[Federal Register Volume 64, Number 204 (Friday, October 22, 1999)]
[Proposed Rules]
[Pages 57010-57026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27578]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 990901241-9247-01; I.D. 123198B]
RIN 0648-AM09
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Construction and Operation of Offshore Oil and Gas
Platforms in the Beaufort Sea
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS has received a revised application for a Letter of
Authorization (LOA) from BP Exploration (Alaska), 900 East Benson
Boulevard, Anchorage, AK 99519 (BPXA) to take small numbers of marine
mammals incidental to construction and operation of offshore oil and
gas platforms at the Northstar development in the Beaufort Sea in state
and Federal waters and a petition from
[[Page 57011]]
BPXA for regulations governing such take. By this document, NMFS is
proposing regulations to govern that take. In order to implement these
regulations, NMFS must determine that these takings will have a
negligible impact on the affected species and stocks of marine mammals,
and will not have an unmitigable adverse impact on the availability of
the species or stock(s) for subsistence uses. NMFS invites comment on
the petition/application, and the regulations.
DATES: Comments and information must be postmarked no later than
December 21, 1999. Comments on the collection of information
requirement must be received no later than December 21, 1999.
ADDRESSES: Comments should be addressed to Donna Wieting, Chief, Marine
Mammal Conservation Division, Office of Protected Resources, National
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD
20910-3226. A copy of the updated application, Technical Monitoring
Plan, Biological Opinion and a list of the references used in this
document may be obtained by writing to this address or by telephoning
one of the contacts listed here (see FOR FURTHER INFORMATION CONTACT).
Comments regarding the burden-hour estimate or any other aspect of the
collection of information requirement contained in this rule should be
sent to the preceding individual and to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Attention:
NOAA Desk Officer, Washington, D.C. 20503.
A copy of the final environmental impact statement (FEIS) for
Northstar may be obtained by contacting the U.S. Army Engineer
District, Alaska, Regulatory Branch, P.O. Box 898, Anchorage, AK 99506-
0898.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead (301) 713-
2055, Brad Smith, (907) 271-5006.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the Marine Mammal Protection Act (16
U.S.C. 1361 et seq.) (MMPA) directs the Secretary of Commerce
(Secretary) 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 regulations are
issued.
Permission may be granted for periods of 5 years or less if the
Secretary finds that the taking will have a negligible impact on the
species or stock(s) of affected marine mammals, will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses, and regulations are prescribed setting
forth the permissible methods of taking and the requirements pertaining
to the monitoring and reporting of such taking.
Summary of Request
On November 30, 1998, NMFS received an application for LOAs
granting an incidental, small take exemption under section 101(a)(5)(A)
of the MMPA from BPXA to take marine mammals incidental to construction
and operation of offshore oil and gas platforms at the Northstar and
Liberty developments in the Beaufort Sea in state and Federal waters.
On March 1, 1999 (64 FR 9965), NMFS published an advance notice of
proposed rulemaking (ANPR) on the application and invited interested
persons to submit comments, information, and suggestions concerning the
application, and the structure and content of regulations if the
application is accepted. Because of delays in construction during 1999,
and in issuing this proposed rule, on October 1, 1999, BPXA updated
their application to NMFS. This application is available upon request
(see ADDRESSES). Following is a brief description of the proposed scope
of work for the Northstar project. For more detailed descriptions
please refer to the BPXA application. Description of the Activity BPXA
proposes to produce oil from two offshore oil developments, Northstar
and Liberty. These two developments will be the first in the Beaufort
Sea that use a subsea pipeline to transport oil to shore and then into
the Trans-Alaska Pipeline System. The Northstar Unit is located between
2 and 8 miles (mi)(3.2 and 12.9 kilometers (km)) offshore from Pt.
Storkersen, AK. This unit is adjacent to the Prudhoe Bay industrial
complex and is approximately 54 mi (87 km) northeast of Nuiqsut, a
Native Alaskan community.
Construction is scheduled to begin in December 1999, with both
island construction and offshore pipeline installation occurring in
2000. The proposed construction activity includes the construction of
several ice roads, one from West Dock and the Pt. McIntyre drill site
to the Northstar gravel mine, one from the Kuparuk River delta mine
site to Seal Island, and one along the pipeline route to Seal Island.
The gravel-haul road will have a parallel alternate road to transport
service equipment, construction materials and alternate gravel hauling
when maintenance or repair of the main ice road is required. In
addition to these main ice roads it is expected that three to four
access roads will be cleared of snow to allow light vehicle traffic
between the pipeline construction activities and the gravel-haul ice
road. These on-ice access roads will have the snow cleared regularly,
with intermittent flooding to maintain safe traffic conditions.
It is estimated that during the winter approximately 16,800 large-
volume haul trips between the onshore mine site and a reload area in
the vicinity of Egg Island, and 28,500 lighter dump truck trips from
Egg Island to Seal Island will be necessary to transport construction
gravel to Seal Island. An additional 300 truck trips will be necessary
to transport concrete-mat slope protection materials to the island.
Construction of a gravel island work surface for drilling and oil
production facilities, and the construction and installation of two 10
in (0.25 m) pipelines, one to transport crude oil and one for gas for
field injection will take place during the winter and into the open
water season of 2000, while the transport and installation of the drill
rig and associated equipment will occur during the summer, ending
around September 1, 2000. The two pipelines will be buried together in
a single trench. During the summer approximately 90 to 100 barge trips
from Prudhoe Bay or Endicott are expected to support construction.
The operational phase will begin with drilling as early as the
4th quarter of 2000, and will continue for 2 years. Power
will be supplied by diesel generators. This phase of drilling will
temporarily cease in mid-August 2001 to allow installation and start-up
of process facilities. Drilling is expected to resume by November 2001.
Drilling will continue until 23 development wells (15 production, 7 gas
injection) are drilled. After drilling is completed, only production-
related site activities will occur. In order to support operations at
Northstar, the proposed operations activity includes the annual
construction of an ice road from Pt. McIntyre to the shore crossing of
the pipeline and along the pipeline route to Seal Island. Ice roads
will be used to resupply needed equipment, parts, foodstuffs, and
products, and for hauling wastes back to existing facilities. During
the summer, barge trips will be required between West Dock or Endicott
and the island for resupply.
Year-round helicopter access to Northstar is planned for movement
of personnel, foodstuffs and emergency movement of supplies and
equipment.
[[Page 57012]]
Helicopters will fly at an altitude of at least 1,000 ft (305 m),
except for takeoffs, landings, and safe-flight operations.
Comments and Responses
On March 1, 1999 (64 FR 9965), NMFS published an ANPR on BPXA's
application and invited interested persons to submit comments,
information, and suggestions concerning the application and the
structure and content of regulations, if the application is accepted.
During the 30-day comment period on that notice, comments were received
from the Marine Mammal Commission (MMC), Greenpeace Alaska, the Alaska
Eskimo Whaling Commission (AEWC), the North Slope Borough (NSB), and
the Inupiat Community of the Arctic Slope (ICAS). These comments are
addressed here.
In addition to the application for regulations, on August 14, 1998,
NMFS received an application from BPXA requesting a 1-year
authorization for the harassment of small numbers of several species of
marine mammals incidental to construction of the Northstar development
in the Alaskan Beaufort Sea. This application was submitted by BPXA to
ensure that, if construction began during the winter of 1998/99, it
would have an authorization to take marine mammals during the lengthy
period of time for developing and promulgating rulemaking. This
application and NMFS' preliminary determination that the incidental
harassment caused by this activity would have no more than a negligible
impact on small numbers of marine mammals and not have an unmitigable
impact on subsistence needs for these species were published on October
26, 1998 (63 FR 57096), and a 30-day comment period was provided. An
Interim Incidental Harassment Authorization (IHA), limited to ice road
construction at Northstar was issued to BPXA on March 15, 1999 (64 FR
13778, March 22, 1999). That document noted that comments received on
the IHA application would be addressed in a future Federal Register
document. Because NMFS was notified by BPXA that they would not be
proceeding with construction at Northstar during the spring and summer
of 1998, NMFS did not issue an IHA to BPXA for the construction of
Northstar during 1999. Therefore, this document contains the comments
and NMFS' responses to those comments submitted in response to the IHA
application (updated where necessary), in addition to those comments
received during the ANPR. Because two separate actions are being
discussed in this section, dates have been provided in order to clarify
which action is under discussion (11/98 refers to comments on the IHA;
3/99 refers to comments on the ANPR).
Liberty Project Concerns
Comment 1: Several commenters noted that because a Draft
Environmental Impact Statement (DEIS) has not been released by the
Minerals Management Service (MMS), it would be premature to consider
proposing regulations to authorize the taking of marine mammals during
the construction and operation of the Liberty oil and gas development
project.
Response: NMFS agrees. While this Federal Register document
contains generic regulations for the taking of marine mammals
incidental to offshore oil and gas development in the U.S. Beaufort
Sea, the only project under consideration in this rulemaking is the
Northstar project. NMFS will not issue proposed regulations regarding
incidental takes for the Liberty project until after a DEIS has been
released by MMS. This document is scheduled to be released either late
this year or early next year.
Northstar Concerns
Comment 2: The AEWC (3/99) believes it is not in a position to
comment on incidental take regulations relative to Northstar because:
(1) the AEWC is unaware of any final determination regarding the
proposed subsea pipeline route for Northstar; (2) the bowhead whale
subsistence whaling community objects to the proposed pipeline route in
Alternative 5 of the FEIS, and that the AEWC will object to the project
as a whole, if Alternative 5 is selected, since that alternative will
place the subsea pipeline at greater risk of damage from ice and
erosion; and (3) the U.S. Army Corps of Engineers (Corps) reports that
for present and reasonably foreseeable oil production in the Beaufort
Sea, the ``cumulative probability of one or more major oil spills
(greater than 1,000 barrels) is 95.2 percent'' over the next 20 years.
Response: While NMFS has preliminarily determined that either
alternative 2 or 5 will result in no more than a negligible impact on
marine mammals and not have an unmitigable impact on subsistence needs
for marine mammals, the Corps chose Alternative 2, not Alternative 5,
as the preferred action. For discussion on oil spill impacts, please
refer to a discussion on that subject later in this document.
MMPA concerns
Comment 3: The AEWC (3/99) believes that a 30-day comment period
is insufficient for proposed regulations on Beaufort Sea oil and gas
development and production. Therefore, the AEWC requests that the
public comment period for the proposed regulations be no less than 60
days.
Response: NMFS agrees and has extended the normal 45-day comment
period for proposed rules for an additional 15 days for these
regulations. However, in order to complete rulemaking in a timely
manner, and because most issues have been addressed already in the FEIS
issued by the Corps under the National Environmental Policy Act (NEPA),
an extension beyond 60 days is unlikely to be available.
Comment 4: Greenpeace (11/98) states that BPXA's reliance on
harassment and ``take itself'' to displace seals from construction
activities violates the spirit and intent of the MMPA. The MMC (3/99)
notes that BPXA's petition for rulemaking suggests that regulations and
LOAs authorize the intentional hazing (harassment) of whales and seals
to reduce the likelihood of their encountering oil if there is an oil
spill. The MMC wants to ensure that BPXA recognizes that intentional
hazing cannot be authorized under section 101(a)(5)(A) of the MMPA.
