[Federal Register Volume 62, Number 191 (Thursday, October 2, 1997)]
[Notices]
[Pages 51637-51643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26060]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 070197A]
Small Takes of Marine Mammals Incidental to Specified Activities;
Oil and Gas Exploration Drilling Activities in the Beaufort Sea
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of issuance of an incidental harassment authorization.
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SUMMARY: In accordance with provisions of the Marine Mammal Protection
Act (MMPA) as amended, notification is hereby given that an Incidental
Harassment Authorization (IHA) to take small numbers of marine mammals
by harassment incidental to conducting oil exploration drilling
activities in Camden Bay, Beaufort Sea in waters off Alaska has been
issued to ARCO Alaska, Inc. (ARCO).
DATES: This authorization is effective from September 25, 1997, through
September 1, 1998.
ADDRESSES: The application and monitoring plan, authorization, and
environmental assessment (EA) are available by writing to the Chief,
Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910-3225, or by telephoning one of
the contacts listed below.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of
Protected Resources, NMFS, (301) 713-2055, Brad Smith, Western Alaska
Field Office, NMFS, (907) 271-5006.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
directs the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking 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 issued or, if the taking is limited to
harassment, notice of a proposed authorization is provided to the
public for review.
Permission may be granted if NMFS finds that the taking will have a
negligible impact on the species or stock(s), will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and the permissible methods of taking
and requirements pertaining to the monitoring and reporting of such
taking are set forth. NMFS has defined ``negligible impact'' in 50 CFR
216.103 as `` * * * an impact resulting from the specified activity
that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates
of recruitment or survival.''
On April 10, 1996 (61 FR 15884), NMFS published an interim rule
establishing, among other things, procedures for issuing incidental
harassment authorizations under section 101(a)(5)(D) of the MMPA for
activities in Arctic waters, including requirements for peer-review of
a monitoring program and a plan of cooperation between the applicant
and affected subsistence users. For additional information on the
procedures followed for this
[[Page 51638]]
authorization, please refer to that document.
Summary of Request
On May 30, 1997, NMFS received an application from ARCO requesting
a 1-year authorization for the possible harassment of small numbers of
several species of marine mammals incidental to moving a Concrete
Island Drilling System (CIDS) from Prudhoe Bay to Camden Bay, Alaska
and drilling an oil exploration well at that location during the
winter, 1997/98. Essentially, the project has several stages as
summarized below: (a) Deballast the bottom-founded Global Marine
Drilling Co. ``Glomar Beaufort Sea #1'' CIDS and move it to the well
site in Camden Bay on or about August 15, 1997; (b) Transport drilling
supplies, materials and other equipment to the CIDS. Transport fuel
from Canada to the site; (c) Warm shutdown mode until such time as ice
in Camden Bay is fully formed (estimated to be around November 1,
1997). Crew change via helicopter during this and succeeding times; (d)
Drilling operations after ice formation on or around November 1, 1997
(drilling and well testing operations may occur from that date through
mid-May 1998); (e) Cold shutdown mode from completion of drilling and
well testing operations until around July 1, 1998; and (f) Towing CIDS
from Camden Bay by tug boats to Prudhoe Bay or another location.
A more detailed description of the work planned is contained in the
application and is available upon request (see ADDRESSES). Moving the
CIDS from Prudhoe Bay began on August 16, 1997. The barging of fuel,
equipment and supplies will be completed on or before August 31, 1997.
Comments and Responses
A notice of receipt of the application and proposed authorization
was published on July 15, 1997 (62 FR 37881), and a 30-day public
comment period was provided on the application and proposed
authorization. During the comment period, comments received were from
the Marine Mammal Commission (MMC), the Alaska Eskimo Whaling
Commission (AEWC) and North Slope Borough (NSB), ARCO, Greenpeace
Alaska (Greenpeace) and the Trustees for Alaska (Trustees). ARCO's
comments which addressed contents in the EA are not discussed further
in this document. Information on the activity and authorization request
that are not subject to reviewer comments can be found in the proposed
authorization notice and is not repeated here. Issues outside either
the scope of the IHA process or on the impacts on marine mammals and/or
subsistence needs for marine mammals are not addressed in this
document.
Negligible impact concerns
Comment 1: Trustees believe that NMFS fails to adequately discuss
scientific information which found significant effects from disturbance
on whales and other marine mammals. They believe NMFS provided little
information in the notice and EA not found in ARCO's application.
Response: The MMPA requires NMFS to use the best scientific
information available when determining whether an activity will have a
negligible impact on marine mammals (see the definition of negligible
impact above or in 50 CFR 216.103). Extensive monitoring of impacts of
oil exploration activities on marine mammals and analyses of the
results from those studies have been conducted over the past two
decades. This information has also been summarized elsewhere (e.g.,
Richardson et al. (1995b) on noise impacts). The EA also summarizes
this information and incorporates other documentation by reference.
