867]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Replacement of Pier 3 at Naval 
Station Norfolk in Norfolk, Virginia

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an IHA to the United States Department of the Navy 
(Navy) to incidentally harass marine mammals during pile driving 
activities associated with the replacement of Pier 3 at Naval Station 
Norfolk, in Norfolk, Virginia.

DATES: This Authorization is effective from April 1, 2022 through March 
31, 2023.

[[Page 15946]]


FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected 
Resources, NMFS, (301) 427-8401. 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

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 issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be 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 15, 2021 NMFS received a request from the Navy for an IHA 
to take marine mammals incidental to the reconstruction of Pier 3 at 
Naval Station Norfolk in Norfolk, Virginia. The application was deemed 
adequate and complete on October 27, 2021. Subsequently, the Navy 
provided a revised and updated version of the application, which was 
determined to be adequate and complete on January 10, 2022. The Navy's 
request is for take of a small number of five species by Level B 
harassment and Level A harassment. Neither the Navy nor NMFS expects 
serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate. NMFS previously issued IHAs to the 
Navy for similar work (86 FR 48986; September 1, 2021; 85 FR 33139; 
June 01, 2020; 83 FR 30406; June 28, 2018). This IHA will cover one 
year of a larger project for which the Navy plans to submit a request 
for a Letter of Authorization (LOA) for additional work occurring from 
April 1, 2023 through December 30, 2026. The larger 4-year project 
involves the demolition and reconstruction of a submarine pier at Naval 
Station Norfolk.

Description of Activity

Overview

    The purpose of this project is to replace Pier 3 at Naval Station 
(NAVSTA) Norfolk in Norfolk, VA. The existing Pier 3 will be completely 
demolished and a new Pier 3 will be constructed immediately north of 
the existing location (See Figure 1). Work at Pier 4, Pier 3T and the 
bulkheads associated with Pier 3 and 3T (CEP-175, CEP-176, and CEP-102) 
will also occur (See Figure 1). The project includes impact and 
vibratory pile driving and vibratory pile removal and drilling. 
Drilling is considered a continuous noise source, similar to vibratory 
pile driving. Sounds resulting from pile driving and removal may result 
in the incidental take of marine mammals by Level A and Level B 
harassment in the form of auditory injury or behavioral harassment. The 
in-water construction period for the action will occur over 12 months.

Dates and Duration

    The IHA is effective from April 1, 2022 to March 31, 2023. 
Approximately 280 days will be required for the project. The Navy plans 
to conduct all work during daylight hours.

Specific Geographic Region

    Pier 3 at NAVSTA Norfolk is located at the confluence of the 
Elizabeth River, James River, Nansemond River, LaFeyette, Willoughby 
Bay, and Chesapeake Bay (Figure 2).
    Human generated sound is a significant contributor to the ambient 
acoustic environment surrounding NAVSTA Norfolk, as it is located in 
close proximity to shipping channels as well as several Port of 
Virginia facilities with frequent, noise-producing vessel traffic that, 
altogether, have an annual average of 1,788 vessel calls (Port of 
Virginia, 2021). Other sources of human-generated underwater sound not 
specific to naval installations include sounds from echo sounders on 
commercial and recreational vessels, industrial ship noise, and noise 
from recreational boat engines. Additionally, on average, maintenance 
dredging of the navigation channel occurs every 2 years (USACE and Port 
of Virginia, 2018).
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BILLING CODE

Detailed Description of Specific Activity

    The project involves the replacement of Pier 3 at the NAVSTA 
waterfront. The existing Pier 3 will be completely demolished and a new 
Pier 3 will be constructed immediately north of the existing location. 
Additional work associated with the replacement of Pier 3 includes the 
outfitting of Pier 4 for temporary submarine berthing, demolition of 
Pier 3T, construction at the CEP-176 and the CEP-175 bulkheads, and 
beginning of construction of the CEP-102 bulkhead and relieving 
platform. The project includes six phases that will be completed under 
this IHA and the future requested LOA. A preliminary work schedule and 
activity details for the work under this IHA are provided in Table 1. 
Piles are anticipated to be removed with a vibratory hammer, however 
direct pull or clamshell removal may be used depending on site 
conditions. Since vibratory removal is the loudest activity, to be 
precautionary, we assume all piles will be removed with a vibratory 
hammer. Pile installation/removal will occur using land-based or barge-
mounted cranes and vary in method based on pile type.
    Table 1 outlines a preliminary work schedule for the demolition and 
reconstruction of Pier 3 at NAVSTA.

[[Page 15949]]

Some project elements will use only one method of pile installation 
(e.g., vibratory OR drilling/impact OR impact only), but all methods 
have been analyzed. The method of installation will be determined by 
the construction crew once demolition and installation has begun. 
Therefore, the total take estimate reflects the worst case scenario for 
the project.
    A detailed description of the planned project is provided in the 
Federal Register notice for the proposed IHA (87 FR 3976; January 26, 
2022). Since that time, no additional changes have been made to the 
planned activities. Therefore, a detailed description is not provided 
here. Please refer to that Federal Register notice for the description 
of the specific activity.

                                        Table 1--Preliminary Estimated In-Water Construction Schedule for Year 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Daily
                                                                                                          production   Strikes/duration per     Total
      Location              Activity       Amount and schedule     Type and size         Method \1\      rate (piles/          pile           production
                                                                                                             day)                                days
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 4..............  Demolition of        36 fender piles      14-inch timber.....  Vibratory Hammer..            4  60 minutes...........            9
                       Existing Fender      June 2022-
                       Piles.               September 2022.
                     -----------------------------------------------------------------------------------------------------------------------------------
                      Installation of      36 fender piles      24-inch precast      Drilling with                 6  6 hours..............            6
                       Fender Piles.        June 2022-           concrete square.     Impact Hammer OR.
                                            September 2022.
                                                                                    --------------------------------------------------------------------
                                                                                     Impact Hammer.....           12  450 strikes..........            3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 3T.............  Demolition of        286 bearing piles    18-inch precast      Vibratory Hammer..            4  60 minutes...........           72
                       Existing Pier 3T.    August 2022-         concrete square.
                                            November 2022.
                                          --------------------------------------------------------------------------------------------------------------
                                           87 fender piles      14-inch timber.....  Vibratory Hammer..            4  60 minutes...........           22
                                            August 2022-
                                            November 2022.
--------------------------------------------------------------------------------------------------------------------------------------------------------
CEP-175.............  Repair Fender        9 fender piles       13-inch polymeric..  Drilling with                 7  60 minutes...........            2
                       System.              October 2022-                             Impact Hammer OR.
                                            November 2022.
                                                                                    --------------------------------------------------------------------
                                                                                     Impact Hammer OR..            7  450 strikes..........            2
                                                                                    --------------------------------------------------------------------
                                                                                     Vibratory Hammer..            7  30 minutes...........            2
--------------------------------------------------------------------------------------------------------------------------------------------------------
CEP-102.............  Demolish Partial     22 fender piles      18-inch concrete     Vibratory Hammer..            4  60 minutes...........            6
                       Existing Fender      October 2022-        square.
                       System.              November 2022.
                                          --------------------------------------------------------------------------------------------------------------
                                           9 fender piles       14-inch timber.....  Vibratory Hammer..            4  60 minutes...........            3
                                            October 2022-
                                            November 2022.
                                          --------------------------------------------------------------------------------------------------------------
                                           4 fender piles.....  13-inch polymeric..  Vibratory Hammer..            4  60 minutes...........            1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 3..............  Begin Construction   300 bearing piles    24-inch precast      Impact Hammer.....            2  3,200 strikes........          150
                       of New Pier 3.       October 2022-March   concrete square.
                                            2023.
--------------------------------------------------------------------------------------------------------------------------------------------------------
CEP-176.............  Begin Construction   109 bearing piles    42-inch steel pipe.  Impact Hammer OR..            2  1,800 strikes........           55
                       of New Bulkhead.     December 2022-30
                                            March 2023.
                                                                                    --------------------------------------------------------------------
                                                                                     Vibratory Hammer..            2  240 minutes..........           55
                                          --------------------------------------------------------------------------------------------------------------
                                           221 sheet piles      28-inch steel sheet  Impact Hammer OR..            4  270 strikes..........           56
                                            December 2022-30
                                            March 2023.
                                                                                    --------------------------------------------------------------------
                                                                                     Vibratory Hammer..            4  60 minutes...........           56
--------------------------------------------------------------------------------------------------------------------------------------------------------
CEP-102.............  Construction of a    4 bearing piles      42-inch steel pipe.  Impact Hammer OR..            2  2,000 strikes........            2
                       Portion of the New   December 2022-30
                       Bulkhead.            March 2023.
                                                                                    --------------------------------------------------------------------
                                                                                     Vibratory Hammer..            2  240 minutes..........            2
                                          --------------------------------------------------------------------------------------------------------------
                                           8 bulkhead sheet     28-inch steel sheet  Impact Hammer OR..            4  270 strikes..........            2
                                            piles December
                                            2022-30 March 2023.
                                                                                    --------------------------------------------------------------------
                                                                                     Vibratory Hammer..            4  60 minutes...........            2
                                          --------------------------------------------------------------------------------------------------------------
                                           11 bearing piles     24-inch precast      Pre-drilling with             2  6 hours..............            6
                                            December 2022-30     concrete square.     Impact Hammer OR.
                                            March 2023.
                                                                                    --------------------------------------------------------------------
                                                                                     Impact Hammer.....            2  2,700 strikes........            6
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[[Page 15950]]

