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Federal Register / Vol. 86, No. 33 / Monday, February 22, 2021 / Notices
would minimize impacts to marine mammals. These include PSOs, establishment of shutdown zones, preactivity monitoring, use of NVDs and IR
for nighttime and low visibility monitoring, soft start procedures for impact pile driving, and a requirement to begin construction prior to March 1
in the event that construction during the contingency period is necessary.
Further, the authorization includes a requirement for AGDC to cease construction during the Nuiqsut whaling season. Please see the Mitigation Measures section for information about how these measures are expected to reduce impacts to marine mammals.
AGDC is required to abide by marine mammal mitigation measures NMFS
consistently requires in pile driving incidental take authorizations, as they are considered effective at minimizing the impact to marine mammals. After evaluating all of the applicable information, NMFS has concluded that the required mitigation measures will affect the least practicable adverse impact on the affected marine mammal species and stocks and their habitats.
Comment 33: A commenter recommended that NMFS place an overall cap on all authorizations for marine mammal incidental take in the Arctic. The commenter stated that various construction, vessel traffic, oil and gas, and other activities are cumulatively threatening the conservation and recovery of Arctic species.
Response: The MMPA requires that NMFS issue an incidental take authorization, provided the necessary findings are made for the specified activity put forth in the application and appropriate mitigation and monitoring measures are set forth, as described in the Background section of this notice.
Both the statute and the agencys implementing regulations call for analysis of the effects of the applicants activities on the affected species and stocks, not analysis of other unrelated activities and their impacts on the species and stocks. That does not mean, however, that effects on the species and stocks caused by other activities are ignored. The preamble for NMFS
implementing regulations under section 101a5 54 FR 40338; September 29, 1989 explains 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 environmental baseline. Consistent with that direction, NMFS has factored into its negligible impact analyses the impacts of other past and ongoing
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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 UMEs. See the Negligible Impact Analysis and Determination section of this notice.
Our 1989 final rule for the MMPA
implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There we stated that such effects are not considered in making findings under section 101a5
concerning negligible impact. We indicated that NMFS would consider cumulative effects that are reasonably foreseeable when preparing a NEPA
analysis and also that reasonably foreseeable cumulative effects would be considered under section 7 of the ESA
for ESA-listed species.
In this case, we have found that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks, small numbers of marine mammals will be taken relative to the population size of the affected species or stocks, and that there will not be an unmitigable adverse impact on subsistence uses from AGDCs planned activities. Further, the cumulative effects to listed species of the specified activity in combination with other activities are analyzed in the ESA
biological opinion, and the cumulative impacts to the human environment are considered in the Alaska LNG Project Final EIS. Section 101a5D of the MMPA does not allow for a set limit on cumulative takings of marine mammals in the Arctic or other regions.
Comment 34: A commenter stated that NMFS should consider time restrictions during September and October when the region is a BIA for bowhead whales.
Please see the figures in the Center for Biological Diversitys comment letter for additional information. The commenter stated that vessel traffic through the Bering Strait should be prohibited during bowhead and beluga whale migration through the narrow passage.
The commenter further stated that no activities should be authorized when ringed seals are building their subnivean lairs starting in late February until they leave their lairs.
Response: Regarding additional restrictions on construction activities during September and October for bowhead whales, the proposed and final IHAs include a requirement that AGDC
must shut down pile driving operations during the Nuiqsut whaling season, approximately August 25September 15, though the shutdown will be
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adaptively managed based on coordination with the Whaling Captain Associations, as the exact whaling dates may change. Further, the final IHA
includes a requirement that project vessels must transit landward of Cross Island during the Nuiqsut whaling season. Given the short duration of the construction season, prohibiting work during additional periods during the open water season is not practicable, and may extend the duration of the project beyond the one-year duration expected, which would extend the timeframe of impacts to marine mammals and incur additional costs for AGDC. Therefore, this recommendation is impracticable to implement.
Additionally, the BIAs referenced by the commenter Clarke et al., 2015 are addressed in the Description of Marine Mammals in the Area of Specified Activities section of the proposed IHA, and do not spatially overlap with the Level A or Level B harassment zones.
The recommendation to prohibit activities from the time when ringed seals are building their subnivean lairs until they leave their lairs is not practicable to implement for the same reasons stated above for the bowhead whale recommendation. NMFS
included mitigation in the proposed and final IHAs requiring AGDC to begin work by March 1 in the event that work during the contingency period is necessary, which NMFS expects will deter ringed seals from building their subnivian lairs in the project area, and will prohibit further take of ringed seals during that period. Additionally, construction will only occur during the late winter and early spring in the event that AGDC is unable to complete construction during the planned openwater season.
Comment 35: A commenter stated that NMFS should require in-situ SSV be used to ensure that the Level A and Level B zones are sufficient.
Response: As described in the Ensonified Area section, the Level A
and Level B harassment zones were calculated using practical spreading.
NMFS expects that the calculated zone sizes are conservative given that the water in the project area is shallow, and sound does not propagate as well in shallow water. However, since publication of the proposed IHA, AGDC
has determined that it is practicable to conduct SSV, and this final authorization requires AGDC to do so.
Comment 36: The Commission stated that NMFS used source level data from Caltrans 2015 for impact installation of 60-in cast-in-steel-shell CISS piles as a proxy for 48-in piles. However, the source levels included in Table I.2.-1 of
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