05-16060. Small Takes of Marine Mammals Incidental to Specified Activities; Movement of Barges Through the Beaufort Sea Between West Dock and Cape Simpson, Alaska

AGENCY:

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

ACTION:

Notice of issuance of an incidental harassment authorization.

SUMMARY:

In accordance with provisions of the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that an Incidental Harassment Authorization (IHA) to take small numbers of marine mammals, by harassment, incidental to conducting a barging operation within the U.S. Beaufort Sea has been issued to FEX L.P. (FEX), a subsidiary of Talisman Energy, Inc., for a period of 1 year.

DATES:

Effective from August 8, 2005 through August 7, 2006.

ADDRESSES:

The authorization and application containing a list of the references used in this document may be obtained by writing to Steve Leathery, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning the contact listed here. The application is also available at: http://www.nmfs.noaa.gov/​prot_​res/​PR2/​Small_​Take/​smalltake_​info.htm#applications. Documents cited in this notice may be viewed, by appointment, during regular business hours, at this address.

FOR FURTHER INFORMATION CONTACT:

Kenneth Hollingshead, Office of Protected Resources, NMFS, [phone], ext 128, or Brad Smith, Alaska Region, 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 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, a notice of a proposed authorization is provided to the public for review.

An authorization 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 monitoring and reporting of such takings 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 established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain 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 marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.

Summary of Request

On March 29, 2005, NMFS received an application from FEX for the taking of several species of marine mammals incidental to the movement of two tugs towing barges from West Dock, Prudhoe Bay, Alaska to Cape Simpson in the U.S. Beaufort Sea. The Kavik River (1100 horsepower (h.p.)) and the Sag River (1100 h.p.) or comparable class tugs, will each tow a single barge to Cape Simpson. Approximately eight round-trips will be required for project mobilization. Actual barging would be completed in an approximate 20-day period depending on ice conditions and sea states. Two barges would make the initial run to Cape Simpson, and one would be left at one of those locations to serve as a temporary dock-head. The other barge would then make approximately six round trips. At the end of the barging operation, the barge serving as a temporary dockhead and the second barge would return to West Dock. FEX will make every effort to avoid periods of whale migration and subsistence activities by completing barging by August 15^th, but no later than September 1st. If necessary, a late season barging effort may be required between October 15 and November 30, 2005.

Marine barge transit of a drilling rig, consumables, fuel, essential construction equipment and supplies from West Dock to Cape Simpson will be conducted. Equipment will be staged and stored in preparation for the upcoming winter on-shore oil and gas drilling and testing season. All drilling activities and bottom hole locations will be located on Federal Northwest National Petroleum Reserve Oil and Gas Leases.

Comments and Responses

A notice of receipt and request for 30-day public comment on the application and proposed authorization was published on February 8, 2005 (70 FR 6626). During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission), the Alaska Eskimo Whaling Commission (AEWC) and ASRC Energy Services/Lynx Enterprises (Lynx), on behalf of FEX.

Comment 1: Lynx notes that since the submission of the original IHA application on March 25, 2005, full details of FEX's planned barging operations have become clearer. These clarifications do not significantly change either the scope or timing of barging operations.

Response: NMFS has incorporated these minor modifications (e.g., clarification that the terminus of the barging operation will be at Cape Simpson and not Point Lonely), into this document and the IHA.

Comment 2: The Commission believes that NMFS' preliminary determinations are reasonable provided that (1) all reasonable measures will be taken to ensure the least practicable impact on the subject species; and (2) the required mitigation and monitoring activities be carried out as described in NMFS' May 6, 2005 Federal Register notice and subject application.

Response: The mitigation and monitoring measures described in the earlier Federal Register notice and this document will be carried out as described. NMFS has determined that the FEX barging operations will result in only small numbers of marine mammals being affected, would have no more than a negligible impact on these marine mammal stocks; and would not have an unmitigable adverse impact on the availability of marine mammal stocks for subsistence uses.

Comment 3: The AEWC notes that it has agreed to prepare a Conflict Avoidance Agreement (CAA) to cover the tug/barge operation. It is the AEWC's intention to have a CAA ready for signature prior to departure for the International Whaling Commission meetings.

Response: Signing the CAA supports NMFS' determination that the proposed barging operation between West Dock and Cape Simpson will not have an unmitigable adverse impact on subsistence uses of marine mammals. NMFS anticipates that this agreement will be signed shortly.

