Daily Rules, Proposed Rules, and Notices of the Federal Government
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
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 certain subsistence uses, and if 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 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. 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 the authorization.
The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA):
(i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].
On August 6, 2009, NMFS received an application from the USMC requesting an IHA for the take, by harassment only, of Atlantic bottlenose dolphins (
All inert and live-fire exercises at MCAS Cherry Point are conducted so that all ammunition and other ordnances strike and/or fall on the land or water based target or within the existing danger zones or water restricted areas. The BTs are located at the convergence of the Neuse River and Pamlico Sound, North Carolina. Military training activities at the BTs include gunnery; mine laying; bombing; or rocket exercises and are classified into two categories here based on delivery method: (1) Surface-to-surface gunnery and (2) air-to-surface bombing. Exercises may occur year round, day or night (less than 15 percent of training occurs at night).
Surface-to-surface fires are fires from boats at sea to targets at sea. These can be direct (targets are within sight) or indirect (targets are not within sight). Gunnery exercise employing direct fire is the only category of surface-to-surface activity currently conducted within MCAS Cherry Point. There are four types of air-to-surface activities conducted within the MCAS Cherry Point BTs: Inert mine laying; bombing; gunnery; and rocket exercises which are carried out via fixed wing or rotary wing aircraft. High explosive ordnance is used only at BT-9. Based on 2007 data, the USMC would conduct approximately 1,539 aircraft-based and 165 vessel-based sorties, annually, at BT-9 and approximately 6,727 aircraft-based and 51 vessel-based sorties, annually, at BT-11. The standard sortie consists of two aircraft per bombing run or an average of two and maximum of six vessels. A complete description of these military readiness activities, including the type and amount of ammunition used during training, is available in the proposed
Only one marine mammal species, the bottlenose dolphin, occurs within Pamlico Sound around the BTs. The endangered West Indian manatee (
Four out of seven designated coastal stocks of the Atlantic bottlenose dolphin may occur in North Carolina waters at some part of the year: The Northern Migratory stock (NM; winter); the Southern Migratory stock (SM; winter); the Northern North Carolina Estuarine stock (NNCE; resident, year round); and the more recently identified Southern North Carolina stock (SNC; resident, year round). Dolphins encountered at the BTs likely belong to the NNCE and SNC stock; however, this may not always be the case. NMFS' 2008 stock assessment report provides further detail on stock delineation. All stocks discussed here are considered Depleted under the MMPA (Waring
In Pamlico Sound, bottlenose dolphins concentrate in shallow water habitats along shorelines, and few, if any, individuals are present in the central portions of the sounds (Gannon, 2003; Read
As mentioned previously, with respect to military readiness activities, Section 3(18)(B) of the MMPA defines “harassment” as:
(i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].
The USMC and NMFS have determined that harassment to marine mammals (specifically, bottlenose dolphins) may occur incidental to noise and detonations related to munitions firing on the BTs. These military readiness activities will result in increased noise levels, explosions, and munition debris within bottlenose dolphin habitat. In the absence of planned mitigation and monitoring measures, it is possible that injury or mortality of bottlenose dolphins could occur; however, due to the implementation of the planned measures, NMFS does not anticipate that harassment would rise to the level of injury (Level A harassment) or mortality. Therefore, the IHA solely authorizes Level B (behavioral) harassment incidental to the USMC's training activities. NMFS anticipates that bottlenose dolphins may undergo temporary threshold shift, masking, stress response, and altered behavioral patterns (
Detonations of live ordnance will result in temporary modification to physical water properties. Munitions are designed to hit the targets and not explode in-water; however, because the targets are on the water (
Similarly, no long term impacts with regard to hazardous constituents are expected to occur. MCAS Cherry Point has an active Range Environmental Vulnerability Assessment (REVA) program in place to monitor impacts to habitat from its activities. One goal of REVA is to determine the horizontal and vertical concentration profiles of heavy metals, explosives constituents, perchlorate nutrients, and dissolved salts in the sediment and seawater surrounding BT-9 and BT-11. Results of recent sampling indicate that explosive constituents (
In summary, in the absence of planned mitigation and monitoring measures, the potential exists for negative effects on marine mammal habitat. However, because dolphins are not expected to be in the immediate area during live firing, due to monitoring and mitigation measure implementation (discussed later in this document), they will not be subject to any short term habitat alterations caused by in-water and near-water explosions. REVA has found no significant impact on habitat from the USMC's training activities and the ongoing REVA will continue to evaluate potential migration of munitions constituents from operational range areas to off-range areas and MCAS Cherry Point would continue to implement mitigation measures as necessary. Therefore, the impacts to marine mammal habitat will be minimal.