Because the best scientific information to date available to NMFS
indicates that oil and gas exploration activities in the Beaufort Sea
are not having more than a negligible impact on marine mammals, and
because Trustees and other commenters have not provided scientific
information to the contrary, an incidental harassment authorization
appears warranted.
NMFS does not contradict commenters' position that bowhead whales
and other marine mammals may be harassed by noise from aircraft,
tugboats and oil drilling operations. However, the MMPA allows a take
by harassment if certain findings are made and certain conditions are
met. NMFS believes the level of incidental harassment by the ARCO
activity will not adversely affect the species or stocks of marine
mammals through effects on annual rates of recruitment or survival.
Therefore, the taking is considered negligible.
Marine mammal concerns
Comment 2: Greenpeace and Trustees both note that NMFS has failed
to fully consider the impacts to the bowhead whale population. They
believe NMFS should assess impacts from the first arrivals in the
western Beaufort Sea and not just on impacts after August 31.
Response: NMFS agrees and has modified the EA to address this
concern. However, NMFS notes that the bowhead whale numbers referenced
by Trustees as passing the Camden Bay site are overstated. Moore and
Clark (1991) estimated in 1981 through 1983, up to 500 (range 0-500)
bowheads may be offshore the Barter Island region; however, no whales
were sighted west of that region prior to September 1 during those
years. Most sighted bowheads were still in Canadian waters. While NMFS
notes that in general, bowhead whales migrate westward through the
Alaskan Beaufort Sea from late August to late October, only a portion
of the population has been estimated as migrating during this time
period. Other bowheads are either undetectable to observers (i.e.,
under the ice), migrated prior to surveys commencing, or did not
migrate to the Canadian Beaufort Sea. As a result of ARCO's agreement
with the AEWC to complete moving activities and barge traffic prior to
September 1, NMFS believes the majority of the bowhead population will
not hear noise emanating from the CIDS because of their presence in the
Canadian Beaufort Sea.
Most westward migrating bowheads sighted are in water ranging from
20 to 50 m (65-165 ft) deep (Ljungblad et al. 1984). Scientific
evidence indicates that bowhead whale distribution appears to be
strongly influenced by ice (but see information provided by Traditional
Knowledge discussed below). In heavy ice years, bowheads tend to
migrate in deeper water (> 60 m (> 197 ft)), while in light ice years,
a larger proportion sighted are found in shallow water (<40 m="">< 131="" ft))="" (nmfs="" 1996).="" a="" few="" may="" occur="" close="" to="" shore.="" therefore,="" there="" is="" some="" potential="" that="" bowhead="" whales="" may="" be="" incidentally="" harassed="" while="" the="" cids="" is="" being="" towed="" westward="" and="" the="" supply="" activities="" prior="" to="" august="" 31.="" however,="" these="" numbers="" are="" considered="" to="" be="" small="" and="" the="" impact="" negligible.="" additional="" information="" on="" this="" issue="" can="" be="" found="" in="" the="" ea.="" comment="" 3:="" trustees="" note="" that="" nmfs="" does="" not="" provide="" a="" specific="" date="" for="" start-up="" of="" drilling,="" nor="" when="" the="" spring="" bowhead="" whale="" migration="" period="" begins="" (when="" the="" cids="" should="" not="" be="" moved),="" nor="" does="" it="" prohibit="" drilling="" operations="" from="" the="" cids="" during="" this="" period,="" if="" drilling="" takes="" longer="" than="" expected.="" response:="" nmfs="" notes="" that="" it="" is="" unaware="" whether="" ice-up="" needs="" to="" be="" complete="" prior="" to="" the="" cids="" commencing="" drilling.="" therefore,="" recognizing="" that="" bowhead="" whales="" may="" be="" migrating="" westward="" through="" the="" offshore="" and="" nearshore="" camden="" bay="" area="" through="" late="" october,="" and="" drilling="" during="" this="" period="" of="" time="" could="" result="" in="" additional="" harassment="" takes="" that="" have="" not="" been="" considered="" in="" the="" negligible="" take="" analysis,="" nmfs="" has="" conditioned="" the="" iha="" so="" that="" drilling="" activities="" prior="" to="" [[page="" 51639]]="" november="" 1,="" 1997,="" are="" not="" covered="" by="" the="" iha="" and="" any="" incidental="" harassment="" of="" bowheads="" resulting="" from="" an="" early="" start-up="" is="" a="" violation="" of="" the="" iha="" and="" the="" mmpa.="" during="" the="" springtime="" eastward="" migration="" bowheads="" are="" presumed="" to="" first="" arrive="" offshore="" camden="" bay="" in="" late="" april="" to="" early="" may.="" this="" migration="" is="" also="" presumed="" to="" occur="" through="" the="" end="" of="" june.="" because="" the="" leads="" through="" the="" ice="" at="" this="" time="" are="" usually="" well="" offshore="" (and="" the="" reason="" there="" is="" not="" a="" springtime="" subsistence="" hunt="" at="" nuiqsuk="" and="" kaktovik),="" no="" incidental="" harassment="" takings="" are="" presumed="" to="" occur="" from="" drilling="" activities.