Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Skagway Ore Terminal Redevelopment Project

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 promulgated or, if the taking is limited to harassment, an incidental harassment authorization is issued.

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 such species or stocks for taking for certain subsistence uses (referred to here as “mitigation measures”). NMFS must also prescribe requirements pertaining to monitoring and reporting of such takings. The definition of key terms such as “take,” “harassment,” and “negligible impact” can be found in the MMPA and the NMFS's implementing regulations (see 16 U.S.C. 1362; 50 CFR 216.103).

NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial IHA, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal of an IHA following notice to the public providing an additional 15 days for public comments when: (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned; or (2) the activities as described in the Description of the Specified Activities and Anticipated Impacts section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a renewal would allow for completion of the activities beyond that described in the DATES section of the notice of issuance of the initial IHA, provided all of the following conditions are met:

1. A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA);

2. The request for renewal must include the following:

• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take); and
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized; and

3. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.

An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with relevant comments on the initial IHA, have been considered in the development of this proposed IHA renewal, and a summary of agency responses to applicable comments is included in this notice. NMFS will consider any additional public comments prior to making any final decision on the issuance of the requested renewal, and agency responses will be summarized in the final notice of our decision.

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 renewal) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental take authorizations 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 determined that the issuance of the initial IHA qualified to be categorically excluded from further NEPA review. NMFS has preliminarily determined that the application of this categorical exclusion remains appropriate for this renewal IHA.

History of Request

On August 29, 2023, NMFS issued an IHA to MOS to take marine mammals incidental to the terminal redevelopment project in Skagway, Alaska (88 FR 60652, September 5, 2023), effective from October 1, 2023, through September 30, 2024. On February 5, 2024, NMFS received a request from MOS to modify the 2023 IHA; adding 2 takes by Level A harassment and 45 takes by Level B harassment for northern fur seal, and to adjust take requests based on average species densities throughout the year due to work occurring in all seasons and, consequently, increasing authorized take by Level B harassment to 270 for Steller sea lion. On May 3, 2024, NMFS issued Skagway a modification of the initial 2023 IHA (89 FR 36765).

On July 22, 2024, NMFS received an application for the renewal of the initial IHA (as modified). After discussions with MOS about the proposed work to be conducted under the renewal IHA, we received a revised renewal request on September 30, 2024. As described in the application for renewal IHA, the activities for which incidental take is requested consist of a subset of the activities that were covered by the initial authorization but which were not completed prior to its expiration. As required, the applicant also provided a final monitoring report, available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-municipality-skagways-skagway-ore-terminal-redevelopment. The report confirms that the applicant has implemented the required mitigation and monitoring, and which also shows that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted.

Description of the Specified Activities and Anticipated Impacts

MOS planned to redevelop the Skagway Ore Terminal in Skagway, Alaska, with 196 days of pile installation and removal. This project involved installation and removal of 36 temporary steel pile guides, removal of 692 piles, and installation of 244 permanent steel piles. Two different installation methods were used: vibratory pile driving and impact pile driving. Due to unexpected delays, MOS did not complete the construction during the initial 1-year period, completing removal of 385 piles and installation of 101 piles.

This renewal request is to cover a subset of the activities covered in the initial IHA that was not completed during the effective IHA period and which is planned to occur during the effective period of the proposed renewal IHA. Specifically, MOS plans to install two 24-in piles and remove ten timber piles, which are necessary to stabilize a single existing fender. The remainder of the initially planned work would not be conducted under this proposed renewal IHA.

The likely or possible impacts of the MOS's proposed activity on marine mammals is unchanged from the impacts described in the initial IHA. Potential non-acoustic stressors could result from the physical presence of the equipment, vessels, and personnel; however, any impacts to marine mammals are expected to primarily be acoustic in nature. Sounds resulting from pile installation, removal, and drilling 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.

Detailed Description of the Activity

A detailed description of the construction activities for which take is proposed here may be found in the notices of the proposed and final IHAs for the initial authorization (88 FR 23627, April 18, 2023; 88 FR 60652, September 5, 2023). As previously mentioned, this request is for a subset of the activities considered for the initial IHA that were not completed prior to its expiration and which are planned to occur under this proposed renewal IHA. The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the previous notice for the initial IHA. The proposed renewal IHA would be effective from the date of issuance through September 30, 2025.