Comment 4: The AEWC notes that ceasing barging operations in this area of the U.S. Beaufort Sea by August 15^th and resuming barging operations later in the fall, as proposed by FEX, is an appropriate mitigation measure. Tug/barge operations during the open water season tend to take longer than expected, usually because of unpredictable weather, ice conditions, or logistical problems. As a result, these types of operations regularly continue past their planned completion dates, creating the risk that they will interfere with the fall bowhead whale migration and subsistence hunt. The FEX planned tug/barge operation this year between Deadhorse (Prudhoe Bay) and Cape Simpson is especially risky because it is within the area used by Barrow hunters for the fall bowhead hunt. A similar tug/barge operation by a different company in 2003 is thought to have been a factor leading to a substantial deflection of bowheads offshore of Barrow that year. As a result, halting barge traffic from August 15, 2005 until the villages of Barrow, Nuiqsut, and Kaktovik have completed their fall bowhead subsistence hunt is a principal mitigation measure contained in the CAA between the AEWC and FEX this year.

Response: NMFS has incorporated this recommended mitigation measure into the IHA for FEX.

Comment 5: Lynx notes that since the submission of the original IHA application on March 25, 2005, full details of FEX's planned marine mammal monitoring has become clearer. For example, while the marine mammal monitoring program remains the same as originally proposed, the marine mammal observers will only be allowed aboard the UIC/Bowhead Transportation self-propelled barge (i.e., Bowhead Transportation is a barging company). The Crowley Marine tug/barge unit cannot accommodate observers due to U.S. Coast Guard (USCG) crew berthing restrictions. The Bowhead Transportation barge will precede all vessels during transit, thus providing the observers opportunity to survey the route from a lead position. The Crowley unit will follow a short distance astern the Bowhead Transportation barge.

Response: NMFS appreciates the update on the monitoring plan and has amended the mitigation/monitoring section in this document.

Description of Marine Mammals Affected by the Activity

The Beaufort Sea supports many marine mammals under NMFS jurisdiction, including bowhead whales, beluga whales, ringed seals, bearded seals and spotted seals. A brief description of the biology, distribution, and current status of these species can be found in the FEX application. More detailed descriptions can be found in NMFS Stock Assessment Reports. Please refer to those documents for more information on these species. The latter document can be downloaded electronically from: http://www.nmfs.noaa.gov/​prot_​res/​PR2/​Stock_​Assessment_​Program/​sars.html#Stock Assessment Reports. The FEX application is also available on-line (see ADDRESSES).

Potential Effects of Tug/Barge Operations and Associated Activities on Marine Mammals

Potential harassment of marine mammals will result from the noise generated by the operation of towing vessels during barge movement. The physical presence of the tugs and barges could also lead to disturbance of marine mammals by visual or other cues. The potential for collisions between tug vessels and whales will be essentially zero due to the slow tow speed (2 knots) and visual monitoring by on-board marine mammal observers.

Marine mammal species with the highest likelihood of being harassed during the tug and barge movements are: beluga whales, ringed seals, and bearded seals. Spotted seals are less likely to be harassed during the tug/barge movement because they normally reside closer to the shore. Bowhead whales are the only species listed under the Endangered Species Act (ESA) that could potentially be affected by these activities. However, they are not expected to be encountered in more than very small numbers during the planned period of time for the tug/barge movement because the majority of bowhead whales will be on their summer feeding grounds in Canadian waters. A few transitory whales may be encountered during the transits. Beluga whales occur in the Beaufort Sea during the summer, but are expected to be found near the pack ice edge north of the proposed movement route. Depending on seasonal ice conditions, it is possible that belugas may be encountered during the transits.

Based on past surveys, ringed seals should represent the vast majority of marine mammals encountered during the transits. Ringed seals are expected to be present all along the tug/barge transit routes. There is the possibility that bearded and spotted seals will also be harassed during transit. Spotted seals may be present in the West Dock/Prudhoe Bay, but it is likely that they may be closer to shore and therefore are not expected to be harassed during transit phase.

Numbers of Marine Mammals Expected to Be Taken

The number of marine mammals that may be taken as a result of the tug/barging operation is unpredictable. Operations are scheduled to occur prior to the westward migration and associated subsistence bowhead whale hunts to purposely avoid any take of this species. Noise disturbance from vessels might qualify as harassment to seals, but previous surveys have indicated little behavioral reaction from these animals to slow-moving vessels.

Effects on Subsistence Needs

Residents of the village of Barrow are the primary subsistence users in the activity area. The subsistence harvest during winter and spring is primarily ringed seals, but during the open-water period both ringed and bearded seals are taken. Barrow hunters may hunt year round; however in more recent years most of the harvest has been in the summer during open water instead of the more difficult hunting of seals at holes and lairs (McLaren 1958, Nelson 1969). The Barrow fall bowhead whaling grounds, in some years, includes the Cape Simpson and Point Lonely areas (e.g. the 1990 season, when a large aggregation of feeding bowheads were pursued by Barrow hunters).

