Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Furie Operating Alaska, LLC Natural Gas Activities in Cook Inlet, Alaska

SUPPLEMENTARY INFORMATION:

Background

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are proposed or, if the taking is limited to harassment, a notice of a proposed IHA is provided to the public for review.

Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the monitoring and reporting of the takings. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.

Summary of Request

On July 19, 2023, NMFS received a request from Furie for two consecutive IHAs to take marine mammals incidental to natural gas activities in Cook Inlet, Alaska. The application was deemed adequate and complete on April 5, 2024. Furie's request is for take of 12 species of marine mammals, by Level B harassment and, for harbor seals, Level A harassment. Neither Furie nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

Description of the Specified Activity

From September 13, 2024, through September 12, 2025 (year 1), and from September 13, 2025 through September 12, 2026 (year 2), Furie is planning to conduct the following natural gas activities in Middle Cook Inlet, Alaska. In year 1, Furie proposes to relocate the Enterprise 151 jack-up production rig (Enterprise 151 or rig) to the Julius R. Platform (JRP) site, install up to two conductor piles using an impact hammer, and conduct production drilling of up to two natural gas wells at the JRP with the Enterprise 151 rig (or a similar rig) across 45-180 days. During year 2, Furie proposes to relocate the Enterprise 151 rig to the JRP site again, potentially install one to two conductor piles using an impact hammer (depending on whether either or both of these piles are installed or not during year 1), and conduct additional production drilling at the JRP. Furie proposes to conduct the rig towing and pile driving activities between April 1 and November 15 each year, but if favorable ice conditions occur outside of that period, it may tow the rig or pile drive outside of that period. Noise produced by rig towing and installation of the conductor piles may result in take, by Level B harassment, of marine mammals, and for harbor seals, also Level A harassment. Thus, references to tugging activities herein refer to activities where tugs are under load with the rig.

A detailed description of the planned tugging and pile driving project is provided in the Federal Register notice for the proposed IHA (89 FR 51102, June 14, 2024). Since that time, no 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.

Comments and Responses

A notice of NMFS' proposal to issue two consecutive IHAs to Furie was published in the Federal Register on June 14, 2024 (89 FR 51102). That notice described, in detail, Furie's activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. In that notice, we requested public input on the request for authorization described therein, our analyses, the proposed authorizations, and any other aspect of the notice of proposed IHAs, and requested that interested persons submit relevant information, suggestions, and comments.

During the 30-day public comment period, NMFS received comments from Furie, Friends of Animals (FoA), and a member of the public. Further, U.S. Geological Survey provided a recent paper that its researchers co-authored (Himes Boor et al. 2022) that found that Cook Inlet beluga whale population declines are likely due to both low survival rates and low birth rates. All relevant, substantive comments, and NMFS' responses, are provided below and are organized by topic. The comments and recommendations are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/ incidental-take-authorizations-construction-activities. Please see the comment submissions for full details regarding the recommendations and supporting rationale.

Comment 1: Furie stated that the notice of the proposed IHA (89 FR 51102, June 14, 2024) characterizes its planned activities as “oil and gas activities.” Furie stated that it only produces natural gas in Cook Inlet and is not planning to drill for or produce oil. The wells planned during the activities target proven natural gas reserves and will not intersect oil-bearing formations. Furie recommended revising the proposed IHA (89 FR 51102, June 14, 2024) and the Federal Register notice to refer to the planned activities as “natural gas production activities.”

Response: NMFS concurs that it is more appropriate to refer to Furie's activities as natural gas activities rather than oil and gas, and has replaced “oil and gas activities” with “natural gas activities” throughout. Given the inclusion of tugging, NMFS did not include “production” in the overarching term.

Comment 2: Furie stated that the notice of the proposed IHA (89 FR 51102, June 14, 2024) includes language adapted from its application (finalized in October 2023), in which it stated that it was Furie's understanding that Hilcorp Alaska, LLC (Hilcorp) did not intend to operate Enterprise 151 at the Tyonek platform in 2024 and 2025. In subsequent discussions with Hilcorp regarding a potential hand-off of the rig, Furie realized that its understanding was incorrect. In meetings and emails with NMFS in February and March of 2024, Furie clarified that Hilcorp did intend to operate the jack-up rig at the Tyonek platform and provided additional information to amend its planned activities to include towing the rig from the Tyonek platform to Furie's JRP. Furie recommends removing statements characterizing Hilcorp's intent not to operate at the Tyonek Platform.

Response: NMFS' reference to Hilcorp not intending to conduct work with the Enterprise 151 at the Tyonek platform in 2024 or 2025 was in error. NMFS thanks Furie for further clarifying this matter. Of note, while the notice of proposed IHA mistakenly included this outdated statement, NMFS did consider the potential for Hilcorp to operate the Enterprise 151 at the Tyonek platform in its analysis, including as it relates to required mitigation, and the analysis included in the IHA remains appropriate and incorporates the farthest distance that Furie may tow the tug (originating from the Rig Tenders Dock).