On June 8, 2010, NMFS published in the
The Commission recommended “direct strike or dynamic Monte Carlo methods” while admitting that the result of using a new risk probability model would likely provide negligible changes from the model described in the application. The Commission did not provide further guidance on how to calculate risk from a Monte Carlo method and, because any change would be negligible, NMFS does not agree that this alternative method of modeling is
With respect to the Commission's comments on density estimates used in the application, as described in the proposed IHA
In order to issue an incidental take authorization (ITA) under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.” The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the ITA process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. The training activities described in the USMC's application are considered military readiness activities.
NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation, including consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. NMFS has determined that the mitigation measures described below provide the means of effecting the least practicable adverse impacts on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance while also considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The USMC, in collaboration with NMFS, has worked to identify potential practicable and effective mitigation measures, which include a careful balancing of the likely benefit of any particular measure to marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the “military-readiness activity”. These proposed mitigation measures are listed below. Mitigation monitoring is also described in the
PEDRO crew will conduct a range sweep the morning of each exercise day prior to the commencement of range operations. The primary goal of the pre-exercise sweep is to ensure that the target area is clear of fishermen, other personnel, and protected species. The sweep is flown at 100-300 m (328-984 ft) above the water surface, at airspeeds between 60-100 knots. The path of the sweep runs down the western side of BT-11, circles around BT-9 and then continues down the eastern side of BT-9 before leaving. The sweep typically takes 20-30 minutes to complete. The Pedro crew is able to communicate
If a marine mammal is sighted during a range sweep, sighting data will be collected and entered into the US Marine Corps sighting database, web-interface, or report generator and this information will be relayed to the training Commander. Sighting data includes the following (collected to the extent possible): (1) Species identification; (2) group size; (3) the behavior of marine mammals (
Again, in the event that a marine mammal is sighted within 1,000 yards (914 m) of the BT-9 target, or anywhere within Rattan Bay, the target is declared fouled. Operations may commence in the fouled area after the animal(s) have moved 1,000 yards from the BT-9 target and/or out of Rattan Bay.
NMFS specifically investigated the efficacy of these mitigation measures during nighttime operations. The USMC identified that nighttime operations occur infrequently (less than 15 percent). In 2007, 2008, and 2009, nighttime training involving high explosives occurred on 2, 10, and 0 nights, respectively. For the same years, training using inert bombs occurred on 20, 16, and 33 nights, respectively. These exercises last, on average, 2.5 hours but may last as long as 6 hours. Post-exercise training monitoring has never revealed evidence of a dolphin injury or fatality.
Regardless of the infrequency of night exercises or lack of recorded marine mammal injuries or fatalities, NMFS evaluated the efficacy of marine mammal detection during low-light and no-light conditions as training will occur during these conditions. As described above, the new camera systems installed at BT-9 and BT-11 have night-vision capabilities with resolution levels near those during daytime. In addition, pilots are outfitted with night-vision goggles which are able to detect a marine mammal breaking the water's surface. Pilots will observe the waters in line with the flight path upon approach to the target. In addition, the pre-training range sweeps and other methods designed to ensure vessels and the public are not around the BTs would be carried out and would contain a marine mammal detection component. Should a marine mammal be observed by the range camera operators, pilots or other USMC personnel within the designated “no fire” zones, the training would be delayed.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals: (a) An increase in our understanding of how many marine mammals are likely to be
The suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals expected to be present within the action area are as follows:
The following provides the USMC's model for take of dolphins from explosives (without consideration of mitigation and with the conservative assumption that all explosives will land in the water and not on the targets or land) and potential for direct hits and NMFS' analysis of potential harassment from small vessel and aircraft operations.