Response: Section 101(a)(5)(A) requires NMFS to implement
``regulations setting forth * * * permissible methods of taking
pursuant to such activity, and other means of effecting the least
practicable adverse impact on such species or stock and its habitat * *
*.'' Therefore, if there is an authorization for the incidental
harassment of marine mammals, and that incidental harassment takes
place, the fact that the marine mammmals do not return to the area is
not considered by NMFS to be a violation of the MMPA. In fact, because
certain activities (e.g., ice road construction, oil spills) have some
potential for serious injury or mortality for marine mammals that
remain within the area, NMFS believes that early displacement of these
animals would be to the animals' benefit. When mitigation measures that
lower the potential for marine mammals to be seriously injured or
killed have been identified, those measures, including, when necessary,
intentional harassment measures can be authorized under the appropriate
provision of the MMPA.
Comment 5: Greenpeace (11/98) contends that NMFS artificially
segregated the IHA process. Greenpeace states that the MMPA does not
provide for NMFS to issue ``first-year construction'' and later
``construction and operation.''
[[Page 57013]]
Response: NMFS disagrees. While the MMPA does not provide for this
segregation, it also does not prohibit issuing an IHA in 1 year and
then promulgating regulations for a 5-year authorization. Congress
implemented the IHA process as an expedited procedure recognizing the
time necessary in the Federal Government for the promulgation of
regulations. Congress recognized that NMFS must be afforded some
procedural flexibility in order to streamline the review of small take
authorizations when the taking is limited to incidental harassment(see
MMPA Amendments of 1994. H.R. Rep. No. 103-439, at 29-30, 1994). Even
under an ideal schedule, regulations could not be implemented within
the time period between the release of the DEIS and receipt of a small
take application and the proposed time for ice-road construction in
early winter, 1998/99. This prompted BPXA's IHA application.
Comment 6: Greenpeace (11/98) contends that, because NMFS' IHA
review process took 73 days, instead of the statutory 45 days, NMFS
improperly noticed the proposed action in the Federal Register.
Response: While there is a statutory requirement for NMFS to
publish notice of receipt of an application not later than 45 days
after receipt of an application, that process may be delayed due to
either the adequacy of the application or meeting certain requirements
under the NEPA. In this case, because the supporting NEPA documentation
(i.e., the FEIS for this activity would not be released within the
statutory 120 days of receipt of an IHA application, and because NMFS
determined that it could not issue an IHA to BPXA without this
document, NMFS determined that, because of the complexity of the
activity, a more detailed review could be undertaken than statutorily
allowed by the MMPA.
Comment 7: Greenpeace (3/99) believes that NMFS did not fairly
consider Greenpeace's comments on BPXA's application for an interim IHA
for Northstar construction.
Response: NMFS gave full consideration to Greenpeace's comments
contained in their November 24, 1998, letter when it issued an interim
IHA to BPXA on March 15, 1999 (64 FR 13778, March 22, 1999). As
mentioned previously, NMFS' review of comments submitted on the 1998
IHA application are addressed in responses in various parts of this
document.
Scientific evidence concerns
Comment 8: Greenpeace (3/99) believes that there is an overwhelming
lack of scientific evidence supporting the claim that BPXA's
construction and operation of the Northstar and Liberty projects pose a
negligible impact to marine mammals and do not pose an unmitigable
impact on the availability of marine mammals for subsistence uses.
Greenpeace believes that the Northstar DEIS and FEIS are inadequate for
supporting these claims.
Response: NMFS has reviewed both the DEIS and FEIS prepared by the
Corps on the Northstar project and has determined that that document
contains the best scientific information (and Traditional Knowledge)
available for assessing impacts on marine mammals by the construction
and operation of the Northstar project. As noted later in this
document, NMFS has preliminarily determined that the best scientific
information available indicates that construction and operation of
Northstar will have no more than a negligible impact on marine mammals
and not have an unmitigable adverse impact on subsistence uses of
marine mammals. NMFS will continue to evaluate new information during
this rulemaking period and invites reviewers to submit data or
references on the potential impacts on marine mammals from oil
development on the North Slope.
Small Take Concerns-Ringed Seals
Comment 9: For reasons stated in their letter, including the lack
of current reliable figures for ringed seal populations, Greenpeace
(11/98) contends that it is impossible for NMFS to meet the negligible
impact requirement of the MMPA without current information on the
status of the Beaufort Sea ringed seal population.
Response: NMFS uses the best scientific information available when
making determinations that marine mammal takings are small, that
activities are having no more than a negligible impact on the species
or stock(s) of marine mammals and not having an unmitigable adverse
impact on the availability of the species or stock(s) of marine mammals
for subsistence uses. Hill and DeMaster (1998) indicates that there are
no current population estimates available for ringed seals. However,
such estimates are not critical when takings are expected to be limited
to incidental harassment. Provided the activity itself is not having
more than a negligible impact on the population, population
fluctuations due, for example, to increasing polar bear populations,
global warming and persistent organic pollutants are not critical, but
are considered when making determinations on potential biological
removal (PBR) levels. However, while there are no current population
estimates available, crude population estimates have been made: Kelly
(1988) estimated that 1-1.5 million seals occur in Alaskan waters,
Frost and Lowry (1984) extrapolated a winter population of 40,000
ringed seals from a mean density estimate of 0.4 seals/km2
and estimated that the summer population would be 80,000. Amstrup
(1995) estimated a population size of 326,500 (208,000 in the pack ice
and 118,500 in the shorefast ice).
Because NMFS expects that ringed seals may be harassed, but not
killed as a result of industry activities, knowledge of the species'
local density is more important than a reliable estimate of population
abundance. There are numerous studies that have documented the density
of ringed seals in the Northstar area. ADF&G surveys have shown
densities of 0.33 to 0.66 seals/km2 (0.85 to 1.71 seals/
mi2) (Frost et al., 1997; Corps, 1999) and a 1997 survey in
the Northstar area showed an average density of 0.42 ringed seals/
km2 on landfast ice over water depths of 5-20 m (16.4-65.6
ft) (Miller et al., 1998). Virtually no seals were seen where water
depths were less than 3 m (9.8 ft)(Miller et al., 1998). The Northstar
ringed seal surveys included as part of the monitoring plan will
provide up-to-date, site-specific density estimates at Northstar, and
can be compared with past density estimates. Because these surveys
began in 1997, they will provide a baseline against which results of
future seal surveys during and after Northstar construction can be
compared.
Although aerial surveys during spring are the standard method for
documenting densities and distribution of ringed seals, the densities
tend to be underestimated because not all ringed seals are hauled out
on the ice at any one time, and aerial surveys may not see all seals
hauled out on the ice. These underestimates are taken into account when
estimating impacts and levels of take.
Comment 10: Greenpeace (11/98) is concerned about the effects of an
increasing polar bear population and anthropogenic and non-
anthropogenic impacts on ringed seals.
Response: Because the taking of ringed seals incidental to
Northstar activities will be almost exclusively by incidental
harassment and no serious injury or mortality is expected as a result
of Northstar construction and operation, fluctuating population levels
should be of little consequence. Provided the total taking by the
activity itself is having no more than a negligible
[[Page 57014]]
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
subsistence uses, the authorization can be granted. It should be noted
moreover, that the U.S. Fish and Wildlife Service (USFWS) believes the
polar bear population on the North Slope has reached its carrying
capacity and that its growth rate will slow or stabilize.
NMFS believes that the research and monitoring underway since 1997,
at Northstar and the central Beaufort Sea, including aerial monitoring
surveys conducted by both ADF&G and LGL Limited support the scientific
evidence that the takings incidental to Northstar construction and
operation will be negligible.
Comment 11: Greenpeace (11/98) questions BPXA's statement that
ringed seals give birth in their lairs ``starting in late March and
nurse their pups for 4-6 weeks.'' This, Greenpeace believes,
underestimates the birthing and nursing periods for ringed seals.
Ringed seals continue birthing through April and early May, with
nursing in subnivean lairs continuing through May and early June. As
such, harassment and take of ringed seals will be significantly greater
than that which is set forth by BPXA in its application.
Response: NMFS agrees that the BPXA statement could have included
more complete information on the life history of ringed seals. NMFS
does not agree that the impact will be significantly greater than what
is provided in the application because BPXA has timed its operations to
avoid, to the greatest extent practicable, harassment during the period
when ringed seals are pupping. By constructing the ice roads between
December and February, well prior to the ringed seal pupping season,
and maintaining and operating those roads during the season, it is
unlikely that ringed seals would remain in the vicinity of the ice road
corridor and expose themselves and later, their young, to the noise if
the female was within an area that was annoying to it.
Comment 12: Greenpeace (11/98) questions BPXA's use of March 20 as
the beginning date to require ringed seal surveys in previously
undisturbed areas. Greenpeace believes that this fails to protect seals
occupying lairs prior to March 20.
Response: Due to the instability of the shorefast ice during mid-
to late-March, it is highly unlikely that roads relating to Northstar
construction or operation would be constructed after March 20. NMFS
reviewed the citation provided by BPXA and noted that the late-March
date was for the area of the eastern Beaufort Sea about 60 deg. N, not
in the Beaufort Sea at about 70 deg. 30'N. Smith (1988) noted the
difference in reproductive timing between his data for a mid-April
birthing in the Western Arctic at approximately 72 deg. N and McLaren's
mid-March date. Smith (1988) suggests a latitudinal gradient in the
time of pupping. If so, NMFS notes that the March 20 date should be
conservative. This date was the standard date for operational
constraints on the on-ice seismic industry prior to establishment of
the small take authorizations in 1982 (see 47 FR 21248, May 18, 1982).
If better scientific information is provided that indicates a different
start date should be used or that different methods should be
implemented, NMFS is willing to consider that information.
Comment 13: Greenpeace (11/98) contends that BPXA's 50 m (164 ft)
distance for avoiding any detected ringed seal lairs is insufficient
and unsupported if the intent is to avoid any take. If so, then the
distance would have to be greater than 3 km (1.86 mi).
Response: While NMFS agrees that at present there is no scientific
evidence supporting a distance of 50 m (164 ft) from lairs for avoiding
takes of ringed seal pups, there is also little support for a distance
as great as 3 km (1.86 mi). As ringed seals departed lairs in response
to vibroseis and its associated equipment at a distance up to 644 m
(2,113 ft)(Kelly et al. 1986), and as Burns and Kelly (1982) suggest
that heavy equipment and human activity are the major source of
disturbance, not the vibroseis noise itself, NMFS presumes that ice
road construction is likely to disturb ringed seals about the same
degree as vibroseis. Therefore, ice roads constructed in water (ice and
water combined) deeper than 8 ft (2.4 m) should avoid active seal lairs
by at least 650 m (2,132 ft) unless a small take authorization has been
issued, especially after March 20. However, because ice roads for
gravel hauling and pipeline trenching at Northstar cannot deviate
greatly from a straight line, NMFS retained the requirement under the
Interim IHA issued to BPXA on March 15, 1999, that ice road
construction begun after March 20, 1999 avoid ringed seal lairs by 50 m
(164 ft), and did not increase that distance as recommended. However,
while NMFS believes that it is very unlikely that any new ice roads
would be constructed that late in the season in the Beaufort Sea due to
the condition of the ice in most years, it is inviting further
discussion on this issue during this rulemaking. At this time, NMFS
proposes to require all ice roads, except the gravel road and the
pipeline road, avoid seal lairs by a minimum of 150 m (492 ft), which
is an increase over the 50-m (164 ft) retained in the Interim IHA and
is similar to NMFS' requirements for vibroseis surveys.