Comment 3: Furie stated that the notice of the proposed IHA (89 FR 51102, June 14, 2024) describes Furie's planned activities as taking place in “. . . an otherwise nonindustrial setting for a period of several days.” Oil and gas platforms have operated in this area of Cook Inlet for 60 years with daily activity. Similarly, Furie will tow the jack-up rig in shipping lanes that are transited nearly every day, often several times per day, by commercial ships, offshore supply vessels, and tugs and barges. Thus Furie states it is incorrect to characterize the project area as a “non-industrial setting.”

Response: The full statement in the notice of the proposed IHA (89 FR 51102, June 14, 2024) that Furie is referencing states, “essentially, the project area will become a concentrated work area in an otherwise non-industrial setting for a period of several days.” NMFS recognizes that industrial activities, such as construction and operation of oil and gas platforms as well as vessel transit, as highlighted by Furie, occur in middle Cook Inlet and include overlap with the area that Furie will operate. NMFS did not intend for its statement to imply that no industrial activity occurs in the project area, but instead to highlight that the project will cause a concentrated increase in a specific area in comparison to the baseline in that same area, as this relative comparison can inform how marine mammals may or may not respond to an applicant's activities.

Comment 4: Furie stated that it plans to install the conductors inside the caisson monopod leg of the JRP platform. Therefore, no area of the seafloor will be impacted by pile driving and will not cause a decrease in water quality as NMFS stated in the notice of the proposed IHA (89 FR 51102, June 14, 2024). Furie recommended alternate language in its letter.

Response: NMFS concurs that the reference to decreased water quality and seafloor habitat impacts is in error given that the pile driving will occur within the caisson monopod leg of the JRP platform. The referenced language is not included in this notice of final IHA.

Comment 5: Furie stated in its letter that its application mistakenly proposed a proxy source level of 184 decibels (dB) sound exposure level (SEL) for installation of 20-in conductor piles in Sections 1.1.2.1, 6.2.3, and 6.3.3, while the user spreadsheet in Appendix A of its application used 181 dB SEL for the same activity. Furie intended to propose use of 181 dB SEL. In the proposed IHA (89 FR 51102, June 14, 2024), NMFS estimated the Level A harassment zones using 184 dB SEL. Furie stated that Navy (2015) lists the 184 dB SEL as applicable to 24-inch (in), 30-in, and 36-in piles collectively, but lists 181 dB SEL as specifically applicable to 24-in piles.

Given that the source level applies to piles ranging from 24-in to 36-in, Furie suggested that NMFS retain the Level A harassment zones presented in table 8 of the corrected notice (89 FR 53961; June 28, 2024) and the resulting estimate of take by Level A harassment as valid analyses for installation of conductor piles up to 36-in. That way, NMFS' analysis would encompass all conductor sizes available to Furie, should it choose to use larger conductors in our wells.

Furie noted that this would not affect the Level B harassment zones which are calculated using a different sound source level.

Response: NMFS concurs with Furie that it is appropriate to use 184 dB SEL as a proxy source level for calculating Level A harassment zones for installation of piles that range in size from 20 to 36 in diameters. NMFS has retained the analysis for installation of conductor piles (using sound source levels of 184 dB SEL and 193 dB sound pressure level root mean square (SPL_rms) at 10 m) as included in the notice of the proposed IHA (89 FR 51102, June 14, 2024) but recognizes that the conductor piles that Furie installs may have a diameter of up to 36 in rather than 20 in. NMFS further concurs that this does not affect the calculated Level B harassment zones, as those are calculated using 193 dB SPL_rms at 10 m.

Comment 6: Furie stated that the notice of proposed IHA (89 FR 51102, June 14, 2024) states, “ Site-specific TL (transmission loss) data for pile driving at the JRP site are not available” but that this is not entirely accurate. Furie contracted with JASCO Applied Sciences during the 2015 installation of the JRP to conduct a sound source verification (SSV) to evaluate the impact installation of the 42-in pin piles that hold the JRP in place (cited as Austin et al. 2015 in Section 6.2.3 of Furie's application). The calculated transmission loss coefficient was 20.3 Because the hammer is rated at four times the energy of the one planned for use at the JRP and because it was for the installation of 42- in piles, Furie did not view it as a suitable proxy for the sound source levels (SSL) for the installation of the conductor pipes inside the monopod leg of the platform. Furie stated that it acknowledges that many factors affect transmission loss, including the frequencies of the predominant sound energy emanating from the piles as they are impacted, which may vary with pile size and impact energy. However, the other factors affecting transmission loss, such as bathymetry, depth, salinity, and temperature, are “site-specific” and are relevant to Furie's planned installation of conductors. Furie states that the use of a 15 dB per decade transmission loss likely overestimates the Level A harassment and Level B harassment isopleths and the degree of incidental take.