="" however,="" in="" order="" to="" ensure="" bowhead="" migration="" is="" not="" impeded="" by="" anthropogenic="" noise,="" a="" condition="" of="" the="" iha="" prohibits="" any="" oil="" and="" gas="" exploration="" activity="" in="" the="" spring="" leads,="" including="" drilling="" or="" vessel="" noise.="" if="" on-site="" drilling="" activities="" are="" projected="" to="" continue="" into="" the="" time="" bowheads="" enter="" offshore="" camden="" bay,="" prior="" to="" modifying="" the="" iha,="" nmfs="" will="" require="" submission="" and="" implementation="" of="" a="" revised="" monitoring="" program="" to="" ensure="" that="" bowheads="" will="" not="" be="" seriously="" affected="" by="" drilling="" activities="" while="" moving="" through="" the="" spring="" leads.="" in="" accordance="" with="" nmfs="" regulations,="" any="" modification="" of="" an="" iha="" that="" does="" not="" involve="" emergency="" action="" to="" protect="" marine="" mammals="" is="" subject="" to="" a="" 30-day="" public="" comment="" period.="" for="" that="" reason,="" a="" request="" for="" an="" amendment="" to="" the="" iha,="" and="" the="" accompanying="" monitoring="" plan="" will="" need="" to="" be="" provided="" to="" nmfs="" no="" later="" than="" march="" 1,="" 1998.="" if="" the="" cids="" remains="" under="" the="" control="" of,="" or="" under="" contract="" to="" arco="" after="" completion="" of="" the="" drilling="" operation,="" the="" iha="" authorizes="" the="" harassment="" of="" bowheads="" and="" other="" marine="" mammals="" incidental="" to="" moving="" the="" cids="" to="" another="" site="" after="" the="" last="" bowhead="" migration="" pulse="" has="" completed="" its="" eastward="" migration.="" if="" necessary,="" nmfs="" will="" make="" a="" determination="" that="" the="" migration="" is="" complete="" and="" will="" notify="" interested="" parties.="" comment="" 4:="" greenpeace="" states="" that="" the="" impacts="" of="" industrial="" noise="" associated="" with="" exploratory="" drilling="" activities="" during="" the="" bowhead="" migration="" have="" not="" been="" adequately="" evaluated="" by="" nmfs.="" response:="" other="" than="" towing="" the="" cids="" and="" tug/barge="" traffic,="" no="" other="" activities="" related="" to="" the="" cids="" operation="" is="" anticipated="" to="" have="" an="" impact="" on="" bowhead="" whales.="" impacts="" on="" bowheads="" from="" vessel="" noise="" was="" discussed="" in="" the="" ea.="" comment="" 5:="" trustees="" note="" that="" nmfs="" fails="" to="" make="" clear="" that="" the="" drill="" site="" is="" located="" in="" significant="" ringed="" seal="" habitat="" and="" that="" seals="" undergoing="" stresses="" such="" as="" reproduction="" (taking="" place="" during="" drilling="" activities)="" may="" be="" more="" vulnerable="" to="" the="" effects="" of="" contaminants="" or="" disturbance.="" trustees="" also="" notes="" that="" nmfs="" fails="" to="" discuss="" impacts="" from="" seismic="" activities="" and="" vehicle="" traffic.="" response:="" the="" biology,="" abundance="" and="" distribution="" of="" ringed="" seals="" and="" other="" pinnipeds="" were="" addressed="" in="" the="" ea.="" the="" ea="" notes="" that="" some="" reduction="" in="" density="" of="" ringed="" seals="" within="" an="" area="" of="" approximately="" 2.3="" nmi="" (3.7="" km)="" of="" the="" cids="" could="" be="" expected.="" however,="" considering="" winter-time="" ringed="" seal="" densities="" of="" between="" 2-6="" ringed="" seals/="">2, few ringed seals should be affected by the CIDS, whose
noise disturbance zone is limited to less than 1 nm. Because drilling
operations will begin on or around November 1, 1997, well prior to
ringed seals establishing birth lairs, and continue through mid-May
1998, ringed seal pupping, (which starts in early April), is unlikely
to take place in the vicinity of the CIDS. Therefore, NMFS expects few
ringed seals would be affected and that impact will result, at worst,
in some displacement. Considering the extensive habitat available to
ringed seals and the size of the Alaskan ringed seal population,
displacement would not result in more than a negligible impact on the
species.
Incidental harassment for either seismic activities or vehicle
traffic over ice has not been requested by ARCO, is not being
authorized, and is not anticipated by the applicant, except for the
latter in emergency situations, such as an oil spill. NMFS notes
however, that the incidental taking by this type of activity is the
subject of a separate rulemaking action (see 62 FR 42737, August 8,
1997).
Environmental concerns
Comment 6: Trustees believe that the impacts to the Alaska National
Wildlife Refuge (ANWR) have been ignored by NMFS. One of their concerns
is that, to avoid impacts to marine mammals, helicopters would be
required to fly over land. However, this would increase the magnitude
and extent of impacts to the wilderness.