Marine Mammal Concerns-Bearded Seals
Comment 14: Greenpeace (11/98) believes that (1) given the lack of
population data for bearded seals, it is not possible for BPXA to
estimate the number of bearded seals that would be taken and (2) given
the lack of baseline data on the population of bearded seals, it is
impossible for NMFS to determine that the take of these marine mammals
would pose a negligible impact.
Response: Using data collected in 1996 and 1997 near Seal Island
(Harris et al., 1997, 1998), BPXA calculated estimates of harassment
takes that might occur as a result of construction and related
activities at Northstar. The calculation method was provided in the
BPXA IHA application. Based on this calculation method, BPXA estimates
that between 9 and 26 bearded seals might be harassed incidental to
Northstar open-water activities. When takes are limited to the
incidental harassment of small numbers of marine mammals, a negligible
impact determination can be made without recent baseline data (see
response to Comment 9).
Marine Mammal Concerns-Spotted Seals
Comment 15: Greenpeace (11/98) states that BPXA's application fails
to include any information on the current use of the area by spotted
seals, or the potential effects of summer construction activities on
the species.
Response: This information was provided in various sections of
BPXA's IHA application (and later in the Northstar/Liberty LOA
application). For example, information on the status and distribution
of spotted seals was provided on page 23 to 25 of the IHA application
and information on potential impacts was provided on pages 51 through
55 of that document. However, because most spotted seals are found in
the Bering and Chukchi seas, fewer than 5 spotted seals are expected to
be exposed to harassment takes during the open water season and none
during the hard water (ice) season.
Marine Mammal Concerns-Bowheads
Comment 16: The MMC (3/99) notes that the petition indicates that
as many as 1,380 bowhead whales could possibly be taken annually by
harassment
[[Page 57015]]
incidental to Northstar construction and operation. Although the
effects of incidental harassment on the bowhead population may well be
negligible, it is not clear why the possible cumulative effects are
expected to be negligible or why taking up to 1,380 bowheads annually
(6,900 over 5 years) is considered to be a ``small'' number.
Response: NMFS cautions that BPXA's estimate that 1,380 bowhead
whales might be harassed incidental to Northstar construction, and
later operations, is a maximum take level, not the best estimated take
level. The expected average level of take by harassment for bowheads is
173 animals annually (based on the best scientific information that
approximately 1.88 percent of the bowhead population will migrate
within 10 km (6.2 mi) of the barrier islands) (BPXA, 1998). Only in
those years (such as the single year (1997) between 1979 and 1997) when
the bowhead migration corridor is close to shore, would BPXA and NMFS
expect up to 52 percent of the bowhead population to incur a take by
incidental harassment. Takings by Northstar during this event may
result in up to 1,380 bowheads being harassed. As takings by harassment
at this level would not be expected every year (and might not occur
during a 5-year authorization), NMFS believes that the takings (by
harassment) should be considered small. Also because most bowheads that
would be encountered would be migrating, it is unlikely that a given
bowhead would be incidentally harassed on more than one date.
Comment 17: Greenpeace (11/98) contends that construction
activities at Northstar pose a significant threat to the migration of
bowhead whales. Any delays in scheduling could result in an even
greater number of industrial activities occurring during the fall
bowhead migration.
Response: NMFS recognizes that delays in construction scheduling
could result in increased harassment takes of bowhead whales. This has
been partially recognized by BPXA in their July 26, 1999 letter to NMFS
wherein they note that movement of the drilling rig is currently
scheduled for September 1, 2000. BPXA has also assured NMFS and the
AEWC/NSB that all construction and operational activities at Northstar
during the bowhead migration period would be conducted safely and would
not interfere with the fall bowhead hunt. As a result, NMFS will need
to base its determinations of negligible impact on marine mammals and
no unmitigable adverse impact on subsistence uses on statements made by
BPXA and analysis of data in the FEIS and BPXA application. If NMFS
cannot make a finding of negligible impact (and no unmitigable adverse
impact on subsistence uses) determination, then the LOA (if issued)
would either not authorize incidental takes during the bowhead
migration, or, in coordination with the AEWC/NSB, identify mitigation
measures that would allow NMFS to make a negligible impact
determination.
Comment 18: Greenpeace (11/98) notes that the DEIS for Northstar
describes impacts from pile driving required for installation of island
slope protection as ``one of the greatest noise impacts to bowhead
whales'' and that data was not presented by BPXA on how far away from
the island this sound source could be heard, and even though bowheads
aren't yet ``in the vicinity'' they still receive sounds transmitted
over long distances. Greenpeace contends that this impact should be
analyzed in detail because even a short delay in the schedule could
result in this massive sound source taking place during bowhead
migration.
Response: BPXA's application describes in detail expected sound
pressure levels (SPLs) from pile driving in the Beaufort Sea. According
to the application (BPXA, 1998), impact hammering measured at
Sandpiper, nearby to Northstar, received sound levels just above the
seabottom 1 km (0.6 mi) from Sandpiper Island ranged from 110 to 135 dB
re 1 PaRMS. These transient signals from impact
hammering were similar in characteristics to seismic pulses, but
considerably weaker; the received levels at 1 km (0.6 mi) range were
similar to those from a seismic vessel more than 10 km (6.2 mi) away.
Vibratory hammering produced even lower noise levels. To mitigate noise
levels from impact hammering, BPXA has adopted NMFS suggestion (found
in the March 4, 1999, Biological Opinion), to install sheet piling
using agitation methods instead of impact hammering. This work is
anticipated to be completed prior to bowhead migration. Therefore, even
if island construction continues after bowhead whales appear, these
noises would not be expected to significantly affect those bowhead
whales in the main bowhead migration corridor.
Comment 19: Greenpeace (11/98) states that industrial noise and
other activities interfere with cow-calf bonding, and causes
displacement from migratory routes. The energetic costs of noise-
related changes in behavior and distribution patterns are potentially
significant and will inevitably constitute harassment and take.
Response: Loud industrial noises, such as seismic surveys, in the
marine environment have been identified as potentially interfering with
cow-calf bonding. However, the best information indicates that this
interference would need to occur around the time of birth or shortly
thereafter (Gentry, R. pers. comm., 1999). Since bowhead whales are
born in the spring in the Bering Sea, and as the spring-time eastern
migration through the Beaufort Sea is well offshore of the Northstar
site, noise from Northstar is unlikely to interfere with bonding.
Changes in marine mammal migration patterns and behavior due to
anthropogenic noise constitute Level B harassment. For that reason,
BPXA has applied for a small take authorization under section
101(a)(5)(A) of the MMPA.
Comment 20: Greenpeace (11/98) contends that given the lack of
studies and information on the effects of construction and heavy
equipment activity on artificial islands on cetaceans, NMFS should take
the precautionary approach and deny BPXA's request for an IHA until
such time as the applicant can present conclusive data that its
activities will not harm, harass, or take cetaceans.
Response: BPXA applied for an IHA on the assumption that it will
take, by harassment, several species of marine mammals incidental to
the construction at Northstar. However, because work on Northstar did
not proceed into the open water season of 1999, an IHA to incidentally
harass bowhead whales during construction of Northstar was not issued
to BPXA in 1999. NMFS believes that both the IHA application and the
LOA application provide detailed information on the anticipated impacts
on marine mammals from construction at Northstar.
Negligible Impact Concerns
Comment 21: Greenpeace (3/99) believes that BPXA fails to consider
the impact of the full array of Northstar and Liberty construction and
operation activities on marine mammals. The proposed LOAs and
regulations seek to include the impacts of oil spills on marine
mammals, and are being proposed at a time when the environmental review
of Northstar is incomplete, a final determination on the project has
not yet been made, and the public environmental review of Liberty has
not progressed beyond the scoping stage. Greenpeace (3/99) believes
that incidental takes would not be negligible given BPXA's request that
the 5-year regulations include lethal takes of marine mammals caused by
oil spills.
[[Page 57016]]
Response: Please see our response to comment 1 regarding the
Liberty project. Since the time that Greenpeace submitted its letter
(3/99), the Corps has completed its environmental review of the
Northstar project.
NMFS believes that a small oil leak or spill at either the oil rig
or the pipeline would affect only a small number of marine mammals and
have no more than a negligible impact on marine mammals and subsistence
uses of those marine mammals. However, a large oil spill, although
unlikely to occur during the 5-year authorization time period under
consideration here, could result in a number of marine mammals being
taken, and, if the spill intersects with the bowhead migration corridor
during the time of the bowhead migration could have more than a
negligible impact on marine mammals and the subsistence uses of that
species. Because the probability of a large oil spill occurring during
the 5-year period of the authorization that will affect marine mammals
is low, NMFS believes that a finding of negligible impact may be
appropriate even though the potential effects could be significant. As
in this case, NMFS will need to balance the probability of occurrence
with the potential severity of harm to the species and stocks of
potentially affected marine mammal(s) to determine negligible impact.
When applying this balancing test, NMFS needs to evaluate as thoroughly
as possible the risks involved and the potential impacts on marine
mammal populations. This determination will be made based on the best
available scientific information and, if determined to be negligible
and an LOA is issued, will be supported or negated later through the
required monitoring program. For information on cumulative impacts
please refer to response to Comment 29 later in this document.
Coordination Concerns
Comment 22: The MMC (3/99) noted that neither the BPXA petition
for regulations nor the Federal Register ANPR recognize the possibility
that road construction, etc. could attract polar bears and cause ringed
seals in the affected areas to be more vulnerable to predation by the
bears. The MMC therefore recommends that NMFS consult with the USFWS to
determine and, if appropriate, cooperatively specify monitoring
requirements for polar bears and ringed seals.
Response: NMFS concurs that coordination with the USFWS on
monitoring is warranted. That coordination begins with the release of
this document. In addition, the USFWS has been invited to attend peer
review workshops wherein NMFS and others review previous monitoring and
upcoming monitoring plans.
Subsistence Concerns
Comment 23: The NSB (3/99) requested that if the petition (for
regulations) is approved, it should be with strong additional
consideration given to tailoring industry operation schedules to
respect the whaling season of Nuiqsut, and its subsistence use of Cross
Island.
Response: BPXA anticipates that they will coordinate the
construction and operation of Northstar with both the AEWC and the NSB,
and will successfully conclude a Conflict and Avoidance Agreement
(C&AA) with the affected villages. NMFS invites additional comment on
its regulations concerning its requirements for making a finding of no
unmitigable adverse impact on subsistence uses in Sec. 216.205.
