E8-3021. Small Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction and Operation of a Liquefied Natural Gas Facility off Massachusetts

AGENCY:

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

ACTION:

Notice; proposed incidental harassment authorization; receipt of application for letter of authorization; request for comments and information.

SUMMARY:

NMFS received an application from Neptune LNG, L.L.C. (Neptune) for take of marine mammals, by Level B harassment, incidental to construction and operation of an offshore liquefied natural gas (LNG) facility in Massachusetts Bay. Under the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to Neptune to incidentally take, by harassment, small numbers of several species of marine mammals for a period of 1 year. NMFS is also requesting comments on its intent to promulgate regulations in 2008, governing the take of marine mammals over a 5-year period incidental to the same activities described herein.

DATES:

Comments and information must be received no later than March 20, 2008.

ADDRESSES:

Written comments on the application should be addressed to: P. Michael Payne, Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is [e-mail]. Comments sent via email, including all attachments, must not exceed a 10-megabyte file size. A copy of the application containing a list of references used in this document may be obtained by writing to this address, by telephoning the contact listed here (FOR FURTHER INFORMATION CONTACT) or online at: http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.

The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) Final Environmental Impact Statement (Final EIS) on the Neptune LNG Deepwater Port License Application is available for viewing at http://dms.dot.gov under the docket number 22611.

FOR FURTHER INFORMATION CONTACT:

Candace Nachman or Ken Hollingshead, Office of Protected Resources, NMFS, [phone].

SUPPLEMENTARY INFORMATION:

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

Authorization for incidental takings may be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and that the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.

NMFS has defined “negligible impact” in 50 CFR 216.103 as:

an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

Section 101(a)(5)(D) of the MMPA establishes an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except for certain categories of activities not pertinent here, the MMPA defines “harassment” as:

any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”].

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

Summary of Request

On December 27, 2007, NMFS received an application from Neptune requesting an IHA to take small numbers of several species of marine mammals, by Level B (behavioral) harassment, for a period of 1 year, incidental to construction of an offshore LNG facility. Since construction will not be completed before expiration of the IHA, additional construction and operational activities will need to be covered by a future MMPA authorization. Consequently, Neptune's application also serves as a request for a 5-year rule governing the issuance of letters of authorization for construction and operation of the port facility. Neptune is requesting to take several species of marine mammals, by Level B (behavioral) harassment, incidental to Port operations. During Port operations, the use of thrusters during docking will emit sounds that exceed the 120-dB threshold. More detailed information regarding Port operations and related effects will be described in NMFS' proposed rule Federal Register notice.

Description of the Project

On March 23, 2007, Neptune received a license to own, construct, and operate a deepwater port (Port or Neptune Port) from MARAD. The Port, which will be located in Massachusetts Bay, will consist of a submerged buoy system to dock specifically designed LNG carriers approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The two buoys will be separated by a distance of approximately 2.1 mi (3.4 km).

Neptune will be capable of mooring LNG shuttle and regasification vessels (SRVs) with a capacity of approximately 140,000 cubic meters (m3). Up to two SRVs will temporarily moor at the proposed deepwater port by means of a submerged unloading buoy system. Two separate buoys will allow natural gas to be delivered in a continuous flow, without interruption, by having a brief overlap between arriving and departing SRVs. The annual average throughput capacity will be around 500 million standard cubic feet per day (mmscfd) with an initial throughput of 400 mmscfd, and a peak capacity of approximately 750 mmscfd.

The SRVs will be equipped to store, transport, and vaporize LNG, and to odorize, meter and send out natural gas by means of two 16-in (40.6-cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers and flowline will lead to a proposed 24-in (61-cm) gas transmission pipeline connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin Hubline^SM (Hubline^SM) located approximately 9 mi (14.5 km) west of the proposed deepwater port location. The Port will have an expected operating life of approximately 20 years. Figure 1-1 of Neptune's application shows an isometric view of the Port.

On February 15, 2005, Neptune submitted an application to the USCG and MARAD under the Deepwater Port Act for all Federal authorizations required for a license to own, construct, and operate a deepwater port for the import and regasification of LNG off the coast of Massachusetts. Because, as described later in this document, there is a potential for marine mammals to be taken by harassment, incidental to construction of the facility and its pipeline and by the transport and regasification of LNG, Neptune has applied for a 1-year IHA and a subsequent 5-year letter of authorization for activities commencing in June 2008. The following sections briefly describe the activities that might harass marine mammals. Detailed information on these activities can be found in the MARAD/USCG Final EIS on the Neptune Project (see ADDRESSES for availability).