Response: NMFS believes no more than a negligible impact will
accrue to marine habitats of importance to marine mammals in the waters
offshore of ANWR from the wintertime CIDS operation. Once the CIDS is
in place and supplied prior to September 1, noise from the CIDS will be
limited to generators operating in the warm shutdown mode, and possibly
some noise from helicopters supplying the CIDS prior to beginning
drilling. Oil drilling noises will not occur until ice-up is complete.
Other than small numbers of seals and polar bears (for which the U.S.
Fish and Wildlife Service has issued a small take authorization),
marine mammals will be unaffected (but see comment 7 below regarding
potential for oil spills and comment 8 regarding drilling muds).
Impacts relating to issuance of an IHA were addressed in NMFS' EA,
other impacts were addressed in the final Environmental Impact
Statement (FEIS) for the Beaufort Sea Lease Sale 144 (BSLS 144) and an
EA prepared by the Minerals Management Service (MMS) for ARCO's
activities.
ARCO will be required to comply with appropriate MMS and ANWR
regulations regarding aircraft overflights. Also to mitigate noise
levels for marine mammals, NMFS has conditioned the IHA to require
aircraft to remain at an altitude of 1,000 ft (305 m) until within 0.5
nm (926 m) of the CIDS, whenever the weather ceiling allows such
heights.
Comment 7: Both Greenpeace and Trustees expressed deep concern over
the possibility of an oil spill in the vicinity of ANWR. There was
concern that in the event of a crude oil blowout, harm to the marine
mammals which reside on the barrier islands and in other habitats along
the ANWR shoreline would be devastating.
Trustees noted that the relief well plan calls for ice roads and
support activities with ANWR. This is unacceptable.
Response: When making a negligible impact determination, NMFS finds
that a negligible impact determination may be appropriate if the
probability of occurrence is low, but the potential effects may be
significant. In this case, the probability of occurrence of impacts
must be balanced with the potential severity of harm to the species or
stock when determining negligible impact. In applying this balancing
test, NMFS evaluates the risks involved and the potential impacts on
marine mammal populations and habitat.
NMFS recognizes that there is still considerable disagreement as to
the effects of an oil spill on bowhead whales and other marine mammals
in the Alaskan Beaufort Sea. MMS used Oil Spill Risk Analysis modelling
to estimate the impacts of a worst-case spill on bowhead whales and
concluded that this event would result in the mortality of a few
individuals with expected recovery to the species' overall population
level in 1 to 3 years. However, some data on the anatomy and migratory
behavior of bowhead whales suggest that impacts from a large oil spill
could pose a grave threat to this species, especially if substantial
[[Page 51640]]
amounts of oil got into the lead system during the spring migration
(Albert 1981, Shotts et al. 1990). NMFS notes however, that to date no
blowouts have occurred during drilling 81 exploratory wells in Alaskan
waters as of 1994 (MMS 1996). As analyzed in more detail in MMS' EA and
based upon information provided in that document and the FEIS for BSLS
144, NMFS has determined that the potential for a significant oil spill
from a single exploration activity site (as contrasted to an oil
production site on which oil spill probabilistic analyses are based),
and the potential therefore for significant impacts on marine mammals
inhabiting the offshore and nearshore waters of Camden Bay, is
negligible.
NMFS notes that ARCO's Oil Spill Contingency Plan has been modified
to eliminate all references to relief well planning involving
construction on, or movement through, ANWR, including its lagoons.
Comment 8: Both Greenpeace and Trustees believe NMFS fails to give
meaningful consideration to impacts associated with chronic discharges
of contaminants (drilling muds, cuttings, biocides, oil) associated
with exploratory drilling operations. Greenpeace believes routine and
accidental discharges are substantial.
Response: The discharge of anthropogenic materials from oil
platforms, (such as drilling muds, discharged materials and produced
water) is regulated by the Environmental Protection Agency (EPA) under
the National Pollutant Discharge Elimination System. A permit for oil
exploration activities has been issued by EPA for this activity. While
drilling muds are relatively non-toxic and the metals associated with
drilling muds are virtually unavailable for bioaccumulation by marine
organisms (Neff 1987), other anthropogenic materials could potentially
harm bowhead whales by reducing or contaminating their food resources
if found in sufficient quantities. The feeding strategy of bowhead
whales could lead to ingestion of oil from oil-contaminated food, if
the prey organisms accumulate petroleum hydrocarbons in their tissue.
The effect of pollutants including heavy metals on the planktonic
organisms (copepods, euphasiids) on which these whales feed is
relatively unknown, but may result in either direct mortality or
sublethal effects that inhibit growth, longevity and reproduction. If
planktonic crustaceans have the ability to detoxify hydrocarbons, these
hydrocarbons are less likely to persist and biomagnify in the bowhead
whale. The National Research Council (1985) concluded that the risks to
most outer continental shelf (OCS) benthic communities from exploratory
drilling discharges are small and result primarily from physical
benthic effects. In addition, the relatively small area of these
discharges further limits their impact in the Beaufort Sea marine
environment.