 
    Total piles installed, extracted, or   1,142
     drilled.
                                          --------------------------------------------------------------------------------------------------------------
    Total days pile driving/extraction/    ...................  ...................  ..................  ...........  .....................  \2\ \3\ \4\
     drilling.                                                                                                                                  280 days
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\1\ Only one method of installation is likely; however, because the exact means of installation are up to the selected construction contractor, all
  possibilities have been analyzed.
\2\ Total number of days takes into account the most days possible for each pile type with multiple potential installation methods (i.e., the worst case
  scenario).
\3\ The preliminary schedule has work at Pier 4, demolition of Pier 3T, start of construction at Pier 3, and work at CEP-175 potentially occurring in
  the same timeframe, thus multiple pile types could be driven in the same day and the total days of pile driving/extraction/drilling reflects this
  assumption. Thus, the maximum number of days of work from these activities is associated with beginning the construction of Pier 3 (150 days). Adding
  remaining work, minus those activities that will occur during the same time frame (Pier 4, demo Pier 3T, and CEP-175), equals 280 days.
\4\ Multiple types of equipment may be used on the same day; however, use of multiple noise sources (hammers or drills) will not occur at the same time.
  There will be no simultaneous activities associated with this project.

    Mitigation, monitoring, and reporting measures are described in 
detail later in this document (please see Mitigation and Monitoring and 
Reporting).

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to the Navy was 
published in the Federal Register on January 26, 2022 (87 FR 3976). 
That notice described, in detail, the Navy's activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. During the 30-day public comment 
period, NMFS received no public comments. There have been no changes 
from the proposed to the final IHA.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the Navy's application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially affected 
species. Additional information regarding population trends and threats 
may be found in NMFS's 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's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
authorized for this action, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. For taxonomy, we follow Committee on Taxonomy (2021). 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's SARs). While no 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 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's 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's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al., 
2021). All values presented in Table 2 are the most recent available at 
the time of publication and are available in the 2021 draft SARs (Hayes 
et al., 2021).

                                          Table 2--Marine Mammal Species Likely To Occur Near the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -,-;Y               1,396 (0; 1,380; 2016)         22      12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -,-; Y              6,636 (0.41; 4,759;            48  12.2-21.5
                                                                (WNA) Coastal,                               2016).
                                                                Northern Migratory.
    Bottlenose dolphin..............  Tursiops truncatus.....  WNA Coastal, Southern    -,-; Y              3,751 (0.06; 2,353;            24     0-18.3
                                                                Migratory.                                   2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Northern North Carolina  -,-; Y              823 (0.06; 782; 2017).        7.8     7.2-30
                                                                Estuarine.
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -,-;N               95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  WNA....................  -; N                61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).

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    Gray seal \4\...................  Halichoerus grypus.....  WNA....................  -; N                27,300 (0.22; 23,785;       1,389      4,453
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments/ assessments/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable [explain if this is
  the case]
\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 M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ This stock abundance estimate for only the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the population,
  is estimated to be approximately 451,431 animals. The PBR value listed here is only for the U.S. portion of the stock, while M/SI reflects both the
  Canadian and U.S. portions.

    As indicated above, all five species (with seven managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have authorized 
it. While North Atlantic right whales (Eubalaena glacialis), minke 
whales (Balaenoptera acutorostrata acutorostrata), and fin whales 
(Balaenoptera physalus) have been documented in the area, the temporal 
and/or spatial occurrence of these whales is far outside the project 
area for this project and take is not expected to occur. Therefore, 
they are not discussed further beyond the explanation provided in the 
Federal Register notice for the proposed IHA (87 FR 3976; January 26, 
2022).
    A detailed description of the species likely to be affected by the 
Navy's project, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (87 FR 
3976; January 26, 2022); 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. Pease also refer to NMFS' 
website (https://fisheries.noaa.gov/find-species) for generalized 
species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the Navy's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the survey area. The notice of 
proposed IHA (87 FR 3976; January 26, 2022) included a discussion of 
the effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from the Navy's activity on marine mammals 
and their habitat. That information and analysis is incorporated by 
reference into this final IHA determination and is not repeated here; 
please refer to the notice of proposed IHA (87 FR 3976; January 26, 
2022).

Estimated Take

    This section provides an estimate of the number of incidental takes 
for authorization through this IHA, which will inform both NMFS' 
consideration of ``small numbers'' and the negligible impact 
determination.
    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 noise 
generated from in-water pile driving (vibratory and impact) and 
drilling 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 high- 
and low-frequency species and phocids because predicted auditory injury 
zones are larger than for mid-frequency species. However, auditory 
injury is unlikely to occur for mid-frequency species due to the 
shutdown zones (see Mitigation section). Additionally, the mitigation 
and monitoring measures are expected to minimize the severity of the 
taking to the extent practicable.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    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) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of 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 estimate.

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 for non-explosive sources--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 (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and

[[Page 15952]]

the practical need to use a threshold based on a factor that is both 
predictable and measurable for most activities, NMFS uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS predicts that marine mammals are likely to 
be behaviorally harassed in a manner we consider Level B harassment 
when exposed to underwater anthropogenic noise above received levels of 
120 dB re 1 microPascal, root mean square ([mu]Pa (rms)) for continuous 
(e.g., vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa 
(rms) for non-explosive impulsive (e.g., impact pile driving) or 
intermittent (e.g., scientific sonar) sources.
    The Navy's construction includes the use of continuous (vibratory 
pile driving, drilling) and impulsive (impact pile driving) sources, 
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) are applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 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). As previously noted, the Navy's activity 
include the use of impulsive (impact pile driving) and non-impulsive 
(vibratory pile driving/removal, drilling) 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-technical-guidance.