The subset of activities to be completed under this proposed renewal IHA includes installation of two 24-in steel piles by vibratory and impact pile driving and vibratory removal of ten timber piles. MOS proposes that this subset of activities would take approximately 4 days, including 2 days for the pile installation and 2 days for the pile removal.

Description of Marine Mammals

A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the notice of the proposed IHA for the initial authorization and the notice of issuance of a modified incidental harassment authorization (88 FR 23627, April 18, 2023; 89 FR 36765, May 3, 2024).

NMFS has reviewed the preliminary monitoring data from the initial IHA, recent draft Stock Assessment Reports, and determined that neither this nor any other new information affects which species have the potential to be affected or the pertinent information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents for the initial IHA and modified IHA (88 FR 23627, April 18, 2023; 89 FR 36765, May 3, 2024).

Potential Effects on Marine Mammals and Their Habitat

A description of the potential effects of the specified activity on marine mammals and their habitat for the limited subset of activities for which the authorization of take is proposed here may be found in the notice of the proposed IHA for the initial authorization (88 FR 23627, April 18, 2023). NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, information on relevant Unusual Mortality Events, and other scientific literature, and determined that neither this nor any other new information affects our initial analysis of impacts on marine mammals and their habitat.

Estimated Take

A detailed description of the methods and inputs used to estimate take for the specified activity are found in the notices of the proposed and final IHAs for the initial authorization and the notice of issuance of the modified IHA (88 FR 23627, April 18, 2023; 88 FR 60652, September 5, 2023; 89 FR 36765, May 3, 2024). Specifically, the action area and marine mammal density and occurrence data applicable to this authorization remain unchanged from the initial and modified IHA. Similarly, source levels, type of activity, methods of take, and types of take remain unchanged from the initial and modified IHA. However, there are changes to the estimated Level A harassment zones based on the revised amount of piles driven per day and the 2024 draft Technical Guidance, further discussed below. The estimated number of takes proposed for authorization is based on the subset of activities to be completed under this renewal IHA, and therefore represents a proportion of the initial authorized takes. These takes reflect the estimated remaining number of days of work and number of piles to be driven. Estimated take by Level A and Level B harassment was calculated using the same methodology as in the initial and modified IHA.

On May 3, 2024, NMFS published (89 FR 36762) and solicited public comment on its draft Updated Technical Guidance, which includes updated thresholds and weighting functions to inform auditory injury estimates, and is intended to replace the 2018 Technical Guidance referenced above, once finalized. The public comment period ended on June 17, 2024, and although the Updated Technical Guidance is not final, we expect the Updated Technical Guidance to represent the best available science once it is. To best ensure we have considered an appropriate evaluation of potential effects, in consideration of the best available science, we have conducted basic comparative calculations using the draft Updated Technical Guidance for the purposes of understanding the number of takes by Level A harassment (auditory injury) that would be predicted if the draft Updated Technical Guidance were finalized with no changes. The relevant draft updated thresholds and weighting functions may be found in the executive summary of the draft Updated Technical Guidance, on pages 3 and 4. We have also considered whether modifications to mitigation zones would be appropriate in light of the draft Updated Technical Guidance. Based on the outcome of these comparisons/analyses using the draft Updated Technical Guidance and the number of piles and days of work to be conducted in this renewal, the modeled estimates of take by Level A harassment did not present substantial differences for any species.

In this proposed renewal, use of the draft Updated Technical Guidance results in changes to the estimated Level A harassment zones, but there are no changes to the estimated Level B harassment zones (table 1). The updated Level A harassment zones are used to revise estimations of potential take by Level A harassment. In table 2, we have presented values based on the methodology that was included in the previous authorizations, incorporating the previously described changes (number of piles per day and the Updated Technical Guidance). Takes are a proportion of the initial authorized takes and based on the days of work included in this renewal IHA. Proposed mitigation zones, in consideration of the updated isopleths, are discussed in the Proposed Mitigation section.