Construction Activities

The offshore installation effort for Neptune will be accomplished in the following sequence: mobilize an anchored lay barge (or a dynamic positioning derrick barge) and support vessels (i.e., anchor handling tugs, oceangoing tugs, and survey/diver support vessel) for the Proposed Pipeline Route; install the flowline between the riser mainfolds; install the new gas transmission pipeline from the northern riser manifold to the transition manifold and the hot tap to the HubLine^SM; install the two riser manifolds and the transition manifold; conduct pipeline hydrostatic testing; install the anchor piles and the lower portion of the mooring lines; connect the mooring lines to the unloading buoys and properly tension the mooring lines; and connect the two risers and control umbilicals between the unloading buoys and the riser manifolds. Construction will take place between June 2008 and June 2009 over approximately seven months. No construction activities will occur from December 2008 through April 2009. See Figure 1-2 of Neptune's application for a full construction schedule.

Description of Construction Activities

Flowline and Manifolds

A pipelaying vessel will install the two rise manifolds and install the flowline between the riser manifolds. The flowline will be a 24-in-diameter (61-cm) line pipe with concrete weight coating and have a length of approximately 2.5 mi (4 km). The flowline will be buried to the top of the pipe. Trenching will begin approximately 300 ft (91.4 ft) from the southern riser manifold and end approximately 300 ft (91.4 ft) from the northern manifold to avoid damaging such structures. Transition sections will use suction pumps, jetting machines, airlifts, or submersible pumps as required. A post-trenching survey will be performed to verify that the proper depth is achieved. Subsequent trenching runs might be performed to further lower section that do not meet burial depth requirements.

Gas Transmission Pipeline to the HubLine^SM

The gas transmission pipeline would begin at the existing Hubline^SM pipeline approximately 3 mi (4.8 km) east of Marblehead Neck, Massachusetts. From this point, the pipeline would extend toward the northeast crossing the territorial waters of the town of Marblehead, the city of Salem, the city of Beverly, and the town of Manchester-by-the-Sea for approximately 6.4 mi (10.3 km). The transmission line route would continue to the southeast for approximately 4.5 mi (7.2 km) crossing state and Federal waters. The proposed location of the pipeline is shown in Figure 2-1 of Neptune's application.

The transmission pipe (with concrete weight coating) will be transported from the temporary shore base to the operating site. The construction sequence for the transmission line will begin with plowing of the pipeline trench. A pipelaying vessel will install the 24-in-diameter (61-cm) pipeline (which will be buried 3 ft (0.9 m) to the top of the pipe) from the northern riser manifold to the location of the transition manifold near the connection point to the HubLine^SM. A site for the transition manifold will be dredged adjacent to the HubLine^SM, the manifold will be laid in place, and the tie-in HubLine^SM to the will be completed. The gas transmission line will be buried from the transition manifold to the northern riser manifold. Trenching will begin approximately 300 ft (91.4 m) from the northern riser manifold and end approximately 300 ft (91.4 m) from the transition manifold to avoid damaging such structures. A post-trenching survey will be performed to verify that the proper depth is achieved. Subsequent trenching runs might be performed to further lower sections that do not meet burial depth requirements.

Pipeline Hot Tap Installation

The hot tap fitting, which will not require welding, will provide full structural reinforcement where the hole will be cut in the HubLine^SM. The tapping tool and actual hot tap procedure will be supplied and supervised by a specialist from the manufacturer. Prior to construction of the hot tap, divers will excavate the HubLine^SM tie-in location using suction pumps. The concrete weight coating will be removed from the HubLine^SM and inspected for suitability of the hot tap. The hinged hot tap fitting will then be lowered and opened to fit over the 30-in (76.2-cm) HubLine^SM. The hot tap fitting will then be closed around the pipeline, the clam studs and packing flanges will be tightened, and the fitting leak will be tested. The HubLine^SM then will be tapped, and the valves will be closed. The hot tap and exposed sections of the HubLine^SM will be protected with concrete mats until the tie-in to the transition manifold occurs.

Hydrostatic Pipeline Integrity Testing

There will be one combined gas transmission line and flowline hydrotest, including flooding, cleaning, and gauging following pipelay, trenching, and burial. The whole system will be in-line and piggable, meaning that the pipeline can accept pigs, which are gauging/cleaning devices that are driven by pressure from one end of the pipe segment to the other without obstruction. The gas transmission line and flowline will require approximately three million gallons of filtered seawater, including complete flushing of the system and 676 gallons (2,559 liters) of fluorescent dye (TADCO Tracer Fluro Yellow XL500-50 Liquid Dye or an approved equivalent). This volume assumes that no water will bypass the pigs and will include approximately 1,700 gallons (6,435 liters) of water in front of the flooding pig and approximately 1,700 gallons (6,435 liters) of water between other pigs (reduced from two hydrotests to one hydrotest). Flooding will take place from the southern riser manifold to the HubLine^SM hot tap manifold. All hydrotest water discharges will be in Federal waters, near the unloading buoys. The total pipeline system will be swab-dried using a pig train with slugs or glycol or similar fluid. The water content of the successive slugs will be sampled to verify that the total pipeline has been properly dried.