Comment 24: For several stated reasons, Greenpeace (11/98) believes
that NMFS' deferral of addressing any unmitigable adverse impacts to
the C&AA, a private BPXA-NSB negotiation, results in significant
procedural flaws in the IHA process. Greenpeace concludes that the C&AA
is an essential element in avoidance of unmitigable adverse impacts on
subsistence. The C&AA should be made available for public review prior
to issuance of the IHA.
Response: NMFS does not agree. The C&AA is an agreement between two
(or more) non-Federal organizations that is not subject to either
public or Federal review and is not recognized by the MMPA. As a
courtesy, these parties provide a signed copy of the C&AA to NMFS. In
order for NMFS to determine that there will not be an unmitigable
adverse impact on the availability of marine mammals for taking for
subsistence purposes, the application instructions require that the
information items specified in Sec. 216.104(a)(11) and (a)(12) must be
provided. If commenters, including the NSB, believe the activity will
have an adverse impact on subsistence uses that at present is
unmitigated, they have the opportunity to comment on these statements
in the application. If during the comment period evidence is provided
indicating that an unmitigated adverse impact to subsistence needs will
result from the activity, a small take authorization may be delayed to
resolve this disagreement. If significant comments are not received on
this issue, NMFS will review the information and determine whether or
not there are any unmitigable adverse impacts prior to issuance of the
small take authorization. If, on the other hand, an adverse impact is
identified, which may be mitigated, then NMFS can, as here, make it a
requirement of the small take authorization that parties continue to
meet to resolve these differences. If a C&AA is not signed, NMFS has
the option to review each party's concerns, and may, if warranted and
under proper procedures, amend or suspend an authorization. NMFS
recognizes, however, that receipt of a signed C&AA prior to issuing a
small take authorization supports NMFS preliminary determination that
the activity will not have an unmitigable adverse impact on subsistence
needs.
Comment 25: Greenpeace (11/98) states that BPXA's IHA application
fails to consider the impact of its activities on the communities of
Point Hope, Point Lay, and Wainwright. These communities rely on
migrating subsistence species such as the bowhead whales that pass
through the impact zone of Northstar construction activities.
Response: The three mentioned communities hunt bowhead whales in
the Chuckchi Sea during the spring migration, not during the fall
migration when bowheads might be incidentally harassed by activities at
Northstar. Because no bowheads are expected to be seriously injured or
killed as a result of construction and operation of the Northstar Unit
(thereby depriving those communities of a potential harvest), and
because the spring migratory path of bowheads will not be affected by
Northstar construction or operation, NMFS has been unable to identify
an adverse impact to the subsistence needs of these communities. If
these communities believe that the Northstar project will have an
unmitigable adverse impact on their subsistence needs, they will have
an opportunity by review of this document to express those concerns.
Comment 26: Greenpeace (11/98) supports its opinion (on subsistence
impacts) by quoting from the DEIS that BPXA's Northstar proposal would
result in ``bowhead whale avoidance response to noise generated at Seal
Island and project-related vessel and helicopter noise and activity,''
which the DEIS concludes would be ``significant to subsistence
harvesting'' (DEIS page ES-97).
Response: The DEIS and FEIS identify two sources of noise during
Northstar construction that have the potential to result in a more than
negligible bowhead deflection during the Nuiqsut bowhead subsistence
hunt. These are impact hammering and vessel activity. The DEIS
identified ocean going tugs as having a potential deflection of
[[Page 57017]]
migration patterns at distances ranging from 9.3 mi (15 km) to 25 mi
(40 km). If large ships are active at Northstar during the fall bowhead
migration, deflection behavior could occur at the western border of
Nuiqsut's bowhead harvest area. If bowheads deflected at a distance of
25 mi (40 km), and no bowheads were struck within the eastern range of
the Cross Island whaling area, impacts to the fall whale harvest could
be significant. The DEIS and FEIS also note however, that bowheads near
the western border of Nuiqsut's bowhead harvest area are not expected
to be affected by small vessels operating at Seal Island (i.e.,
Northstar).
Pile driving for the installation of island slope protection would
be one of the greatest noise impacts to bowhead whales, if it were to
occur during the migration period (Corps, 1998. However, impact pile
driving for sheet piling for the island perimeter and docks and for
well conductors are scheduled to be completed by the end of July, prior
to the initiation of the bowhead whaling season. In addition, impact
pile driving has been replaced, where possible, by agitation methods.
Therefore, at this time, significant impacts from construction at
Northstar during the bowhead migration season are not anticipated.
Comment 27: Greenpeace (11/98) notes that the DEIS (page 10-27)
concludes that ``island construction would have a significant effect
(i.e., ``cumulative effects of noise on bowhead whale migration routes
and resulting effects on subsistence whaling activities are considered
significant cumulative impacts'').
Response: It should be noted that this statement has been modified
in the FEIS to note that ``significant long-term displacement of
bowhead whales is not expected to occur as a result of Northstar
operations.''
Cumulative Effects Concerns
Comment 28: Greenpeace (11/98) states that NMFS must consider the
impact of climate change on the Arctic marine ecosystem in a cumulative
assessment of the impacts of seismic activities on ``protected
resources'' in the agency's trust.
Response: NMFS disagrees, noting that long-term cumulative impacts
are an issue for discussion under NEPA, not the MMPA. Section
101(a)(5)(A) of the MMPA requires NMFS to make an assessment of the
total taking by a specified activity (i.e., oil and gas development) in
a specified geographic region during an authorization period. If, among
other things, the total taking will not have more than a negligible
impact on the affected marine mammal stocks, the authorization would
appear to be appropriate. (There is not a similar requirement for
assessing total takings for authorizations under section 101(a)(5)(D)
of the MMPA). It should be noted however, that seismic activities are
the subject of a separate small take authorization process and not a
part of BPXA's application.
Comment 29: Greenpeace (3/99) contends that BPXA fails to consider
the cumulative impacts of Northstar and Liberty construction and
operation that will affect marine mammals, subsistence, and the Arctic
marine environment. These impacts include chronic pipeline leaks, oil
spills, noise, pollution and other forms of industrial disturbance.
Response: Unlike Comment 28, NMFS views this comment on cumulative
impact as meaning the ``total taking'' of marine mammals by the
Northstar and Liberty projects. To evaluate expected impacts and to
determine whether these takings can be considered negligible and not
have an unmitigable adverse impact on subsistence uses, one must first
understand the statutory mandates of section 101(a)(5) of the MMPA, and
Congressional intent as provided in House Reports. Section 101(a)(5)(A)
of the MMPA requires the Secretary to ``find that the total of such
taking during each five-year (or less) period concerned will have a
negligible impact on such species or stock and will not have an
unmitigable adverse impact on the availability of such species or stock
for taking for subsistence uses * * *.'' Current NMFS regulations
require that `` * * * the total taking by the specified activity during
the specified time period will have a negligible impact on the species
of stock of marine mammal(s) * * *''
(Sec. 216.102). NMFS believes that this statement accurately
reflects the statutory meaning of the phrase ``such taking during each
five-year (or less) period.'' The specified activity is defined in NMFS
regulations as ``any activity, other than commercial fishing, that
takes place in a specified geographical region and potentially involves
the taking of small numbers of marine mammals.'' It was the intent of
Congress that ``the specified activity * * * referred to in section
101(a)(5) [should] be narrowly identified so that the anticipated
effects will be substantially similar. Thus, for example, it would not
be appropriate for the Secretary to specify an activity as broad and
diverse as outer continental shelf oil and gas development. Rather, the
particular elements of that activity should be separately specified as,
for example, seismic exploration or core drilling'' (H.R. Rep. No. 97-
228 at p. 19, 1981).
When an applicant requests NMFS promulgate a 5-year set of
regulations, applicants are required to submit the information
requested in Sec. 216.104(a) on their activity as a whole, which
includes, but is not necessarily limited to, an assessment of total
impacts by all persons conducting the activity (Sec. 216.105). NMFS
believes that BPXA provided the required information since they
discussed combined impacts and included incidental take estimates for
both Northstar and Liberty projects, but did not include discussion of
seismic work, moving exploratory drilling equipment, etc.
Mitigation Concerns
Comment 30: The MMC (3/99) notes that if work is required after
March 20 in a previously undisturbed area, a survey will be conducted
to determine the presence of ringed seal lairs prior to commencement of
activities. However, it does not indicate how the presence of an
active, ringed seal lair would influence construction activities, or
what mitigation measures would be undertaken. Would the road be
rerouted to avoid active ringed seal lairs by some specified distance
or will it be routed in the straightest line possible and assume that
any pup in a lair within a certain distance will be abandoned and die?
Response: Due to the instability of shorefast ice during that time
of the year, it is highly unlikely that any roads relating to Northstar
construction or operation would be constructed after March 20. If ice
roads are constructed, they would be secondary roads and not the main
gravel hauling road and pipeline road, which are not flexible and
cannot be rerouted to avoid seal lairs. However, for secondary roads in
previously undisturbed areas, NMFS proposes to require these roads to
avoid seal lairs by a minimum of 150 m (492 ft), similar to NMFS'
requirements on vibroseis surveys.
Comment 31: Greenpeace (11/98) believes that BPXA will not take
even the most basic of mitigation measures in ceasing operations during
the bowhead migration.
Response: Scheduling has been designed to complete as much of the
construction activity prior to the bowhead migration and bowhead
subsistence hunting period as possible. Mitigation measures are
described in the section entitled ``Proposed Mitigation Measures.''
NMFS will be reviewing BPXA's current schedule for potential impacts on
bowhead whales and other
[[Page 57018]]
marine mammals during this rulemaking.
Comment 32: Greenpeace (11/98) states that it is impossible to
place adequate mitigation measures (i.e., safety zones) into place when
there is inadequate knowledge about the impacts of seismic operations
on cetaceans' hearing and behavior. Greenpeace believes the
precautionary principle requires further research before ``potentially
permanent'' damage is incurred.
Response: Seismic operations have not been requested for inclusion
under either the IHA or the 5-year authorization. The application
contains a description of actions BPXA will take to mitigate noise from
construction on bowhead whales. While NMFS believes that sufficient
information is available (see discussions elsewhere in this document)
on the expected impacts of construction and operations at Northstar on
marine mammals to make a preliminary determination that the taking will
be negligible and not have an unmitigable impact on marine mammals,
NMFS agrees that additional information is warranted. This information
will be obtained during construction and operation through a monitoring
program funded by BPXA.
Monitoring and Reporting Concerns
Comment 33: The MMC (3/99) recommends that NMFS initiate the
rulemaking as requested, provided it is satisfied that the planned
marine mammals and related monitoring programs will be adequate to
verify how and over what distances marine mammals may be affected, that
only small numbers of marine mammals are taken, and that the cumulative
impacts on the affected species and stocks are negligible.
Response: On July 1, 1999, NMFS scientists and others met in
Seattle to discuss the open water monitoring program for construction
and operation at Northstar. Based on the recommendations from that peer
review workshop, BPXA has made appropriate amendments to the monitoring
plan found in its application and in the updated monitoring plan
submitted to NMFS on May 6, 1999. A copy of its August, 1999 monitoring
plan is available upon request (see ADDRESSES)).
While BPXA summarized monitoring plans for on-ice monitoring during
that meeting, discussion and evaluation of that portion of BPXA's
monitoring plan was set aside for discussion late this year with
appropriate seal biologists. The recommendations of the MMC will be
provided to reviewers of BPXA's on-ice monitoring plans.
