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Taking Marine Mammals Incidental to the Hampton Roads Bridge Tunnel Expansion Project in Norfolk, Virginia Publication: Federal Register Signing Official: Shannon Bettridge Agency: National Oceanic and Atmospheric Administration Date: 27 July 2022 
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[Federal Register Volume 87, Number 143 (Wednesday, July 27, 2022)]
[Notices]
[Pages 45084-45086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16138]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XC124
Taking Marine Mammals Incidental to the Hampton Roads Bridge
Tunnel Expansion Project in Norfolk, Virginia
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of issuance of modified letters of authorization.
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SUMMARY: On January 28, 2022, NMFS received a request from the Hampton
Roads Connector Partners (HRCP) to modify Letters of Authorization
(LOA) that were issued to HRCP on April 2, 2021, as part of incidental
take regulations. These regulations govern the unintentional taking of
marine mammals incidental to construction activities associated with
the Hampton Roads Bridge Tunnel Expansion Project (HRBT) in Norfolk,
Virginia, over the course of 5 years (2021-2026). The modification is
due to design updates which decrease the number of piles installed,
require fewer hours of pile installation, and reduce the number of pile
driving days. Prescribed mitigation measures were modified to reflect
the change in design. We have determined that the modification will not
result in an increase in take that would exceed the limits authorized
under the original LOA. Therefore, the total amount of authorized
taking remains the same.
DATES: This modified LOA is effective through April 1, 2026.
FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as the issued modified LOA, may be
obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of
problems accessing these documents, please call the contact listed
above.
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, a notice of a proposed authorization is
provided to the public for review.
An authorization for incidental takings shall 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 (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, 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.
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).
Summary of Request and Analysis
On November 19, 2019, NMFS received an application from HRCP
requesting authorization for take of marine mammals incidental to
construction activities related to a major road transport
infrastructure project along the existing I-64 highway in Virginia,
consisting of roadway improvements, trestle bridges, and bored tunnels
crossing Hampton Roads between Norfolk and Hampton. On October 7, 2020
(85 FR 63256), NMFS published a notice of receipt (NOR) of HRCP's
application in the Federal Register, requesting comments and
information related to the request. The proposed rule was subsequently
published in the Federal Register on January 8, 2021 (86 FR 1588) and
requested comments and information from the public. A final rule and
associated regulations were published in the Federal Register on April
2, 2021 (86 FR 17458; 50 CFR part 217, subpart W--Taking And Importing
Marine Mammals Incidental to Hampton Roads Connector Partners
Construction at Norfolk, Virginia).
[[Page 45085]]
On January 28, 2022, HRCP notified NMFS of their request for
modification of the LOA. Following receipt of the original LOA, HRCP
has implemented and adhered to the prescribed suite of mitigation and
monitoring measures which provide the means of effecting the least
practicable adverse impact on the affected species or stocks and their
habitat.
Preliminary designs for South Island included the installation of
numerous 24-inch and 30-inch steel pipe piles as Settlement Reduction
and Deep Foundation piles to support the island expansion and tunnel
approach structure. It was anticipated that these piles would be driven
in open water prior to filling for island creation. However, during
design optimization, the contractor has opted to advance a design
alternative utilizing a filled cofferdam. The construction activities
will include permanent installation of the cofferdam walls in open
water. The cofferdam walls, and associated splash walls, will be
constructed with a combination of steel sheet and steel pipe piles up
to 60-inches in size.
The modification eliminated the following piles from the existing
design plan:
50, 30-inch steel pipe, concrete-filled Deep Foundation
piles;
394, 24-inch steel pipe Settlement Reduction piles; and
448 panels of sheet piles from the South Island Expansion.
Instead, HRCP plans to install the following in-water piles:
100 sheet pile panels at the South Island Expansion
Cofferdam;
21, 40-inch steel piles at the South Island Expansion
Cofferdam;
250, steel pipe piles 52-inches to 60-inches in size at
the South Island Expansion Splash/Sea Wall and Cofferdam; and
12, 24-inch concrete square permanent piles at the South
Island Trestle Abutment.
The change in design plan requires the establishment and monitoring
of appropriate shutdown zones and harassment zones for the new piles,
which have been included in the modified LOA. Additionally, the
shutdown zones and harassment zones related to the eliminated piles
were removed from the modified LOA. These changes are illustrated in
Tables 1 and 2 below.
The revised action associated with the modified LOA entails fewer
pile installations/removals with less total hours of driving time over
fewer active driving days. Therefore, it is reasonable to predict that
take of marine mammals would be fewer than were considered in our
analysis conducted for the rule.
The modification to the LOA is expected to decrease takes by Level
A and Level B harassment by reducing both the duration and intensity of
marine mammals' exposure to in-water sound at levels that could result
in injury or behavioral impacts.
Specifically, the Level B harassment zones associated with the
installation of new piles and sheets are smaller than or equivalent to
those of the piles being eliminated, as illustrated in Table 1 below.
The modification would result in harassment zones that are smaller or
equivalent to those in the original LOA, and fewer days of activity
with the potential to cause harassment, which, together, would be
expected to result in a reduction in the number of takes by Level B
harassment. However, HRCP did not request and NMFS has not authorized
any changes to the take numbers contained in the original LOA as a
conservative measure to ensure that take limits are not exceeded.