Anchor Installation

The prefabricated anchor piles will be installed offshore with a dynamic positioning derrick/anchored barge, anchor-handling vessel, or similar offshore construction equipment. The anchor points will be within a radius of 1,600 to 3,600 ft (487.7 to 1,097.3 m) of the center of each unloading buoy. The anchor system will be installed using suction pile anchors.

Unloading Buoys

The unloading buoys will be offloaded near the designated site. An anchor-handling vessel or small derrick barge will connect the mooring lines from the anchor points to each unloading buoy and then adjust the mooring line tensions to the desired levels.

Risers

The anchor-handling vessel or small derrick barge also will connect the riser and the control umbilical between each unloading buoy and the associated riser manifold, complete the hydrostatic testing and dewatering of the risers, and test the control umbilicals.

Demobilization

Upon completion of the offshore construction effort, sidescan sonar will be used to check the area. Divers will remove construction debris from the ocean floor. All construction equipment will leave the site.

Construction Vessels

The derrick/lay barge, anchor-handling vessels, and survey/diver support vessel will each make two trips (one round trip) to and from the area of origin (likely the Gulf of Mexico) and will stay on station for the majority of the construction period. The supply vessels (or oceangoing tugs with cargo barges) and crew/survey vessel will make regular trips between the construction sites and mainly the port of Gloucester (approximately 8 mi (12.9 km)). During project installation, the supply vessel will make approximately 102 trips (51 round trips), and the crew/survey vessel will make approximately 720 trips (360 round trips) for a combined total of 822 construction-support-related transits (411 round trips).

All of the construction and support vessels will be transiting Massachusetts Bay en route to the Port. While transiting to and from the construction sites, the supply vessel and crew/survey vessel will travel at approximately 10 knots (18.5 km/hr). While transiting to and from the Gulf of Mexico, the derrick/lay barge and anchor handling vessels will travel up to 12 and 14 knots (22.2 and 25.9 km/hr), respectively, but will operate either in place or at very slow speeds during construction. The survey/diver support vessel will travel at speeds up to 10 knots (18.5 km/hr) transiting to and from the construction area and between dive sites.

Materials, including unloading buoys, mooring lines, risers, and control umbilicals, will be transported from the shore-based storage area to the operating site on deck cargo barges pulled by oceangoing tugs. Cargo barges will transport the concrete-coated line pipe and manifolds to the operating site.

Approved construction procedures will be delivered to each construction vessel, and a kick-off meeting to review construction procedures, health and safety procedures, and environmental limitations will be held with key personnel prior to starting each construction activity.

Construction Sound

Underwater acoustic analyses were completed for activities related to all aspects of Neptune construction. Activities considered to be potential sound sources during construction include: installation (plowing) of flowline and main transmission pipeline routes; lowering of materials (pipe, anchors, and chains); and installation of the suction pile anchors.

Construction-related activities for the Port and the pipeline will generate sound exceeding the 120-dB threshold for continuous and intermittent noise at the source. The loudest source of underwater noise during construction of the Neptune Port will be the use of thrusters for dynamic positioning.

Marine Mammals Affected by the Activity

Marine mammal species that potentially occur within the Neptune facility impact area include several species of cetaceans and pinnipeds: North Atlantic right whale, blue whale, fin whale, sei whale, minke whale, humpback whale, killer whale, long-finned pilot whale, sperm whale, Atlantic white-beaked dolphin, Atlantic white-sided dolphin, bottlenose dolphin, common dolphin, harbor porpoise, Risso's dolphin, striped dolphin, gray seal, harbor seal, harp seal, and hooded seal. Table 3-1 in the IHA application outlines the marine mammal species that occur in Massachusetts Bay and the likelihood of occurrence of each species. Information on those species that may be impacted by this activity are discussed in detail in the MARAD/USCG Final EIS on the Neptune LNG proposal. Please refer to that document for more information on these species and potential impacts from construction and operation of this LNG facility. In addition, general information on these marine mammal species can also be found in the NMFS Stock Assessment Reports (Waring et al., 2007), which is available at: http://www.nefsc.noaa.gov/​nefsc/​publications/​tm/​tm201/​.

In addition to the 16 species listed in Table 3-1 of Neptune's application, Massachusetts Bay is considered an extralimital habitat for ten other cetacean species, or their presence has only been recorded from strandings (Cardoza et al., 1999). The following six species of beaked whales are all pelagic and recorded mostly as strandings the northern bottlenose whale (Hyperoodon ampullatus), Cuvier's beaked whale (Ziphius cavirostris), Sowerby's beaked whale (Mesoplodon bidens), Blainville's beaked whale (M. densirostris), Gervais' beaked whale (M. europaeus), and true's beaked whale (M. mirus). Vagrants include the beluga whale (Delphinapterus leucas), a northern species with rare vagrants reported as far south as Long Island (Katona et al., 1993); the pantropical spotted dolphin (Stenella attenuata) and false killer whale (Pseudorca crassidens), which are primarily tropical species with rare sightings in Massachusetts waters (Cardoza et al., 1999); and the pygmy sperm whale (Kogia breviceps), which is generally an offshore species that occasionally wanders inshore. These vagrant species are not considered further in the analysis.