                     Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset acoustic thresholds *  (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1....................  Cell 2
                                         Lpk,flat: 219 dB..........  LE,LF,24h: 199 dB.
                                         LE,LF,24h: 183 dB.........
Mid-Frequency (MF) Cetaceans...........  Cell 3....................  Cell 4
                                         Lpk,flat: 230 dB..........  LE,MF,24h: 198 dB.
                                         LE,MF,24h: 185 dB.........
High-Frequency (HF) Cetaceans..........  Cell 5....................  Cell 6
                                         Lpk,flat: 202 dB..........  LE,HF,24h: 173 dB.
                                         LE,HF,24h: 155 dB.........
Phocid Pinnipeds (PW)..................  Cell 7....................  Cell 8
(Underwater)...........................  Lpk,flat: 218 dB..........  LE,PW,24h: 201 dB.
                                         LE,PW,24h: 185 dB.........
Otariid Pinnipeds (OW).................  Cell 9....................  Cell 10
(Underwater)...........................  Lpk,flat: 232 dB..........  LE,OW,24h: 219 dB.
                                         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 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    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, NMFS used acoustic monitoring data from other 
locations to develop proxy source levels for the various pile types, 
sizes and methods (Table 4). Generally we choose source levels from 
similar pile types from locations (e.g., geology, bathymetry) similar 
to the project. At this time, NMFS is not aware of reliable source 
levels available for polymeric piles using vibratory pile installation, 
therefore source levels for timber pile driving were used as a proxy. 
Similarly, the following proxies were used as source levels for piles 
where no data was available: source levels for the 66-inch steel pile 
was used as a proxy for 42-inch steel pipe piles (vibratory); the 30-
inch steel pile was used as a proxy for the 28-inch sheet piles 
(impact); and 18-inch octagonal pile was used as a proxy for 18-inch 
concrete piles (impact). Additionally, data on vibratory extraction of 
concrete piles are not available, therefore the Navy followed previous 
guidance suggesting that timber piles be used as a proxy for sound 
source levels (84 FR 28474; June 19, 2019).
    Very little information is available regarding source levels for 
in-water drilling activities associated with nearshore pile 
installation. Measurements made during a pile drilling project in 1-5 m 
(3-16 ft) depths at Santa Rosa Island, CA, by Dazey et al., (2012) 
appear to provide the best available proxy source levels for the Navy's 
activities. Dazey et al. (2012) reported average rms source levels 
ranging from 151 to 157 dB re 1[micro]Pa, normalized to a distance of 1 
m (3 ft) from the pile, during activities that included casing removal 
and installation as well as drilling, with an average of 154 dB re 
1[micro]Pa during 62

[[Page 15953]]

days that spanned all related drilling activities during a single 
season. The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected via sound generated by the primary 
components of the project (i.e., impact pile driving, vibratory pile 
driving, and drilling).

                                              Table 4--Project Sound Source Levels Normalized to 10 Meters
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Peak SPL  (re 1   RMS SPL  (re 1      SEL  (re 1
         Pile type              Pile size  (inch)            Method            [mu]Pa (rms))     [mu]Pa (rms))     [mu]Pa (rms))           Source
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steel Pipe Pile............  42....................  Impact................               213               190               177  Navy 2015
                                                     Vibratory.............  ................               168               168  Sitka 2017.
Steel Sheet................  28....................  Impact................               211               196               181  NAVFAC SW 2020.
                                                     Vibratory.............  ................               167               167  Navy 2015.
Concrete Pile..............  24....................  Impact................               189               176               163  Illingworth and
                                                                                                                                    Rodkin 2017.
                                                     Vibratory.............               185               162               157  Caltrans 2020.
Concrete Pile..............  18....................  Impact................               185               166               154  Caltrans 2020.
                                                     Vibratory.............               185               162               157  Caltrans 2020.
Polymeric Pile.............  13....................  Impact................               177               153  ................  Denes et al., 2016.
                                                     Vibratory.............               185               162               157  Caltrans 2020.
Timber Pile................  14....................  Vibratory.............               185               162               157  Caltrans 2020.
NA.........................  ``Multiple pile         Drilling..............  ................           \2\ 154               154  Dazey et al., 2012.
                              sizes`` 1 2.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Pile sizes being installed using the drilling method might include 24-inch precast concrete square, 13-inch polymeric and 24-inch precast concrete
  square.
\2\ Source levels were normalized to a distance of 1 m (3 ft) from the pile during activities that included casing removal and installation as well as
  drilling, with an average of 154 dB re 1[mu]Pa during the course of the project.

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources in-water pile 
driving/removal and drilling activities from the Navy's project, NMFS 
User Spreadsheet predicts the distance at which, if a marine mammal 
remained at that distance the whole duration of the activity, it would 
incur PTS. Inputs used in the User Spreadsheet are reported in Table 1 
and sources levels used in the User Spread are reported in Table 4, and 
the resulting isopleths are reported in Table 5 (Impact) and Table 6 
(Vibratory and Drilling) below.

                                        Table 5--Level A and Level B Harassment Isopleths for Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Level A--Radius to isopleth  (m)                Level B--Radius to isopleth
                                                              -----------------------------------------------------------               (m)
                                                                                                                         -------------------------------
         Pile driving site                    Source                                                                                        Area within
                                                                LF cetaceans    MF cetaceans    HF cetaceans    Phocids     Distance to       Level B
                                                                                                                              Level B      threshold (km
                                                                                                                          threshold  (m)     \2\) \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 4............................  24'' Concrete Fender.....             143               5             170         76             117            <0.1
CEP-175...........................  13'' Polymeric...........              22               1              26         12               3            <0.1
Pier 3............................  24'' Concrete Bearing....             160               6             190         86             117            <0.1
CEP-176...........................  42'' Steel Pipe Bearing..             934              33           1,112        500           1,000             0.4
                                    28'' Steel Sheet.........             773              28             921        414           2,512             2.4
CEP-102...........................  42'' Steel Pipe..........           1,002              36           1,193        536           1,000             1.4
                                    28'' Steel Sheet.........             773              28             921        414           2,512             8.0
                                    24'' Concrete Pile.......             143               5             170         76             117            <0.1
                                    18'' Concrete Pile.......              36               1              43         19              25            <0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Area within the Level B threshold was calculated using geographic information system (GIS) data as determined by transmission loss modeling,
  accounting for land.


                       Table 6--Level A and Level B Harassment Isopleths for Vibratory Pile Driving and Removal, and Pre-Drilling.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Level A--Radius to isopleth  (m)                Level B--Radius to isopleth
                                                              -----------------------------------------------------------               (m)
                                                                                                                         -------------------------------
         Pile driving site                    Source                                                                                        Area within
                                                                LF cetaceans    MF cetaceans    HF cetaceans    Phocids      Level B--        Level B
                                                                                                                             Radius to     threshold (km
                                                                                                                           isopleth  (m)     \2\) \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 4............................  14'' Timber (demolition).              20               2              30         12           6,310            49.9
                                    24'' Concrete (vibratory)               5              <1               4         <1           6,310            97.8
                                    24'' Concrete (drilling).               1               0               1         <1           1,848             4.4
Pier 3T...........................  16'' and 18'' Concrete                 20               2              30         12           6,310            49.9
                                     (demolition).
                                    14'' Timber (demolition).              20               2              30         12           6,310            49.9
CEP-175...........................  13'' Polymeric                         18               2              27         11           6,310            11.1
                                     (vibratory).

[[Page 15954]]

 
                                    13'' Polymeric (drilling)               1              <1               1         <1           1,848             4.4
CEP-176...........................  42'' Steel Pipe..........              80               7             118         49      \2\ 15,849            46.0
                                    28'' Steel Sheet.........              43               4              64         26          13,594            39.9
CEP-102...........................  42'' Steel Pipe..........              80               7             118         49          15,849            98.9
                                    28'' Steel Sheet.........              43               4              64         26          13,594            90.6
                                    24'' Concrete (drilling).               1               0               1         <1           1,848             4.4
                                    14'' Timber..............              20               2              30         12           6,310            49.9
                                    13'' Polymeric...........              20               2              30         12           6,310            49.9
                                    18'' Concrete............              20               2            29.7         12           6,310            49.9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Area within the Level B threshold was calculated using geographic information system (GIS) data as determined by transmission loss modeling.
\2\ Note: This value is different than that listed in the application, due to a typographic error in the application. The correct maximum distance to
  120 dB RMS threshold is 15,849 m as seen here.