Table 1--Changes to Modified LOA Level B Harassment Zones for Different Pile Sizes and Types and Methods of
Installation With No Attenuation
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Level B
Modification action Construction Pile type isopleth (m), # Days
component unattenuated
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Vibratory Hammer--South Island
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Eliminated........................ Deep Foundation Piles 30-in steel piles, 13,594 9
concrete filled.
Eliminated........................ Settlement Reduction 24-in steel piles.... 5,412 66
Piles.
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DTH Pile Installation--South Island
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Eliminated........................ Deep Foundation Piles 30-in steel piles, 11,659 9
concrete filled.
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Impact Hammer--North Trestle
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Included.......................... Cofferdam............ 52- to 60-inch steel 2,154 13
piles.
Included.......................... Cofferdam............ 40-inch steel piles.. 3,981 21
Included.......................... Trestle Abutment..... 24-inch concrete 117 12
square piles.
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Table 2--Changes to Modified LOA Shutdown Zones With Attenuation and With No Attenuation for All Authorized Species
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Number Cetaceans--shutdown zones (m)
piles ---------------------------------
Modification action Method Pile size/type Strikes/pile installed Pinnipeds--shutdown # Days
or removed/ LF MF HF zones (m)
day
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No Attenuation
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Eliminated......... Down-the-Hole 30-in Pipe, 36,000 strikes.... 6 1,950 70 100 15/35 9
Installation. Steel,
concrete
filled.
Included........... Impact 40-inch Pipe, 200 strikes....... 3 1,320 50 100 15/35 2
Installation. Steel.
Included........... ................ 52- to 60-inch 200 strikes....... 3 970 35 100 15/35 13
Pipe, Steel.
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[[Page 45086]]
With Attenuation
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Eliminated......... Impact 30-in Pipe, 20 strikes........ 6 135 10 50 25 85
Installation. Steel,
concrete
filled.
Included........... ................ 40-inch Pipe, 200 strikes....... 3 450 20 100 25 5
Steel.
Included........... ................ 52- to 60-inch 200 strikes....... 3 330 20 100 25 71
Pipe, Steel.
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While the new Level A harassment zones associated with impact
driving under the modified LOA (Table 2) are larger in some instances
than the injury zones that were established under the original LOA,
there are significantly fewer days of in-water installation planned for
the modification (91 days) compared to the original LOA (151 days).
Therefore, take of marine mammals by Level A harassment would be
expected to be reduced. Additionally, HRCP plans to eliminate
installation of 50 30-inch steel pipe, concrete-filled piles that were
planned to be installed using down-the-hole (DTH) methods. As shown
above, these piles have the largest Level A harassment zones of any of
the piles that would have been driven under the original LOA.
Elimination of these DTH installations in the original LOA also
supports a conclusion that, overall, expected Level A harassment events
will be reduced under the modified LOA.
Of note, marine mammal monitoring during in-water construction up
to January 2022 has recorded two potential takes by Level A harassment
since the start of LOA construction in July 2021. HRCP was authorized
3,359 Level A harassment takes split between the 5 years of the LOA and
five authorized species. The modifications to the mitigation and
monitoring requirements, which include establishing new shutdown and
harassment zones for 40-inch steel piles and 52- to 60-inch pipe piles,
create a reasonable likelihood of more effectively accomplishing the
goals of the mitigation and monitoring, pursuant to the adaptive
management provisions set forth in the preamble in the final rule (see
``Mitigation'' and ``Monitoring and Reporting'' sections of the final
rule (86 FR 17458; April 2, 2021), for a detailed description of the
mitigation and monitoring measures and the goals of the measures).
In summary, the modifications would result in a decrease in the
total number of active hours of installation/removal by 855 hours and a
decrease in the total number of days of in-water installation/removal
by 60 days at South Island. The number of sheet piles required would
decrease from 448 to 100, while the number of steel pipe piles would
decrease from 901 to 271. Given these modifications and the associated
decreases in hours and days of installation/removal and number of
piles, as well as the reduced impacts and resulting take, all of which
fall within the scope of the rule, we have determined that the modified
shutdown zones have a reasonable likelihood of more effectively
reducing potential adverse impacts to marine mammals and would provide
the means of effecting the least practicable adverse impact on the
affected species or stocks and their habitat.
The described modification of the LOA does not alter the original
scope of activity analyzed or the impact analysis in a manner that
materially affects the basis for the original findings under the final
rule, both annually and over the 5 year period of effectiveness.
Accordingly, we have determined that the take authorized in this LOA
will have a negligible impact on the affected species or stocks and,
separately, that the take will be of small numbers.
Authorization
NMFS has issued a modified LOA to HRCP authorizing the take of
marine mammals for the reasons described above, for the potential
harassment of small numbers of marine mammals incidental to
construction activities associated with the Hampton Roads Bridge Tunnel
Expansion Project provided the mitigation, monitoring and reporting
requirements of the rulemaking are incorporated.
Dated: July 22, 2022.
Shannon Bettridge,
Acting Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-16138 Filed 7-26-22; 8:45 am]
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