Potential Effects on Marine Mammals

The effects of sound on marine mammals are highly variable and can be categorized as follows (based on Richardson et al., 1995): (1) The sound may be too weak to be heard at the location of the animal (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both); (2) The sound may be audible but not strong enough to elicit any overt behavioral response; (3) The sound may elicit reactions of variable conspicuousness and variable relevance to the well being of the marine mammal; these can range from temporary alert responses to active avoidance reactions, such as vacating an area at least until the sound ceases; (4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation) or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent, and unpredictable in occurrence, and associated with situations that a marine mammal perceives as a threat; (5) Any anthropogenic sound that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise; (6) If mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to sound, it is possible that there could be sound-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and (7) Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS) in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment. In addition, intense acoustic (or explosive events) may cause trauma to tissue associated with organs vital for hearing, sound production, respiration, and other functions. This trauma may include minor to severe hemorrhage.

Construction and operation of the Neptune Port will occur consecutively, with no overlap in activities. During construction, the project activities will occur over a 2-year period with sound from Port and pipeline construction causing some possible disturbance to small numbers of both baleen and toothed whales. Pinnipeds are unlikely to be present during summer and will not be affected. The installation of the suction piles will produce only low levels of sound during the construction period and will not increase the numbers of animals affected. Modeling results indicate that noise levels would be below 90 dB re 1 μPa within 0.2 mi (0.3 km) of the source.

During construction of the Port and pipeline, underwater sound levels will be temporarily elevated. These elevated sound levels may cause some species to temporarily disperse from or avoid construction areas, but they are expected to return shortly after construction is completed.

The likelihood of a vessel strike of a marine mammal during pipe laying and trenching operations is low since equipment will be towed at very slow speeds (approximately 5 ft (1.5 m) per minute). Any whales foraging near the bottom would be able to avoid collision or interaction with the equipment and displacement would be temporary for the duration of the plow pass.

Estimates of Take by Harassment

There are three general types of sounds recognized by NMFS: continuous, intermittent (or transient), and pulsive. Sounds of short duration that are produced intermittently or at regular intervals, such as sounds from pile driving, are classified as “pulsed.” Sounds produced for extended periods, such as sound from generators, are classified as “continuous.” Sounds from moving sources, such as ships, can be continuous, but for an animal at a given location, these sounds are “transient” (i.e., increasing in level as the ship approaches and then diminishing as it moves away). Neither the construction nor operation of the Port will cause pulsive sound activities, including pile driving, seismic activities, or blasting.

The sound sources of potential concern are continuous and intermittent sound sources, including underwater noise generated during pipeline/flowline construction. Both continuous and intermittent noise sources are subject to NMFS' 120 dB re 1 μPa threshold for determining levels of continuous underwater noise that may result in the disturbance of marine mammals.

Construction-related Underwater Sound Effects

• Pipe-laying activities will generate continuous but transient sound and will likely result in variable sound levels during the construction period. Depending on water depth, the 120-dB contour during pipe-laying activities will extend from the source (the Port) in varying directions from 3.8 to 5.9 nm (7 to 10.9 km), encompassing an area ranging from 37 to 47 nm² for the flowline at the Port and will extend from the pipeline route out 3.5 to 4.1 nm (6.5 to 7.6 km), encompassing an area from 35 to 44 nm² for the pipeline route.
• Installation of the suction pile anchors at the Port will produce only low levels of underwater sound with no levels above the 120-dB criterion for continuous sound. The 120-dB threshold would not be exceeded, and the 90-dB contour would occur only out to 300-1,000 ft (91.4-305 m) from the sound source. (See Appendix B of Neptune's application for a more detailed description.)

The basis for Neptune's “take” estimate is the number of marine mammals that potentially could be exposed to sound levels in excess of 120 dB. Typically, this is determined by applying the modeled zone of influence (e.g., the area ensonified by the 120-dB contour) to the seasonal use (density) of the area by marine mammals and correcting for seasonal duration of sound-generating activities and estimated duration of individual activities when the maximum sound-generating activities are intermittent to occasional. Nearly all of the required information is readily available in the MARAD/USCG Final EIS, with the exception of marine mammal density estimates for the project area.

For the assessment of the biological noise effects of the Neptune Port construction and operation, LGL Limited (LGL; 2005 and 2006) evaluated the marine mammal density data available from the Cetacean and Turtle Assessment Program (1982) and the U.S. Navy's (USN) Marine Resources Assessment (MRA) for the Northeast Operating Areas (Dept. of the Navy, 2005). The results and methodologies used by both surveys are discussed in detail in Appendix B of Neptune's application.