NMFS has modified its EA to address this concern.
Subsistence concerns
Comment 9: The AEWC has concerns that any major noise-producing
activities, including those by ARCO, that occur in the vicinity of a
village's subsistence hunt or in the ``upstream'' migration path of the
bowhead whales have the potential to interfere with the bowhead
subsistence hunt. As a result, the AEWC has requested that all Fall
open-water industrial activities with the potential to interfere with
the Fall bowhead whale subsistence hunt cease as of August 31, 1997. If
the CIDS is not on location at the specified and represented time by
ARCO, then the AEWC insists that an approved open water Conflict and
Avoidance Agreement (CAA) must be in place prior to the IHA being
issued. If the CAA is signed before NMFS issues an IHA, then the AEWC
agrees with NMFS that the potential impacts should be sufficiently
mitigated to warrant issuance of an IHA with no further mitigation
requirements. If the CAA is not signed, the AEWC recommends additional
specified mitigation measures. Greenpeace states that no operations
should continue east of Cross Island after the end of August.
Response: NMFS has been informed that a CAA between the AEWC and
ARCO has been concluded. As part of that agreement, ARCO has agreed to
cease all activities in the vicinity of the CIDS, including barge
transport of supplies after August 31, 1997. Once the bowhead whale
hunt has concluded, activities can continue as scheduled and discussed
in the application and proposed authorization.
Comment 10: Greenpeace asserts that the proposed action will have a
significant impact on the bowhead whale and Inupiat communities that
depend on the bowhead whale for subsistence. Because the impacts of the
industrial noise associated with the exploratory drilling activities
during the bowhead migration have not been adequately evaluated by
NMFS, NMFS must deny ARCO's IHA application.
Response: Impacts to bowhead whales from oil exploration activities
were addressed above, in the EA, and in the notice of proposed
authorization. NMFS has used the best scientific information available,
along with Traditional Knowledge, to assess impacts of vessel,
aircraft, and overwinter drilling activities on marine mammals. NMFS
believes that a signed CAA supports NMFS determination that there will
not be an unavoidable adverse impact on the availability of a species
or stock for taking for subsistence needs.
Traditional knowledge concerns
Comment 11: Trustees believe NMFS has ignored valid and relevant
scientific information-known through Traditional Knowledge of Native
Alaskans-which contradict conclusions that oil industry operations will
have a negligible impact. Greenpeace notes that the whaling captains
have presented compelling evidence that bowheads are displaced from
their migratory route and feeding areas by seismic and drilling
operations. Greenpeace also believes that NMFS has dismissed the subtle
behavioral effects on bowhead whales (e.g. spookiness) that whaling
captains discuss.
Response: Traditional Knowledge provides information that
industrial noise is detectable to bowhead whales at greater underwater
distances than empirical scientific information has shown, and that
bowheads will deflect from industrial noise, such as seismic airgun
noise (up to 30-35 nmi from the airgun array), at great distances.
Traditional Knowledge has been added as appropriate to the EA as
requested by the AEWC on July 17, 1997.
NMFS does not dismiss information on behavioral effects from
industrial noise on bowheads. These issues are discussed whenever
relevant (see for example, NMFS 1996 1). Because ARCO's
application noted that activities potentially affecting bowhead whales
would not take place during the time when the major portion of the
stock migrates through the Beaufort Sea, and therefore, no adverse
effects on subsistence takings would occur, lengthy discussion on
behavioral effects was unnecessary.
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\1\ NMFS. 1996. Environmental Assessment: Request by BP
Exploration (Alaska) Inc. for an Incidental Harassment Authorization
to Allow the Incidental Take of Marine Mammals in the Beaufort Sea
During the 1996 Northstar Seismic Exploration Program.
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Monitoring
Comment 12: Greenpeace finds that ARCO's 1997 proposed monitoring
plan is not scientifically rigorous enough to determine impacts to
Arctic pinnipeds and cetacean species. Greenpeace contends that ARCO's
quasi-scientific experimental design of the monitoring program is aimed
at trying to prove that exploratory and other disturbing
[[Page 51641]]
activities will have a negligible impact on the marine mammal
populations.
Response: Section 101(a)(5)(D)(ii)(III) of the MMPA mandates a
monitoring program to assess impacts to marine mammals by the activity.
NMFS has stated previously that a monitoring program should be
appropriate to determine the distribution and behavioral responses of
potentially affected species of marine mammals before, during, and
after exposure to the activities. NMFS believes that timing of each
phase of ARCO's activity has mitigated affects on marine mammals to the
lowest extent practicable. While additional monitoring can certainly be
required under the IHA, NMFS must weigh the information value of such
monitoring with costs for conducting the monitoring. If costs outweigh
benefits, then NMFS believes the monitoring may not be practical,
unless extenuating circumstances exist, such as ongoing subsistence
harvests, or critically endangered species are present. An example of
unnecessary monitoring includes repeating transmission loss tests for a
CIDS during oil drilling activities, even though bowhead whales will
not be in the vicinity of the CIDS when it is active.
