Takes of Marine Mammals Incidental to Specified Activities; Piling and Structure Removal in Woodard Bay Natural Resources Conservation Area, Washington, 56172-56181 [2011-23164]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 176 (Monday, September 12, 2011)]
[Notices]
[Pages 56172-56181]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23164]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA637


Takes of Marine Mammals Incidental to Specified Activities; 
Piling and Structure Removal in Woodard Bay Natural Resources 
Conservation Area, Washington

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received an application from the Washington State 
Department of Natural Resources (DNR) for an Incidental Harassment 
Authorization (IHA) to take marine mammals incidental to restoration 
activities within the Woodard Bay Natural Resources Conservation Area 
(NRCA). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an IHA to the DNR to take, 
by Level B Harassment only, harbor seals during the specified activity.

DATES: Comments and information must be received no later than October 
12, 2011.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East West 
Highway, Silver Spring, MD 20910. The mailbox address for providing e-
mail comments is ITP.Laws@noaa.gov. NMFS is not responsible for e-mail 
comments sent to addresses other than the one provided here. Comments 
sent via e-mail, including all attachments, must not exceed a 10-
megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(e.g., name, address) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document, as well as supplemental documents, may be obtained by 
writing to the address specified above, telephoning the contact listed 
below (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet 
at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited 
in this notice may also be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
published in the Federal Register to provide public notice and initiate 
a 30-day comment period.
    Authorization for incidental takings shall 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 subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
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 Level B 
harassment as defined below. 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. 
If authorized, the IHA would be effective for one year from date of 
issuance.
    Except with respect to certain activities not pertinent here, the 
MMPA defines `harassment' as:

    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].

[[Page 56173]]

Summary of Request

    On July 1, 2011, NMFS received an application from the DNR for 
renewal of an IHA for the taking, by Level B harassment only, of small 
numbers of harbor seals (Phoca vitulina) incidental to activities 
conducted in association with a habitat restoration project within the 
Woodard Bay NRCA, Washington. After NMFS review and minor changes to 
the document, DNR submitted an adequate and complete application on 
August 3, 2011. DNR was first issued an IHA that was valid from 
November 1, 2010, through February 28, 2011 (75 FR 67951). The 
specified activity includes all or part of the following actions, 
dependent on final funding levels: Removal of 20,000 ft\2\ (1,858 m\2\) 
of derelict pier superstructure and 400 derelict, creosoted timber 
pilings from Chapman Bay Pier and vicinity, and maintenance on 10,000 
ft\2\ (929 m\2\) of Chapman Bay Pier to enhance bat roost habitat. 
Pilings would be removed by vibratory hammer extraction methods or by 
direct pull with cables. The superstructure materials would be removed 
by excavator and/or cables suspended from a barge-mounted crane. 
Maintenance and enhancement of bat roost habitat would include 
replacement of old stringers and installation of flashing and lumber to 
create optimal spacing and heat requirements for the bat maternity 
roost. Equipment employed would include power tools and a generator. 
The proposed activities would occur during the designated in-water work 
window of November 1 through February 28 (2011-12), and are estimated 
to take approximately 40 days in total.