Comment 34: The MMC (3/99) recommends that NMFS specify in the
regulations that proposed monitoring plans and the results of the
monitoring programs be reviewed annually by NMFS and outside experts to
confirm that the monitoring programs are capable of detecting any non-
negligible, cumulative population-level effects and that the
requirements will be revised as necessary if there is uncertainty in
that regard.
Response: NMFS believes that conditions regarding monitoring and
peer-review of monitoring plans, and the results, should be
requirements under LOAs, not regulations. Under LOAs, requirements,
including independent peer review, can be modified more efficiently and
timely than is possible under regulations.
Comment 35: The MMC (3/99) noted that BPXA proposes to use a
comparison of ``before'' and ``after'' aerial survey data to assess the
impact of the offshore developments on ringed seal numbers and
distribution. The MMC suggested how those comparisons should be
undertaken.
Response: This work, now in its second year of data collection, is
discussed in detail in the Technical Plan for Marine Mammal and
Acoustic Monitoring during Construction of BPXA's Northstar Oil
Development for 1999. A copy of this report is available upon request
(see ADDRESSES). The MMC recommendation has been forwarded to marine
mammal scientists for consideration.
Comment 36: The MMC (3/99) questions whether a visual survey alone
will detect even the majority of seal lairs in the vicinity of the
proposed activities and therefore ensure that those activities will
have the least practical adverse impact possible. If NMFS concurs that
the use of dogs puts ringed seals at risk, then alternative methods
should be considered to help ensure that the activities have the least
practical adverse impacts possible.
Response: NMFS believes that by requiring BPXA to construct ice
roads for gravel hauling and pipeline construction as early in the
season as practicable, at a time prior to establishment of lairs,
impacts have been mitigated to the greatest extent practicable. In
addition, NMFS believes that the noise from construction will deter
ringed seals from establishing new breathing holes or lairs in the
vicinity of ice roads. While dogs under experienced handlers are
unlikely to put ringed seals at risk, NMFS recognizes that some
disturbance at seal breathing holes and lairs by approaching dogs and
humans is likely. As a result, NMFS questions the value of using dogs
as a monitoring tool (as opposed to using dogs as a research tool) to
determine impacts caused by ice road construction, operation, and
maintenance. Alternatively, long term monitoring of ringed seal trends
in density have been undertaken by funding under MMS by ADF&G and by
BPXA. NMFS believes that this latter monitoring is preferable for the
Northstar project, but invites additional comments on the subject.
Comment 37: The MMC (3/99) notes that the petition does not
indicate what would be considered a significant difference in the
number of abandoned and active holes between the reference (i.e.,
control) area and the construction area or what would be done if a
significant difference is detected. In addition, while the counting
bias is likely to be constant, the reduced numbers produced by failing
to count inactive sites could affect the ability to show a significant
difference in the ratios. The MMC suggests that this potential problem
could be alleviated by ground truthing the aerial surveys to calculate
a correction factor for abandoned and active holes counted from the
air.
Response: NMFS has determined that the on-ice portion of the BPXA
monitoring program will need to be the subject of a peer review
workshop. This workshop is tentatively scheduled for mid-October. The
issues raised by the MMC in this comment and in previous comments will
be reviewed at this workshop.
Comment 38: Greenpeace (11/98) concludes that BPXA's IHA
application must be denied by NMFS on the basis that it lacks a peer-
reviewed monitoring plan based on sound science.
Response: In accordance with section 101(a)(5)(D)(ii) of the MMPA,
the authorization (i.e., the IHA), where applicable, is to contain
requirements for monitoring and reporting of takings by harassment,
including the requirements for the independent peer-review of proposed
monitoring plans or other research proposals where the proposed
activity may affect the availability of a species or stock for taking
for subsistence uses. Because takings authorized during the winter are
unlikely to affect the availability of a species or stock of marine
mammal for subsistence purposes, the IHA did not need to contain
requirements for independent peer review for ice road construction and
related on-ice activities. Because the open water portion of the
Northstar construction, which has the potential to adversely affect the
availability of subsistence uses
[[Page 57019]]
of bowhead whales, was not conducted, and because an IHA for that
portion of the activity was not issued, peer review of Northstar
construction monitoring was neither needed nor conducted under MMPA
section 101(a)(5)(D) IHA application. It should be noted that while not
required for authorizations issued under section 101(a)(5)(A) of the
MMPA, peer review of monitoring plans has been incorporated into these
regulations in accordance with findings made at a Seattle workshop held
in 1994 with the AEWC, the oil and gas industry and others.
NEPA Concerns
Comment 39: Greenpeace (3/99) contends that the Northstar DEIS and
FEIS fail to provide the environmental analysis required by NEPA for
incidental takes of marine mammals. Quantitative information regarding
estimated harassment and ``take'' provided in BPXA's current petition
for regulations was not provided in the DEIS or FEIS for Northstar.
Greenpeace also believes that the DEIS and FEIS failed to analyze the
environmental impacts of specific activities, such as ice road
construction, gravel hauling, island construction, helicopter
overflights and other forms of noise and industrial disturbance that
are now described in greater detail in BPXA's current petition to NMFS.
Response: NMFS notes that qualitative impacts on marine mammals
from the noise from construction, production and other activities and
from oil spills were each discussed in separate chapters (Chs. 9 and 8,
respectively) of the DEIS and FEIS. Additional discussion on impacts to
marine mammals was provided in Chs. 6.5 and 6.9.1.1 of the DEIS and
FEIS and impacts on subsistence use impacts was discussed in Chs. 7.2.1
and 7.3 of the DEIS and FEIS. In addition, a detailed description of
the activity at Northstar was described in Appendix A. In review, NMFS
agrees that the DEIS and FEIS did not provide sufficient information on
one part of the project, the construction of ice roads. As a result of
that review, an Environmental Assessment (EA) was prepared prior to
issuance of the Interim IHA to BPXA on March 15, 1999. After review of
the information contained in that EA, in addition to information
contained in the DEIS, NMFS determined that neither the proposed action
(i.e., issuance of an IHA for taking marine mammals incidental to ice
road construction), nor the identified alternatives to that proposed
action, would have a significant impact on the human environment.
NMFS believes that these NEPA documents support NMFS' preliminary
determination that construction and oil production at Northstar will
have no more than a negligible impact on affected marine mammal stocks
and will not have an unmitigable adverse impact on the availability of
such stocks for taking for subsistence uses.
Comment 40: Greenpeace (3/99) believes the proposed actions
artificially segment the environmental review of the Northstar and
Liberty projects and their impacts, thereby violating NEPA. Instead of
one comprehensive review and analysis of marine mammal harassment and
``take,'' the process has been segmented into separate reviews for an
interim IHA, an LOA, and the promulgation of 5-year regulations.
Response: The issue of segmenting the MMPA authorizations has been
addressed previously in this document. The concern regarding segmenting
under NEPA should be addressed to either the Corps or MMS.
Comment 41: Greenpeace (11/98) states that NMFS cannot rely on the
Northstar DEIS for its NEPA compliance because this (IHA) authorization
was not identified in the DEIS as one of the agency actions it was
intended to cover.
Response: While notice of NMFS' responsibilities under the MMPA
were not cited in either the notice of availability of the DEIS (63 FR
28375, May 22, 1998, or the Corps' public notice (SPN 98-3, June 1,
1998)), NMFS permitting requirements under the MMPA and Endangered
Species Act (ESA) were cited in tables ES-2 and 1-2 of the DEIS and
FEIS. The lack of a detailed description of each of the permit/
regulatory actions listed for the several Federal, state and local
agencies does not preclude adoption of the Corps'' FEIS for their
action(s). Procedures for adoption by cooperating agencies are
contained in Council on Environmental Quality (CEQ) regulations in 40
CFR 1506.3(c) which will be followed by NMFS.
Comment 42: Greenpeace (11/98) believes (1) the public should have
the benefit of new information and responses to comments contained in
the Northstar FEIS, (2) NMFS has relied on information in the DEIS
which is incorrect and/or under review and subject to change in the
FEIS, and (3) NMFS should deny BPXA's August 12, 1998, request for an
IHA and consider a new request for construction and operation based on
the FEIS.
Response: NMFS does not believe that delaying commencement of the
small take authorization process until completion of NEPA documentation
is warranted. Proper procedures under NOAA's NEPA guidelines are for
proposed actions to accompany a DEIS or Draft EA. Not beginning the IHA
process or the regulatory process until completion of NEPA leads to
unnecessary and potentially extensive delays in processing
applications, a problem previously recognized by Congress when it
amended the MMPA to expedite the small take program. The BPXA IHA
application was submitted to NMFS on August 14, 1998, in coordination
with the release of the DEIS. There is no mandate for an application
from a non-governmental U.S. citizen (as defined in Sec. 216.103) to be
in total agreement with a NEPA document in which it was not an active
participant. NMFS determined that BPXA's application met the
requirements of NMFS' regulations for applications for IHAs. The DEIS
and FEIS provide NMFS with information that supports, or in some cases
refutes, information found in the application. Therefore, to delay the
applicant's activity in order to conduct consecutive public review
instead of concurrent review is neither warranted nor required by law.
Information provided in the FEIS has been analyzed by NMFS, a
cooperating agency in its preparation, to assess impacts of the
activity on marine mammals.
Endangered Species Act (ESA) Concerns
Comment 43: Without clarification, Greenpeace (3/99) contends that
the LOAs and regulations will result in violations of both the intent
and the letter of the ESA. Greenpeace (11/98) believes the requested
IHA would violate the ESA because (1) the ESA requires each agency to
use the best scientific information available, (2) NMFS acknowledges
the conflict between offshore oil and gas development and bowheads, (3)
the uncertainty of western science on the impacts of industrial noise
on bowheads, and (4) research continues on the reactions of whales to
noise created by oil exploration activities.
Response: On March 4, 1999, NMFS completed formal consultation with
the Corps under section 7 of the ESA for the construction and operation
of the Northstar project with the issuance of a Biological Opinion
(BO). The BO, which found that the construction and operation of the
Northstar project activity will not jeopardize the continued existence
of any species under the jurisdiction of NMFS, was based upon the best
scientific and commercial data available. Because issuance of an LOA to
BPXA for the incidental take of bowhead whales is also considered a
Federal action, NMFS
[[Page 57020]]
has begun consultation on this action. If the finding of NMFS is that
the taking of bowhead whales is not likely to adversely affect the
bowhead whale stock, prior to completion of rulemaking and if a small
take authorization is determined to be appropriate, an Incidental Take
Statement will be appended to the BO authorizing the incidental
harassment of bowhead whales under the ESA.
Legal concerns
Comment 44: The ICAS (3/99) note that NMFS has failed to consult
with ICAS over the LOAs for the take of small numbers of marine mammals
by incidental harassment for construction and operation at Northstar
and Liberty. ICAS requests that all regulatory activities regarding
these LOAs halt. ICAS claims that the Northstar project has
demonstrated that insufficient studies have been done to document an
accurate picture of the Arctic ocean marine environment sufficient to
monitor the LOA or loss due to harassment on the interrelations of the
marine environment with subsistence resources in the event of an
incidental construction-related oil spill or a catastrophic spill. ICAS
has not been provided the necessary time, opportunity or resources to
effectively research and comment on regulations pursuant to section
101(a) of the MMPA due to a lack of meaningful contact with NMFS
pursuant to parameters consistent with Presidential Executive Orders
(i.e., E.O. 13084 (May 14, 1998) and E.O. 12898 (February 11, 1994)).