Comment 13: Greenpeace believes NMFS must require a comprehensive
monitoring plan that is fully subjected to independent peer design and
review.
Response: Section 101(a)(5)(D)(ii)(III) requires an IHA to
prescribe, where applicable, the requirements for independent peer-
review of monitoring plans for activities where the proposed activity
may affect the availability of a species or stock for taking for
subsistence purposes. A signed CAA between the AEWC and the activity
participants provides NMFS with documentation that the proposed
activity will not have an unavoidable adverse impact on the
availability of a species or stock for taking for subsistence needs.
ARCO's proposed activity was discussed at the Peer-Review Workshop in
Seattle on July 17, 1997, with the AEWC. In addition, the monitoring
plan has been reviewed by scientists of NMFS and the MMC. The
Scientific Director of the MMC, an independent reviewer, was of the
opinion that the monitoring plan is adequate to verify that only small
numbers of marine mammals are taken, that the taking is by harassment
only, and that the impacts on the affected species and stocks are
negligible. A similar assessment has been made by NMFS scientists who
have reviewed the monitoring plan.
If at any time NMFS believes that the incidental harassment process
would benefit from peer-review, it will promptly conduct this review.
For example, if ARCO's oil drilling activities continue into the spring
or summer, NMFS will require ARCO to provide a revised monitoring plan.
That plan will be independently peer-reviewed to ensure that impacts to
bowhead whales are adequately assessed.
Comment 14: Greenpeace states that NMFS must require ARCO to employ
a full array of bottom-mounted hydrophones and deploy sonobuoys to
accurately measure bowhead and other marine mammal vocalizations and
ambient noise. The monitoring plan must be designed to substantiate the
``zone of influence,'' however distant.
Response: NMFS disagrees. Under the IHA, during drilling activity
phase the harassment of bowhead whales is not authorized. As noted in
the application, no drilling will occur prior to complete ice-up, at
which time bowhead whales will be in the Bering Sea, and drilling will
cease prior to springtime bowhead migration. If, as mentioned in
comment 3, drilling activities were to extend into late spring, 1998,
and bowheads enter the Camden Bay area, NMFS would require ARCO to
request an amendment to its IHA. Included in that request would be a
modified monitoring plan.
Substantiating the zone of influence during wintertime for bowheads
is viewed by NMFS as unnecessary in light of the above statement.
Substantiating a zone of influence for seals would require disruptive
research on seals in lairs which, while likely valuable research, is
unnecessarily intrusive on the animals when implemented as a monitoring
tool. Because of the potential for an increase in Arctic wintertime
drilling and seismic work over the next few years, NMFS encourages MMS
to fund additional studies on ringed seal behavior and effects from
industrial development.
Authorization concerns
Comment 15: Greenpeace and Trustees were concerned about the
adequacy of time for NMFS to give adequate recognition to public
comments.
Response: As noted by this document, NMFS believes that it has
given proper review of all public comments.
Comment 16: ARCO believes that the operational restrictions set out
in the IHA are not necessary because no takes of marine mammals are
anticipated. For example, ARCO notes that September 1 is only a target
date for completing the CIDS supply.
Response: NMFS presumes that the operational restrictions refer to
the mitigation measures proposed in the earlier notice. NMFS notes
however, that activities that proceed prior to, or after, the dates
ARCO has suggested for each phase of the project, may potentially
harass marine mammals, especially activities that may affect bowhead
migration in the spring leads. The potential for the incidental
harassment of marine mammals having a more than negligible impact on
marine mammals during these alternative times has simply not been
evaluated at this time. As a result, incidental takings outside the
periods specified cannot be authorized. NMFS notes however, that once
the NSB has secured its whaleboats for the season, and notifies ARCO of
this fact, ARCO may continue resupply of the CIDS via barges.
Cumulative impact concerns
Comment 17: Trustees and Greenpeace believe NMFS ignores the
cumulative impacts from oil exploration and development in the Arctic.
Trustees provide a statement from one whaling captain that bowheads no
longer enter Camden Bay due to industrial activity.
Response: NMFS has not ignored the cumulative impact from oil and
gas exploration on marine mammals or their habitat. Due to distances
between oil and gas exploration activities, NMFS does not expect a
cumulative impact in 1997. NMFS has identified two oil and gas
exploration activities in the Central and Eastern U.S. Beaufort Sea
this year, a seismic survey by BP Exploration (Alaska) and the proposed
activity. Other than the potential for the CIDS being towed within
proximity to the seismic survey during mid-August, and the resulting
noise if the seismic array is operating at the time, no cumulative
impacts are anticipated. In 1990, NMFS determined that in any one year
between 1990 and 1995 in the Beaufort and Chukchi Seas, there may be
between 2 and 5 drilling units operating in Federal waters and two
drilling units in state waters. In addition up to 17,000 seismic
trackline miles in the Beaufort and Chukchi Seas would be conducted
over the five years. On July 16, 1990 (55 FR 29207), NMFS determined
that this level of industrial activity would not result in more than a
negligible impact on marine mammals. No new information has been
provided since that time to require a reassessment of cumulative
impacts.