Description of the Specified Activity

    The Woodard Bay NRCA, located within Henderson Inlet in southern 
Puget Sound, was designated by the Washington State Legislature in 1987 
to protect a large, intact complex of nearshore habitats and related 
biological communities, and to provide opportunities for low-impact 
public use and environmental education for the people of Washington. 
The site includes the former Weyerhaeuser South Bay Log Dump, which 
operated from the 1920s until the 1980s. The remnant structures from 
the log dump, including several hundred creosoted timber pilings and a 
trestle and pier, continue to negatively impact nearshore ecosystems 
protected by the conservation area. Therefore, the DNR has begun 
restoration activities in the NRCA to remove these dilapidated 
structures in order to enhance ecological structure and function.
    However, certain remnant log booms are not planned for removal--
and, in fact, have been maintained--due to their function as habitat 
for harbor seals. These few remnant log boom structures have been 
utilized as haul-out habitat for resting, pupping and molting for more 
than 30 years, and play an important role in supporting a healthy 
population of harbor seals. Seals concentrate and primarily haul out at 
only two locations within the NRCA (see Figure 4 in DNR's application 
and Figure 1 in DNR's Monitoring Report).
    There are currently two different haul-out sites within NRCA. The 
north site, located adjacent to the northern tip of the Chapman Bay 
Pier, is composed of several rows of log booms fastened to creosoted 
pilings. The south site, located east of the Chapman Bay Pier in the 
main operational area of the log dump, is composed of 6 log boom rows 
and 1 floating platform attached to creosoted pilings. The booms are 
utilized year-round by harbor seals of all ages and are ideal for 
harbor seal pupping due to easy access to water escape routes and the 
low platform for pups to get in and out of the water (Calambokidis et 
al., 1991; Lambourn et al., 2007). In recent years, the log boom haul-
out area has decreased significantly because logs have decayed, sunk, 
or floated away (Lambourn et al., 2007), and attempts by DNR and a 
local resident have been made to re-establish some of the lost haul-out 
area. These booms are situated among the piles and structure planned 
for removal. The DNR anticipates harbor seals will flush into the water 
upon crew arrival and onset of pile and structure removal activities; 
hence, harbor seals may be behaviorally harassed during pile removal 
and other restoration activities. The DNR is thus requesting an IHA to 
take harbor seals, by Level B harassment only, incidental to the 
specified restoration activities.
    Proposed restoration activities requested under the IHA are funding 
dependent. They include all or part of the following:
     Removal of 20,000 ft\2\ (1,858 m\2\) of pier 
superstructure and 400 pilings from Chapman Bay Pier and vicinity.
     Maintenance on 10,000 ft\2\ (929 m\2\) of Chapman Bay Pier 
to enhance bat roost habitat.
    Work will be accomplished by barge and skiffs. The pilings will be 
removed by vibratory hammer or by direct pull with cables; both methods 
are suspended from a barge-mounted crane. The vibratory hammer is a 
large steel device lowered on top of the pile, which then grips and 
vibrates the pile until it is loosened from the sediment. The pile is 
then pulled up by the hammer and placed on a barge. For direct pull, a 
cable is set around the piling to grip and lift the pile from the 
sediment. The superstructure materials will be removed by excavator 
and/or cables suspended from a barge-mounted crane.
    Approximately 400 12-24 in (0.3-0.6 m) diameter pilings would be 
removed near but not directly adjacent to haul-outs. An approximate 
maximum of 60 pilings would be removed per day. The vibratory hammer 
typically vibrates for less than one minute per pile, so there would be 
no more than 60 non-consecutive minutes of hammer vibration over an 8-
hour period. After vibration, a choker is used to lift the pile out of 
the water where it is placed on the barge for transport to an approved 
disposal site. Pilings that cannot be removed by hammer or cable, or 
that break during extraction, would be recorded via global positioning 
system for divers to relocate at the final phase of project activities. 
The divers would then cut the pilings at or below the mudline using 
underwater chainsaws. Operations would begin on the pilings and 
structures that are furthest from the seal haul-out so that there is an 
opportunity for the seals to adjust to the presence of the contractors 
and their equipment. Vibratory extraction operations are expected to 
occur for approximately 15 days over the course of the 4-month work 
window (November 1 through February 28). Other work days would be spent 
removing pier superstructure, which does not involve vibratory 
extraction. NMFS anticipates that the presence of crew and use of a 
vibratory hammer would result in behavioral harassment. The portion of 
the Chapman Bay Pier that would be removed is more than 100 yards (91 
m) from the closest haul-out area. Although this activity does not 
involve vibratory extraction, it has the potential to result in 
behavioral harassment due to the close proximity to working crew.
    Maintenance and enhancement of bat roost habitat will include 
replacement of old stringers and installation of flashing and lumber to 
create optimal spacing and heat requirements for the maternity roost. 
Equipment employed will include power tools and a generator. Presence 
of crew conducting enhancement of bat habitat on the pier may result in 
behavioral harassment of seals, by flushing the seals from the haul-
out.

Description of Marine Mammals in the Area of the Specified Activity

    Harbor seals are the only marine mammal regularly found within the 
action area. Two Steller sea lions

[[Page 56174]]