Using the results from the USN (2005) geospatial analysis model, LGL developed average density-indices for marine mammals known to occur in the proposed project area. The LGL analysis assumed that the USN-adopted method of converting linear density-indices into areal density estimates was reasonable and assumed that the highest numbers of marine mammals in the density-index ranges would be present during Port construction and operations. Table 6-1 in the IHA application provides estimated densities for Massachusetts Bay. LGL cautions that the linear data identified by the USN in its MRA (2005) provide an index of abundance based on all of the usable available data. To convert the linear data into densities for the purpose of assessing the underwater sound effects of the construction and operation of the Neptune Port, it was assumed that the effective survey width was a 0.3-mi (0.5-km) strip on each side of the survey vehicle. Thus, each linear kilometer of survey would encompass an area of 1 km². This is a gross oversimplification of reality. For most whale species, individuals are sighted well beyond the assumed distance of 0.3-mi (0.5 km) on each side of the trackline. Thus, the adopted approach overestimates the actual numbers of animals per square kilometer because the linear estimates actually include animals beyond the 0.3-mi (0.5-km) strip width. However, all surveys fail to detect a portion of the animals that are actually present on the surface or underwater. Therefore, the approach adopted here accounts for an unknown fraction of the missed animals. Because these biases cannot be quantified, it is important to treat the following numerical assessments as approximations.

For construction-related effects, Neptune is requesting take of eight cetacean species. Table 6-1 in the IHA application and Table 1 here provide Neptune's estimate of the number of marine mammals that could potentially be harassed during Port construction activities.

Species	Requested Take Levels for Construction Activities
North Atlantic right whale	4
Humpback whale	5
Fin whale	3
Sei whale	3
Minke whale	1
Long-finned pilot whale	44
Atlantic white-sided dolphin1	43
Harbor porpoise1	23
Table 1. Requested take levels for marine mammals in Massachusetts Bay from construction of the Neptune Port
1 Dolphin distribution is generally patchy and with a few large pods being present rather than an even distribution.

Based on weekly construction reports submitted to NMFS by another LNG facility in Massachusetts Bay, the take levels requested by Neptune seem a bit low. It is likely based on the observer data and further analysis, the numbers that would be authorized in the final IHA may be slightly higher than those in this notice of proposed IHA. NMFS biologists will analyze area density, the area to be ensonified to 160 dB, and the number of days that construction activities will occur in order to derive more accurate take numbers during the time of Port construction. However, the numbers are expected to be small based on population sizes.

Potential Impact on Habitat from Port Construction

Construction of the Neptune Port and pipeline will affect marine mammal habitat in several ways: seafloor disturbance, increased turbidity, and generation of additional underwater sound in the area. Proposed construction activities will temporarily disturb 418 acres (1.7 km²) of seafloor (11 acres (0.04 km²) at the Port, 85 acres (0.3 km²) along the pipeline route, and an estimated 322 acres (1.3 km²) due to anchoring of construction and installation vessels). Of the proposed construction activities, pipeline installation, including trenching, plowing, jetting, and backfill, is expected to generate the most disturbance of bottom sediments. Sediment transport modeling conducted by Neptune indicates that initial turbidity from pipeline installation could reach 100 milligrams per liter (mg/L) but will subside to 20 mg/L after 4 hours. Turbidity associated with the flowline and hot-tap will be considerably less and also will settle within hours of the work being completed. Resettled sediments also will constitute to seafloor disturbance. When re-suspended sediments resettle, they reduce growth, reproduction, and survival rates of benthic organisms, and in extreme cases, smother benthic flora and fauna. Plankton will not be affected by resettled sediment. The project area is largely devoid of vegetation and consists of sand, silt, clay, or mixtures of the three.

Recovery of soft-bottom benthic communities impacted by project installation is expected to be similar to the recovery of the soft habitat associated with the construction of the HubLine^SM (Algonquin Gas Transmission L.L.C., 2004). Post-construction monitoring of the HubLine^SM indicates that areas that were bucket-dredged showed the least disturbance. Displaced organisms will return shortly after construction ceases, and disrupted communities will easily re-colonize from surrounding communities of similar organisms. Similarly, disturbance to hard-bottom pebble/cobble and piled boulder habitat is not expected to be significant. Some organisms could be temporarily displaced from existing shelter, thereby exposing them to increased predation, but the overall structural integrity of these areas will not be reduced (Auster and Langton, 1998).

Short-term impacts on phytoplankton, zooplankton (holoplankton), and planktonic fish and shellfish eggs and larvae (meroplankton) will occur as a result of the project. Turbidity associated with Port and pipeline installation will result in temporary direct impacts on productivity, growth, and development. Phytoplankton and zooplankton abundance will be greatest during the summer construction schedule. Fish eggs and larvae are present in the project area throughout the year. Different species of fish and invertebrate eggs and larvae will be affected by the different construction schedules.