Response: As stated in the notice of the proposed IHA (89 FR 51102, June 14, 2024), absent site-specific acoustical monitoring with differing measured TL, a practical spreading value of 15 is used as the TL coefficient in the above formula. NMFS concurs that the sentence in the notice that states that “TL data for pile driving at the JRP site are not available” could have been worded in a way that is more accurate to acknowledge that SSV has been conducted at the project site for a different size pile than that which Furie plans to install. NMFS has updated this statement to state “Site-specific TL data for pile driving with relevant parallel characteristics are not available.” This wording change does not affect NMFS' analysis, as NMFS still finds that the default transmission loss coefficient of 15 is appropriate.

Comment 7: Furie stated that in table 13 of the notice of the proposed IHA (89 FR 51102, June 14, 2024), NMFS identifies the “best” Cook Inlet beluga abundance estimate (Nbest) as 279. The estimated take as a percentage of this stock abundance is 3.9 percent. Furie states that the fourth footnote contradicts the table, describing the most recent abundance ranging from 290 to 386, with a best estimate of 331 animals, citing Goetz et al. (2023) as the source. The footnote also describes the authorized take as 3.3 percent of the stock rather than the 3.9 percent listed in the table. Furie believes that the estimate in Goetz et al. 2023 is the best available data and recommends a revision of the table to align with the information provided in the footnote.

Response: As noted by Furie, Goetz et al. (2023) provides the most recent Cook Inlet beluga whale abundance estimate. Footnotes 9 and 4 in tables 3 and 13, respectively, of the notice of the proposed IHA (and table 1 and table 11 in this notice) also state that “in accordance with the MMPA, this population estimate will be incorporated into the Cook Inlet beluga whale SAR, which will be reviewed by an independent panel of experts, the Alaska Scientific Review Group. After this review, the SAR will be made available as a draft for public review before being finalized.” Even when more recent abundance estimates are available, NMFS typically considers abundance estimates from the SARs to be the best available given the rigorous SAR review process. However, in this case, regardless of whether the number of instances of takes is compared to the abundance estimate in the current Cook Inlet beluga whale SAR or the Goetz et al. (2023) abundance estimate, the number of instances of take as a percent of the stock abundance is less than 4 percent and is considered to be of small numbers.

Comment 8: FoA states that the proposed IHAs would allow for the take of 11 beluga whales, or 3 percent, of the Cook Inlet population per year for a total of up to two consecutive years. Therefore, Furie is proposing to take at least 22 or 6 percent of beluga whales if NMFS approves the IHAs. FOA cites the Cook Inlet beluga whale 2018 SAR that states “even one take every two years may still impede recovery.” FoA states that the estimated number of takes is indefinite, and based on the vast amount of harmful impacts it says Furie's proposed project would add to the existing anthropogenic activities within Cook Inlet, the actual number of takes is likely to be higher.

Response: The commenter appears to be misinterpreting the discussion of take in the Cook Inlet beluga whale SAR. The statement in the 2018 SAR that the commenter quoted is referencing take by mortality. The Furie IHAs do not authorize take by serious injury or mortality, and for all species other than harbor seals (for which take by Level A harassment is authorized), authorized take is by Level B harassment only. As described further in the Negligible Impact Analysis and Determination section, the authorized takes are not expected to have more than a negligible impact on all marine mammal stocks. As described in further detail in that section, the area of exposure would be limited to habitat primarily used for transiting and not areas known to be of particular importance for feeding or reproduction, the activities are not expected to result in Cook Inlet beluga whales abandoning critical habitat nor are they expected to restrict passage of Cook Inlet beluga whales within or between critical habitat areas, and any disturbance to Cook Inlet beluga whales is expected to be limited to temporary modifications in behavior, and would not be of a duration or intensity expected to result in impacts on reproduction or survival.

The commenter does not provide support for its assertion that the estimated number of takes is indefinite, and these IHAs are each effective for one year. The commenter also does not provide support for its assertion that the actual number of takes is likely to be higher than the estimated number included in the proposed IHA (89 FR 51102, June 14, 2024) and authorized in this final IHA.

Comment 9: FoA stated that despite this critical time for monitoring population trends, NMFS has delayed aerial surveying of the species from June 2024 until June 2025, due to less aggregation of the whales in places they previously and regularly have been observed (NMFS 2024). Authorization of further take of the species without performing consistent surveying methods is especially concerning since the resident population is known for behavioral congregation patterns, such as for feeding and reproduction (NMFS 2021).