(Eumetopias jubatus) were observed, at a distance, swimming in 
Henderson Inlet during site restoration activities in 2010. There have 
been very few sightings of Steller sea lions in Henderson Inlet. They 
do not breed in Puget Sound, do not regularly use the action area, and, 
as such, are not likely to be affected by restoration activities. 
Steller sea lions are not considered further in this document.
    Species Description--Harbor seals, which are members of the Phocid 
family (true seals), inhabit coastal and estuarine waters and shoreline 
areas from Baja California, Mexico to western Alaska. For management 
purposes, differences in mean pupping date (i.e., birthing) (Temte, 
1986), movement patterns (Jeffries, 1985; Brown, 1988), pollutant loads 
(Calambokidis et al., 1985) and fishery interactions have led to the 
recognition of three separate harbor seal stocks along the west coast 
of the continental U.S. (Boveng, 1988). The three distinct stocks are: 
(1) Inland waters of Washington (including Hood Canal, Puget Sound, and 
the Strait of Juan de Fuca out to Cape Flattery), (2) outer coast of 
Oregon and Washington, and (3) California (Carretta et al., 2007). The 
inland waters of Washington stock is the only stock that may occur 
within the project area.
    The average weight for adult seals is about 180 lb (82 kg) and 
males are slightly larger than females. Male harbor seals weigh up to 
245 lb (111 kg) and measure approximately 5 ft (1.5 m) in length. The 
basic color of harbor seals' coat is gray and mottled but highly 
variable, from dark with light color rings or spots to light with dark 
markings (NMFS 2008c).
    Population Abundance--Estimated population numbers for the inland 
waters of Washington, including the Hood Canal, Puget Sound, and the 
Strait of Juan de Fuca out to Cape Flattery, are 14,612 individuals 
(Carretta et al., 2007). Between 1983 and 1996, the annual rate of 
increase for this stock was 6 percent (Jeffries et al., 1997). Based on 
this information and trends of other harbor seal stocks, the current 
abundance estimate is likely an underestimate. Based on the analyses of 
Jeffries et al. (2003) and Brown et al. (2005), both the Washington and 
Oregon coastal harbor seal stock have reached carrying capacity and are 
no longer increasing. Harbor seals are not listed as depleted nor 
considered strategic under the MMPA or as endangered or threatened 
under the Endangered Species Act (ESA). The stock is within its Optimum 
Sustainable Population level (Jeffries et al., 2003). Harbor seals are 
considered the most abundant resident pinniped species in Puget Sound 
(Lance and Jeffries, 2009).
    The harbor seal population within the NRCA is considered one of the 
healthier ones in southern Puget Sound. Seal numbers have been 
monitored at the site since 1977, when there were less than 50 seals. 
In 1996, the highest count year, there were 600 seals. The average 
maximum annual count between 1977 and 2008 was 315 seals (Buettner et 
al., 2008). Annual seal counts end by October and numbers of 
individuals decline throughout the winter. From 2006 to 2009, October 
counts averaged 171 and ranged between 79 and 275 (Lambourn, 2010).
    Distribution--Harbor seals are coastal species, rarely found more 
than 12 mi (20 km) from shore, and frequently occupy bays, estuaries, 
and inlets (Baird, 2001). Individual seals have been observed several 
miles upstream in coastal rivers. Ideal harbor seal habitat includes 
haul-out sites, shelter during the breeding periods, and sufficient 
food (Bj[oslash]rge, 2002). Haul-out areas can include intertidal and 
subtidal rock outcrops, sandbars, sandy beaches, peat banks in salt 
marshes, and man-made structures such as log booms, docks, and 
