Disturbing whales with construction noise also needs a permit — an Alaska ferry berth and eleven marine mammal species
NOAA reissued an authorization covering incidental effects on eleven marine mammal species from ferry berth construction in Ketchikan, Alaska. Under the Marine Mammal Protection Act, harassment includes disturbing behavior with noise.
Document overview (primary data)
- Document typeNotice
- AgencyDepartment of Commerce
- Citation91 FR 52675
Key points
- NOAA reissued an authorization for incidental effects on marine mammals from ferry berth construction in Ketchikan, Alaska.
- Take under the Marine Mammal Protection Act includes harassment — disturbing behavioral patterns with noise and the like.
- Harassment divides into Level A, with potential to injure, and Level B, disrupting migration, breathing, nursing, breeding, feeding or sheltering.
- Eleven species are covered, and the authorization runs from September 1, 2026 through August 31, 2027.
- Issuance requires findings of negligible impact on the species and no unmitigable adverse impact on availability for subsistence uses.
1How wide the word take reaches
The Marine Mammal Protection Act generally prohibits the take of marine mammals. Take under that statute covers not only physically capturing an animal but also harassment — and the statutory definition of harassment reaches much further than the ordinary word suggests.
If underwater construction noise redirects a whale migration or interrupts its feeding, that is a take in law. Building a ferry berth therefore requires federal authorization.
2What was authorized
| Item | Content |
|---|---|
| Project | Ferry berth construction in Tongass Narrows, Ketchikan, Alaska |
| Applicant | Alaska Department of Transportation and Public Facilities |
| Species | Eleven, including minke, fin, humpback and gray whales, killer whale, harbor and Dall porpoise, Steller sea lion, northern elephant seal and harbor seal |
| What is permitted | Incidental take by harassment only |
| Effective | September 1, 2026 through August 31, 2027 |
What is authorized is take by harassment only, not injury or death. Effects that cannot be avoided during construction are bounded in advance and permitted within those bounds.
3The findings required
The statute sets out what must be found before an authorization issues: that the taking will have a negligible impact on the species or stocks, and that it will not have an unmitigable adverse impact on their availability for subsistence uses. The second condition contemplates communities that rely on marine mammals for subsistence, writing both conservation and local livelihood into the conditions.
4Reissuance rather than a new permit
This is not a new authorization but the reissuance of an earlier one, first announced in September 2023 and renewed as construction has continued. Where work does not finish as planned, the authorization must be obtained again. Time limits on permits for environmental effects follow from the principle that a changed situation calls for a fresh assessment.
Why it matters
Even public works serving daily life require environmental effects to be bounded and authorized in advance. Because authorizations expire, a changed situation brings the assessment back for review.
FAQ
Why does construction need a marine mammal permit?
What separates Level A from Level B harassment?
Sources (primary)
Source: Federal Register (federal documents, public domain). Links go to the official site.