Response: The MMPA requires NMFS to make its findings based upon the best available science, regardless of whether any particular survey is continued or not. However, to clarify, and as described in a recent article (NMFS 2024c), since 2010, NOAA Fisheries scientists have been conducting a biennial aerial survey in early-to-mid June to estimate the abundance and trends of Cook Inlet beluga whales. Beluga whales gather in the upper inlet in June to feed on returning fish runs. The biennial aerial survey involved flying a coastal trackline of all nearshore waters in Cook Inlet and a series of offshore transects across the inlet. When they encountered a beluga group, the plane made multiple passes alongside the group so observers could count the whales present and collect videos. Scientists used these observation data to estimate group sizes. The surveys were designed to take advantage of the clumped distribution of these whales in early June, when they are often found in a small number (two to eight) of large groups. However, in recent years, whales have not been as aggregated in places that researchers used to regularly see them, such as the Susitna Delta.

To identify the best and most cost-effective approach for estimating abundance and trends, in 2021 and 2022 scientists added line-transect aerial surveys within Susitna Delta, Chickaloon Bay, and Trading Bay. They also conducted the conventional aerial survey for comparative purposes. Scientists found that the sightings data from the line-transect survey approach produced a reliable abundance estimate similar to the conventional method. The method also does not require months of video analysis, instead producing an estimate shortly after the completion of field work.

As to the reason for pushing the 2024 survey to 2025, in 2024, researchers had hoped to replace the conventional aerial survey method with a line-transect aerial survey conducted in combination with a Cook Inlet beluga photo-identification project. This project obtains overhead photos taken from an uncrewed aerial system (UAS). However, the plane chartered for survey operations had mechanical issues and the team was unable to secure an alternative. Therefore, the team plans to conduct the survey next year.

Researchers expect to be able to obtain an abundance estimate from the photo-identification project, which uses UAS technology, in 2024. They have been using UAS since 2017, and the count information collected using this technology has allowed NMFS to produce a comparable abundance estimate to other approaches. However, the crewed aerial survey can provide distribution information, as it covers the entire Inlet's coastline and offshore waters, areas where UAS/photo identification studies do not currently occur. Currently UAS use has been limited to areas in the upper inlet such as the Susitna Delta, Knik Arm, Chickaloon Bay, and Trading Bay. Further, UAS is limited in that it has to operate within line of sight of the person operating the drone. It is also limited by weather and tides. Tides restrict access to these areas for boats used to deploy the drones.

It is unclear what the commenter means in stating that authorization of further take of the species without performing consistent surveying methods is especially concerning since the resident population is known for behavioral congregation patterns, such as for feeding and reproduction. However, as described above, the planned changes to survey methods are based on a determination that the newly planned method is the best and most cost-effective approach for estimating abundance and trends.

Comment 10: FOA urges NMFS to deny issuance of IHAs to Furie, as well as any renewal IHAs, and to cease issuing IHAs that include take of Cook Inlet beluga whales until they are on a successful path to recovery. FoA further urges NMFS to cease issuing IHAs that include take of Cook Inlet beluga whales and marine mammals altogether until threats of high concern to Cook Inlet marine mammals can be better understood and addressed through continued research and action initiatives. FoA states that continuous granting of incidental take permits and IHAs for anthropogenic activities by Federal agencies diminishes the recovery and survivability of Cook Inlet beluga whales and is inconsistent with the purposes of the MMPA.

Response: The MMPA requires that NMFS issue an ITA for a specified activity, provided the necessary findings are made and appropriate mitigation and monitoring measures are set forth, as described in the Background section of this notice. Please refer to that section for additional information. Such findings have been made, and therefore, NMFS has issued two consecutive IHAs to Furie.

Consistent with the MMPA, NMFS has included measures to ensure the least practicable adverse impact on marine mammal species and their habitat, and has also included appropriate monitoring and reporting requirements. For example, during tugging and pile driving, Furie must conduct pre-clearance monitoring prior to commencing activities and must delay the start of activities if marine mammals are within designated pre-clearance zones. Furie must implement soft start techniques and shut down activities if an animal enters a designated shutdown zone for pile driving activities, and it must conduct tugging activities with a favorable tide to reduce noise output. Please see the Mitigation section of this notice for a full description of the required mitigation measures.

Further, monitoring results from previous similar tugging and construction activities have not recorded responses from Cook Inlet beluga whales that indicate impacts that would affect the survival or recovery of Cook Inlet beluga whales. Hilcorp's most recent annual marine mammal monitoring report indicates that it did not record any sightings of beluga whales from their rig-based monitoring efforts (Horsley and Larson, 2023), and the most recent monthly monitoring report that describes monitoring results from the May 2024 rig transiting also indicates no recorded sightings of beluga whales during transit (Weston Solutions, 2024). Further, monitoring data from construction at the Port of Alaska (POA) demonstrates Level B harassment of Cook Inlet beluga whales typically manifests as increased swim speeds past the POA, tighter group formations, and cessation of vocalizations, none of which would be expected to impact survival or recovery of Cook Inlet beluga whales.

