50 CFR § 217.35 - Requirements for monitoring and reporting.

§ 217.35 Requirements for monitoring and reporting.

(a) All marine mammal and acoustic monitoring must be conducted in accordance to Hilcorp's Marine Mammal Mitigation and Monitoring Plan (4MP) and Acoustic Monitoring Plan, which includes acoustic monitoring during both the open-water and ice-covered seasons. These plans may be modified throughout the life of the regulations in this subpart upon NMFS review and approval.

(b) Monitoring must be conducted by NMFS-approved PSOs, who must have no other assigned tasks during monitoring periods and be equipped with, at minimum, binoculars and rangefinders. At minimum, two PSOs must be placed on elevated platforms on the island during the open-water season when island construction activities are occurring. These observers will monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.

(c) One PSO will be placed on the side where construction activities are taking place and the other placed on the opposite side of the LDPI; both observers will be on elevated platforms.

(d) PSOs will rotate duties such that they will observe for no more than 4 hours at a time and no more than 12 hours in a 24-hour period.

(e) An additional island-based PSO will work with an aviation specialist to use an unmanned aircraft system (UAS) to detect marine mammals in the monitoring zones during pile and pipe driving and slope shaping. Should UAS monitoring not be feasible or be deemed ineffective, a boat-based PSO must monitor for marine mammals during pile and pipe driving.

(f) During the open-water season, marine mammal monitoring must take place from 30 minutes prior to initiation of pile and pipe driving activity through 30 minutes post-completion of pile driving activity. Pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior must be monitored and documented.

(g) After island construction is complete but drilling activities are occurring, a PSO will be stationed on the LDPI for approximately 4 weeks during the month of August to monitor for the presence of marine mammals around the island in the monitoring zone.

(1) Marine mammal monitoring during pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the following:

(i) At least one observer must have prior experience working as an observer;

(ii) Other observers may substitute education (degree in biological science or a related field) or training for experience;

(iii) Where a team of three or more observers are required, one observer must be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

(iv) Hilcorp must submit PSO curricula vitae (CVs) for approval by NMFS prior to the onset of pile driving.

(2) PSOs must have the following additional qualifications:

(i) Ability to conduct field observations and collect data according to assigned protocols;

(ii) Experience or training in the field identification of marine mammals, including the identification of behaviors;

(iii) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

(iv) Writing skills sufficient to prepare a report of observations including, but not limited to, the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and

(v) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

(h) Hilcorp must deploy autonomous sound recorders on the seabed to conduct underwater passive acoustic monitoring in the open-water season the first four years of the project such that island construction activities, including pile driving, and drilling operations are recorded. Acoustic monitoring will be conducted for the purposes of sound source verification to verify distances from noise sources at which underwater sound levels reach thresholds for potential marine mammal harassment.

(i) Hilcorp must submit incident and monitoring reports.

(1) Hilcorp must submit a draft annual marine mammal and acoustic summary report to NMFS not later than 90 days following the end of each calendar year. Hilcorp must provide a final report within 30 days after receipt of NMFS' comments on the draft report. The reports must contain, at a minimum, the following:

(i) Date and time that monitored activity begins or ends;

(ii) Description of construction activities occurring during each observation period;

(iii) Weather parameters (e.g., wind speed, percent cloud cover, visibility);

(iv) Water conditions (e.g., sea state, tide state);

(v) Species, numbers, and, if possible, sex and age class of marine mammals observed;

(vi) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from construction activity;

(vii) Distance from construction activities to marine mammals and distance from the marine mammals to the observation point;

(viii) An extrapolated total take estimate for each species based on the number of marine mammals observed and the extent of the harassment zones during the applicable construction activities;

(ix) Histograms of the perpendicular distance at which marine mammals were sighted by the PSOs;

(x) Description of implementation of mitigation measures (e.g., shutdown or delay);

(xi) Locations of all marine mammal observations;

(xii) An estimate of the effective strip width of the island-based PSOs and the UAS imagery; and

(xiii) Sightings and locations of marine mammals associated with acoustic detections.

(2) Annually, Hilcorp must submit a report within 90 days of ice road decommissioning. The report must include the following:

(i) Date, time, location of observation;

(ii) Ringed seal characteristics (i.e., adult or pup, behavior (avoidance, resting, etc.));

(iii) Activities occurring during observation, including equipment being used and its purpose, and approximate distance to ringed seal(s);

(iv) Actions taken to mitigate the effects of interaction, emphasizing: which BMPs were successful; which BMPs may need to be improved to reduce interactions with ringed seals; the effectiveness and practicality of implementing BMPs; any issues or concerns regarding implementation of BMPs; and potential effects of interactions based on observation data;

(v) Proposed updates (if any) to the NMFS-approved Wildlife Management Plan(s) or the ice-road BMPs; and

(vi) Reports should be able to be queried for information.

(3) Hilcorp must submit a final 5-year comprehensive summary report to NMFS not later than 90 days following the expiration of this subpart and LOA.

(4) Hilcorp must submit acoustic monitoring reports per the Acoustic Monitoring Plan.

(5) Hilcorp must report on observed injured or dead marine mammals.

(i) In the unanticipated event that the activity defined in § 217.30 clearly causes the take of a marine mammal in a prohibited manner, Hilcorp must immediately cease such activity and report the incident to the Office of Protected Resources (OPR), NMFS, and to the Alaska Regional Stranding Coordinator, NMFS. Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Hilcorp to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure Marine Mammal Protection Act (MMPA) compliance. Hilcorp may not resume their activities until notified by NMFS. The report must include the following information:

(A) Time, date, and location (latitude/longitude) of the incident;

(B) Description of the incident;

(C) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility);

(D) Description of all marine mammal observations in the 24 hours preceding the incident;

(E) Species identification or description of the animal(s) involved;

(F) Fate of the animal(s); and

(G) Photographs or video footage of the animal(s). Photographs may be taken once the animal has been moved from the waterfront area.

(H) In the event that Hilcorp discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), Hilcorp must immediately report the incident to OPR and the Alaska Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (i)(5)(i) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Hilcorp to determine whether additional mitigation measures or modifications to the activities are appropriate.

(ii) In the event Hilcorp discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.30 (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), Hilcorp must report the incident to OPR and the Alaska Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. Hilcorp must provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. Photographs may be taken once the animal has been moved from the waterfront area.