    The maximum distance to the Level A harassment threshold during 
construction would be during the impact driving of 42-inch steel pipe 
piles at CEP-102 (1193 m for harbor porpoise; 1001 m for humpback 
whale; 35.6 m for bottlenose dolphin; and 536 m for pinnipeds). The 
largest calculated Level B harassment zone extends out to 15,849 m, 
which would result from the vibratory installation of the 42-inch steel 
pipe pile.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that was used to inform 
the take calculations. We describe how the information provided above 
is brought together to produce a quantitative take estimate for each 
species.
Humpback Whale
    Humpback whales occur in the mouth of the Chesapeake Bay and 
nearshore waters of Virginia during winter and spring months. Most 
detections during shipboard surveys were one or two juveniles per 
sightings. Although two individuals were detected in the vicinity of 
the project activities, there is no evidence that they linger for 
multiple days. Because no density estimates are available for the 
species in this area, the Navy estimated two takes for every 60 days of 
pile driving and drilling activities. Based on this information, NMFS 
has similarly estimated that two humpback whales may be taken by Level 
B harassment for every 60 days of pile driving and pre-drilling 
activities, which equates to 9 takes over 280 project days (Table 1). 
To be conservative, the Navy has requested 3 additional Level B 
harassment takes of humpback whales. Therefore, the Navy is requesting, 
and NMFS is authorizing 12 takes by Level B harassment of humpback 
whale (Table 9).
    The largest Level A harassment zone for low-frequency cetaceans 
extends approximately 1002 m from the source during impact driving of a 
48 inch steel pipe pile (Table 6). The Navy will implement a 1,010 m 
shutdown zone for humpback whales during impact pile driving of the 48 
inch steel pipe piles, and shutdown zones that include the entire Level 
A harassment isopleth for all activities, as indicated in Table 10. 
Therefore, the Navy did not request, and NMFS does not authorize Level 
A harassment take of humpback whale.
Bottlenose Dolphin
    The expected number of bottlenose dolphins in the project area was 
estimated using inshore seasonal densities provided in Engelhaupt et 
al. (2016) from vessel line-transect surveys near NAVSTA Norfolk and 
adjacent areas near Virginia Beach, Virginia, from August 2012 through 
August 2015 (Engelhaupt et al., 2016). This density includes sightings 
inshore of the Chesapeake Bay from NAVSTA Norfolk west to the Thimble 
Shoals Bridge, and is the most representative density for the project 
area. NMFS multiplied the density of 1.38 dolphins/km \2\ by the Level 
B harassment zone area for each activity for the project, and then by 
the number of days associated with that activity (see Table 8), which 
resulted in 14,989 takes by Level B harassment of bottlenose dolphins 
(see Table 9). There is insufficient information on relative abundance 
to apportion the takes precisely to the three stocks present in the 
area. We use the same approach to estimating the apportionment of takes 
to stock used in the previous IHAs in the area including the HRBT 
project (86 FR 17458; April 2, 2021), and the U.S. Navy Norfolk Rule 
(86 FR 24340; May 6, 2021). Given that most of the NNCES stock are 
found in the Pamlico Sound Estuarine, over 160 kilometers to Norfolk, 
the project will assume that no more than 200 of the requested takes 
will be from this stock. Since members of the northern migratory 
coastal and southern migratory coastal stocks are thought to occur in 
or near the Bay in greater numbers, we will conservatively assume that 
no more than half of the remaining takes will accrue to either of these 
stocks. Additionally, a subset of these takes would likely be comprised 
of Chesapeake Bay resident dolphins, although the size of that 
population is unknown.
    The largest Level A harassment area for mid-frequency cetaceans is 
less than 40m, which is associated with impact pile driving of the 42 
inch steel pipe. The Navy will implement a shutdown zone of 200 m 
during this activity as well as when pile driving the 24 inch concrete 
piles and 28 inch steel sheet piles. The Level A harassment zones for 
all other activities extend less than 10 m for mid-frequency cetaceans 
(see Table 5 and Table 6), and the Navy will implement a minimum of a 
10 m shutdown for all other activities not included in the list above 
(Table 10). Given the generally small size of the Level A harassment 
zones, and the Navy's shutdown plan, which includes the entire Level A 
harassment zone for all pile driving and drilling activities, we do not 
expect Level A harassment take of bottlenose dolphins. Therefore, the 
Navy did not request, and NMFS does not authorize Level A harassment 
take of bottlenose dolphins (Table 9).

[[Page 15955]]



                            Table 8--Bottlenose Dolphin Calculated Exposure Estimates
----------------------------------------------------------------------------------------------------------------
                                                             Level A       Level B
                                             Production    harassment    harassment      Level A       Level B
        Location              Activity          days        area (km      area (km        takes       takes \1\
                                                              \2\)          \2\)
----------------------------------------------------------------------------------------------------------------
Pier 4.................  Vibratory Removal             9       0.00001          49.9             0           620
                          Timber Fender
                          Piles.
                         Pre-Drilling                  6      0.000001          4.38             0            36
                          Concrete Fender
                          Piles.
                         Impact Drive                  3     0.0000813          0.04             0             0
                          Concrete Fender
                          Piles.
CEP-175................  Impact Drive                  2      0.000001      0.000014             0             0
                          Polymeric Fender
                          Piles.
                         Pre-Drilling                  2      0.000004          4.38             0          * 12
                          Polymeric Fender
                          Piles.
                         Vibratory Drive               2      0.000004          11.1             0            31
                          Polymeric Fender
                          Piles.
Pier 3.................  Impact Drive                150    0.00010155          0.04             0             8
                          Concrete Bearing
                          Piles.
CEP-176................  Impact Drive                 55    0.00174582          0.41             0          * 31
                          Steel Bearing
                          Piles.
                         Impact Drive                 55    0.00119976          2.43             0         * 184
                          Sheet Piles.
                         Vibratory Drive              55       0.00008         45.97             0         3,489
                          Steel Bearing
                          Piles.
                         Vibratory Drive              56      0.000025          39.9             0         3,083
                          Sheet Piles.
CEP-102................  Impact Drive                  2    0.00245817          1.37             0           * 4
                          Steel Bearing
                          Piles.
                         Impact Drive                  2    0.00154729          7.96             0          * 22
                          Sheet Piles.
                         Impact Drive                  6     0.0000813          0.02             0             0
                          Concrete Bearing
                          Piles.
                         Pre-Drilling                  6      0.000001          4.38             0            36
                          Concrete Bearing
                          Piles.
                         Vibratory                     3       0.00001          49.9             0           207
                          Extraction
                          Timber Fender
                          Piles.
                         Vibratory                     6       0.00001          49.9             0           413
                          Extraction
                          Concrete Fender
                          Piles.
                         Vibratory                     1       0.00001          49.9             0            69
                          Extraction
                          Polymeric Fender
                          Piles.
                         Vibratory Drive               2      0.000156         98.91             0           273
                          Steel Bearing
                          Piles.
                         Vibratory Drive               2      0.000045          90.6             0           250
                          Sheet Piles.
Pier 3T................  Vibratory                    72       0.00001          49.9             0         4,958
                          Extraction
                          Concrete Bearing
                          Piles.
                         Vibratory                    22       0.00001          49.9             0         1,515
                          Extraction
                          Timber Fender
                          Piles.
----------------------------------------------------------------------------------------------------------------
    Total Bottlenose Dolphin Take Estimate..........................................         \2\ 0    \3\ 14,989
----------------------------------------------------------------------------------------------------------------
\1\ All Level and Level B harassment exposure estimates were calculated using a density estimate of 1.38
  Engelhaupt et al. (2016).
\2\ The maximum distance to the Level A harassment threshold is 35.6 m resulting from impact driving 42-inch
  steel pipe piles. This falls within the shutdown zones (see Table 10). Therefore, no Level A harassment take
  was requested nor authorized for bottlenose dolphins.
\3\ Some piles for a few projects are listed twice, due to the contractor choosing the installation method.
  However only the method resulting in the most takes was counted in the take totals. In all cases, vibratory
  driving resulted in the most takes. Numbers with an asterisk indicate calculated takes that were excluded from
  the total due to duplication.