Comment 11: FoA stated that the potential impacts from Level B harassment that Furie's proposed project will have on the species are varied and numerous. They assert this includes hearing impairment, separation of family groups, loss of prey and/or habitat, disturbances to biologically sensitive feeding and mating areas, bodily harm, behavioral changes, and synergistic and/or cumulative effects, among others. For these reasons, FoA states the numerous negative effects on marine mammals do not constitute negligible impacts, and therefore, Furie does not meet the qualifications for obtaining an IHA under the MMPA.

Response: NMFS disagrees with the FoA's claim that the effects of Furie's activities on marine mammals do not constitute negligible impact. In the Negligible Impact Analysis and Determination section of the notice of the proposed IHAs (89 FR 51102, June 14, 2024) and this notice, we describe how the take estimated and authorized for Furie's project will have a negligible impact on all of the affected species, including Cook Inlet beluga whales. We discuss how this determination is based upon the authorized number of takes of each stock that might be exposed briefly during the activity, the low level of behavioral harassment (and for harbor seals, small degree of permanent threshold shift (PTS)) that might result from an instance of take that could occur within a year, and the likelihood that the mitigation measures required further lessen the likelihood or severity of exposures. NMFS has considered the status of each stock in its analysis, as well as the importance of reducing impacts from anthropogenic noise, and there is no evidence that brief exposure to low level noise causing Level B harassment (and for harbor seals, PTS) would have the impacts asserted by the commenter.

NMFS' negligible impact finding considers a number of parameters including, but not limited to, the nature of the activities ( e.g., duration, sound source), effects/intensity of the taking, the context of takes, and mitigation. NMFS understands that marine mammals will have varying responses to elevated noise levels resulting from pile driving and tugging activities such as masking of communication and foraging signals, avoidance behaviors, and more. However, NMFS does not anticipate that these responses will result in separation of family groups, nor has the commenter provided information supporting that assertion.

No serious injury or mortality ( i.e., bodily harm, as referred to by the commenter) is anticipated or authorized. While exposure to elevated noise levels associated with Furie's activities may result in low-level behavioral changes in marine mammals (and for harbor seals, a small degree of PTS ( i.e., hearing impairment, as referred to by the commenter) for a maximum of three animals per year), NMFS' review of the best available scientific evidence, as summarized and cited herein, demonstrates that these responses do not rise to the level of having adverse effects on the fitness of individuals for reproduction or survival, and thus would not affect reproduction or survival rates of any stock, and the commenter has provided no evidence to the contrary. Further, while Furie's project area does overlap ESA-designated critical habitat for Cook Inlet beluga whale, the impacts from the project are not expected to occur in areas that are important for feeding or reproduction for any species, including Cook Inlet beluga whales, nor are they anticipated to result in a loss of prey or habitat. Monitoring data from Hilcorp's activities suggest that tugging activities do not discourage Cook Inlet beluga whales from transiting throughout Cook Inlet and between critical habitat areas and that the whales do not abandon critical habitat areas (Horsley and Larson, 2023). In addition, large numbers of Cook Inlet beluga whales have continued to use Cook Inlet and pass through the area, likely traveling to critical foraging grounds found in upper Cook Inlet ( i.e., outside of the project area), while noise-producing anthropogenic activities, including vessel use, have taken place during the past two decades ( e.g., Shelden et al. 2013, 2015, 2017, 2022; Shelden and Wade 2019; Geotz et al. 2023). Therefore, NMFS has appropriately concluded that the taking from year 1 and year 2 activities each will have a negligible impact on the affected stocks, and accordingly has issued two consecutive IHAs to Furie.

Please see NMFS' response to Comment 13 regarding cumulative effects.

Comment 12: FoA stated that after the finalization of the Recovery Plan in December 2016 (NMFS 2016a) and a Species in the Spotlight 2021-2025 Priority Action Plan for the Cook Inlet beluga whale (NMFS 2021) in place, NMFS should emphasize greater measures to enhance the survival of the species and address a needed reduction of anthropogenic activities within Cook Inlet. Doing so will support recovery efforts while eliminating long-term harassment and further endangerment to the species.

Response: NMFS has prescribed mitigation measures in the IHAs to effect the least practicable adverse impact on Cook Inlet beluga whales and all other affected marine mammal species. Of note, these IHAs extend the pre-clearance zone for Cook Inlet beluga whales ahead of tugging activities to include the extent to which protected species observers (PSOs) can feasibly observe, rather than a zone of 1,500 meters (m) included in previous IHAs for similar activities (87 FR 62364, October 14, 2022).