Traditional Knowledge indicates that oil exploration deflects
whales further offshore, making them less accessible to whalers. While
agreeing with this observation, NMFS notes that because no major oil
and gas exploration activities have taken place in Camden
[[Page 51642]]
Bay since 1993, if bowhead whales are not following historic migratory
routes (according to Traditional Knowledge), then one or more factors
must be influencing their migration. These include: Ice conditions,
food distribution and/or abundance, or conditioning by bowhead whales
to the previous noise events. NMFS notes that a similar migratory
modification has been made by California gray whales in their southward
migration along the California coast in order to avoid recreational and
commercial vessel traffic south of Pt. Conception.
National Environmental Policy Act (NEPA) concerns
Comment 18: Trustees noted that the site-specific impacts of
drilling a well in the proposed Warthog area on marine mammals were not
addressed in BSLS 144 FEIS, nor in ARCO's exploration plan or oil spill
contingency plan. Trustees believe that NMFS' IHA documentation fails
to acknowledge the potential effects addressed in ARCO's Oil Spill
Contingency Plan.
Response: MMS released an EA that discusses ARCO's planned scope of
work in Camden Bay, alternatives to those activities, and the impacts
to the human environment from the proposed action and alternatives.
Impacts of potential oil spills resulting from exploration
activities on BSLS 144 were addressed in that Lease Sale's FEIS and in
MMS' 1997 EA. To the extent that those impacts affect marine mammals
and their habitat, appropriate parts have been incorporated by
reference in NMFS' EA. Incorporation by reference is provided by
Council on Environmental Quality regulations (40 CFR 1502.21).
Comment 19: Greenpeace and Trustees believe that the proposed
action will have a ``significant effect on the human environment'' and
therefore NMFS needs to prepare an environmental impact statement (EIS)
on the action. Greenpeace notes that ARCO proposes to introduce major
sources of industrial noise and pollution to a pristine and
ecologically significant area off the ANWR. Because the operations
associated with, and subsequent exploratory drilling will affect
species and habitats that the ANWR is designed to protect, NMFS must
prepare a full EIS.
Response: NMFS disagrees. Commenters have not provided scientific
information that the impact would be more than negligible (i. e.,
significant). Since NMFS must analyze a request for an IHA to determine
whether the proposed activity has no more than a negligible impact on a
species or stock of marine mammals and does not have an unmitigable
adverse impact on subsistence users, it believes that the issuance of a
small take authorization only requires the preparation of an EA and not
an EIS. In this case, the agency found through preparing an EA that the
proposed action will not significantly affect the quality of the human
environment thus making a finding of no significant impact. If the EA
results in this finding, no additional documents are required by NEPA
(NOAA Directives Manual 02-10).
Comment 20: Greenpeace notes the alleged inadequacies of the draft
EIS on BSLS 144, especially as it relates to marine mammals and
habitat-use patterns. Greenpeace references a review of BSLS 144 by the
MMC.
Response: NMFS notes that the MMC comments were submitted in
response to a draft EIS prepared by MMS for BSLS 144. Appropriate
modifications and a response to MMC comments were provided in the FEIS.
In addition, NMFS reviewed BSLS 144 under section 7 of the Endangered
Species Act (ESA), and concluded formal consultation on November 16,
1995. The finding of that consultation was that, based on the Arctic
Regional Biological Opinion, oil exploration activities under BSLS 144
is not likely to jeopardize the continued existence of listed species
under its jurisdiction.
NMFS also notes that ringed seal and other marine mammal biology,
distribution and abundance, and impacts were provided in its EA on the
proposed action.
Other concerns
Comment 21: Greenpeace and Trustees believe that issuance of an IHA
will violate the Coastal Zone Management Act (CZMA; 16 U.S.C. 1451-
1464). The CZMA provides that a Federal agency may not issue a license
or permit to conduct an activity that affects a state's coastal zone
before a state concurs with the license applicant's certification that
the activity will be consistent with the provisions of the state's
plan.
Response: ARCO submitted the necessary information to the State of
Alaska in order to evaluate the consistency of ARCO's activities with
Alaska's coastal zone management plan (ACZMP). The State has worked
with ARCO to address the State's coastal management concerns regarding
ARCO's proposed activities in the Beaufort Sea. In managing Alaska's
coastal zone, and in its evaluation of ARCO's proposed activities, the
State must balance the competing objectives and purposes of the ACZMP.
It is NMFS' understanding that the State has expressed no outstanding
concerns regarding the consistency of ARCO's proposed activities with
the enforceable policies of the ACZMP. An authorization to drill will
not be provided to ARCO by MMS until ARCO has received the State's
consistency determination.