The method to estimate the number of marine mammals potentially taken by the specified activities is based on dolphin density, the amount and type of ordnance proposed, and distances to NMFS' harassment threshold criteria. The acoustic criteria for underwater detonations are comprehensively explained in NMFS' proposed IHA
To calculate take, the distances to which animals may be harassed were considered along with dolphin density. The density estimate from Read
Based on dolphin density and amount of munitions expended, there is very low potential for Level A harassment or mortality and monitoring and mitigation measures are anticipated to further negate this potential. Accordingly, NMFS is not authorizing these levels of take. In total, from firing of explosive ordnances, the USMC is requesting, and NMFS is proposing to issue, the incidental take of 25 bottlenose dolphins from Level B harassment (Table 2). This take estimation is described in greater detail in the
As described in the proposed IHA
Interactions with vessels are not a new experience for bottlenose dolphins in Pamlico Sound. Pamlico Sound is heavily used by recreational, commercial (
Based on the description of the action, the other activities regularly occurring in the area, the species that may be exposed to the activity and their observed behaviors in the presence of vessel traffic, and the implementation of measures to avoid vessel strikes, NMFS believes it is unlikely that the operation of vessels during surface-to-surface maneuvers will result in the take of any marine mammals, whether in the form of behavioral harassment, injury, serious injury, or mortality.
Aircraft will move swiftly through the area and will typically fly approximately 914 m (2,999 ft) from the water's surface before dropping unguided munitions and above 4,572 m (15,000 ft) for precision-guided munitions bombing. While the aircraft
Pursuant to NMFS' regulations implementing the MMPA, an applicant is required to estimate the number of animals that will be “taken” by the specified activities (
The USMC has been conducting gunnery and bombing training exercises at BT-9 and BT-11 for years and, to date, no dolphin injury or mortality has been attributed to these military training exercises. The USMC has a history of notifying the NMFS stranding network when any injured or stranded animal comes ashore or is spotted by personnel on the water. Therefore, stranded animals have been examined by stranding responders, further confirming that it is unlikely training contributes to marine mammal injuries or deaths. Due to the implementation of the aforementioned mitigation measures, no take by Level A harassment or serious injury or mortality is anticipated nor is any authorized in the IHA. NMFS is authorizing 25 Level B harassment takes associated with training exercises.
The USMC has proposed a 1,000 yard (914 m) safety zone around BT-9, a conservative measure considering that the distance to NMFS explosive Level B harassment threshold is 228 yards (209 m). They also will consider an area fouled if any dolphins are spotted within 1,000 yards (914 m) of the target area at BT-9, or anywhere within Raritan Bay (where BT-11 is located). The Level B harassment takes allowed for in the IHA will likely result in dolphins being temporarily behaviorally affected by bombing or gunnery exercises. In addition, takes may be attributed to animals not using the area when exercises are occurring; however, this is difficult to calculate. Instead, NMFS looks at whether the specified activities occur during times or within habitat important to vital life functions to better inform its negligible impact determination.
As described in the
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the specified MCAS Cherry Point BT-9 and BT-11 training activities will result in the incidental take of marine mammals, by Level B harassment only, and that the total taking will have a negligible impact on the affected species or stocks. Further, NMFS does not anticipate any impact on annual rates of recruitment or survival for any potentially affected stock.
Marine mammals are not taken for subsistence use within Pamlico Sound; therefore, issuance of an IHA to the USMC for MCAS Cherry Point training exercises will not have an unmitigable adverse impact on the availability of the affected species or stocks for subsistence use.
No ESA-listed marine mammals are known to occur within the action area; therefore, there is no requirement for NMFS to consult under Section 7 of the ESA on the issuance of an IHA under section 101(a)(5)(D) of the MMPA.
In January, 2009, the USMC released an EA entitled “