We note that NMFS' authority under section 101(a)(5)(A) of the MMPA pertains only to the authorization of marine mammal take incidental to that activity and to the prescription of appropriate mitigation, monitoring, and reporting requirements. Therefore, while NMFS cannot reduce anthropogenic activities within Cook Inlet, we will continue to consider the vulnerable status of Cook Inlet beluga whales in our negligible impact analyses and require that any activity for which we issue an ITA will meet that standard; and we will prescribe appropriate measures under the least practicable adverse impact standard.

Comment 13: FOA stated that NMFS should consider the potential cumulative impact from past, current, and future activities and their impact on the environmental baseline when determining whether “take is negligible” (which we interpret as a reference to the negligible impact standard). FoA quoted the Cook Inlet beluga whale recovery plan (NMFS 2016a), which states “applications for IHAs have historically been reviewed on the basis of an individual activity in isolation. But the high level of human activity in Cook Inlet has increased such that cumulative effects of multiple activities must be appropriately accounted for.” FoA further stated that there are already a prominent number of authorizations throughout Cook Inlet allowing for the take of Cook Inlet beluga whales, stating that between 2017 and 2025, NMFS is projected to authorize approximately 120,000 incidental takes of Cook Inlet beluga whales (Migura and Bollini 2022).

Response: We note first that the Migura and Bollini (2022) paper cited by FoA, regarding the projected authorized take of Cook Inlet beluga whale through 2025, seems to have led to a misunderstanding of the takes authorized or permitted by NMFS. The vast majority of the asserted ~120,000 total takes (over 99 percent), including all of the very small amount of take by Level A harassment, were authorized under directed research or enhancement permits, which directly support research or actions identified in the Recovery Plan to address Cook Inlet beluga whale recovery goals. Further, the vast majority (~99 percent) of the total permitted research or enhancement take numbers are low-level MMPA Level B harassment from remote or non-invasive procedures that were considered “not likely to adversely affect” listed species under the consultation requirements of section 7 of the ESA ( i.e., take under the ESA is neither expected to occur nor exempted for those activities). We refer the commenter to NMFS' Cook Inlet beluga whale 5-year review (NMFS 2022; section 2.3.2), in which NMFS addressed the assertions in Migura and Bollini (2022). Last, it is worth noting that for research activities, authorized takes are typically a larger number than the actual takes that occur. For example, 22,090 takes were authorized for Cook Inlet beluga research occurring in 2019 but only 2,405 takes occurred.

Regarding the comprehensive evaluation and minimization of permitted takes, we reference the analysis that has already been completed through NMFS' 2019 Biological and Conference Opinion on the Proposed Implementation of a Program for the Issuance of Permits for Research and Enhancement Activities on Cetaceans in the Arctic, Atlantic, Indian, Pacific, and Southern Oceans (NMFS 2019), which determined that the research and enhancement takes permitted by the program would not jeopardize the existence of any of the affected species. As part of our programmatic framework for permitting directed take of ESA species, the Permits and Conservation Division will continue to closely evaluate the number and manner of Cook Inlet beluga whale takes requested by each applicant, how the proposed research ties to recovery plan goals, and the collective number of authorized and requested takes to consider the potential cumulative impact of the activities to the population. Each directed take annual report is reviewed to understand how authorized takes were actually used and to closely monitor the impacts that permitted research methods are having on the target animals.

Regarding the comment about the negligible impact determination for this action, neither the MMPA nor NMFS' implementing regulations call for consideration of the take resulting from other activities in the negligible impact analysis. The preamble for NMFS' implementing regulations (54 FR 40338, September 29, 1989) states, in response to comments, that the impacts from other past and ongoing anthropogenic activities are to be incorporated into the negligible impact analysis via their impacts on the baseline. Consistent with that direction, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline ( e.g., as reflected in the density/distribution and status of the species, population size and growth rate, and other relevant stressors (such as incidental mortality in commercial fisheries, Unusual Mortality Events (UMEs), and subsistence hunting)); see the Negligible Impact Analyses and Determinations section of this notice of issuance. The 1989 final rule for NMFS' implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There, NMFS stated that such effects are not considered in making findings under section 101(a)(5) concerning negligible impact. In this case, the two IHAs issued to Furie are appropriately considered an unrelated activity relative to other ITAs currently in effect or proposed within the specified geographic region. The ITAs are unrelated in the sense that they are discrete actions under section 101(a)(5)(D) issued to discrete applicants (with the exception of the two consecutive IHAs issued to Furie).

Section 101(a)(5)(D) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals and will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence uses. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals (see 50 CFR 216.104(a)(1)). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(D) is generally defined and described by the applicant. Here, Furie was the applicant for the IHAs, and we are responding to the specified activities as described in that application (and making the necessary findings on that basis). The take estimates NMFS authorizes represent the upper limits for individuals and some instances of take may represent multiple exposures to a single individual.