recreational floats (Wilson, 1978; Prescott 1982; Schneider and Payne, 
1983; Gilber and Guldager, 1998; Jeffries et al., 2000). Human 
disturbance can affect haul-out choice (Harris et al., 2003).
    Behavior and Ecology--Harbor seals are typically seen in small 
groups resting on tidal reefs, boulders, mudflats, man-made structures, 
and sandbars. Harbor seals are opportunistic feeders that adjust their 
patterns to take advantage of locally and seasonally abundant prey 
(Payne and Selzer, 1989; Baird, 2001; Bj[oslash]rge, 2002). The harbor 
seal diet consists of fish and invertebrates (Bigg, 1981; Roffe and 
Mate, 1984; Orr et al., 2004). Although harbor seals in the Pacific 
Northwest are common in inshore and estuarine waters, they primarily 
feed at sea (Orr et al., 2004) during high tide. Researchers have found 
that they complete both shallow and deep dives during hunting depending 
on the availability of prey (Tollit et al., 1997). Their diet in Puget 
Sound consists of common prey resources such as hake, herring and adult 
and out-migrating juvenile salmonids.
    Harbor seals mate at sea and females give birth during the spring 
and summer, although the pupping season varies by latitude. In coastal 
and inland regions of Washington, pups are born from April through 
January. Pups are generally born earlier in the coastal areas and later 
in inland waters (Calambokidis and Jeffries, 1991; Jeffries et al., 
2000). Suckling harbor seal pups spend as much as forty percent of 
their time in the water (Bowen et al., 1999).
    The remnant log booms at the Woodard Bay NRCA support a year-round 
population of harbor seals, which use the boom structures for haul-out 
habitat to rest, pup, and molt in two primary locations; to the east 
and to the north of the Chapman Bay Pier (see Figure 4 in DNR's 
application). Haul-out behavior is shown to be affected by time of day 
and tide cycle, as well as factors related to seasonal weather patterns 
such as air temperature, wind speed, cloud cover, and sea conditions 
(Buettner et al., 2008). Annually, use of the log booms peaks from 
July, when females haul out to give birth to their pups, through 
October, during the late pupping season and molt (WA DNR, 2002).
    Acoustics--In air, harbor seal males produce a variety of low-
frequency (less than 4 kHz) vocalizations, including snorts, grunts, 
and growls. Male harbor seals produce communication sounds in the 
frequency range of 100-1,000 Hz (Richardson et al., 1995). Pups make 
individually unique calls for mother recognition that contain multiple 
harmonics with main energy below 0.35 kHz (Bigg, 1981; Thomson and 
Richardson, 1995). Harbor seals hear nearly as well in air as 
underwater and had lower thresholds than California sea lions (Zalophus 
californianus) (Kastak and Schusterman, 1998). Kastak and Schusterman 
(1998) reported airborne low frequency (100 Hz) sound detection 
thresholds at 65.4 dB re: 20 [mu]Pa for harbor seals. In air, they hear 
frequencies from 0.25-30 kHz and are most sensitive from 6-16 kHz 
(Richardson, 1995; Terhune and Turnbull, 1995; Wolski et al., 2003).
    Adult males also produce underwater sounds during the breeding 
season that typically range from 0.25-4 kHz (duration range: 0.1 s to 
multiple seconds; Hanggi and Schusterman, 1994). Hanggi and Schusterman 
(1994) found that there is individual variation in the dominant 
frequency range of sounds between different males, and Van Parijs et 
al. (2003) reported oceanic, regional, population, and site-specific 
variation that could be vocal dialects. In water, they hear frequencies 
from 1-75 kHz (Southall et al., 2007) and can detect sound levels as 
weak as 60-85 dB re: 1 [mu]Pa within that band. They are most sensitive 
at frequencies below 50 kHz; above 60 kHz sensitivity rapidly 
decreases.