The temporary disturbance of benthic habitat from trenching for and burial of the transmission pipeline will result in direct, minor, adverse impacts from the dispersion of fish from the area and the burying or crushing of shellfish. In the short-term, there will be a temporary, indirect, and beneficial impact from exposing benthic food sources. Seafloor disturbance could also occur as a result of resettling of suspended sediments during installation and construction of the proposed Port and pipeline. Redeposited sediments will potentially reduce viability of demersal fish eggs and growth, reproduction, and survival rates of benthic shellfish. In extreme cases, resettled sediments could smother benthic shellfish, although many will be able to burrow vertically through resettled sediments.

Construction activities will not create long-term habitat changes, and marine mammals displaced by the disturbance to the seafloor are expected to return soon after construction ceases. Marine mammals also could be indirectly affected if benthic prey species were displaced or destroyed by construction activities. Affected species are expected to recover soon after construction ceases and will represent only a small portion of food available to marine mammals in the area.

Marine Mammal Mitigation, Monitoring, and Reporting

Port Construction Minimization Measures

General

Construction activities will be limited to a May through November time frame so that acoustic disturbance to the endangered North Atlantic right whale can largely be avoided.

Proposed Visual Monitoring Program

The Neptune Project will employ two marine mammal observers (MMOs) on each lay barge, bury barge, and diving support vessel for visual shipboard surveys during construction activities. Qualifications for these individuals will include direct field experience on a marine mammal/sea turtle observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. The observers (one primary, one secondary) are responsible for visually locating marine mammals at the ocean's surface, and, to the extent possible, identifying the species. The primary observer will act as the identification specialist, and the secondary observer will serve as data recorder and also assist with identification. Both observers will have responsibility for monitoring for the presence of marine mammals. All observers will receive NMFS-approved MMO training and be approved in advance by NMFS after review of their resumes.

The MMOs will be on duty at all times when each vessel is moving and at selected periods when the vessel is idle, including when other vessels move around the construction lay barge. The MMOs will monitor the construction area beginning at daybreak using 25x power binoculars and/or hand-held binoculars, resulting in a conservative effective search range of 0.5 mi (0.8 km) during clear weather conditions for the shipboard observers. The MMO will scan the ocean surface by eye for a minimum of 40 minutes every hour. All sightings will be recorded in marine mammal field sighting logs. Observations of marine mammals will be identified to species or the lowest taxanomic level and their relative position will be recorded. Night vision devices will be standard equipment for monitoring during low-light hours and at night.

During all phases of construction, MMOs will be required to scan for and report all marine mammal sightings to the vessel captain. The captain will then alert the environmental coordinator that a marine mammal is near the construction area. The MMO will have the authority to bring the vessel to idle or to temporarily suspend operations if a baleen whale is seen within 0.6 mi (1 km) of the moving pipelay vessel or construction area. The MMO or environmental coordinator will determine whether there is a potential for harm to an individual animal and will be charged with responsibility for determining when it is safe to resume activity. A vessel will not increase power again until the marine mammal(s) leave(s) the area or has/have not been sighted for 30 minutes. The vessel will then power up slowly.

Construction and support vessels will be required to display lights when operating at night, and deck lights will be required to illuminate work areas. However, use of lights will be limited to areas where work is actually occurring, and all other lights will be extinguished. Lights will be downshielded to illuminate the deck and will not intentionally illuminate surrounding waters, so as not to attract whales or their prey to the area.

Distance and Noise Level for Cut-Off

(1) During construction, if a marine mammal is detected within 0.5 mi (0.8 km) of a construction vessel, the vessel superintendent or on-deck supervisor will be notified immediately. The vessel's crew will be put on a heightened state of alert. The marine mammal will be monitored constantly to determine if it is moving toward the construction area. The observer is required to report all North Atlantic right whale sightings to NMFS, as soon as possible.

(2) Construction vessels will cease any movement in the construction area if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) from the operating construction vessel. Construction vessels will cease any movement in the construction area if a right whale is sighted within or approaching to a distance of 500 yd (457 m) from the operating construction vessel. Vessels transiting the construction area such as pipe haul barge tugs will also be required to maintain these separation distances. Activities will cease within these safety radii in order to avoid injury or mortality of any marine mammal.

(3) Construction vessels will cease all activities that emit sounds reaching a received level of 120 dB re 1 μPa or higher at 100 yd (91 m) if a marine mammal other than a right whale is sighted within or approaching to this distance, or if a right whale is sighted within or approaching to a distance of 500 yd (457 m), from the operating construction vessel. The back-calculated source level, based on the most conservative cylindrical model of acoustic energy spreading, is estimated to be 139 dB re 1 μPa. Activities will cease within these safety radii in order to avoid injury or mortality of any marine mammal.