The most important area for Nuiqsut hunters is off the Colville River Delta in Harrison Bay, between Fish Creek and Pingok Island (149°40′ W). Seal hunting occurs in this area by snow machine before spring break-up and by boat during summer. Subsistence patterns are reflected in harvest data collected in 1992 where Nuiqsut hunters harvested 22 of 24 ringed seals and all 16 bearded seals during the open water season from July to October (Fuller and George, 1997). Harvest data for 1994 and 1995 show 17 of 23 ringed seals were taken from June to August, while there was no record of bearded seals being harvested during these years (Brower and Opie, 1997).

Due to the transient and temporary nature of the barge operation, impacts upon these seals are not expected to have an unmitigable adverse impact on subsistence uses of ringed and bearded seals because: (1) transient operations would temporarily displace relatively few seals; (2) displaced seals would likely move only a short distance and remain in the area for potential harvest by native hunters; (3) studies at the Northstar development found no evidence of the development activities affecting the availability of seals for subsistence hunters; however, the Northstar vicinity is outside the areas used by subsistence hunters (Williams and Moulton, 2001); (4) the area where barge operations would be conducted is small compared to the large Beaufort Sea subsistence hunting area associated with the extremely wide distribution of ringed seals; and (5) the barging, as scheduled, will be completed prior to beginning of the fall westward migration of bowhead whales and the associated subsistence activities by the local whalers.

In order to further minimize any effect of barge operations on the availability of seals for subsistence, the tug boat owners/operators will follow U.S. Coast Guard rules and regulations near coastal water, therefore avoiding hunters and the locations of any seals being hunted in the activity area, whenever possible.

While no impact is anticipated on the availability of marine mammal species and stocks for subsistence uses, FEX is currently discussing its proposed barging plan with the Alaska Eskimo Whaling Commission (AEWC). Meeting schedules are being finalized with the subsistence communities, the AEWC and the Whaling Captains Association. FEX plans an interactive dialogue in the communities and will provide project details and specifications during the meetings. The meetings will be conducted to resolve potential conflicts with either the project operation or the plan of cooperation. FEX will provide details of those meetings and will provide a copy of the draft Plan of Cooperation to NMFS.

The FEX's activities will comply with an agreed-upon Conflict Avoidance Agreement (CAA) prior to the autumn bowhead hunt by the residents of Kaktovik (Barter Island), Nuiqsut (Cross Island) and Barrow Native villages. Ice, bad weather conditions, and other possible operational considerations may affect the timing of the barge activity and may require that some activities take place beyond the scheduled target dates, but not during the September 1 - October 15 period.

Mitigation

FEX will mitigate any potential negative impacts from its barging operation by planning the timing of operations in such a way as to reduce the production of noise during the fall bowhead whale migration. This includes not operating barges during the time bowheads are migrating and feeding in the western Beaufort Sea (approximately late-August through mid-October). In addition to these mitigation measures, FEX has signed a CAA with the AEWC, North Slope Borough, and other whaling communities in order to eliminate impacts to subsistence hunting of bowheads and, thereby, on bowheads themselves.

Monitoring

During all tug/barging operations, FEX will have on-board at least one professional marine biologist and one experienced Alaska Native marine mammal observer throughout each transit. FEX will conduct a visual monitoring program for assessing impacts to marine mammals during the barge transits. As mentioned, because the Crowley Marine tug/barge unit cannot accommodate observers due to USCG crew berthing restrictions, the marine mammal observers will conduct monitoring from the Bowhead Transportation self-propelled barge. Bowhead flexi-float vessels will be dedicated to the FEX mobilization project until its completion. In route to and from Cape Simpson, the Bowhead barges will travel independent or in tandem with either another Bowhead barge or a Crowley tug, or all three. Because the Crowley tug/barge cannot support observers, all Crowley tug/barge trips under contract to FEX must be conducted in tandem with a Bowhead vessel having two observers onboard.

Observers will conduct visual observations from the barge tugs between West Dock and Cape Simpson. The monitoring program will commence with barges towed from West Dock to Cape Simpson and will continue on nearly 24-hour basis until the rig and support equipment are placed in storage at Cape Simpson and the barges return to West Dock.

When traveling in tandem, a Bowhead vessel will always be in the lead and remain in direct communication with the Crowley tug/barge vessel. The Bowhead and Crowley vessels may travel at a ½ mile distance from each other depending upon the weather, but will follow the same general route inside the barrier islands and remain as close to the shore as possible.

