Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Naval Magazine Indian Island Ammunition Wharf Maintenance and Pile Replacement Project, Puget Sound, Washington

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 240122-0021]</DEPDOC> <RIN>RIN 0648-BL79</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Naval Magazine Indian Island Ammunition Wharf Maintenance and Pile Replacement Project, Puget Sound, Washington</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS, upon request from the U.S. Navy (Navy), issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals during the maintenance and pile replacement construction activities at the Ammunition Wharf at Naval Magazine (NAVMAG) Indian Island in Puget Sound, Washington, over the course of 5 years (2024 to 2029). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective October 1, 2024, until September 30, 2029. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A copy of the Navy's application, NMFS' final rule, and other supporting documents may be obtained online at <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-taking-marine-mammals-incidental-naval-magazine-indian.</E> In case of problems accessing these documents, please use the contact listed here (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Robert Pauline, Office of Protected Resources, NMFS, <E T="03">ITP.pauline@noaa.gov,</E> (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> We received an application from the Navy requesting 5-year regulations and authorization to incidentally take multiple species of marine mammals. This rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) to allow for the authorization of take by Level A and Level B harassment of marine mammals incidental to the Navy's maintenance and pile replacement construction activities at the Ammunition Wharf at NAVMAG Indian Island in Puget Sound, Washington. Please see Background below for definitions of harassment. <HD SOURCE="HD1">Legal Authority for the Action</HD> Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce 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 for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 217, subpart I provide the legal basis for issuing this rule containing 5-year regulations, and for any subsequent LOAs. As directed by this legal authority, this rule contains mitigation, monitoring, and reporting requirements. <HD SOURCE="HD1">Summary of Major Provisions</HD> The following is a summary of the major provisions of this final rule regarding Navy construction activities. These provisions include, but are not limited to: • Monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities; • Shutdown of construction activities under certain circumstances to avoid injury of marine mammals; • Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power; and • Use of bubble curtains to attenuate sound levels when impact driving steel piles. <HD SOURCE="HD1">Background</HD> 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 <E T="03">et seq.</E> ) 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 incidental take authorization 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 mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. <HD SOURCE="HD1">Summary of Request</HD> In May 2021, NMFS received an application from the Navy requesting authorization to take small numbers of eight species of marine mammals incidental to construction activities at the Ammunition Wharf at NAVMAG Indian Island. The Navy requested regulations that would establish a process for authorizing such take via an LOA. NMFS reviewed the Navy's application, and sent initial questions regarding the application to the Navy on October 5, 2021. The Navy addressed the questions and submitted a revised LOA application on March 24, 2022. After additional questions were sent by NMFS, the Navy submitted another revised application on May 13, 2022, and the revised application was deemed adequate and complete on June 9, 2022. The application was published for public review and comment on August 4, 2022 (87 FR 47722). Following publication of the application, the Navy delayed the project start date by 1 year. We published a notice of the proposed rulemaking in the <E T="04">Federal Register</E> on October 30, 2023 (88 FR 74113). There are no changes from the proposed to the final rulemaking. The regulations will be valid for 5 years, from October 1, 2024, until September 30, 2029, and allow NMFS to authorize the Navy to take eight species of marine mammals by Level B harassment and, additionally, one of these species by Level A harassment, incidental to construction activities related to the maintenance and pile replacement project at the Ammunition Wharf at NAVMAG Indian Island in Puget Sound, Washington. Neither the Navy nor NMFS expect serious injury or mortality to result from this activity. <HD SOURCE="HD1">Description of Activity</HD> <HD SOURCE="HD2">Overview</HD> The Navy plans to replace defective structural concrete and fender piles as well as conduct maintenance and repair activities on the Ammunition Wharf at NAVMAG Indian Island. Maintaining this wharf structure is vital to sustaining the Navy's mission and ensuring readiness. The Navy plans to replace up to 118 structural concrete piles or fender piles, conduct maintenance, and engage in repair activities over a 7-year period on the Ammunition Wharf. However, the LOA may only be valid for 5 years. The Navy plans to conduct necessary work, including impact and vibratory pile driving, to replace and maintain the wharf structure. Under the 5-year rule, up to 110 structurally unsound structural piles or fender piles will be replaced. Structural concrete piles will be replaced with 24-inch concrete piles and old fender piles will be replaced with 14-inch steel H piles or 18.75-inch composite piles. Up to eight steel piles may also be installed in addition to the structural concrete piles if necessary. The 2 years following the expiration of the rule will consist of removal and installation of concrete piles, and maintenance and repair work. The Navy will request incidental take authorizations as necessary for the final 2 years of work. <HD SOURCE="HD2">Dates and Duration</HD> The regulations and LOA will be valid for a period of 5 years from October 1, 2024, until September 30, 2029. All pile driving will be conducted during the prescribed in-water work window of October 1 to January 15 to avoid conducting activities when juvenile salmonids are most likely to be present. A conservative estimate of annual pile driving days over the duration of the 5-year LOA is based on the assumption that pile driving rates will be relatively slow and will take approximately 24 days per year with up to 22 concrete piles or fender piles and up to 2 steel piles installed per year. Conservatively, one concrete pile will be installed per day using jetting followed by proofing with an impact hammer. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 136k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━