Response: For many years, NMFS has consulted with the federally-
recognized Alaska Native villages of Barrow, Kaktovik and Nuiqsut and
the AEWC on the issuance of authorizations for the taking of bowhead
whales and other marine mammals incidental to oil and gas exploration
in the U.S. Beaufort Sea. In 1978, the ICAS entered into a resolution
with the AEWC that provided the latter organization with the authority
to enter into agreements with the Federal Government on matters
pertaining to the bowhead whale. In turn, the AEWC is responsible for
informing the villages of any actions taken by the Federal Government
which affect subsistence whaling in Alaska. By letter, NMFS has
requested ICAS to update the status of this agreement and has offered
to meet with ICAS at its convenience. In the interim, NMFS intends to
comply fully with E.O. 13084, Consultation and Coordination With Indian
Tribal Governments.
Description of Habitat and Marine Mammal Affected by the Activity
A detailed description of the Beaufort Sea ecosystem and its
associated marine mammals can be found in the DEIS and FEIS prepared
for the Northstar development (Corps, 1998, 1999). This information is
not repeated here but will be considered part of the record of decision
for this rulemaking. A copy of the FEIS is available from the Corps
upon request (see ADDRESSES).
Marine Mammals
The Beaufort/Chukchi Seas support a diverse assemblage of marine
mammals, including bowhead whales (Balaena mysticetus), gray whales
(Eschrichtius robustus), beluga whales (Delphinapterus leucas), ringed
seals (Phoca hispida), spotted seals (Phoca largha) and bearded seals
(Erignathus barbatus). Descriptions of the biology and distribution of
these species and of others can be found in several documents (e.g.,
Hill and DeMaster, 1998) including the BPXA application and the
previously mentioned FEIS. Please refer to those documents for specific
information on these species. By citation, this information is
incorporated into this document and into NMFS' decision-making process.
In addition to the species mentioned in this paragraph, Pacific walrus
(Odobenus rosmarus) and polar bears (Urus maritimus) also have the
potential to be taken. Appropriate applications for taking these
species under the MMPA have been submitted to the USFWS by BPXA.
Potential Effects on Marine Mammals
Noise Impacts
Sounds and non-acoustic stimuli will be generated during
construction by vehicle traffic, ice-cutting, pipeline construction,
offshore trenching, gravel dumping, sheet pile driving, and vessel and
helicopter operations. Sounds and non-acoustic stimuli will be
generated during oil production operations by generators, drilling,
production machinery, gas flaring, camp operations and vessel and
helicopter operations. The sounds generated from construction and
production operations and associated transportation activities will be
detectable underwater and/or in air some distance away from the area of
the activity, depending upon the nature of the sound source, ambient
noise conditions, and the sensitivity of the receptor. At times, some
of these sounds are likely to be strong enough to cause an avoidance or
other behavioral disturbance reaction by small numbers of marine
mammals or to cause masking of signals important to marine mammals. The
type and significance of behavioral reaction is likely to depend on the
species and season, and the behavior of the animal at the time of
reception of the stimulus, as well as the distance and level of the
sound relative to ambient conditions.
In winter and spring, on-ice travel and construction activities
will displace some ringed seals along the ice road and pipeline
construction corridors. BPXA plans to begin winter construction
activities in early December, well in advance of female ringed seals
establishing birthing lairs beginning in late March. The noise and
general human activity will displace female seals away from activity
areas that could negatively affect the female and young, if birth lairs
were constructed there.
During the open-water season, all six species of whales and seals
could potentially be exposed to vessel or construction noise and to
other stimuli associated with the planned operations. Vessel traffic is
known to cause avoidance reactions by whales at certain times
(Richardson et al., 1995). Pile driving, helicopter operations, and
possibly other activities may also lead to disturbance of small numbers
of seals or whales. In addition to disturbance, some limited masking of
whale calls or other low-frequency sounds potentially relevant to
bowhead whales could occur.
A more detailed description of potential impacts from construction
and operational activities on marine mammals can be found in the
application. That information is accepted by NMFS as a summation of the
best scientific information available on the impacts of noise on marine
mammals in this area.
Oil Spill Impacts
For reasons stated in the application, BPXA believes that the
effects of oil on seals and whales in the open waters of the Beaufort
Sea are likely to be negligible, but there could be effects on whales
in areas where both oil and the whales are at least partially confined
in leads or at the ice edge. In the spring, bowhead and beluga whales
migrate through offshore leads in the ice. However, given the probable
alongshore trajectory of oil spilled from Northstar, in relation to the
whale migration route through offshore waters, interactions between oil
and whales are unlikely in the spring. In the summer, bowheads are not
in the central Beaufort Sea, and beluga whales are found far offshore.
As a result, at this time of the year, these species will be unaffected
should a spill occur at this time.
[[Page 57021]]
In the fall, the migration route of bowheads can be close to shore.
If bowheads were moving through leads in the pack ice or were
concentrated in nearshore waters, some bowhead whales might not be able
to avoid oil slicks and could be subject to prolonged contamination.
However, the autumn migration past Northstar extends over several weeks
and most of the whales travel along routes well north of Northstar.
Thus, according to BPXA, only a small minority of the whales are likely
to approach patches of spilled oil.
Ringed seals exposed to oil during the winter or early spring could
die if exposed to heavy doses of oil for prolonged periods of time.
This prolonged exposure could occur if fuel or crude oil was spilled in
or reached nearshore waters, was spilled in a lead used by seals, or
was spilled under the ice when seals have limited mobility. Individual
seals residing in these habitats may not be able to avoid prolonged
contamination and some would die. While impacts on regional
distribution may occur, impacts on regional population size however,
would be expected to be minor.
Estimated Level of Incidental Take
BPXA (1998) estimates that, during the ice-covered period, 62
(maximum 154) ringed seals may be incidentally harassed during
construction activities and 43 (maximum 109) ringed seals may be
incidentally harassed annually during oil production activities.
BPXA estimates ``takes'' during the ice-covered season by assuming
that seals within 3.7 km (2.3 mi) of Seal Island, within 1.85 km (1.1
mi) of the pipeline construction corridor and related work areas, and
within 0.66 km (0.4 mi) of ice roads will be ``taken'' annually. These
anticipated levels of take are estimated using the average density
estimate of 0.42 ringed seals/km2 (Miller et al., 1998).
BPXA (1998) cautions however, that these ``take'' estimates may result
in an overestimate of the actual numbers of seals that will be
``taken'' because not all seals within these disturbance distances will
move from the area.
During the open-water season, BPXA (1998) estimates that 7 (maximum
22) ringed seals, 1 spotted seal, 1-2 bearded seals, 173 (maximum
1,3800) bowhead whales, less than 5 gray whales, and 6 (maximum 45)
beluga whales may be incidentally harassed annually whether from
construction or operations. BPXA assumes that seals and beluga whales
within 1 km (0.6 mi) radius of Seal Island will be harassed incidental
to construction and other activities on the island. Assumed ``take''
radii for bowhead whales are based on the distance at which the
received level of construction noise from the island would diminish
below 115 dB re 1 Pa. This distance has been estimated as 3.2
km (2 mi).
Although the potential impacts to the several marine mammal
species known to occur in these areas is expected to be limited to
harassment, a small number of marine mammals may incur lethal and
serious injury. Most effects however, are expected to be limited to
temporary changes in behavior or displacement from a relatively small
area near the construction site and will involve only small numbers of
animals. However, the inadvertent and unavoidable take by injury or
mortality of small numbers of ringed seal pups may occur during ice
clearing for construction of ice roads. In addition, some injury or
mortality of whales or seals may result in the event that an oil spill
occurs. Therefore, BPXA requests that, because a small number of marine
mammals might be injured or killed, that these takes also be covered by
the regulations. However, BPXA does not indicate the level of
incidental take resulting from an oil spill at Northstar during either
the ice-covered period or the open-water period. Because of the
unpredictable occurrence, nature, seasonal timing, duration and size of
an oil spill occurring during the 5-year authorization period of these
regulations, a specific prediction cannot be made of the estimated
number of takes by an oil spill. According to BPXA, in the unlikely
event of a major oil spill at Northstar or from the associated subsea
pipeline, numbers of marine mammals killed or injured are expected to
be small and the effects on the populations negligible.
Impacts on Subsistence Uses
This section contains a summary on the potential impacts from
construction and operational activities on subsistence needs for marine
mammals. A more detailed description can be found in the application.
This information is accepted by NMFS as a summation of the best
scientific information available on the impacts of noise on marine
mammals in this area.
Noise Impacts
The disturbance and potential displacement of bowhead whales and
other marine mammals by sounds from vessel traffic and/or on-island
construction activities (e.g., impact hammering) are the principle
concerns related to subsistence use of the area. The harvest of marine
mammals is central to the culture and subsistence economies of the
coastal North Slope communities. In particular, if elevated noise
levels are displacing migrating bowhead whales farther offshore, this
could make the harvest of these whales more difficult and dangerous for
hunters. The harvest could also be affected if bowheads become more
skittish when exposed to vessel or impact-hammering noise (BPXA, 1998).
Construction activities and associated vessel and helicopter
support are expected to begin in December 1999, and continue into
September or October 2000, depending upon ice conditions. Few bowhead
whales approach the Northstar area before the end of August, and
subsistence whaling generally does not begin until after September 1
and occurs in areas well east of the construction site. Therefore, a
substantial portion of the Northstar development is expected to be
completed when no bowhead whales are nearby and when no whaling is
underway. Insofar as possible, vessel and aircraft traffic near areas
of particular concern for whaling will be completed by BPXA before the
end of August. No impact hammering is expected to occur during the
period when subsistence hunting of migrating bowhead whales is
underway.
Underwater sounds from drilling and production operations on an
artificial gravel island are not very strong, and are not expected to
travel more than about 10 km (6.2 mi). Even those bowheads traveling
along the southern edge of the migration corridor will not be able to
even hear sounds from Northstar until the whales are well west of the
main hunting area. In addition, for reasons unrelated to mitigation for
subsistence concerns, drilling activities are expected to temporarily
cease during the bowhead whale migration during the first year of
drilling activity.
Nuiqsut is the community closest to the area of the proposed
activity, and it harvests bowhead whales only during the fall whaling
season. In recent years, Nuiqsut whalers typically take zero to four
whales each season (BPXA, 1998). Nuiqsut whalers concentrate their
efforts on areas north and east of Cross Island, generally in water
depths greater than 20 m (65 ft). Cross Island, the principle field
camp location for Nuiqsut whalers, is located approximately 28.2 km
(17.5 mi) east of the Northstar construction activity area.
Whalers from the village of Kaktovik search for whales east, north,
and west of their village. Kaktovik is located approximately 200 km
(124.3 mi) east of Seal Island. The westernmost reported harvest
location was about 21 km (13 mi) west of Kaktovik, near
70o10'N.
