Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lubec Harbor Project in Lubec, Maine

<NOTICE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <DEPDOC>[RTID 0648-XE442]</DEPDOC> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lubec Harbor Project in Lubec, Maine</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Notice; proposed incidental harassment authorization; request for comments on proposed authorization and possible renewal. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS has received a request from Maine Department of Transportation (ME DOT) for authorization to take marine mammals incidental to Lubec Harbor Project in Lubec, Maine. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than April 4, 2025. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service and should be submitted via email to <E T="03">ITP.owens@noaa.gov.</E> Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: <E T="03">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.</E> In case of problems accessing these documents, please call the contact listed below. <E T="03">Instructions:</E> NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments, including all attachments, must not exceed a 25-megabyte file size. All comments received are a part of the public record and will generally be posted online at <E T="03">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Summer Owens, Office of Protected Resources, NMFS, and (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <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 IHA 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 monitoring and reporting of the takings. The definitions of all applicable MMPA statutory terms used above are included in the relevant sections below and can be found in section 3 of the MMPA (16 U.S.C. 1362) and NMFS regulations at 50 CFR 216.103. <HD SOURCE="HD1">National Environmental Policy Act</HD> To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 <E T="03">et seq.</E> ) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( <E T="03">i.e.,</E> the issuance of an IHA) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NAO 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 has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. <HD SOURCE="HD1">Summary of Request</HD> On August 29, 2024, NMFS received a request from ME DOT for an IHA to take marine mammals incidental to construction activities in Johnson Bay in Lubec, Maine. Following NMFS' review of the application, ME DOT submitted a revised version on December 19, 2024. The application was deemed adequate and complete on December 20, 2024. ME DOT's request is for take of five species of marine mammals, by Level B harassment only. Neither ME DOT nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. <HD SOURCE="HD1">Description of Proposed Activity</HD> <HD SOURCE="HD2">Overview</HD> The Maine Department of Transportation and the Town of Lubec are planning to construct a boat launch and breakwater structure that would extend into Johnson Bay from the northern coast of Lubec. The Town was once one of Maine's most active commercial fishing ports, consisting of several large herring processing operations until the late 1970s. A collapse of the herring fishery led to the closure of those processing canneries; however, there is a rebound of the fishing industry in the area due to lobster fishing, shellfish harvesting, and growth of salmon farming. The project will address the lack of sheltered boat access and safe launch locations. The breakwater is expected to provide a sheltered area that mariners may launch behind and recover and moor their vessels during periods of inclement weather. This project is proposed in order to provide a safer harbor for the mariners and townspeople of Lubec. This construction project would include installation of a falsework platform, a pile supported platform (PSP), and two floating docks. The falsework platform will be installed using impact and vibratory pile driving, while the PSP and floating docks will require DTH (down the hole) drilling. ME DOT is requesting authorization of take by Level B harassment for five marine mammal species over an estimated 234 days of pile driving/drilling activities. <HD SOURCE="HD2">Dates and Duration</HD> In-water construction at the Lubec Harbor is planned to start in March 2025. The estimated maximum number of pile driving days is 234 with a maximum of 24 installation days per month. The PSP and floating dock are estimated to include installation of half a pile per day, with each full pile taking 780 minutes (13 hours) to install. The falsework platform is estimated to include installation of five piles per day, each requiring 30 minutes of vibratory pile driving following 150 impact hammer strikes per pile. <HD SOURCE="HD2">Specific Geographic Region</HD> The Town of Lubec is a coastal town on a peninsula in Maine that is surrounded by the Johnson, South, and Cobscook Bays to the north, the Lubec and Quoddy Narrows and the United States-Canada border to the east, and the Gulf of Maine to the south. Construction will take place in Johnson Bay in Lubec, Maine. Previous efforts to install a marina at Lubec, consisting of floating docks and floating breakwater units, have failed. The excessive wind and wave action in Johnson Bay from severe northeast storms have contributed to destruction of valuable infrastructure. The estimated extent of area in which noise will exceed the relevant Level B harassment criterion, for DTH drilling only, extends into Canadian territorial waters. See the Estimated Take section for more detail. However, the MMPA does not apply in Canadian territorial waters. NMFS has calculated the expected level of incidental take in the entire activity area (including Canadian territorial waters) as part of the analysis supporting our preliminary determination under the MMPA that the activity will have a negligible impact on the affected species (see Estimated Take and Negligible Impact Analysis and Determination Sections). However, NMFS proposes to authorize only take that is expected to occur in U.S. territorial waters. <HD SOURCE="HD2">Detailed Description of the Specified Activity</HD> The proposed project will include vibratory pile driving and removal, impact pile driving, and DTH drilling to install the PSP, floating dock, and falsework platform. 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