Harbor Porpoise
    Harbor porpoises are known to occur in the coastal waters near 
Virginia Beach (Hayes et al., 2019). Density data for this species in 
the project vicinity do not exist as harbor porpoise sighting data 
collected by the U.S. Navy near NAVSTA Norfolk and Virginia Beach from 
2012 to 2015 (Engelhaupt et al., 2014; 2015; 2016) did not produce 
enough sightings to calculate densities. One group of two harbor 
porpoises was seen during spring 2015 (Engelhaupt et al., 2016). 
Elsewhere in their range, harbor porpoises typically occur in groups of 
two to three individuals (Carretta et al., 2001; Smultea et al., 2017). 
Given the lack of density estimates for harbor porpoises in the 
construction area, this exposure analysis (similar to the methods used 
in previous IHAs) assumes that there is a porpoise sighting once every 
60 days of pile driving or drilling, which would equate to 6 sightings 
per year over 280 days of activity. Assuming an average group size of 
two (Hansen et al., 2018; Elliser et al., 2018), NMFS authorizes 12 
takes by Level B harassment of harbor porpoises (Table 8).
    Harbor porpoises are members of the high-frequency hearing group 
which have Level A harassment isopleths as large as 1193 m during the 
42 inch steel pipe pile installation using impact pile driving. The 
Navy will implement a 500 meter shutdown zone for harbor porpoises 
during the aforementioned activity in addition to impact pile driving 
the 24 inch concrete piles and 28 inch steel sheets, as a reasonable 
area to observe and implement shutdowns for this small and cryptic 
species while avoiding an impracticable number of shutdowns. 
Consequently, the Navy has requested authorization of take by Level A 
harassment for harbor porpoises during the project. While NMFS believes 
that take by Level A harassment is not likely, due to the duration of 
time a harbor porpoise would be required to remain within the Level A 
harassment zone to accumulate enough energy to experience PTS, we 
authorize 10 takes by Level A harassment as requested by the Navy 
(Table 8).
Harbor Seal
    The expected number of harbor seals in the project area was 
estimated using systematic land- and vessel-based survey data for in-
water and hauled-out seals collected by the U.S. Navy at the CBBT rock 
armor and portal islands from 2014 through 2019 (Jones et al., 2020). 
The average daily seal count from the field season ranged from 8 to 23 
seals, with an average of 13.6 harbor seals across all the field 
seasons.
    The Navy expects, and NMFS concurs, that harbor seals are likely to 
be present from November to April. Consistent with previous nearby 
projects, NMFS calculated take by Level B harassment by multiplying 
13.6 seals by 183, which is the number of pile driving/drilling days 
expected to occur from November to April, which results in 2489 harbor 
seal takes. However, NMFS believes this may be an overestimate of take 
as recent monitoring reports from a nearby-completed project observed 0 
harbor seals during the course of their project (HRCP, Unpublished). 
With these new data in hand, we alter our estimation method for this 
species and authorize half of the take estimated above to achieve a 
more realistic number of seals that may be encountered, while still 
conservatively estimating noise exposures. Therefore, NMFS authorizes 
1,244 takes of harbor seals.
    The largest Level A harassment isopleth for phocid species is less 
than 550 m, which would occur during the installation of the 42 inch 
steel pipe pile by impact pile driving. The Navy will implement a 200 m 
shutdown zone for

[[Page 15956]]

this activity in addition to the installation of the 24 inch concrete 
piles and 28 inch steel sheet piles by impact pile driving (Table 9). 
Given the area of the Level A harassment zone that will exceed the 
implemented shutdown zone for these activities, and the cryptic nature 
of the species, the Navy requested 16 takes by Level A harassment of 
harbor seals. For all other activities, the required shutdown zones 
exceed the calculated Level A harassment isopleth for phocid species. 
Therefore, NMFS authorizes 1,228 takes by Level B harassment, and 16 
takes by Level A harassment of harbor seals (Table 9).
Gray Seal
    Very little information is available about the occurrence of gray 
seals in the Chesapeake Bay and coastal waters. Survey data collected 
by the U.S. Navy at the CBBT portal islands from 2014 through 2018 
(Rees et al., 2016; Jones et al., 2018) observed one gray seal in 
February 2015 and one seal in February of 2016, while no seals were 
observed at any other time. Maintaining the assumption that gray seals 
may utilize the Chesapeake Bay waters, the Navy conservatively 
estimates that one gray seal may be exposed to noise levels above the 
Level B harassment threshold for every 60 days of vibratory pile 
driving during the six month period when they are most likely to be 
present.
    The Level A harassment isopleth for phocids is noted above for 
harbor seals, while the largest Level B harassment zone area is 
anticipated during drilling for installation of the 42 inch steel pipes 
(~16 km\2\). The Navy calculated a total of 3 exposures for gray seals 
during the course of the project and they are expected to be very 
uncommon in the Project area. It is anticipated that up to 20 percent 
of gray seal exposures would be at or above the Level A harassment 
threshold based on the proportion of the project's pile driving and 
drilling activities that could exceed the Level A harassment threshold. 
Therefore, the Navy requested, and NMFS is authorizing, 1 take by Level 
A harassment and 2 takes by Level B harassment of gray seals (Table 8).

          Table 8--Authorized Amount of Taking, by Level A Harassment and Level B Harassment, by Species and Stock and Percent of Take by Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Level A         Level B                       Percent of
                  Common name                                     Stock                     harassment      harassment         Total           stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale.................................  Gulf of Maine \b\......................               0              12              12               1
Bottlenose dolphin.............................  WNA Coastal, Northern Migratory \a\ \c\               0          19,327          19,327             111
                                                  \d\.
                                                 WNA Coastal, Southern Migratory \a\ \c\               0          19,327          19,327             197
                                                  \d\.
                                                 Northern NC Estuarine \a\ \c\ \d\......               0             200             200              24
Harbor porpoise................................  Gulf of Maine/Bay of Fundy.............              10              12              22           <0.01
Harbor seal....................................  WNA....................................              16           1,228           1,244               2
Gray seal......................................  WNA....................................               1               2               3           <0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow same
  probability of presence in the project area. Please see the Small Numbers section for additional information.
\b\ West Indies DPS. Please see the Description of Marine Mammals in the Area of Specified Activities section for further discussion.
\c\ Assumes multiple repeated takes of same individuals from small portion of each stock as well as repeated takes of Chesapeake Bay resident population
  (size unknown). Please see the Small Numbers section for additional information.
\d\ The sum of authorized take for the three stocks of bottlenose dolphins does not add up to the total authorized number (14989) due to rounding.

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 incidental take authorizations 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, we 
carefully consider 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, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The following mitigation measures are required through the IHA:
    <bullet> Avoid direct physical interactions with marine mammals 
during construction activity. If a marine mammal comes within 10 meters 
of such activity, operations must 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;
    <bullet> The Navy will conduct trainings between construction 
supervisors and crews and the marine mammal monitoring team prior to 
the start of all activities subject to this IHA and when new personnel 
join the work, to explain responsibilities, communication procedures, 
marine mammal monitoring protocol, and operational procedures; and
    <bullet> 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

[[Page 15957]]

has been authorized but the authorized number of takes has been met, 
entering or within the harassment zone.
    The following mitigation measures apply to the Navy's in-water 
construction activities:
    Establishment of Shutdown Zones--The Navy will establish shutdown 
zones for all pile driving and removal and drilling activities. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of the activity will occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area). Shutdown 
zones will vary based on the activity type and marine mammal hearing 
group (Table 9).
    Protected Species Observers (PSOs)--The placement of PSOs during 
all pile driving and removal and drilling activities (described in the 
Monitoring and Reporting section) will ensure that the entire shutdown 
zone is visible. Should environmental conditions deteriorate such that 
the entire shutdown zone will not be visible (e.g., fog, heavy rain), 
pile driving and removal and drilling must be delayed until the PSO is 
confident marine mammals within the shutdown zone could be detected.
    Monitoring for Level A and B Harassment--The Navy will monitor the 
Level B harassment zones to the extent practicable, and all of the 
Level A harassment zones. The Navy will monitor at least a portion of 
the Level B harassment zone on all pile driving, removal or drilling 
days. Monitoring zones provide utility for observing by establishing 
monitoring protocols for areas adjacent to the shutdown zones. 
Monitoring zones enable observers to be aware of and communicate the 
presence of marine mammals in the project area outside the shutdown 
zone and thus prepare for a potential cessation of activity should the 
animal enter the shutdown zone.
    Pre-activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving/removal of 
30 minutes or longer occurs, PSOs will observe the shutdown and 
monitoring zones for a period of 30 minutes. The shutdown zone will be 
considered cleared when a marine mammal has not been observed within 
the zone for that 30-minute period. If a marine mammal is observed 
within the shutdown zones listed in Table 10, pile driving and drilling 
activity must be delayed or halted. If pile driving and/or drilling 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 zones or 15 
minutes have passed without re-detection of the animal. When a marine 
mammal for which Level B harassment take is authorized is present in 
the Level B harassment zone, activities may begin and Level B 
harassment take will be recorded. If work ceases for more than 30 
minutes, the pre-activity monitoring of the shutdown zones will 
commence. A determination that the shutdown zone is clear must be made 
during a period of good visibility (i.e., the entire shutdown zone and 
surrounding waters must be visible to the naked eye).
    Soft Start--Soft-start procedures are used to provide additional 
protection to marine mammals by providing warning and/or giving marine 
mammals a chance to leave the area prior to the hammer operating at 
full capacity. For impact pile driving, contractors will be required to 
provide an initial set of three strikes from the hammer at reduced 
energy, followed by a 30-second waiting period, then two subsequent 
reduced-energy strike sets. Soft start will 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.