[[Page 57022]]
144oW. (Kaleak, 1996). That site is approximately 180 km
(112 mi) east of Seal Island.
Whalers from the village of Barrow search for bowhead whales much
further from the Northstar area, greater than 250 km (>175 mi) west.
While the effects of Northstar construction or production on
migrating bowheads are not expected to extend into the area where
Nuiqsut hunters usually search for bowheads and therefore is not
expected to affect the accessibility of bowhead whales to hunters, it
is recognized that it is difficult to determine the maximum distance at
which reactions occur (Moore and Clark, 1992). As a result, in order to
avoid any unmitigable adverse impact on subsistence needs and to reduce
potential interference with the hunt, the timing of various
construction activities at Northstar as well as barge and aircraft
traffic in the Cross Island area will be addressed in a C&AA between
BPXA and NSB residents. Also, NMFS believes that the monitoring plan
proposed by BPXA will provide information that will help resolve
uncertainties about the effects of construction noise on the
accessibility of bowheads to hunters.
While Northstar activity has some potential to influence
subsistence seal hunting activities, the most important sealing area
for Nuiqsut hunters is off the Colville delta, extending as far west as
Fish Creek and as far east as Pingok Island (BPXA, 1998). Pingok Island
is about 24 km (15 mi) west of Northstar. The peak season for seal
hunting is during the summer months, but some hunting is conducted on
the landfast ice in late spring. In summer, boat crews hunt ringed,
spotted and bearded seals (BPXA, 1998). Thus, it is unlikely that
construction activity will have a significant negative impact on
Nuiqsut seal hunting.
Oil Spill Impacts
Oil spills might affect the hunt for bowheads (BPXA, 1998). While
oil spills from production drilling or pipelines could occur at any
time of the year, only if a significant spill occurred during the
bowhead hunt would a reduction in the availability of bowhead whales
for subsistence uses be possible. While unlikely, oil spills could
extend into the bowhead hunting area under certain wind and current
conditions. Even in the event of a major spill, it is unlikely that
more than a small number of those bowheads encountered by hunters would
be contaminated by oil (BPXA, 1998). Disturbance associated with
reconnaissance and cleanup activities could affect whales and, thus,
accessibility of bowheads to hunters. Therefore, in the unlikely event
that a major spill occurred during the relatively short fall bowhead
whaling season, it is possible that bowhead hunting would be
significantly affected. However, the probability of a large oil spill
(greater than 1,000 barrels) is estimated to be approximately 3
percent.
Impacts on Habitat
Invertebrates and fish, the nutritional basis for those whales and
seals found in the Beaufort Sea, may be affected by construction and
operation of the Northstar project. Fish may react to noise from
Northstar with reactions being quite variable and dependent upon
species, life history stage, behavior, and the sound characteristics of
the water. Invertebrates are not known to be affected by noise. Benthic
invertebrates would be affected by island and pipeline construction and
overburden placement on the seabottom. Fish may be temporarily or
permanently displaced by the island. These local, short-term effects
are unlikely to have an impact on marine mammal feeding.
In the event of a large oil spill, fish and zooplankton in open
offshore waters are unlikely to be seriously affected. Fish and
zooplankton in shallow nearshore waters could sustain heavy mortality
if an oil spill were to remain within an area for several days or
longer. These affected nearshore areas may then be unavailable for use
as feeding habitat for seals and whales. However, because these seals
and whales are mobile, and bowhead feeding is uncommon along the coast
near Northstar, effects would be minor during the open water season. In
winter, effects of an oil spill on ringed seal food supply and habitat
would be locally significant in the shallow nearshore waters in the
immediate vicinity of the spill and oil slick. However, effects overall
would be negligible.
Proposed Mitigation Measures
Several mitigation measures have been proposed by BPXA to reduce
harassment takes to the lowest level practicable. These include:
(1) BPXA will begin winter construction activities in December,
well in advance of female ringed seals establishing the birthing lair
in late March in order to displace seals away from activities that
could negatively affect the female and young.
(2) If construction activities are initiated in previously
undisturbed areas after March 20, BPXA will survey the area(s) to
identify and avoid ringed seal lairs by a minimum of 150 m (492 ft).
(3) BPXA will establish and monitor a 190 dB re 1 Pa
safety range for seals around the island for those construction
activities with SPLs that exceed that level.
(4) While whales are unlikely to approach the island during impact
hammering or other noisy activities, a 180 dB re 1 Pa safety
zone will be established and monitored around the island.
(5) If any marine mammals are observed within their respective
safety range, operations will cease until such time as the observed
marine mammals have left the safety zone.
(6) Project scheduling indicates that impact hammering will not
occur during the period for subsistence hunting of westward migrating
bowhead whale.
(7) Helicopter flights to support Northstar construction will be
limited to a corridor from Seal Island to the mainland, and, except
when limited by weather, will maintain a minimum altitude of 1,000 ft
(305 m).
(8) Drilling activities will temporarily cease during the bowhead
whale migration during the first year of drilling activity (i.e.,
September, 2001).
Proposed Monitoring Measures
Monitoring will employ both marine mammal observations and
acoustics measurements and recordings. During the open-water period,
monitoring will consist of (1) acoustic measurements of sounds produced
by construction activities through hydrophones, seaborne sonobuoys and
bottom recorders, and (2) observations of marine mammals from an
elevated platform on Seal Island which will be made during periods with
and without construction underway.
During the ice-covered season, BPXA proposes to continue an ongoing
(since the spring, 1997) Before-After/Control-Impact Study on the
distribution and abundance of ringed seals in relation to development
of the offshore oil and gas resources in the central Beaufort Sea.
Collection and analysis of data before and after construction is
expected to provide a reliable method for assessing the impact of oil
and gas activities on ringed seal distribution in the Northstar
construction area. Other winter/spring monitoring will include (1) on-
ice searches for ringed seal lairs in areas where construction starts
in the mid-March through April period, (2) assessment of abandonment
rates for seal holes, and (3) acoustic measurements of sounds and
vibrations from construction.
[[Page 57023]]
The monitoring plan will be subject to review by NMFS biologists
and revised appropriately prior to implementation. Independent peer
review on the on-ice portion of the plan will be conducted this fall in
Seattle. The open-water season monitoring plan has been reviewed by
scientists and others attending the annual open-water peer-review
workshop held in Seattle on July 1, 1999. A revised monitoring plan was
submitted to NMFS on August 27, 1999. A copy of the revised monitoring
plan is available upon request (see ADDRESSES).
Proposed Reporting Measures
NMFS proposes to require BPXA to provide two reports annually to
NMFS within 90 days of completion of each phase of the activity. The
first report would be due 90 days after either the ice roads are no
longer usable or spring aerial surveys are completed, whichever is
later. The second report would be required to be forwarded to NMFS 90
days after the formation of ice in the central Alaskan Beaufort Sea
prevents water access to Northstar. These reports will provide
summaries of the dates and locations of construction activities,
details of marine mammal sightings, estimates of the amount and nature
of marine mammal takes, and any apparent effects on accessibility of
marine mammals to subsistence hunters.
A draft final technical report would be submitted to NMFS by April
1 of each year. The final technical report would contain a full
description of the methods, results, and interpretation of all
monitoring tasks. The draft final report will be subject to peer review
before being finalized by BPXA.
Preliminary Conclusions
Northstar Construction
NMFS has preliminarily determined that the impact of construction
and operation of the Northstar project in the U.S. Beaufort Sea will
result in no more than a temporary modification in behavior by certain
species of cetaceans and pinnipeds. During the ice-covered season,
pinnipeds close to the island may be subject to incidental harassment
due to the localized displacement from construction of ice roads, from
transportation activities on those roads, and from construction
activities at Northstar. As cetaceans will not be in the area during
the ice-covered season, they will not be affected.
During the open-water season, the principal construction- and
operations-related noise activities will be impact hammering,
helicopter traffic, vessel traffic, and other general construction
activity on Seal Island. Sheet-pile driving is expected to be completed
prior to whales being present in the area. Sounds from construction
activities on the island are not expected to be detectable more than
about 5-10 km (3.1-6.2 mi) offshore of the island. Disturbance to
bowhead or beluga whales by on-island activities will be limited to an
area substantially less than that distance. Helicopter traffic will be
limited to nearshore areas between the mainland and the island and is
unlikely to approach or disturb whales. Barge traffic will be located
mainly inshore of the whales and will involve vessels moving slowly, in
a straight line, and at constant speed. Little disturbance or
displacement of whales by vessel traffic is expected. While behavioral
modifications may be made by these species to avoid the resultant
noise, this behavioral change is expected to have no more than 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 area
of operations, because the proposed activity is in shallow waters
inshore of the main migration corridor for bowhead whales and far
inshore of the main migration corridor for belugas, the number of
potential harassment takings is estimated to be small. In addition, no
take by injury and/or death is anticipated, and the potential for
temporary or permanent hearing impairment will be avoided through the
incorporation of the mitigation measures mentioned in this document. No
rookeries, areas of concentrated mating or 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 east of the construction area in the
Canadian Beaufort Sea until late August/early September, activities at
Northstar are not expected to impact subsistence hunting of bowhead
whales prior to that date. Appropriate mitigation measures to avoid an
unmitigable adverse impact on the availability of bowhead whales for
subsistence needs will be the subject of consultation between BPXA and
subsistence users.
Also, while construction at Northstar has some potential to
influence seal hunting activities by residents of Nuiqsut, because (1)
the peak sealing season is during the winter months, (2) the main
summer sealing is off the Colville Delta), and (3) the zone of
influence from Northstar on beluga and seals is fairly small, NMFS
believes that Northstar construction will not have an unmitigable
adverse impact on the availability of these stocks for subsistence
uses.
Endangered Species Act (ESA)
NMFS concluded consultation with the Corps on this activity on
March 4, 1999. If an authorization to incidentally take listed marine
mammals is issued under the MMPA, NMFS will complete consultation under
the ESA on the regulations and the LOA and issue an Incidental Take
Statement under section 7 of the ESA. A copy of the BO resulting from
this consultation is available upon request (see ADDRESSES).
NEPA
On June 12, 1998 (63 FR 32207), the Environmental Protection Agency
(EPA) noted the availability for public review and comment a DEIS
prepared by the Corps under NEPA on Beaufort Sea oil and gas
development at Northstar. Comments on that document were accepted by
the Corps until August 31, 1998 (63 FR 43699, August 14, 1998). On
February 5, 1999 (64 FR 5789), EPA noted the availability for public
review and comment, a FEIS prepared by the Corps under NEPA on Beaufort
Sea oil and gas development at Northstar. Comments on that document
were accepted by the Corps until March 8, 1999. A copy of the FEIS is
available upon request (see ADDRESSES).
NMFS is a cooperating agency, as defined by the CEQ regulations (40
CFR 1501.6), on the preparation of this document. The FEIS on this
activity, which supplements information contained in the BPXA
application, is considered part of NMFS' record of decision on this
matter. Preliminarily, it also meets NOAA's NEPA responsibilities for
determining whether the activity proposed for receiving a small take
authorization is having a negligible impact on affected marine mammal
stocks and not having an unmitigable adverse impact on subsistence
needs. Based upon a review of the FEIS and the comments received during
this rulemaking, NMFS will either (1) adopt the Corps FEIS, (2) amend
the Corps FEIS to incorporate relevant comments, suggestions and
information, or (3) prepare supplemental NEPA documentation.
