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Federal Register / Vol. 86, No. 33 / Monday, February 22, 2021 / Notices
to the MMPA and 50 CFR 216 and to issue incidental take authorizations ITAs, if appropriate. The need for NMFS action is to consider the impacts of AGDCs activities on marine mammals and ultimately allow AGDC to conduct its activities in compliance with the MMPA if the requirements of section 101a5A and D are satisfied. NMFS purpose and need are supported by the analysis in FERCs Alaska LNG Final EIS for AGDCs proposed activities associated with the AK LNG Project.
Regarding the alternatives, NMFS
involvement in development of the Alaska LNG Project Final EIS and role in evaluating the effects of incidental take under the MMPA ensured that the Alaska LNG Project Final EIS includes adequate analysis of a reasonable range of alternatives. For NMFS, declining to issue the requested ITA to AGDC
constitutes the NMFS No Action Alternative, which is consistent with our statutory obligation under the MMPA to grant or deny ITA requests.
Since the underlying activities would not be carried out, as indicated in the Alaska LNG Final EIS Executive Summary, page ES6, the requested take of marine mammals would not occur. NMFS considers the No Action Alternative to be the environmentally preferable alternative as negative impacts to marine mammals would be avoided. If no construction activities occur, no disturbance to marine mammals would occur from pile driving associated with construction of the LNG
facilities and pipelines/transmission lines.
The other alternative NMFS considers is its Proposed Action, which called for issuance of an ITA to the applicant, AGDC, to authorize the requested take subject to specified requirements, including mitigation, monitoring and reporting requirements. As part of this alternative, and through the public and agency review processes under NEPA
and MMPA, NMFS considers a range of mitigation measures to carry out its duty to identify other means of effecting the least practicable adverse impact on the species or stocks that are the subject of the ITA request. For AGDCs construction activities in Prudhoe Bay, these measures were initially identified in the proposed IHA 85 FR 43382; July 16, 2020 and modified for this final IHA in response to public comment and agency review. The Proposed Action alternative considered by NMFS is consistent with the Proposed Action Preferred Alternative evaluated by FERC, as it would provide the ITAs necessary to achieve the activities identified in that alternative and
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analyzed in the Alaska LNG Project Final EIS.
Finally, NMFS Proposed Action to issue ITAs to AGDC for construction activities associated with the AK LNG
Project and FERCs Proposed Action also the Preferred Alternative effectively meet NMFS stated purpose and need for acting. NMFS has an obligation to issue a requested ITA if certain statutory and regulatory determinations are made after providing for adequate public review and comment concerning the ITA request.
Denying the application, as would be required under the No Action Alternative, would be contrary to NMFS responsibilities, given the results of the analysis conducted under the MMPA, and would thus not support NMFS ability to meet its purpose and need for acting.
This approach to evaluating a reasonable range of alternatives is consistent with NMFS policy and practice for issuing MMPA incidental take authorizations. NMFS has independently reviewed and evaluated the Alaska LNG Project Final EIS, including the range of alternatives, and determined that the EIS fully satisfies NMFS NEPA obligations related to its decision to issue this IHA, and we have adopted it.
Regarding the Biological Opinion, NMFS consulted internally with NMFS
Alaska Regional Office AKRO. AKRO
conducted a thorough analysis and we refer any questions or comments on that document to the AKRO.
Please see the mitigation-related comments for a response to the commenters recommendations for inclusion of measures that would mitigate adverse effects on Arctic marine mammals.
Comment 43: The Commission stated that although operators are generally able to complete the installation of a pile if visibility becomes limited due to nightfall or deteriorating weather conditions, NMFS does not typically allow pile driving to occur 24-hours a day in its authorizations. It is not clear whether AGDC has discussed its plans to conduct pile driving at night with local communities, as no reference was made to nighttime pile driving in the outreach materials provided in the POC.
Concerns have been raised by Native Alaskan communities about activities occurring all night long for other projects. Restricting pile driving to daylight hours would help to ensure that AGDC is effecting the least practicable adverse impact on affected species. The Commission recommended that NMFS include in the final authorization the requirement that
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AGDC conduct pile driving activities during daylight hours only.
Response: NMFS analyzes the action that an applicant has proposed. While many applicants propose to conduct pile driving during daylight hours only, in which case NMFS discusses that in the Federal Register notice, and sometimes elects to include it in the IHA itself, AGDC proposed to conduct pile driving up to 24-hours per day.
Work is expected to start in July, when there are 24 hours of available sunlight for visibility, so the crews will do their best to get as much done in the early months of the project as possible.
As the available daylight wanes and fall approaches, AGDC will test NVDs to detect marine mammals in low visibility. If these devices do not prove to be effective in detecting marine mammals, lighting will be used to monitor the immediate area around the pile driving work.
The open water season is extremely short, and therefore, the ability to work 24-hours per day is a key component to AGDCs ability to complete construction on time, particularly given the requirement for AGDC to shut down work during Nuiqsut whaling. Shorter workdays would likely extend the number of days required for the work extending the overall duration of impacts on marine mammals, and could require a second work season and involve significant equipment and manpower expense, which is impracticable.
In AGDCs most recent project update to AEWC in the Third Triannual Meeting 10/28/2020, AGDC discussed pile driving plans, including the 24
hour work day.
Comment 44: To ensure that seal lairs in the construction area are identified and avoided as proposed, the Commission recommended that NMFS
include in the final authorization the requirement that AGDC 1 use an experienced subsistence advisor, and consider the use of trained dogs, to detect seal lairs before construction activities begin and 2 require construction crews to avoid seal lairs by at least 150 m.
Response: As stated in the notice of the proposed IHA, AGDC plans to consult an experienced subsistence advisor for detection of seal lairs during construction activities that occur in winter. The advisor would survey areas within a buffer zone of Dock Head 4
DH4 where water depth is greater than 3 m 10 ft to identify potential ringed seal structures before activities begin.
AGDC will avoid identified ringed seal structures by a minimum of 150 m 500
ft. The subsistence advisor and 150 m
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