[[Page 56175]]

Potential Effects on Marine Mammals

    Potential effects of DNR's proposed activities are likely to be 
limited to behavioral disturbance of seals at the two described log 
boom haul-outs. Other potential disturbance could result from the 
introduction of sound into the environment as a result of pile removal 
activities; however, this is unlikely to cause an appreciably greater 
amount of harassment in either numbers or degree, in part because it is 
anticipated that most seals would be disturbed initially by physical 
presence of crews and vessels or by sound from vessels.
    There is a general paucity of data on sound levels produced by 
vibratory extraction of timber piles; however, it is reasonable to 
assume that extraction would not result in higher sound pressure levels 
(SPLs) than vibratory installation of piles. As such, NMFS assumes that 
source levels from the proposed activity would not be as high as 
average source levels for vibratory installation of 12-24 in steel 
piles (155-165 dB; Caltrans, 2009). NMFS' general in-water harassment 
thresholds for pinnipeds exposed to continuous noise, such as that 
produced by vibratory pile extraction, are 190 dB root mean square 
(rms) re: 1 [micro]Pa as the potential onset of Level A (injurious) 
harassment and 120 dB RMS re: 1 [micro]Pa as the potential onset of 
Level B (behavioral) harassment. These levels are considered 
precautionary and NMFS is currently revising these thresholds to better 
reflect the most recent scientific data.
    Vibratory extraction would not result in sound levels near 190 dB; 
therefore, injury would not occur. However, noise from vibratory 
extraction would likely exceed 120 dB near the source and may induce 
responses in-water such as avoidance or other alteration of behavior at 
time of exposure. However, seals flushing from haul-outs in response to 
small vessel activity and the presence of work crews would already be 
considered as `harassed'; therefore, any harassment resulting from 
exposure to sound pressure levels above the 120 dB criterion for 
behavioral harassment would not be considered additional.
    The airborne sound disturbance criteria for Level A harassment is 
90 dB RMS re: 20 [micro]Pa for harbor seals. Based on information on 
airborne source levels measured for pile driving with vibratory hammer, 
removal of wood piles is unlikely to exceed 90 dB (WA DNR, 2011); 
further, the vibratory hammer would be outfitted with a muffling device 
ensuring that airborne SPLs are no higher than 80 dB. Potential effects 
of the action on harbor seals are detailed in the following text.

