03-30609. Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Construction and Operation of Offshore Oil and Gas Facilities in the Beaufort Sea

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice of issuance of a letter of authorization.

SUMMARY:

In accordance with the Marine Mammal Protection Act (MMPA), as amended, and implementing regulations, notice is hereby given that NMFS has issued a letter of authorization (LOA) to BP Exploration (Alaska), Inc. (BPXA) to take marine mammals incidental to the production of offshore oil and gas at the Northstar development in the Beaufort Sea off Alaska.

DATES:

This LOA is effective from December 4, 2003, through December 3, 2004.

ADDRESSES:

A copy of BPXA's letter, a list of monitoring reports, and/or the LOA may be obtained by writing to the Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, or by telephoning one of the contacts listed here.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead [phone], ext. 128, or Bradley Smith [phone].

SUPPLEMENTARY INFORMATION:

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs NMFS to allow, on request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region, if certain findings are made by NMFS and regulations are issued. Under the MMPA, the term “take” means to harass, hunt, capture, or kill or to attempt to harass, hunt, capture or kill marine mammals.

Permission may be granted for periods up to 5 years if NMFS finds, after notice and opportunity for public comment, that the taking will have a negligible impact on the species or stock(s) of marine mammals, and will not have an unmitigable adverse impact on the availability of the species or stock(s) of marine mammals for subsistence uses. In addition, NMFS must prescribe regulations setting forth the permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat, and on the availability of the species for subsistence uses. The regulations also must include requirements pertaining to the monitoring and reporting of such taking. Regulations governing the taking of marine mammals incidental to construction and operation of the offshore oil and gas facility at Northstar in the Beaufort Sea were published and made effective on May 25, 2000 (65 FR 34014), and remain in effect until May 25, 2005. These regulations include mitigation, monitoring, and reporting requirements.

Summary of Request

On September 30, 2003, NMFS received a request from BPXA for a renewal of an LOA issued on September 18, 2000 (65 FR 58265, September 28,2000) and reissued on December 14, 2001 (66 FR 65923, December 21, 2001), and December 9, 2002 (67 FR 77750, December 19, 2002) for the taking of marine mammals incidental to oil production operations at Northstar, under section 101(a)(5)(A) of the MMPA. This request (BPXA, 2003) contains information in compliance with 50 CFR 216.209, which updates information provided in BPXA's original application for takings incidental to construction and operations at Northstar. The current LOA for the taking of marine mammals incidental to oil production at the Northstar facility will expire on December 9, 2003.

Impacts on marine mammals may occur through noise from barge, helicopter traffic, drilling, and other noise sources on the island facility. Impacts may also result if there is an oil spill resulting from production. While noise impacts on marine mammals will be low (activities on Northstar Island will make less noise than that from standard jack-up rigs, the concrete island drilling structure, or seismic activity), bowhead whales will likely hear the noise at distances up to 10 km (6.2 mi) from the island. In addition, there may be some harassment, injury, or mortality of ringed seals during winter ice-road construction. Noise impacts may result in Level B harassment of approximately 765 bowheads (i.e., the LOA authorizes up to 765 bowheads annually, with a maximum of 1,533 in 2 out of 5 seasons, and a total of 3,585 in 5 years), 5 gray whales and 91 beluga whales. Year-round operations at Northstar may result in the harassment of up to approximately 191 ringed seals, 10 bearded seals, and 5 spotted seals being harassed and the incidental mortality of up to 5 ringed seal pups. No take is authorized for an oil spill. NMFS and BPXA believe that these estimates remain conservative since, for example, monitoring between November, 2001 and October, 2002 indicate that approximately 110 ringed seals, 1 bearded seal and 10-20 beluga whales were present in the area and potentially may have been affected (Moulton et al., 2003). MacLean and Williams (2003) and Moulton et al. (2003) indicate that Northstar production probably had little or no effect on most of the seals and no seals were injured or killed by activities along the ice road or operations at Northstar Island during the late 2002 through early 2003 ice-covered season.

The best estimates of the numbers of bowhead whales displaced offshore by 2 km (1.2 mi) or more during the autumn migrations of 2001 and 2002 were approximately 13 and 19 respectively (Moulton et al., 2003). Presumably, a larger number of bowheads was displaced by less than 2 km (1.2 mi), but current monitoring methods are not capable of quantifying displacement over distances shorter than 2 km (BPXA, 2003). These estimates are based on acoustic monitoring of bowhead whales passing Northstar in the fall, 2001 and 2002 (Greene et al., 2002, 2003). It is possible that the apparent offshore deflection of a small number of bowheads was, at least in part, attributable to a change in calling behavior rather than an actual deflection (BPXA, 2003).

As oil spills are highly unlikely, impacts on marine mammals from an oil spill are also unlikely to take place. However, in order to mitigate the potential for impacts on bowheads and the subsistence use of bowheads, BPXA will not drill into oil-bearing strata during periods of open water or broken ice, essentially the time period between June 13 and ending with the presence of 18 inches of continuous ice cover for one-half mile in all directions. This mitigation is warranted because oil spill cleanup methods are currently inadequate. Additional mitigation has been proposed by BPXA to the North Slope Borough native community to ensure that, in the event that an oil spill does occur, it will not have an unmitigable adverse impact on the subsistence use of the bowhead whale.

Monitoring and Reporting

Monitoring and reporting requirements are contained in the Northstar regulations (50 CFR 216.206) and described on May 25, 2000 (65 FR 34014). Additional information was provided on December 21, 2001 (66 FR 65923) when NMFS issued an LOA to BPXA for oil production at Northstar. Monitoring reports are submitted annually as required by the regulations and the LOA and plans and reports are peer-reviewed as required by the MMPA and regulations. A list of these reports is available upon request (see ADDRESSES). In June, 2003, a peer-review meeting was held in Seattle, WA. Participants at that meeting recommended that the future characteristics of the project be reviewed in early- to mid-2004 by a technical committee, which might be constituted and convened under the auspices of the North Slope Borough's Science Advisory Committee. BPXA plans to continue monitoring in 2003/2004 as suggested by the Seattle peer-review panel and accepted by NMFS.

Determinations

Accordingly, NMFS issued an LOA to BPXA on December 4, 2003, authorizing the taking of marine mammals incidental to oil production operations at the Northstar offshore oil and gas facility in state and federal waters in the U.S. Beaufort Sea. Issuance is based on findings, described in the preamble to the final rule (65 FR 34014, May 25, 2000), that the activities described in the LOA will result in the taking of no more than small numbers of bowhead whales, beluga whales, ringed seals, and, possibly California gray whales, bearded seals and spotted seals and that the total taking will have a negligible impact on these marine mammal stocks and would not have an unmitigable adverse impact on the availability of these species or stocks for taking for subsistence uses. NMFS also prescribed the means for effecting the least practicable adverse impact on these stocks. As the results from the monitoring program carried out since 1999 have not indicated that the determinations made in 2000 and 2001 were in error, nor that estimated levels of incidental harassment have been exceeded, and as the activity that was reviewed in 2001 (oil production activities) has not changed, these determinations remain valid.

Dated: December 4, 2003.

Stephen L. Leathery,

Acting Director, Office of Protected Resources, National Marine Fisheries Service.