NMFS' response to public comments in the 1989 implementing regulations also indicated (1) that we would consider cumulative effects that are reasonably foreseeable when preparing a National Environmental Policy Act (NEPA) analysis, and (2) that reasonably foreseeable cumulative effects would also be considered under section 7 of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS has prepared an EA that addressed cumulative impacts of Furie's activities and all past, present and reasonably foreseeable future actions. Additionally, the NMFS Alaska Regional Office (AKRO) issued a Biological Opinion on September 11, 2024, under section 7 of the ESA, on the issuance of two IHAs to Furie under section 101(a)(5)(D) of the MMPA by NMFS OPR that independently considered the reasonably foreseeable cumulative effects of activities on ESA-listed species.

Comment 14: FoA states that it supports the creation of annual programmatic EAs, an annual permitting cycle, and the overall analysis of cumulative effects from multiple IHAs. FoA further urges NMFS to complete its development of an analysis on the cumulative effects of anthropogenic activities and threats of high concern to enhance the recovery efforts for Cook Inlet beluga whales. In a related comment, FOA stated that to prevent further decline of Cook Inlet beluga whales, NMFS should not stray from conducting a more comprehensive assessment of the cumulative impacts related to noise, habitat degradation, chemical exposure, mortality, stranding, climate change, and migration of the species and its prey. FoA states that synergistic effects of toxic chemical exposure and noise are particularly concerning in coastal areas where pollutants are concentrated, and in areas heavy with potential spillage, engine leaks, and consistent vessel traffic.

Response: Although not explicit, the commenter may be referring to a 2015 notice of intent to prepare a programmatic EA (80 FR 48299; August 12, 2015) and a 2014 notice of intent to prepare an EIS (79 FR 61616, October 14, 2014). In the 2015 notice, NMFS announced its intent to (1) prepare a Programmatic Environmental Assessment (EA) to analyze the environmental impacts of issuing annual Incidental Take Authorizations (ITAs) pursuant to the Marine Mammal Protection Act (MMPA) for the taking of marine mammals incidental to anthropogenic activities in the waters of Cook Inlet, AK, for the 2016 season and; (2) its intent to institute an MMPA authorization cycle wherein companies planning to submit MMPA incidental harassment authorization applications for work to be conducted in Cook Inlet in 2016 do so by no later than October 1, 2015.

In the 2014 notice, NMFS declared its intent to prepare an EIS for oil and gas-related incidental take authorizations in Cook Inlet, Alaska (79 FR 61616, October 14, 2014). However, in a 2017 Federal Register notice (82 FR 41939, September 5, 2017), NMFS indicated that due to a reduced number of ITA requests in the region, combined with funding constraints at that time, we were postponing any potential preparation of an EIS for oil and gas activities in Cook Inlet. As we stated in the 2017 Federal Register notice, should the number of ITA requests, or anticipated requests, noticeably increase, NMFS will re-evaluate whether preparation of an EIS is necessary.

Currently, the number of ITA requests for activities that may affect marine mammals in Cook Inlet is at such a level that preparation of an EIS is not yet necessary, nor are annual EAs as proposed in 2015 (80 FR 48299; August 12, 2015). Nonetheless, under NEPA, NMFS is required to consider cumulative effects of other potential activities in the same geographic area as the proposed action, and these are discussed in greater detail in NMFS' Final EA prepared for this issuance of two consecutive IHAs to Furie for natural gas activities, which supports our finding that NMFS' issuance of the IHAs will not have a significant impact on the human environment.

Regarding the threats of high concern identified by FoA (noise, habitat degradation, chemical exposure, mortality, stranding, climate change, and migration of Cook Inlet beluga whales and their prey), NMFS addressed these threats, as appropriate, in the Final EA. Noise from both the project and other nearby activities is addressed throughout the Final EA. The Cumulative Effects section of the Final EA (Section 4.8) addresses subsistence hunting, pollution, fisheries interaction, vessel traffic, coastal zone development, oil and gas development, mining, marine mammal research, and climate change impacts, all of which contribute or could potentially contribute ( e.g., subsistence hunting of Cook Inlet beluga whales, which is not known to currently occur in Cook Inlet) to the threats identified by FoA. Specifically related to pollutants, as noted in the Final EA, a recent study of Cook Inlet beluga whales, the species most at risk in the action area, suggests a potential link between gastrointestinal cancer in belugas to environmental PAH contamination (Poirier et al, 2019). There is also preliminary evidence of female marine mammals passing contaminant loads to offspring (Peterson et al, 2018; Andvik et al, 2021) as well as a relationship between contaminant exposure and congenital abnormalities (Burek-Huntington et al. 2022). However, the effects of transfer of contaminant loads to offspring repeatedly across generations is unclear, and additional research on the causes of congenital abnormalities in Cook Inlet beluga whales (including effects of contaminant exposure, genetic diversity, and nutrition) is needed. Of note, while the Recovery Plan for the Cook Inlet Beluga Whale identifies pollution as a threat, it notes that available information indicates that the magnitude of the pollution threat to Cook Inlet beluga whales appears low, though not all pollutants to which Cook Inlet beluga whales are exposed have been studied in that environment.

