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Federal Register / Vol. 86, No. 113 / Tuesday, June 15, 2021 / Notices
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., populationlevel effects. An estimate of the number 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 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.
To avoid repetition, the discussion of our analyses applies to all the species listed in Table 10 for which we authorized take, other than CIBWs, as the anticipated effects the POAs activities on marine mammals are expected to be relatively similar in nature. For CIBWs, there are meaningful differences in anticipated individual responses to activities, impact of expected take on CIBWs, or impacts on habitat; therefore, we provide a supplemental analysis for CIBWs, independent of the other species for which we authorize take.
NMFS has identified key factors which may be employed to assess the level of analysis necessary to conclude whether potential impacts associated with a specified activity should be considered negligible. These include but are not limited to the type and magnitude of taking, the amount and importance of the available habitat for the species or stock that is affected, the duration of the anticipated effect to the species or stock, and the status of the species or stock. The following factors support negligible impact determinations for the affected stocks of humpback whales, killer whales, harbor porpoise, harbor seals, and Steller sea lions. The potential effects of the proposed actions on these species are
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discussed above. Some of these factors also apply to CIBWs; however, a more detailed analysis for CIBWs is provided below.
No takes by mortality or serious injury are anticipated or authorized;
The number of total takes by Level A and Level B harassment are less than 2 percent of the best available abundance estimates for all stocks;
Take would not occur in places and/or times where take would be more likely to accrue to impacts on reproduction or survival, such as within ESA-designated or proposed critical habitat, biologically important areas BIA, or other habitats critical to recruitment or survival e.g., rookery;
Take would occur over a short timeframe i.e., up to 21 total hours spread over nine to 24 non-consecutive days, and would be limited to the short duration a marine mammal would likely be present within a Level B harassment zone during pile driving. This short timeframe minimizes the probability of multiple exposures on individuals, and any repeated exposures that do occur are not expected to occur on sequential days, decreasing the likelihood of physiological impacts caused by chronic stress or sustained energetic impacts that might affect survival or reproductive success;
Any impacts to marine mammal habitat from pile driving including to prey sources as well as acoustic habitat, e.g., from masking are expected to be temporary and minimal; and Take would only occur within upper Cook Inleta limited, confined area of any given stocks home range.
For CIBWs, we further discuss our negligible impact findings in the context of potential impacts to this endangered stock. As described in the Recovery Plan for the CIBW NMFS, 2016a, NMFS
determined the following physical or biological features are essential to the conservation of this species: 1
Intertidal and subtidal waters of Cook Inlet with depths less than 30 feet mean lower low water 9.1 m and within 5 mi 8 km of high and medium flow anadromous fish streams; 2 Primary prey species consisting of four species of Pacific salmon Chinook, sockeye, chum, and coho, Pacific eulachon, Pacific cod, walleye pollock, saffron cod, and yellowfin sole, 3 Waters free of toxins or other agents of a type and amount harmful to CIBWs, 4
Unrestricted passage within or between the critical habitat areas, and 5 Waters with in-water noise below levels resulting in the abandonment of critical habitat areas by CIBWs. The SFD would not impact essential features 13 listed above. All construction would be done
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in a manner implementing best management practices to preserve water quality, and no work would occur around creek mouths or river systems leading to prey abundance reductions.
In addition, no physical structures would restrict passage; however, impacts to the acoustic habitat are of concern. Previous marine mammal monitoring data at the POA demonstrate CIBWs indeed pass by the POA during pile driving e.g., 61 North Environmental, 2021. As described above, there was no significant difference in CIBW sighting rate with and in the absence of pile driving Kendall and Cornick, 2015. However, CIBWs do swim faster and in tighter formation in the presence of pile driving Kendall and Cornick, 2015.
Previously there has been concern that exposure to pile driving at the POA
could result in CIBWs avoiding Knik Arm and thereby not accessing the productive foraging grounds north of POA such as Eagle River flats based on the proposed project and mitigation measuresthus, impacting essential feature number 5 above 85 FR 19294.
Although the data previously presented demonstrate whales are not abandoning the area i.e., no significant difference in sighting rate with and without pile driving, results of a recent expert elicitation EE at a 2016 workshop, which predicted the impacts of noise on CIBW survival and reproduction given lost foraging opportunities, helped to inform our assessment of impacts on this stock. The 2016 EE workshop used conceptual models of an interim population consequences of disturbance PCoD for marine mammals NRC, 2005; New et al., 2014, Tollit et al., 2016 to help in understanding how noise-related stressors might affect vital rates survival, birth rate and growth for CIBW King et al., 2015. NMFS 2015, section IX.DCI Beluga Hearing, Vocalization, and Noise Supplement suggests that the main direct effects of noise on CIBW are likely to be through masking of vocalizations used for communication and prey location and habitat degradation. The 2016 workshop on CIBWs was specifically designed to provide regulators with a tool to help understand whether chronic and acute anthropogenic noise from various sources and projects are likely to be limiting recovery of the CIBW
population. The full report can be found at http www.smruconsulting.com/
publications/ with a summary of the expert elicitation portion of the workshop below.
For each of the noise effect mechanisms chosen for expert elicitation, the experts provided a set of
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