Behavioral Disturbance

    Disturbance can result in a variety of effects, such as subtle or 
dramatic changes in behavior or displacement. Behavioral reactions of 
marine mammals are difficult to predict because they are dependent on 
numerous factors, including species, maturity, experience, activity, 
reproductive state, time of day, and weather. If a marine mammal does 
react to a stimulus by changing its behavior or moving a small 
distance, the impacts of that change may not be important to the 
individual, the stock, or the species as a whole. However, if marine 
mammals are displaced from an important feeding or breeding area for a 
prolonged period, impacts on the animals could be important. In 
general, pinnipeds seem more tolerant of, or at least habituate more 
quickly to, potentially disturbing stimuli than do cetaceans, and 
generally seem to be less responsive to exposure to industrial sound 
than most cetaceans.
    Because the few available studies show wide variation in response 
to stimuli, pinniped responses are difficult to quantify. The 
literature shows that a range of effects are possible, including no 
obvious visible response, or behavioral responses that may include 
annoyance and increased alertness, visual orientation towards the 
stimulus, investigation of the stimulus, change in movement pattern or 
direction, habituation, alteration of feeding and social interaction, 
or temporary or permanent avoidance of the affected area. Minor 
behavioral responses do not necessarily cause long-term effects to the 
individuals involved. Severe responses include panic, immediate 
movement away from the stimulus, and stampeding, which could 
potentially lead to injury or mortality (Southall et al., 2007).
    In their comprehensive review of available literature, Southall et 
al. (2007) reported that the limited data suggest exposures between 
approximately 90 and 140 dB generally do not appear to induce strong 
behavioral responses in pinnipeds, while higher levels of pulsed sound, 
ranging between 150 and 180 dB, will prompt avoidance of an area. For 
airborne sound Southall et al. (2007) note there is extremely limited 
data suggesting very minor, if any, observable behavioral responses by 
pinnipeds exposed to airborne pulses of 60 to 80 dB.
    Southall et al. (2007) noted that quantitative studies on 
behavioral reactions of pinnipeds to sound are rare, but described the 
following:
     Harris et al. (2001) observed the response of ringed (Pusa 
hispida), bearded (Erignathus barbatus), and spotted seals (Phoca 
largha) to underwater operation of a single air gun and an eleven-gun 
array. Received exposure levels were 160 to 200 dB. In some instances, 
seals exhibited no response to sound.
     Blackwell et al. (2004) observed ringed seals during 
impact installation of steel pipe pile. Received underwater SPLs were 
measured at 151 dB at 63 m. The seals exhibited either no response or 
only brief orientation response (defined as ``investigation or visual 
orientation'').
     In addition, Blackwell et al. (2004) studied the response 
of ringed seals within 500 m of impact driving of steel pipe pile to 
airborne sound. Received levels of airborne sound were measured at 93 
dB at a distance of 63 m. Seals had either no response or limited 
response to pile driving. Reactions were described as ``indifferent'' 
or ``curious.''
     Miller et al. (2005) observed responses of ringed and 
bearded seals to a seismic air gun array. Received underwater sound 
levels were estimated at 160 to 200 dB. There were fewer seals present 
close to the sound source during air gun operations in the first year, 
but in the second year the seals showed no avoidance. In some 
instances, seals were present in very close range of the sound. The 
authors concluded that there was ``no observable behavioral response'' 
to seismic air gun operations.
    Jacobs and Terhune (2002) observed harbor seal reactions to 
acoustic harassment devices (AHDs) with source level of 172 dB deployed 
around aquaculture sites. Seals were generally unresponsive to sounds 
from the AHDs. During two specific events, individuals came within 141 
and 144 ft (43 and 44 m) of active AHDs and failed to demonstrate any 
measurable behavioral response; estimated received levels based on the 
measures given were approximately 120 to 130 dB.
    Kastelein et al. (2006) exposed nine captive harbor seals in an 
approximately 82 x 98 ft (25 x 30 m) enclosure to non-pulse sounds used 
in underwater data communication systems (similar to acoustic modems). 
Test signals were frequency modulated tones, sweeps, and bands of sound 
with fundamental frequencies between 8 and 16 kHz; 128 to 130 3 dB source levels; 1- to 2-s duration (60-80 percent duty 
cycle); or 100 percent duty cycle. They recorded seal positions and the 
mean number of individual surfacing behaviors during control periods 
(no exposure), before exposure, and in 15-min experimental sessions (n 
= 7 exposures for each sound