                        Table 9--Shutdown Zones (m) During Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
                                                                     Humpback                        All other
               Pile type, size, and driving method                    whales         Porpoises        species
----------------------------------------------------------------------------------------------------------------
Vibratory drive 14-inch timber piles............................              30              30              30
Vibratory drive 13-inch polymeric piles.........................              30              30              30
Impact drive 13-inch polymeric piles............................              30              30              30
Vibratory drive 16-inch and 18-inch concrete piles..............              30              30              30
Impact drive 16-inch and 18-inch concrete piles.................              50              45              45
Vibratory drive 24-inch concrete piles..........................              10              10              10
Impact drive 24-inch concrete piles.............................             160             500             200
Vibratory drive 28-inch steel sheet piles.......................              70              65              65
Impact drive 28-inch steel sheet piles..........................             780             500             200
Vibratory drive 42-inch steel pipe piles........................              80             120              50
Impact drive 42-inch steel pipe piles...........................           1,010             500             200
Pre-Drilling....................................................              20             500             200
----------------------------------------------------------------------------------------------------------------

    Based on our evaluation of the applicant's measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means 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 in the 
action area. 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:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
    <bullet> 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

[[Page 15958]]

noise); (2) affected species (e.g., life history, dive patterns); (3) 
co-occurrence of marine mammal species with the action; or (4) 
biological or behavioral context of exposure (e.g., age, calving or 
feeding areas).
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
    <bullet> How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
    <bullet> Mitigation and monitoring effectiveness.
    The Navy has submitted a Marine Mammal Monitoring Plan to NMFS that 
has been approved for this project.

Visual Monitoring

    Marine mammal monitoring during pile driving and removal and 
drilling activities must be conducted by PSOs meeting NMFS' standards 
and in a manner consistent with the following:
    <bullet> Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
    <bullet> At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization;
    <bullet> Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
    <bullet> Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience working as a marine mammal observer 
during construction.
    PSOs must have the following additional qualifications:
    <bullet> Ability to conduct field observations and collect data 
according to assigned protocols;
    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    <bullet> Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    <bullet> Writing skills sufficient to prepare a report of 
observations 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
    <bullet> 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.
    The Navy must establish the following monitoring locations. For all 
pile driving activities, a minimum of one PSO must be assigned to the 
active pile driving or drilling location to monitor the shutdown zones 
and as much of the Level A and Level B harassment zones as possible. If 
the active project location includes demolition activities, then the 
next adjacent pier may be used as an appropriate monitoring location 
ensuring that the aforementioned criteria is met. Monitoring must be 
conducted by a minimum of two PSOs for impact driving, and a minimum of 
three PSOs for vibratory and drilling activities. For activities in 
Table 6 with Level B harassment zones larger than 3,000 m, at least one 
PSO must be stationed on either Pier 14 or the North Jetty to monitor 
the part of the zone exceeding the edge of the Norfolk Naval Station 
(see Figure 3). The third PSO for vibratory and drilling activities 
will be located on Pier 1. PSOs will be placed at the best vantage 
point(s) practicable to monitor for marine mammals and implement 
shutdown/delay procedures (See Figure 3 for representative monitoring 
locations). If changes are necessary to ensure full coverage of the 
Level A harassment zones, the Navy shall contact NMFS to alter observer 
locations (e.g., vessel blocking view from pier location).
    Monitoring will be conducted 30 minutes before, during, and 30 
minutes after all in water construction activities. In addition, 
observers shall record all incidents of marine mammal occurrence, 
regardless of distance from activity, and shall document any behavioral 
reactions in concert with distance from drilling or piles being driven 
or removed. Pile driving activities include the time to install or 
remove a single pile or series of piles, as long as the time elapsed 
between uses of the pile driving equipment is no more than 30 minutes.

[[Page 15959]]

[GRAPHIC] [TIFF OMITTED] TN21MR22.005

Acoustic Monitoring

    The Navy intends to conduct a sound source verification (SSV) study 
for various types of pile driving, extraction, and drilling associated 
with this project. Monitoring shall include two underwater positions 
and shall be conducted in accordance with NMFS guidance (NMFS 2012). 
One underwater location shall be at the standard 10 meters from the 
sound source, while the other positions shall be located at a distance 
of at least 20 times water depth at the pile. If the contractor 
determines that this distance interferes with shipping lanes for vessel 
traffic, or if there is no other reasons why this criteria cannot be 
achieved (e.g., creates an unsafe scenario for crew), the Navy's 
Acoustic Monitoring Plan must offer an alternate site as close to the 
criteria as possible for NMFS' approval. Measurements shall be 
collected as detailed in the Navy's application (Table 13-1) for each 
pile type during the entire pile-driving/extraction/drilling event. 
Monitoring shall be conducted for 10 percent of each type of activity 
that has not previously been monitored at NAVSTA Norfolk (See Table 10 
for complete list).

                                      Table 10--Acoustic Monitoring Summary
----------------------------------------------------------------------------------------------------------------
                                                                                                      Number
               Pile type \1\                    Count \2\       Method of install/removal \2\      monitored \2\
----------------------------------------------------------------------------------------------------------------
13-inch polymeric..........................              14  Vibratory..........................               5
13-inch polymeric..........................              14  Impact.............................               5
13-inch polymeric..........................              14  Drilling...........................               5
16- or 18-inch concrete....................             308  Vibratory..........................              10
24-inch concrete...........................              47  Impact.............................              10
42-inch steel pipe.........................             113  Vibratory..........................              10
42-inch steel pipe.........................             113  Impact.............................              10
28-inch steel sheet........................             229  Vibratory..........................              10
28-inch steel sheet........................             229  Impact.............................              10
----------------------------------------------------------------------------------------------------------------
\1\ Data has previously been collected on the impact driving of 24-inch concrete piles and timber piles at
  NAVSTA Norfolk; therefore, no additional data collection is required for these pile types.

[[Page 15960]]

 
\2\ Some piles may be either vibratory or impact pile driving, or a combination of both. The acoustic monitoring
  report at the end of Year 1 construction shall clarify which installation method was utilized and monitored
  for each pile type.

    Environmental data shall be collected, including but not limited 
to, the following: Wind speed and direction, air temperature, humidity, 
surface water temperature, water depth, wave height, weather 
conditions, and other factors that could contribute to influencing 
underwater sound levels (e.g., aircraft, boats, etc.).

