NOISE EFFECTS ON MARINE MAMMALS IN THE PACIFIC NORTHWEST

Summer 2010 – The National Marine Fisheries Service (NMFS) Protected Resources Division (PRD) is taking a renewed interest in the potential effects of noise on marine mammals in the Pacific Northwest, and the results may affect projects being carried out in Oregon and Washington that require in-water work, especially if they involve pile driving.

Until recently, the Northwest Region of NMFS has not typically been requiring projects to obtain permits under the Marine Mammal Protection Act (MMPA) when harassment of marine mammals is anticipated. ¹ If a “take” permit was already being issued through Endangered Species Act (ESA) Section 7 formal consultation, applicants with projects adversely affecting marine mammals were not asked to obtain a separate “take” permit through the MMPA. NMFS is also renewing its interest in the potential negative noise effects of vibratory pile driving (e.g., continuous non-pulse sound), not just impact driving, on marine mammals. In the past, projects proposing only vibratory pile driving were typically able to make “not likely to adversely affect” determinations for ESA-listed marine mammals for the affects of noise generated by vibratory pile driving. The established harassment threshold for noise is 120 dB for marine mammals. Vibratory pile-driving activities can exceed this threshold. NMFS considers that marine mammals exposed to continuous sound levels over 120 dB will be impacted by altering their behavior and, therefore, will require an analysis of potential project effects, and may require a harassment authorization if effects rise to the level of “take.”

If an MMPA permit is needed, a decision by NMFS may require from 4 to 18 months. In addition to consultation under Section 7 of the ESA, projects may need to consider acquiring either a permit to harass (Incidental Harassment Authorization) or a permit anticipating injury/mortality (Letter of Authorization). ² The MMPA, IHA, and LOA permits all need to be coordinated through NMFS PRD. To avoid project delays, if these permits are needed, they should be requested either before or at the same time as Section 7 submittals. There are three primary approaches to forestall the need for either an IHA or LOA. They are (1) add noise attenuation to drop below the 120 dB threshold, (2) modify the project schedule to avoid co-occurrence of pile driving activities and marine mammal presence, and/or (3) monitor during pile-driving, with a requirement to stop pile-driving activity if marine mammals are spotted within the area identified as potentially receiving noise levels of 120 dB or greater.

BergerABAM is reviewing additional NMFS documentation and guidance on permitting for potential impacts to marine mammals protected by the MMPA that are other than ESA-listed species. BergerABAM is also assessing strategies for expediting permitting, particularly for projects already in the pipeline and will continue to apprise clients whose projects may be affected.

¹ The MMPA was enacted in October 1972 and protects all marine mammals. It prohibits, with certain exceptions, “the take of marine mammals in U.S. waters and by U.S. citizens on the high seas and the importation of marine mammals and marine mammal products into the U.S.

² IHA is good for 1 year with the possibility of a 1-year extension, and is appropriate for projects requiring only one in-water work window; getting an IHA approved takes 4 to 9 months. LOA is good for 5 years for harassment and/or injury/mortality, and is appropriate for projects requiring multiple years of in-water work; getting an LOA approved takes 12 to 18 months.