Comment 22: Trustees contend that an Alaska Native Interest Land
Claims Act (ANILCA) section 810 study is required. They believe that
because the IHA is a required aspect of the decision regarding use of
OCS lands for drilling, and the proposed oil industry activities could
also harm the availability and use of ANWR lands for subsistence and
cause a restriction of subsistence uses, and ANILCA study is necessary.
Response: The U.S. Supreme Court ruled in March 1987 that, by
ANILCA's plain language, section 810 applies only to Federal lands
within the State of Alaska's boundaries. ANILCA defines ``public
lands'' to mean federal lands situated ``in Alaska,'' a phrase which
has a precise geographic/political meaning that can be delineated with
exactitude to include coastal waters to a point three miles from the
coastline, where the OCS commences. Therefore, an ANILCA section 810
analysis/report is not required for ARCO's Warthog project.
Comment 23: Greenpeace and Trustees both believe ARCO, in
deballasting the CIDS and moving the drilling unit to Camden Bay prior
to receiving an authorization under the MMPA is in violation of the
MMPA because marine mammals will be significantly affected by the
action. In addition, NMFS, by not enforcing the MMPA and prohibiting
the movement, has also violated the MMPA and the Administrative
Procedure Act.
Response: NMFS disagrees. NMFS believes that such an instruction is
not authorized by the MMPA, since under the MMPA NMFS authorizes only
the taking of marine mammals incidental to that activity, not the
activity itself. However, initiating an action that might result in a
taking of a marine mammal without an authorization under the MMPA
places that activity in jeopardy of violating the MMPA moratorium on
taking marine mammals.
This issue was the subject of a District Court action by
Greenpeace. On August 21, 1997, a U.S. District Court Judge for the
District of Columbia disallowed Greenpeace's request to the Court for a
Temporary Restraining Order to require NMFS to stop ARCO's moving the
CIDS to Camden Bay.
[[Page 51643]]
Consultation
Under section 7 of the ESA, NMFS has completed consultations on the
issuance of this authorization.
NEPA
In conjunction with the notice of proposed authorization, NMFS
released a draft EA that addresses the impacts on the human environment
from issuance of the authorization and the alternatives to the proposed
action. Comments received on the draft EA, while leading to an improved
EA, did not provide sufficient information that implementation of
either the proposed action or the alternatives to that action would
have a significant effect on the human environment. Therefore, as a
result of the findings made in the EA, NMFS has concluded that
implementation of either the preferred alternative or other identified
alternatives would not have a significant impact on the human
environment. As a result of that finding, an EIS will not be prepared.
A copy of the EA is available upon request (see ADDRESSES).
Conclusions
NMFS has determined that the short-term impact of exploration
drilling and related activities in the Beaufort Sea will result, at
worst, in a temporary modification in behavior by certain species of
pinnipeds, and possibly some individual bowhead or beluga whales. While
behavioral modifications may be made by these species of marine mammals
to avoid the resultant noise from tugs either towing the CIDS or
transporting supplies, or due to drilling activities, this behavioral
change is expected to have a negligible impact on the animals.
While the number of potential incidental harassment takes will
depend on the distribution and abundance of marine mammals (which vary
annually due to variable ice conditions and other factors) in the
activity area, the number of potential harassment takings is estimated
to be small. In addition, no take by injury and/or death is anticipated
and takes will be at the lowest level practicable due to incorporation
of the mitigation measures mentioned above. No rookeries, mating
grounds, areas of concentrated feeding, or other areas of special
significance for marine mammals occur within or near the planned area
of operations during the season of operations.
Because bowhead whales are in the Canadian Beaufort Sea until late
August/early September, moving the CIDS during August will not impact
subsistence hunting of bowhead whales. Appropriate mitigation measures
to avoid an unmitigable adverse impact on the availability of bowhead
whales for subsistence needs was the subject of consultation between
ARCO and subsistence users. As a result of discussions between the two
parties, a Conflict and Avoidance Agreement has been concluded. This
Agreement consists of three main components: (1) Communications, (2)
conflict avoidance, and (3) dispute resolution.
Since NMFS is assured that the taking will not result in more than
the incidental harassment (as defined by the MMPA) of small numbers of
certain species of marine mammals, would have only a negligible impact
on these stocks, will not have an unmitigable adverse impact on the
availability of these stocks for subsistence uses, and would result in
the least practicable impact on the stocks, NMFS has determined that
the requirements of section 101(a)(5)(D) have been met and the
authorization can be issued.
Authorization
Accordingly, NMFS has issued an IHA to ARCO Alaska for the above
described oil exploration drilling activities in Camden Bay, Beaufort
Sea, AK, provided the mitigation, monitoring and reporting requirements
described in the authorization are undertaken.
Dated: September 25, 1997.
Patricia A. Montanio,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 97-26060 Filed 10-1-97; 8:45 am]
BILLING CODE 3510-22-F
