When conducting the activities identified in § 217.40(c), the mitigation measures contained in this section and any LOAs issued under § 216.106 of this chapter and this subpart must be implemented. These mitigation measures include:
(a) A copy of any issued LOA must be in the possession of 8 Star Alaska, its designees, and work crew personnel operating under the authority of the issued LOA.
(b) 8 Star Alaska must employ protected species observers (PSOs) and establish monitoring locations pursuant to § 217.45.
(c) 8 Star Alaska must implement shutdown zones for pile driving and clearance zones for anchor handling with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.46.
(1) Monitoring of shutdown or clearance zones must take place from 30 minutes prior to commencing impact and vibratory pile driving or use of tugs for anchor-handling (AHTs), or if there is a 30-minute lapse in such activities, and must continue for 30 minutes following conclusion of the activity.
(i) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the PSO(s) to observe the entirety of the shutdown zone for impact pile driving and at least 2 km for vibratory pile driving and anchor handling, except in cases where anchor handling operations occur during nighttime hours. In these circumstances, 8 Star Alaska must ensure the clearance zones are clear of marine mammals to the maximum extent possible.
(ii) The specified activities identified in § 217.40(c) may only commence following 30 minutes of observation when PSOs determine that the shutdown or clearance zones are clear of marine mammals.
(iii) If the activity is delayed or halted due to the presence of a marine mammal, the activity must not commence until either the animal(s) has voluntarily exited and been visually confirmed beyond the shutdown zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without redetection of the animal in the shutdown zone.
(2) Pile driving must be halted upon observation of a marine mammal entering or within the shutdown zone. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and has been visually confirmed beyond the shutdown zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without redetection in the shutdown zone.
(i) If work ceases for more than 30 minutes, the shutdown zones must be cleared again for 30 minutes prior to reinitiating pile driving. A determination that the pile driving shutdown zone is clear must be made during a period of good visibility.
(ii) If a shutdown procedure should be initiated but human safety is at risk as determined by the best professional judgment of the vessel operator or project engineer, the in-water activity, including pile driving, is allowed to continue until the risk to human safety has dissipated. In this scenario, pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until the Lead PSO has determined that the shutdown zones are clear of marine mammals and for Cook Inlet beluga whales (CIBWs), any observed whale(s) is at least 100 meters (m) past the shutdown zone and on a path away from the zone.
(3) If a PSO(s) can no longer effectively monitor the entirety of the corresponding shutdown zone during impact pile driving, or at least 2 km during vibratory pile driving, due to environmental conditions (e.g., fog, rain, wind), pile driving may continue only until the current segment of the pile is driven; no additional sections of pile or additional piles may be driven until conditions improve such that the zone can be effectively monitored. If the shutdown zone cannot be monitored for more than 15 minutes, the entire zone must be cleared again for 30 minutes prior to reinitiating pile driving.
(4) If a species for which authorization has not been granted or a species for which authorization has been granted but the authorized takes have been reached is observed approaching, entering, or within the corresponding zone, in-water work must be delayed (if during pre-clearance) or shut down (except for AHTs engaged in anchor handling). Activities must not resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown or clearance zone or 30 minutes (large whales and beluga whales) or 15 minutes (pinnipeds and other cetaceans) have passed without re-detection of the animal within the shutdown or clearance zone.
(d) 8 Star Alaska must use soft start techniques when impact pile driving. Soft start requires 8 Star Alaska to conduct three sets of strikes (three strikes per set) at reduced hammer energy with a one-minute waiting period between each set. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
(e) 8 Star Alaska must coordinate with local subsistence communities as described in their stakeholder engagement plan, notify the communities of any changes in operation, and work with communities to avoid or mitigate impacts to subsistence harvest through pre-construction planning, communication, or other actions.
(f) 8 Star Alaska must not conduct pile driving associated with the Mainline Material Offloading Facility (MOF) from June 1 to September 7.
(g) Between April 15 and October 15, 8 Star Alaska must not conduct pile driving or AHT activities with Level B harassment isopleths that would extend shoreward of the mean lower low water (MLLW) line in the Susitna Delta (Beluga River to the Little Susitna River) and project vessel(s) operating in or transiting through Cook Inlet must maintain a distance of at least 1.5 nautical miles (2.8 km) seaward of the MLLW line in the Susitna Delta (Beluga River to the Little Susitna River).
(h) Operators of vessels must avoid approaching within 100 yards (92 m) of marine mammals.
(i) If a whale's course and speed are such that it would likely cross in front of a vessel that is underway or approach within 100 yards (92 m) of the vessel, if maritime conditions safely allow, and if practicable, the engine must be put in neutral and the whale must be allowed to pass beyond the vessel.
(j) Vessel operators must avoid placing the vessel in the path of a whale and must not cut in front of the whale in a way or at a distance that causes the whale to change direction of travel or behavior (including breathing/surface pattern).
(k) When within 300 yards (274 m) of a whale, vessels must travel at less than 5 knots (9 km/hour), and vessel operators must avoid changes in direction and speed unless doing so is necessary for maritime safety.
(l) Vessel operators must reduce speed to 10 knots (18.5 km/hour) or less when weather conditions reduce visibility to 1.6 km (1 mile) or less.
(m) For vessels operating in the Susitna Delta Exclusion Zone, the following must be implemented:
(1) All project vessels operating within the designated Susitna Delta Exclusion Area must maintain a speed over ground below 4 knots (7.4 km/hour). PSOs must note the numbers, date, time, coordinates, and proximity to vessels of all belugas observed during operations and report these observations to NMFS in monthly PSO reports.
(2) Vessel crew must be trained to monitor for Endangered Species Act (ESA)-listed species prior to and during all vessel movements within the Susitna Delta Exclusion Zone. The vessel crew must report sightings of ESA-listed species to the PSO team for inclusion in the overall sighting database and reports.
(3) Vessel operators must not move their vessels when they are unable to adequately observe the 100-m zone around vessels under power (in gear) due to darkness, fog, or other conditions, unless necessary for ensuring human safety.
(4) The Susitna Delta Exclusion Zones is defined as the union of the areas defined by:
(i) A 16-km (10-mile) buffer of the Beluga River thalweg seaward of the MLLW line;
(ii) A 16-km (10-mile) buffer of the Little Susitna River thalweg seaward of the MLLW line; and
(iii) A 16-km (10-mile) seaward buffer of the MLLW line between the Beluga River and Little Susitna River.
(iv) The buffer extends landward along the thalweg to include intertidal waters within rivers and streams up to their mean higher high water line (MHHW).
(n) 8 Star Alaska must conduct sound source verification (SSV) measurements at the beginning of all pile driving activities at each location. During SSV, a sound attenuation device must be tested for effectiveness. If the results show that a sound source reduction of at least 2 dB is achieved, 8 Star Alaska must employ the use of the sound attenuation device.
(1) Any sound attenuation device used by 8 Star Alaska must meet minimum requirements as determined by NMFS in the SSV plan.
(2) [Reserved]
(o) 8 Star Alaska must abide by the reasonable and prudent measures and terms and conditions of the Biological Opinion and Incidental Take Statement issued by NMFS pursuant to section 7 of the Endangered Species Act.