(4) Construction may resume after the marine mammal is positively reconfirmed outside the established zones (either 500 yd (457 m) or 100 yd (91 m), depending upon species).

Vessel Strike Avoidance

(1) While under way, all construction vessels will remain 0.6 mi (1 km) away from right whales and all other whales to the extent possible and 100 yd (91 m) away from all other marine mammals to the extent physically feasible given navigational constraints as required by NMFS.

(2) MMOs will direct a moving vessel to slow to idle if a baleen whale is seen within 0.6 mi (1 km) of the vessel.

(3) All construction vessels 300 gross tons or greater will maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons carrying supplies or crew between the shore and the construction site must contact the appropriate authority or the construction site before leaving shore for reports of recent right whale sighting and, consistent with navigation safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent sighting location.

(4) Vessels transiting through the Cape Cod Canal and Cape Cod Bay (CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 km/hr) or less, follow the recommended routes charted by NOAA to reduce interactions between right whales and shipping traffic, and avoid aggregations of right whales in the eastern portion of CCB. To the extent practicable, pipe deliveries will be avoided during the January to May time frame. In the unlikely event the Canal is closed during construction, the pipe haul barges will transit around Cape Cod following the Boston Traffic Separation Scheme and all measures for the SRVs when transiting to the Port (see Appendix D of Neptune's application for Port Operation Minimization Measures).

(5) Construction and support vessels will transit at 10 knots or less in the following seasons and areas:

• Southeast U.S. Seasonal Management Area (SMA) from November 15 through April 15, which is bounded by the shoreline, 31° 27' N. (i.e., the northern edge of the Mandatory Ship Reporting System (MSRS) boundary) to the north, 29° 45' N. to the south, and 80° 51.6' W. (i.e., the eastern edge of the MSRS boundary);
• Mid-Atlantic SMAs from November 1 through April 30, which encompass the waters within a 30 nm (55.6 km) area with an epicenter at the midpoint of the COLREG demarcation line crossing the entry into the following designated ports or bays: (a) Ports of New York/New Jersey; (b) Delaware Bay (Ports of Philadelphia and Wilmington); (c) Entrance to the Chesapeake Bay (Ports of Hampton Roads and Baltimore) (d) Ports of Morehead City and Beaufort, North Carolina; (e) Port of Wilmington, North Carolina; (f) Port of Georgetown, South Carolina; (g) Port of Charleston, South Carolina; and (h) Port of Savannah, Georgia;
• CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42° 12' N.;
• Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated:

42° 30' N. 70° 30' W.

42° 30' N. 69° 45' W.

41° 40' N. 69° 45' W.

41° 40' N. 69° 57' W.

42° 04.8' N. 70° 10' W.

42° 12' N. 70° 15' W.

42° 12' N. 70° 30' W.

42° 30' N. 70° 30' W.; and

• Great South Channel SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated:

42° 30' N. 69° 45' W.

42° 30' N. 67° 27' W.

42° 09' N. 67° 08.4' W.

41° 00' N. 69° 05' W.

41° 40' N. 69° 45' W.

42° 30' N. 69° 45' W.

Passive Acoustic Monitoring (PAM) Program

In addition to visual monitoring, Neptune will utilize a PAM system to aid in the monitoring and detection of vocalizing marine mammals in the proposed project area. Neptune has engaged personnel from NMFS and the Stellwagen Bank National Marine Sanctuary (SBNMS) regarding available passive acoustic technology that could be used to enhance the PAM program.

The proposed PAM system will be capable of detecting, localizing (range and bearing), and classifying marine mammals in real-time. When combined with an action and communication plan, Neptune will have the capability to make timely decisions and undertake steps to minimize the potential for collisions between marine mammals and construction vessels. The PAM system proposed for the Neptune project will involve the installation of an array of auto-detection monitoring buoys moored at regular intervals in a circle surrounding the site of the terminal and associated pipeline construction. Buoys will be arranged to maximize auto detection and provide localization capability. With the existing technology, this would require six buoys moored every 5 nm (9.3 km) to provide some overlap in coverage. The buoys are designed to monitor the sound output from construction activities to ensure predicted levels are not exceeded and to detect the presence of vocally active marine mammals. Passive acoustic devices will be actively monitored for detections by a NMFS-approved bioacoustic technician.

Other Measures

Mesh grates will be used during flooding and hydrostatic testing of the pipeline and flowlines to minimize impingement and entrainment of marine mammals. Operations involving excessively noisy equipment will “ramp-up” sound sources, as long as this does not jeopardize the safety of vessels or construction workers, allowing whales a chance to leave the area before sounds reach maximum levels. Contractors will be required to utilize vessel-quieting technologies that minimize sound. Contractors will be required to maintain individual Spill Prevention, Control, and Containment Plans in place for construction vessels during construction.