FEX proposes to initiate a comprehensive training program for all potential marine mammal observers that includes learning the identification and behavior of all local species known to use the areas where FEX will be operating. This training would be conducted by professional marine biologists and experienced Native observers participating in the monitoring program. The observer protocol would be to scan the area around vessels with binoculars of sufficient power. Range finding equipment will be supplied to observers in order to better estimate distances. Observers would collect data on the presence, distribution, and behavior of marine mammals relative to FEX activities as well as climatic conditions at the time of marine mammal sightings. Observations would be made on a nearly 24-hour basis.

Reporting

All monitoring data collected would be reported to NMFS on a weekly basis. FEX must provide a final report on 2005 activities to NMFS within 90 days of the completion of the activity. This report will provide dates and locations of all barge movements and other operational activities, weather conditions, dates and locations of any activities related to monitoring the effects on marine mammals, and the methods, results, and interpretation of all monitoring activities, including estimates of the level and type of take, numbers of each species observed, direction of movement of all individuals, and any observed changes or modifications in behavior.

ESA Consultation

The effects of oil and gas exploration activities in the U.S. Beaufort Sea on listed species, which includes the proposed activity, were analyzed as part of a consultation on oil and gas leasing and exploration activities in the Beaufort Sea, Alaska, and authorization of small takes under the MMPA. A biological opinion on these activities was issued on May 25, 2001. The only species listed under the ESA that might be affected during these activities are bowhead whales. The effects of the proposed IHA on bowhead whales has been compared with the analysis contained in the 2001 biological opinion. NMFS has determined that the effects of the current activity are consistent with the findings of that biological opinion, and, accordingly, NMFS has issued an Incidental Take Statement under section 7 of the ESA.

National Environmental Policy Act (NEPA)

On February 5, 1999 (64 FR 5789), the Environmental Protection Agency (EPA) noted the availability of a Final Environmental Impact Statement (Final EIS) prepared by the U.S. Army Corps of Engineers under NEPA on Beaufort Sea oil and gas development at Northstar. NMFS was a cooperating agency on the preparation of the Draft and Final EISs, and subsequently, on May 18, 2000, adopted the Corps' Final EIS as its own document. That Final EIS described impacts to marine mammals from Northstar construction activities, which included vessel traffic similar to the currently proposed action by FEX. Because the barging activity discussed in the Final EIS is not substantially different from the proposed action by FEX, and because no significant new scientific information or analyses have been developed in the past several years significant enough to warrant new NEPA documentation, this action is categorically excluded from further review under NOAA Administrative Order 216-6.

Conclusions

NMFS has determined that the short-term impact of conducting a barging operation between West Dock, Prudhoe Bay and Cape Simpson, in the U.S. Beaufort and associated activities will result, at worst, in a temporary modification in behavior by certain species of whales and pinnipeds. While behavioral modifications may be made by these species to avoid the resultant noise or visual cues from the barging operation, this behavioral change is expected to have a negligible impact on the survival and recruitment of marine mammal stocks.

While the number of potential incidental harassment takes will depend on the year-to-year distribution and abundance of marine mammals in the area of operations, due to the distribution and abundance of marine mammals during the projected period of activity and the location of the proposed activity, the number of potential harassment takings is estimated to be small. In addition, no take by injury and/or death is anticipated, and there is no potential for temporary or permanent hearing impairment as a result of the activities. No rookeries, mating grounds, areas of concentrated feeding, or other areas of special significance for marine mammals occur within or near the relocation route.

The principal measures undertaken to ensure that the barging operation will not have an adverse impact on subsistence activities is a CAA between FEX, the AEWC and the Whaling Captains Association, a Plan of Cooperation, and an operation schedule that will not permit barging operations during the traditional bowhead whaling season.

Determinations

NMFS has issued an IHA for the harassment of marine mammals incidental to FEX conducting a barging operation for approximately 20 days from West Dock, Prudhoe Bay Alaska, through the U.S. Beaufort Sea to Cape Simpson. This IHA is contingent upon incorporation of the previously mentioned mitigation, monitoring, and reporting requirements. NMFS has determined that this activity would result in the harassment of small numbers of bowhead whales, beluga whales, ringed seals, bearded seals and spotted seals; would have no more than a negligible impact on these marine mammal stocks; and would not have an unmitigable adverse impact on the availability of marine mammal stocks for subsistence since the previously described CAA has been signed.

Authorization

NMFS has issued an IHA to FEX L.P. to take a small number of marine mammals incidental to conducting a barging operation within the U.S. Beaufort Sea, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

Dated: August 8, 2005.

James H. Lecky,

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