Classification
This action has been determined by the Office of Management and
Budget to be significant for purposes of E.O. 12866.
[[Page 57024]]
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, will not have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act. If implemented,
this rule will affect only one or two large oil producing companies
which, by definition, are not small businesses. It will also affect a
small number of contractors providing services related to monitoring
the impact of oil development in the Beaufort Sea on marine mammals.
Some of the affected contractors may be small businesses, but the
number involved would not be substantial. Further, since the monitoring
requirement is what would lead to the need for their services, the
economic impact on them would be beneficial. For all the above reasons,
a regulatory flexibility analysis is not required.
This proposed rule contains collection-of-information requirements
subject to the provisions of the Paperwork Reduction Act (PRA). These
requirements have been approved by OMB under control number 0648-0151,
and include an application for an LOA, an interim report, and a final
report. Other information requirements in the rule are not subject to
the PRA since they apply only to a single entity and therefore are not
contained in a rule of general applicability.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the PRA unless that collection of information displays a currently
valid OMB control number.
The reporting burden for the approved collections-of-information
are estimated to be approximately 3 hours for an application for a LOA,
and 80 hours each for interim and final reports. These estimates
include the time for reviewing instructions, searching existing data
sources, gathering an maintaining the data needed, and completing and
reviewing the collection-of-information. Send comments regarding these
burden estimates, or any other aspect of this data collection,
including suggestions for reducing the burden, to NMFS and OMB (see
ADDRESSES).
Information Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning the BPXA request and the content of the
proposed regulations to authorize the taking. All commenters are
requested to review the application prior to submitting comments and
not submit comments solely on this Federal Register document.
List of Subjects in 50 CFR Part 216
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: October 15, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set forth in the preamble, 50 CFR part 216 is proposed
to be amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
2. Subpart R is added to part 216 to read as follows:
Subpart R-Taking of Marine Mammals Incidental to Construction and
Operation of Offshore Oil and Gas Platforms in the U.S. Beaufort
Sea
Sec.
216.200 Specified activity and specified geographical region.
216.201 Effective dates.
216.202 Permissible methods of taking.
216.203 Prohibitions.
216.204 Mitigation.
216.205 Measures to ensure availability of species for subsistence
uses.
216.206 Requirements for monitoring and reporting.
216.207 Applications for Letters of Authorization.
216.208 Letters of Authorization.
216.209 Renewal of Letters of Authorization.
216.210 Modifications to Letters of Authorization.
Subpart R--Taking of Marine Mammals Incidental to Construction and
Operation of Offshore Oil and Gas Platforms in the U.S. Beaufort
Sea
Sec. 216.200 Specified activity and specified geographical region.
Regulations in this subpart apply only to the incidental taking of
those marine mammal species specified in paragraph (b) of this section
by U.S. citizens engaged in oil and gas development activities in areas
within state and/or Federal waters in the U.S. Beaufort Sea specified
in paragraph (a) of this section. The authorized activities as
specified in a Letter of Authorization issued under Secs. 216.106 and
216.208 include, but may not be limited to, site construction,
including ice road and pipeline construction, vessel and helicopter
activity; and oil production activities, including ice road
construction, and vessel and helicopter activity, but excluding seismic
operations.
(a)(1) Northstar Oil and Gas Development Unit on Seal Island; and
(2) [Reserved]
(b) The incidental take by harassment, injury or mortality of
marine mammals under the activity identified in this section is limited
to the following species: bowhead whale (Balaena mysticetus), gray
whale (Eschrichtius robustus), beluga whale (Delphinapterus leucas),
ringed seal (Phoca hispida), spotted seal (Phoca largha) and bearded
seal (Erignathus barbatus).
Sec. 216.201 Effective dates.
Regulations in this subpart are effective from January 1, 2000,
through December 31, 2004.
Sec. 216.202 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Secs. 216.106
and 216.208, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by harassment,
injury, and mortality within the area described in Sec. 216.200(a),
provided the activity is in compliance with all terms, conditions, and
requirements of these regulations and the appropriate Letter of
Authorization.
(b) The activities identified in Sec. 216.200 must be conducted in
a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals, their habitat, and on the
availability of marine mammals for subsistence uses.
Sec. 216.203 Prohibitions.
Notwithstanding takings authorized by Sec. 216.200 and by a Letter
of Authorization issued under Secs. 216.106 and 216.208, no person in
connection with the activities described in Sec. 216.200 shall:
(a) Take any marine mammal not specified in Sec. 216.200(b);
(b) Take any marine mammal specified in Sec. 216.200(b) other than
by incidental, unintentional harassment, injury or mortality;
(c) Take a marine mammal specified in Sec. 216.200(b) if such
taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of
[[Page 57025]]
these regulations or a Letter of Authorization issued under
Sec. 216.106.
Sec. 216.204 Mitigation.
The activity identified in Sec. 216.200(a) must be conducted in a
manner that minimizes, to the greatest extent possible, adverse impacts
on marine mammals and their habitats. When conducting operations
identified in Sec. 216.200, the mitigation measures contained in the
Letter of Authorization issued under Secs. 216.106 and 216.208 must be
utilized.
Sec. 216.205 Measures to ensure availability of species for
subsistence uses.
When applying for a Letter of Authorization pursuant to
Sec. 216.207, or a renewal of a Letter of Authorization pursuant to
Sec. 216.209, the applicant must submit a Plan of Cooperation that
identifies what measures have been taken and/or will be taken to
minimize any adverse effects on the availability of marine mammals for
subsistence uses. A plan must include the following:
(a) A statement that the applicant has notified and met with the
affected subsistence communities to discuss proposed activities and to
resolve potential conflicts regarding timing and methods of operation;
(b) A description of what measures the applicant has taken and/or
will take to ensure that oil development activities will not interfere
with subsistence whaling or sealing;
(c) What plans the applicant has to continue to meet with the
affected communities to notify the communities of any changes in
operation.
Sec. 216.206 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued pursuant to
Secs. 216.106 and 216.208 for activities described in Sec. 216.200 are
required to cooperate with the National Marine Fisheries Service, and
any other Federal, state or local agency monitoring the impacts of the
activity on marine mammals. Unless specified otherwise in the Letter of
Authorization, the Holder of the Letter of Authorization must notify
the Administrator, Alaska Region, National Marine Fisheries Service, or
his/her designee, by letter or telephone, at least 2 weeks prior to
initiating activities possibly involving the taking of marine mammals.
(b) Holders of Letters of Authorization must designate qualified
on-site individuals, approved in advance by the National Marine
Fisheries Service, to conduct the mitigation, monitoring and reporting
activities specified in the Letter of Authorization issued pursuant to
Sec. 216.106 and Sec. 216.208.
(c) Holders of Letters of Authorization must conduct all monitoring
and/or research required under the Letter of Authorization.
(d) The Holder of the Letter of Authorization must submit an
interim report to the Director, Office of Protected Resources, National
Marine Fisheries Service, no later than 180 days prior to expiration of
the Letter of Authorization. This report must contain all information
required by the Letter of Authorization.
(e) A final comprehensive report must be submitted to the National
Marine Fisheries Sevice at least 240 days prior to expiration of these
regulations.
Sec. 216.207 Applications for Letters of Authorization.
(a) To incidentally take bowhead whales and other marine mammals
pursuant to these regulations, the U.S. citizen (see definition at
Sec. 216.103) conducting the activity identified in Sec. 216.200, must
apply for and obtain either a Letter of Authorization in accordance
with Secs. 216.106 and 216.208, or a renewal under Sec. 216.209.
(b) The application for a Letter of Authorization must be submitted
to the National Marine Fisheries Service at least 180 days before the
activity is scheduled to begin.
(c) Applications for Letters of Authorization must include all
information items identified in Sec. 216.104(a).
(d) NMFS will review an application for a Letter of Authorization
in accordance with Sec. 216.104(b) and, if adequate and complete, will
publish a notice of receipt of a request for incidental taking and, in
accordance with Administrative Procedure Act requirements, a proposed
amendment to Sec. 216.200(a). In conjunction with amending
Sec. 216.200(a), the National Marine Fisheries Service will provide a
minimum of 45 days for public comment on the application.
(e) Upon receipt of a complete application, and at its discretion,
the National Marine Fisheries Service may submit the monitoring plan to
members of a peer review panel for review and/or schedule a workshop to
review the plan. Unless specified in the Letter of Authorization, the
applicant must submit a final monitoring plan to the Assistant
Administrator prior to the issuance of a Letter of Authorization.
Sec. 216.208 Letters of Authorization.
(a) A Letter of Authorization, unless suspended, revoked or not
renewed, will be valid for a period of time not to exceed the period of
validity of this subpart, but must be renewed annually subject to
annual renewal conditions in Sec. 216.209.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including any
requirements for the independent peer-review of proposed monitoring
plans.
(c) Issuance of each Letter of Authorization will be based on a
determination that the number of marine mammals taken by the activity
will be small, that the total number of marine mammals taken by the
activity as a whole will have no more than a negligible impact on the
species or stock of affected marine mammal(s), and will not have an
unmitigable adverse impact on the availability of species or stocks of
marine mammals for taking for subsistence uses.
(d) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.209 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and
Sec. 216.208 for the activity identified in Sec. 216.200 will be
renewed annually upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application submitted under Sec. 216.207 will
be undertaken and that there will not be a substantial modification to
the described work, mitigation or monitoring undertaken during the
upcoming season;
(2) Timely receipt of the monitoring reports required under
Sec. 216.205, which have been reviewed by the National Marine Fisheries
Service and determined to be acceptable, and the Plan of Cooperation
required under Sec. 216.205; and
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under
Sec. 216.204 and the Letter of Authorization were undertaken and will
be undertaken during the upcoming annual period of validity of a
renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Secs. 216.106 and 216.208 indicates that a substantial
modification to the described work, mitigation or monitoring undertaken
during the
[[Page 57026]]
upcoming season will occur, the National Marine Fisheries Service will
provide the public a period of 30 days for review and comment on the
request.
(c) A notice of issuance or denial of a Renewal of a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 216.210 Modifications to Letters of Authorization.
(a) In addition to complying with the provisions of Secs. 216.106
and 216.208, except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization issued pursuant to Secs. 216.106 and 216.208
and subject to the provisions of this subpart shall be made until after
notification and an opportunity for public comment has been provided.
For purposes of this paragraph, a renewal of a Letter of Authorization
under Sec. 216.209, without modification (except for the period of
validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species
or stocks of marine mammals specified in Sec. 216.200(b), a Letter of
Authorization issued pursuant to Secs. 216.106 and 216.208 may be
substantively modified without prior notification and an opportunity
for public comment. Notification will be published in the Federal
Register within 30 days subsequent to the action.
[FR Doc. 99-27578 Filed 10-21-99; 8:45 am]
BILLING CODE 3510-22-F