[[Page 56176]]

type). Seals generally swam away from each source at received levels of 
approximately 107 dB, avoiding it by approximately 16 ft (5 m), 
although they did not haul out of the water or change surfacing 
behavior. Seal reactions did not appear to wane over repeated exposure 
(i.e., there was no obvious habituation), and the colony of seals 
generally returned to baseline conditions following exposure. The seals 
were not reinforced with food for remaining in the sound field.
    Reactions of harbor seals to the simulated sound of a 2-megawatt 
wind power generator were measured by Koschinski et al. (2003). Harbor 
seals surfaced significantly further away from the sound source when it 
was active and did not approach the sound source as closely. The device 
used in that study produced sounds in the frequency range of 30 to 800 
Hz, with peak source levels of 128 dB at 1 m at the 80- and 160-Hz 
frequencies.
    Vessel sounds do not seem to have strong effects on seals in the 
water, but the data are limited. When in the water, seals appear to be 
much less apprehensive about approaching vessels. Some would approach a 
vessel out of apparent curiosity, including noisy vessels such as those 
operating seismic airgun arrays (Moulton and Lawson, 2002). Gray seals 
(Halichoerus grypus) have been known to approach and follow fishing 
vessels in an effort to steal catch or the bait from traps. In 
contrast, seals hauled out on land often are quite responsive to nearby 
vessels. Terhune (1985) reported that northwest Atlantic harbor seals 
were extremely vigilant when hauled out and were wary of approaching 
(but less so passing) boats. Suryan and Harvey (1999) reported that 
Pacific harbor seals commonly left the shore when powerboat operators 
approached to observe the seals. Those seals detected a powerboat at a 
mean distance of 866 ft (264 m), and seals left the haul-out site when 
boats approached to within 472 ft (144 m).

Hearing Impairment and Other Physiological Effects

    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very strong sounds. Hearing impairment is 
measured in two forms: temporary threshold shift (TTS) and permanent 
threshold shift (PTS). PTS is considered injurious whereas TTS is not, 
as it is temporary and hearing is fully recoverable. Non-auditory 
physiological effects might also occur in marine mammals exposed to 
strong underwater sound. Possible types of non-auditory physiological 
effects or injuries that may occur in mammals close to a strong sound 
source include stress, neurological effects, bubble formation, and 
other types of organ or tissue damage. It is possible that some marine 
mammal species (i.e., beaked whales) may be especially susceptible to 
injury and/or stranding when exposed to strong pulsed sounds, 
particularly at higher frequencies. Neither auditory nor non-auditory 
physiological effects are anticipated to occur as a result of DNR 
activities.
    PTS is presumed to be likely if the hearing threshold is reduced by 
more than 40 dB (i.e., 40 dB of TTS). Due to the low source levels 
produced by vibratory extraction, NMFS does not expect that marine 
mammals will be exposed to levels that could elicit PTS; therefore, it 
will not be discussed further. The following subsection discusses in 
somewhat more detail the possibilities of TTS.
    TTS--TTS, reversible hearing loss caused by fatigue of hair cells 
and supporting structures in the inner ear, is the mildest form of 
hearing impairment that can occur during exposure to a strong sound 
(Kryter, 1985). While experiencing TTS, the hearing threshold rises and 
a sound must be stronger in order to be heard. TTS can last from 
minutes or hours to (in cases of strong TTS) days. For sound exposures 
at or somewhat above the TTS threshold, hearing sensitivity in both 
terrestrial and marine mammals recovers rapidly after exposure to the 
sound ends.
    NMFS considers TTS to be a form of Level B harassment rather than 
injury, as it consists of fatigue to auditory structures rather than 
damage to them. Pinnipeds have demonstrated complete recovery from TTS 
after multiple exposures to intense sound, as described in the studies 
below (Kastak et al., 1999, 2005). The NMFS-established 190-dB injury 
criterion is not considered to be the level above which TTS might 
occur. Rather, it is the received level above which, in the view of a 
panel of bioacoustics specialists convened by NMFS before TTS 
measurements for marine mammals became available, one could not be 
certain that there would be no injurious effects, auditory or 
otherwise, to pinnipeds. Few data on sound levels and durations 
necessary to elicit mild TTS have been obtained for marine mammals, and 
none of the published data concern TTS elicited by exposure to multiple 
pulses of sound.
    Human non-impulsive sound exposure guidelines are based on 
exposures of equal energy (the same sound exposure level [SEL]; SEL is 
reported here in dB re: 1 [micro]Pa\2\-s/re: 20 [micro]Pa\2\-s for in-
water and in-air sound, respectively) producing equal amounts of 
hearing impairment regardless of how the sound energy is distributed in 
time (NIOSH, 1998). Until recently, previous marine mammal TTS studies 
have also generally supported this equal energy relationship (Southall 
et al., 2007). Three newer studies, two by Mooney et al. (2009a, b) on 
a single bottlenose dolphin (Tursiops truncatus) exposed to either 
playbacks of U.S. Navy mid-frequency active sonar or octave-band sound 
(4-8 kHz) and one by Kastak et al. (2007) on a single California sea 
lion exposed to airborne octave-band sound (centered at 2.5 kHz), 
concluded that for all sound exposure situations, the equal energy 
relationship may not be the best indicator to predict TTS onset levels. 
Generally, with sound exposures of equal energy, quieter sounds (lower 
SPL) of longer duration were found to induce TTS onset more than louder 
sounds (higher SPL) of shorter duration. Given the available data, the 
received level of a single seismic pulse (with no frequency weighting) 
might need to be approximately 186 dB SEL in order to produce brief, 
mild TTS.
    There are few known studies conducted on pinniped TTS responses to 
non-pulsed underwater or airborne sound. The first three studies 
described in the following text were performed in the same lab and on 
the same test subjects, and, therefore, the results may not be 
applicable to all pinnipeds or in field settings.
     Kastak and Schusterman (1996) studied the response of 
harbor seals to non-pulsed construction sound, reporting TTS of about 8 
dB.
     Kastak et al. (1999) reported TTS of approximately 4-5 dB 
in three species of pinnipeds (harbor seal, California sea lion, and 
northern elephant seal [Mirounga angustirostris]) after underwater 
exposure for approximately 20 minutes to sound with frequencies ranging 
from 100-2,000 Hz at received levels 60-75 dB above hearing threshold. 
This approach allowed similar effective exposure conditions to each of 
the subjects, but resulted in variable absolute exposure values 
depending on subject and test frequency. Recovery to near baseline 
levels was reported within 24 hours of sound exposure.
     Kastak et al. (2005) followed up on their previous work, 
exposing the same test subjects to higher levels of sound for longer 
durations. The animals were exposed to octave-band sound for up to 50 
minutes of net exposure. The study reported that the harbor seal 
experienced TTS of 6 dB after a 25-