While consideration of the activities discussed above in sum suggests an increase in industrialization of Cook Inlet, many of these activities are spatially and temporally limited and do not permanently reduce or degrade the habitat available to marine mammals or their prey species. Cook Inlet is also a geographically vast area, and many activities, including the activities planned by Furie and other noise-producing activities, are geographically distinct to various portions of the inlet, which prevents the continued or permanent disruption of one particular portion of the inlet for extended durations, therefore providing other areas of available habitat.

It is unclear what the commenter is referring to in terms of addressing migration of Cook Inlet beluga whales and their prey as a threat. However, as noted in response to Comment 9, in recent years, Cook Inlet beluga whales have not been as aggregated in places that researchers used to regularly see them, such as the Susitna Delta.

Comment 15: FoA stated that NMFS should extend its public comment period to at least one month to obtain adequate public findings before the issuance of consecutive IHAs.

Response: Publication of the notice of proposed IHAs (89 FR 51102, June 14, 2024) began a 30-day public comment period that served as the statutorily-required comment period for each of the proposed IHAs. FoA did not provide reasoning for why this initial comment period was insufficient. As such, and given that Furie's planned project schedule did not allow for extension of the comment period, NMFS has not extended the public comment period for the proposed IHAs.

Comment 16: USGS provided a recent paper that its researchers co-authored (Himes Boor et al. 2022) that found that Cook Inlet beluga whale population declines are likely due to both low survival rates and low birth rates.

Response: NMFS thanks USGS for providing this paper for NMFS' consideration. As described in the paper, the results of this study can assist researchers and managers in identifying the most significant factors contributing to the decline of Cook Inlet beluga whales, and we have incorporated consideration of this paper into our analysis of the potential impacts of Furie's activities on Cook Inlet beluga whales in the EA.

Changes From the Proposed IHA to Final IHA

In the final IHAs, NMFS updated the measure that describes the clearance zones required for tugging activities during daylight hours (measure 4(d) in the IHAs). The updated language does not change the intent of the measure, but rather, is intended to clarify that if a beluga whale is observed within the relevant clearance zone during those 30 minutes, operations may not commence until the beluga whale(s) is no longer detected at any range and 30 minutes have elapsed without any observations of beluga whales. The measure in the proposed IHA could have potentially been interpreted to imply that activities could commence after 30 minutes even if a beluga whale was still detected by PSOs. NMFS also amended measure 5(b) of the IHAs to state that in addition to the two PSOs that must be stationed on the tug or jack-up rig for monitoring purposes for the entirety of the jack-up rig towing and positioning operations, an additional PSO must be stationed on the JRP platform. Last, NMFS added a footnote to Table 2 of the IHAs to clarify that the shutdown zone for Cook Inlet beluga whales during conductor pipe pile driving is different from other mid-frequency cetaceans. The footnote states “If Cook Inlet beluga whales are observed within or approaching the Level B harassment zone for conductor pipe installation, impact installation of the conductor pipe must be delayed or halted until the beluga(s) have voluntarily left and been visually confirmed to be 100 m beyond the Level B harassment zone and on a trajectory away from the zone, or 30 minutes have passed without subsequent detections.” This requirement was included in the notice of the proposed IHAs (89 FR 51102, June 14, 2024).

Further, in response to Furie's comments, NMFS has changed references to “oil and gas activities” to “natural gas activities” throughout, clarified that Hilcorp does intend to operate at Tyonek platform, and clarified that site-specific TL data for pile driving with relevant parallel characteristics are not available. Also in response to Furie's comments, NMFS updated its analysis to note that Furie may install conductor piles ranging in size from 20-in to 36-in depending on availability.

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website ( https://www.fisheries.noaa.gov/find-species).

Additional information on Cook Inlet beluga whales may be found in NMFS' 2016 Recovery Plan for the Cook Inlet beluga whale, available online at https://www.fisheries.noaa.gov/resource/document/recovery-plan-cook-inlet-beluga-whale-delphinapterus-leucas, and NMFS' 2023 report on the abundance and trend of Cook Inlet beluga whales in Cook Inlet in June 2021 and June 2022, available online at https://www.fisheries.noaa.gov/resource/document/abundance-and-trend-belugas-delphinapterus-leucas-cook-inlet-alaska-june-2021-and.

Table 1 lists all species or stocks for which take is expected and authorized for this activity and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no serious injury or mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats.

Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. 2022 SARs. All values presented in table 1 are the most recent available at the time of publication (including from the draft 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.