Reporting

    A draft marine mammal monitoring report and a draft acoustic 
monitoring report will be submitted to NMFS within 90 days after the 
completion of pile driving and removal and drilling activities, or 60 
days prior to a requested date of issuance of any future IHAs or LOAs 
for the project, or other projects at the same location, whichever 
comes first. If the Navy goes ahead with their plan to request 
incidental take authorization for future phases of this project, the 
future LOA will be requested for coverage beginning on April 1, 2023; 
the draft reports under this issued IHA must be submitted to NMFS by 
January 31, 2023. The marine mammal report will include an overall 
description of work completed, a narrative regarding marine mammal 
sightings, and associated PSO data sheets. Specifically, the report 
must include:
    <bullet> Dates and times (begin and end) of all marine mammal 
monitoring.
    <bullet> Construction activities occurring during each daily 
observation period, including: (a) How many and what type of piles were 
driven or removed and the method (i.e., impact or vibratory); and (b) 
the total duration of time for each pile (vibratory driving) or hole 
(drilling) and number of strikes for each pule (impact driving);
    <bullet> PSO locations during marine mammal monitoring; and
    <bullet> 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 must 
be reported:
    <bullet> Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
    <bullet> Time of sighting;
    <bullet> 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;
    <bullet> Distance and location of each observed marine mammal 
relative to the pile being driven or hole being drilled for each 
sighting;
    <bullet> Estimated number of animals (min/max/best estimate);
    <bullet> Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
    <bullet> Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
    <bullet> Number of marine mammals detected within the harassment 
zones, by species; and
    <bullet> Detailed information about implementation of any 
mitigation (e.g., shutdowns and delays), a description of specified 
actions that ensured, and resulting changes in behavior of the 
animal(s), if any.
    The acoustic monitoring report must contain the informational 
elements described in the Acoustic Monitoring Plan and, at minimum, 
must include:
    <bullet> Hydrophone equipment and methods: Recording device, 
sampling rate, distance (m) from the pile where recordings were made; 
depth of water and recording device(s);
    <bullet> Type and size of pile being driven, substrate type, method 
of driving during recordings (e.g., hammer model and energy), and total 
pile driving duration;
    <bullet> Whether a sound attenuation device is used and, if so, a 
detailed description of the device used and the duration of its use per 
pile;
    <bullet> For impact pile driving and/or drilling (per pile): Number 
of strikes and strike rate; depth of substrate to penetrate; pulse 
duration and mean, median, and maximum sound levels (dB re: 1 [mu]Pa): 
Root mean square sound pressure level (SPL<INF>rms</INF>); cumulative 
sound exposure level (SEL<INF>cum</INF>), peak sound pressure level 
(SPL<INF>peak</INF>), and single-strike sound exposure level 
(SEL<INF>s-s</INF>); and
    <bullet> For vibratory driving/removal and/or drilling (per pile): 
Duration of driving per pile; mean, median, and maximum sound levels 
(dB re: 1 [mu]Pa): Root mean square sound pressure level 
(SPL<INF>rms</INF>), cumulative sound exposure level 
(SEL<INF>cum</INF>) (and timeframe over which the sound is averaged).
    If no comments are received from NMFS within 30 days, the draft 
reports will constitute the final reports. If comments are received, a 
final report addressing NMFS' comments must be submitted within 30 days 
after receipt of comments. All PSO datasheets and/or raw sighting data 
must be submitted with the draft marine mammal report.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the Navy must immediately 
cease the specified activities and shall report the incident to the 
Office of Protected Resources (OPR) (PR.ITP.Monitoring 
<a href="/cdn-cgi/l/email-protection#94c6f1e4fbe6e0e7d4fafbf5f5baf3fbe2"><span class="__cf_email__" data-cfemail="1b497e6b74696f685b75747a7a357c746d">[email protected]</span></a>) NMFS and to the Greater Atlantic Region New England/
Mid-Atlantic Regional Stranding Coordinator as soon as feasible. If the 
death or injury was clearly caused by the specified activity, the Navy 
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 authorization. The Navy must not resume their activities until 
notified by NMFS.
    The report must include the following information:
    i. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    ii. Species identification (if known) or description of the 
animal(s) involved;
    iii. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    iv. Observed behaviors of the animal(s), if alive;
    v. If available, photographs or video footage of the animal(s); and
    vi. 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., population-
level effects). An estimate of the number

[[Page 15961]]

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 responses 
(e.g., intensity, duration), the context of any responses (e.g., 
critical reproductive time or location, migration), 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's 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 environmental 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).
    Pile driving and removal and drilling activities have the potential 
to disturb or displace marine mammals. Specifically, the project 
activities may result in take, in the form of Level A and Level B 
harassment from underwater sounds generated from pile driving and 
removal and drilling. Potential takes could occur if individuals are 
present in the ensonified zone when these activities are underway.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, TTS, and PTS. No serious injury or 
mortality is anticipated given the nature of the activity and measures 
designed to minimize the possibility of injury to marine mammals. The 
potential for harassment is minimized through the construction method 
and the implementation of the planned mitigation measures (see 
Mitigation section).
    The Level A harassment zones identified in Tables 6 and 7 are based 
upon an animal exposed to pile driving or drilling multiple piles per 
day. Considering the short duration to impact drive each pile and 
breaks between pile installations (to reset equipment and move pile 
into place), means an animal would have to remain within the area 
estimated to be ensonified above the Level A harassment threshold for 
multiple hours. This is highly unlikely given marine mammal movement 
throughout the area, especially for small, fast moving species such as 
small cetaceans and pinnipeds. Additionally, no Level A harassment is 
anticipated for humpback whales due to the required mitigation 
measures, which we expect the Navy will be able to effectively 
implement given the small Level A harassment zone sizes and high 
visibility of humpback whales. If an animal was exposed to accumulated 
sound energy, the resulting PTS would likely be small (e.g., PTS onset) 
at lower frequencies where pile driving energy is concentrated, and 
unlikely to result in impacts to individual fitness, reproduction, or 
survival.
    The Navy's pile driving project precludes the likelihood of serious 
injury or mortality. For all species and stocks, take will occur within 
a limited, confined area (immediately surrounding NAVSTA Norfolk in the 
Chesapeake Bay area) of the stock's range. Level A and Level B 
harassment will be reduced to the level of least practicable adverse 
impact through use of mitigation measures described herein. 
Furthermore, the amount of take authorized is extremely small when 
compared to stock abundance.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff 
2006). Individual animals, even if taken multiple times, will most 
likely move away from the sound source and be temporarily displaced 
from the areas of pile driving or drilling, although even this reaction 
has been observed primarily only in association with impact pile 
driving. The pile driving and drilling activities analyzed here are 
similar to, or less impactful than, numerous other construction 
activities conducted along both Atlantic and Pacific coasts, which have 
taken place with no known long-term adverse consequences from 
behavioral harassment. Furthermore, many projects similar to this one 
are also believed to result in multiple takes of individual animals 
without any documented long-term adverse effects. Level B harassment 
will be minimized through use of mitigation measures described herein 
and, if sound produced by project activities is sufficiently 
disturbing, animals are likely to simply avoid the area while the 
activity is occurring, particularly as the project is located on a busy 
waterfront with high amounts of vessel traffic.
    As previously described in the notice of proposed IHA (87 FR3976; 
January 26, 2022), UMEs have been declared for Northeast pinnipeds 
(including harbor seal and gray seal) and Atlantic humpback whales. 
However, we do not expect authorized takes to exacerbate or compound 
upon these ongoing UMEs. As noted previously, no injury, serious 
injury, or mortality is expected or authorized, and Level B harassment 
takes of humpback whale, harbor seal and gray seal will be reduced to 
the level of least practicable adverse impact through the incorporation 
of the mitigation measures. For the WNA stock of gray seal, the 
estimated stock abundance is 451,600 animals. Given that only 1 to 3 
takes by Level B harassment are authorized for this stock annually, we 
do not expect this authorization to exacerbate or compound upon the 
ongoing UME.
    For the WNA stock of harbor seals, the estimated abundance is 
61,336 individuals. The estimated M/SI for this stock (339) is well 
below the PBR (1,729). As such, the Level B harassment takes of harbor 
seal are not expected to exacerbate or compound upon the ongoing UMEs.
    With regard to humpback whales, the UME does not yet provide cause 
for concern regarding population-level impacts. Despite the UME, the 
relevant population of humpback whales (the Gulf of Maine stock and the 
West Indies breeding population, or distinct population segment (DPS)) 
remains healthy. The Gulf of Marine stock of humpback whales was listed 
as strategic under the MMPA from 1995 through the 2018 SARs but has 
since been removed from this list. Annual SARs have also indicated an 
increasing population trend for the stock, with a current abundance 
estimate of 1369 whales (Hayes et al., 2021).
    Prior to 2016, humpback whales were listed under the ESA as an 
endangered species worldwide. Following a 2015 global status review 
(Bettridge et al., 2015), NMFS established 14 DPSs with different 
listing statuses (81 FR 62259; September 8, 2016) pursuant to the ESA. 
The West Indies DPS, which consists of the whales whose breeding range 
includes the Atlantic margin of the Antilles from Cuba to northern 
Venezuela, and whose feeding range primarily includes the Gulf of 
Maine, eastern Canada, and western Greenland, was delisted. The status 
review identified harmful algal blooms, vessel collisions, and fishing 
gear entanglements as relevant threats for this DPS, but noted that all 
other threats are considered likely to have no or minor impact on 
population size or the growth rate of this DPS (Bettridge et al., 
2015). As described in Bettridge et al., (2015), the West Indies DPS 
has a