An environmental coordinator with experience coordinating projects to monitor and minimize impacts to marine mammals will be onsite to coordinate all issues concerning marine protected species, following all of the latest real-time marine mammal movements. The coordinator will work to ensure that environmental standards are adhered to and adverse interactions between project equipment and marine mammals do not occur.

Reporting

During construction, weekly status reports will be provided to NMFS utilizing standardized reporting forms. In addition, the Neptune Port Project area is within the MSRA, so all construction and support vessels will report their activities to the mandatory reporting section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA will report their activities to WHALESNORTH. During all phases of project construction, sightings of any injured or dead marine mammals will be reported immediately to the USCG and NMFS, regardless of whether the injury or death is caused by project activities. Any right whale sightings will be reported to the NMFS Sighting Advisory System.

During all phases of Port construction, sightings of any injured or dead marine mammals must be reported to NMFS immediately, regardless of whether or not the injury or death was caused by project activities. Sightings of injured or dead marine mammals not associated with project activities can be reported to the USCG on VHF Channel 16 or to NMFS Stranding and Entanglement Hotline. In addition, if the injury or death was caused by a project vessel (e.g., SRV, support vessel, or construction vessel), USCG must be notified immediately, and a full report must be provided to NMFS, Northeast Regional Office. The report must include the following information: (1) the time, date, and location (latitude/longitude) of the incident; (2) the name and type of vessel involved; (3) the vessel's speed during the incident; (4) a description of the incident; (5) water depth; (6) environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); (7) the species identification or description of the animal; and (8) the fate of the animal.

An annual report on marine mammal monitoring and mitigation will be submitted to NMFS Office of Protected Resources and NMFS Northeast Regional Office within 90 days after the expiration of the IHA. The weekly reports and the annual report should include data collected for each distinct marine mammal species observed in the project area in the Massachusetts Bay during the period of LNG facility construction. Description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to construction activities shall also be included in the annual report. Additional information that will be recorded during construction and contained in the reports include: date and time of marine mammal detections (visually or acoustically), weather conditions, species identification, approximate distance from the source, activity of the vessel or at the construction site when a marine mammal is sighted, and whether or not thrusters were in use and how many at the time of the sighting.

Endangered Species Act (ESA)

On January 12, 2007, NMFS concluded consultation with MARAD and USCG under section 7 of the ESA on the proposed construction and operation of the Neptune LNG facility. The finding of that consultation was that the construction and operation of the Neptune LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of northern right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp's ridley, loggerhead, green, or leatherback sea turtles. Because the issuance of an IHA to Neptune under section 101(a)(5) of the MMPA is a Federal action, NMFS has section 7 responsibilities for its action. Consultation on the NMFS action will be concluded prior to its determination on the issuance of an IHA to Neptune.

National Environmental Policy Act

MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed Neptune LNG Deepwater Port. A notice of availability was published by MARAD on November 2, 2006 (71 FR 64606). The Final EIS/EIR provides detailed information on the proposed project facilities, construction methods, and analysis of potential impacts on marine mammals. The Final EIS/EIR is incorporated as part of the MMPA record of decision on this action.

NMFS was a cooperating agency in the preparation of the EIS based on a Memorandum of Understanding related to the Licensing of Deepwater Ports entered into by the U.S. Department of Commerce along with 10 other government agencies. NMFS is currently reviewing the Final EIS and will either adopt it or prepare its own NEPA document before making a determination on the issuance of an IHA for the Neptune Project.

Preliminary Determinations

NMFS has preliminarily determined that the impact of construction of the Neptune Port Project may result, at worst, in a temporary modification in behavior of small numbers of certain species of marine mammals that may be in close proximity to the Neptune LNG facility and associated pipeline during its construction. These activities are expected to result in some local short-term displacement, resulting in no more than a negligible impact on the affected species or stocks of marine mammals. The provision requiring that the activity not have an unmitigable adverse impact on the availability of the affected species or stock for subsistence use does not apply for this proposed action.

This preliminary determination is supported by measures described earlier in this document under “Marine Mammal Mitigation, Monitoring, and Reporting” and MARAD's Record of Decision (and NMFS' Biological Opinion on this action). As a result of the described mitigation measures, no take by injury or death is requested, anticipated, or proposed to be authorized, and the potential for temporary or permanent hearing impairment is very unlikely due to the relatively low noise levels (and consequently small zone of impact). The likelihood of such effects would be avoided through the incorporation of the proposed shut-down mitigation measures mentioned in this document. While the number of marine mammals that may be harassed will depend on the distribution and abundance of marine mammals in the vicinity of the Port construction, the estimated number of marine mammals to be harassed is small.

Proposed Authorization

As a result of these preliminary determinations, NMFS proposes to issue an IHA to Neptune for the taking (by Level B harassment only) during construction of the Neptune Port provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

Dated: February 12, 2008.

James H. Lecky,

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