[[Page 15962]]

substantial population size (i.e., 12,312 (95 percent CI 8,688-15,954) 
whales in 2004-05 (Bettridge et al., 2003)), and appears to be 
experiencing consistent growth. This trend is consistent with that in 
2021 draft SARs as mentioned above. Further, NMFS is authorizing no 
more than eight takes by Level B harassment annually of humpback whale.
    The project is also not expected to have significant adverse 
effects on affected marine mammals' habitats. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected (with no known particular 
importance to marine mammals), the impacts to marine mammal habitat are 
not expected to cause significant or long-term negative consequences.
    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 species or stock through 
effects on annual rates of recruitment or survival:
    <bullet> No mortality is anticipated or authorized;
    <bullet> Authorized Level A harassment will be very small amounts 
and of low degree;
    <bullet> The intensity of anticipated takes by Level B harassment 
is relatively low for all stocks;
    <bullet> The number of anticipated takes is very low for humpback 
whale, harbor porpoise, and gray seal;
    <bullet> The specified activity and associated ensonified areas are 
very small relative to the overall habitat ranges of all species and do 
not include habitat areas of special significance (Biologically 
Important Areas or ESA-designated critical habitat);
    <bullet> The lack of anticipated significant or long-term negative 
effects to marine mammal habitat;
    <bullet> The presumed efficacy of the mitigation measures in 
reducing the effects of the specified activity; and
    <bullet> Monitoring reports from similar work in the Chesapeake Bay 
have documented little to no effect on individuals of the same species 
impacted by the specified activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take 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.
    The amount of take NMFS is authorizing is below one third of the 
estimated stock abundance for humpback whale, harbor porpoise, gray 
seal, the Northern North Carolina Estuarine Stock of bottlenose dolphin 
and harbor seal (in fact, take of individuals is less than 5 percent of 
the abundance of the affected stocks, see Table 8). This is likely a 
conservative estimate because they assume all takes are of different 
individual animals which is likely not the case. Some individuals may 
return multiple times in a day, but PSOs will count them as separate 
takes if they cannot be individually identified.
    There are three bottlenose dolphin stocks that could occur in the 
project area. Therefore, the estimated 14,989 dolphin takes by Level B 
harassment would likely be split among the western North Atlantic 
northern migratory coastal stock, the western North Atlantic southern 
migratory coastal stock, and the northern North Carolina Estuarine 
stock (NNCES). Based on the stocks' respective occurrence in the area, 
NMFS estimates that there would be no more than 200 takes from the 
NNCES stock, representing 24 percent of that population, with the 
remaining takes split evenly between the northern and southern 
migratory coastal stocks. Based on the consideration of various factors 
as described below, we have determined the number of individuals taken 
will comprise less than one-third of the best available population 
abundance estimate of either coastal migratory stocks. Detailed 
descriptions of the stocks' ranges have been provided in the 
Description of Marine Mammals in the Area of Specified Activities 
section.
    Both the northern migratory coastal and southern migratory coastal 
stocks have expansive ranges and they are the only dolphin stocks 
thought to make broad-scale, seasonal migrations in coastal waters of 
the western North Atlantic. Given the large ranges associated with 
these two stocks it is unlikely that large segments of either stock 
would approach the project area and enter into the Chesapeake Bay. The 
majority of both stocks are likely to be found widely dispersed across 
their respective habitat ranges and unlikely to be concentrated in or 
near the Chesapeake Bay.
    Furthermore, the Chesapeake Bay and nearby offshore waters 
represent the boundaries of the ranges of each of the two coastal 
stocks during migration. The northern migratory coastal stock is found 
during warm water months from coastal Virginia, including the 
Chesapeake Bay and Long Island, New York. The stock migrates south in 
late summer and fall. During cold water months, dolphins may be found 
in coastal waters from Cape Lookout, North Carolina, to the North 
Carolina/Virginia border. During January-March, the southern Migratory 
coastal stock appears to move as far south as northern Florida. From 
April-June, the stock moves back north to North Carolina. During the 
warm water months of July-August, the stock is presumed to occupy the 
coastal waters north of Cape Lookout, North Carolina, to Assateague, 
Virginia, including the Chesapeake Bay. There is likely some overlap 
between the northern and southern migratory stocks during spring and 
fall migrations, but the extent of overlap is unknown.
    The Chesapeake Bay and waters offshore of the mouth are located on 
the periphery of the migratory ranges of both coastal stocks (although 
during different seasons). Additionally, each of the migratory coastal 
stocks are likely to be located in the vicinity of the Bay for 
relatively short timeframes. Given the limited number of animals from 
each migratory coastal stock likely to be found at the seasonal 
migratory boundaries of their respective ranges, in combination with 
the short time periods (~2 months) animals might remain at these 
boundaries, it is reasonable to assume that takes are likely to occur 
only within some small portion of either of the migratory coastal 
stocks.
    Many of the dolphin observations in the Bay are likely repeated 
sightings of the same individuals. The Potomac-

[[Page 15963]]

Chesapeake Dolphin Project has observed over 1,200 unique animals since 
observations began in 2015. Re-sightings of the same individual can be 
highly variable. Some dolphins are observed once per year, while others 
are highly regular with greater than 10 sightings per year (Mann, 
Personal Communication). Similarly, using available photo-
identification data, Engelhaupt et al., (2016) determined that 
specified individuals were often observed in close proximity to their 
original sighting locations and were observed multiple times in the 
same season or same year. Ninety-one percent of re-sighted individuals 
(100 of 110) in the study area were recorded less than 30 km from the 
initial sighting location. Multiple sightings of the same individual 
would considerably reduce the number of individual animals that are 
taken by harassment. Furthermore, the existence of a resident dolphin 
population in the Bay would increase the percentage of dolphin takes 
that are actually re-sightings of the same individuals.
    In summary and as described above, the following factors primarily 
support our determination regarding the incidental take of small 
numbers of the affected stocks of a species or stock:
    <bullet> The take of marine mammal stocks authorized for take 
comprises less than 5 percent of any stock abundance (with the 
exception of the Northern and Southern Migratory stocks of bottlenose 
dolphin);
    <bullet> Potential bottlenose dolphin takes in the project area are 
likely to be allocated among three distinct stocks;
    <bullet> Bottlenose dolphin stocks in the project area have 
extensive ranges and it would be unlikely to find a high percentage of 
the individuals of any one stock concentrated in a relatively small 
area such as the project area or the Chesapeake Bay;
    <bullet> The Chesapeake Bay represents the migratory boundary for 
each of the specified dolphin stocks and it would be unlikely to find a 
high percentage of any stock concentrated at such boundaries; and
    <bullet> Many of the takes would likely be repeats of the same 
animals and likely from a resident population of the Chesapeake Bay.
    Based on the analysis contained herein of the activity (including 
the 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

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

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 consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (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.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that the issuance of this IHA qualifies to be categorically excluded 
from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
U.S. Navy for conducting pile driving and drilling activities 
associated with the demolition and reconstruction of Pier 3 at Naval 
Station Norfolk, in Norfolk, Virginia from April 1, 2022 through March 
31, 2023, that includes the previously explained mitigation, 
monitoring, and reporting requirements. The final IHA can be found at 
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

    Dated: March 15, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-05851 Filed 3-18-22; 8:45 am]
BILLING CODE 3510-22-P


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