[[Page 56177]]

minute exposure to 2.5 kHz of octave-band sound at 152 dB (183 dB SEL).
     Bowles et al. (unpubl. data) exposed pinnipeds to 
simulated sonic booms (airborne sound). Harbor seals demonstrated TTS 
at 143 dB peak and 129 dB SEL.
     Kastak et al. (2004) used the same test subjects as in 
Kastak et al. (2005), exposing the animals to non-pulsed airborne sound 
(2.5 kHz octave-band sound) for 25 minutes. The harbor seal 
demonstrated 6 dB of TTS after exposure to 99 dB (131 dB SEL).
    The sound level necessary to cause TTS in pinnipeds depends on 
exposure duration; with longer exposure, the level necessary to elicit 
TTS is reduced (Schusterman et al., 2000; Kastak et al., 2005,2007). 
The literature has not drawn conclusions on levels of underwater non-
pulsed sound (e.g., vibratory pile removal) likely to cause TTS. 
Although underwater sound levels produced by the DNR project may be 
approximately equal to the lower end of sound levels produced in 
studies that have induced TTS in pinnipeds, there is a general lack of 
controlled, quantifiable field studies related to this phenomenon, 
existing studies have had varied results, and there are no universally 
accepted standards for the amount of exposure time likely to induce TTS 
(Southall et al., 2007).
    While it may be inferred that TTS could theoretically result from 
the DNR project, it is highly unlikely, due to the source levels and 
duration of exposure possible. In summary, it is expected that elevated 
sound will have only a negligible probability of causing TTS in 
individual seals. Further, seals are likely to be disturbed via the 
approach of work crews and vessels long before the beginning of any 
pile removal operations and would be apprised of the advent of 
increased underwater sound via the soft start of the vibratory hammer. 
It is not expected that airborne sound levels would induce any form of 
behavioral harassment, much less TTS in individual pinnipeds.
    The DNR and other organizations, such as the Cascadia Research 
Collective, have been monitoring the behavior of harbor seals present 
within the NRCA since 1977. Past disturbance observations at Woodard 
Bay NRCA have shown that seal harassment results from the presence of 
non-motorized vessels (e.g., recreational kayaks and canoes), motorized 
vessels (e.g., fishing boats), and people (Calambokidis and Leathery, 
1991; Buettner et al., 2008). Calambokidis and Leathery (1991) found 
that the mean distance that seals entered the water in response to any 
type of vessel was 56 m. Most commonly seals were disturbed when 
vessels were 26 to 50 m from the haul-out; however, only at distances 
greater than 125 m was there a sharp decrease in the proportion of 
groups disturbed. Seals entered the water in response to people on foot 
at up to 256 m although, on many occasions, people were able to pass 
less than 100 m from seals without noticeable disturbance while 
intentionally maintaining a low profile (Calambokidis and Leathery, 
1991). Furthermore, the distances at which seals were disturbed varied 
significantly by vessel type; seals entered the water at a greater 
distance in response to non-motorized vessels as compared to motorized 
vessels. It is hypothesized that because the latter are more readily 
detectable than the former, seals are more readily aware of their 
presence at greater distances and do not react to the same extent upon 
close approach (Buettner et al., 2008).
    Buettner et al. (2008) also noted the difference in vigilance of 
seals based on float location during pupping season. For example, seals 
on floats located on the outer edges of the log boom area, which are 
thus subjected to greater amounts of vessel traffic, were indifferent 
to vessels unless the vessels came right up to the log booms. 
Contrarily, seals on the floats located in the central area of the log 
booms, and hence not exposed to as much traffic, were more vigilant and 
more sensitive to disturbances. These observations suggest that, while 
seals are susceptible to anthropogenic disturbance, a certain amount of 
habituation may occur at these haul-outs.
    During emergency maintenance operations on the haul-out in 2008, 
seals present on the log booms flushed when the vessel first entered 
the haul-out area, but appeared to become habituated quickly 
thereafter. Maintenance operations included installation of new log 
booms to restore habitat. Seals initially flushed in response to onset 
of work but quickly acclimated to crew presence and would haul out on 
booms directly adjacent to the small barge used during maintenance. 
Furthermore, Suryan and Harvey (1991) found that harbor seals hauled-
out at Puffin Island, WA, were more tolerant to subsequent harassments 
than they were to the initial harassment. However, sudden presence of a 
disturbance source (e.g., kayaker) can induce strong behavioral 
reactions.
    In summary, based on the preceding discussion and on observations 
of harbor seals during past management activities in Woodard Bay, NMFS 
has preliminarily determined that impacts to harbor seals during 
restoration activities would be limited to behavioral harassment of 
limited duration and limited intensity (i.e., temporary flushing at 
most) resulting from physical disturbance. It is anticipated that seals 
would be initially disturbed by the presence of crew and vessels 
associated with the habitat restoration project. Seals entering the 
water following such disturbance could also be exposed to underwater 
SPLs greater than 120 dB (i.e., constituting harassment); however, 
given the short duration and low energy of vibratory extraction of 12-
24 in timber piles, PTS would not occur and TTS is not likely. 
Abandonment of any portion of the haul-out is not expected either, as 
harbor seals have been documented as quickly becoming accustomed to the 
presence of work crews. During similar activities carried out under the 
previous IHA, seals showed no signs of abandonment or of using the 
haul-outs to a lesser degree.

Anticipated Effects on Habitat

    Marine mammal habitat would be temporarily ensonified by low sound 
levels resulting from habitat restoration effort. The piles designated 
to be removed have been treated with creosote, a wood preservative that 
is also toxic to the environment. Removing these piles will have 
beneficial impacts to the NRCA, including marine mammal habitat, by 
preventing the leaching of creosote chemicals, including polycyclic 
aromatic hydrocarbons, into the marine environment. No log booms would 
be removed; therefore, no impacts to the physical availability of haul-
out habitat would occur. Any disturbance to substrate in the NRCA would 
be localized and of a temporary nature, resulting from the extraction 
of piles. As such, temporary impacts at most may be expected to the 
habitat of harbor seal prey species. No prey species are known to 
utilize the pilings themselves.

Summary of Previous Monitoring

    DNR complied with the mitigation and monitoring required under the 
previous authorization. In accordance with the 2010 IHA, DNR submitted 
a final monitoring report, which described the monitoring effort and 
observations made. During the course of these activities, DNR recorded 
one harbor seal mortality, described later in this document. Otherwise, 
DNR did not exceed the take levels authorized under the 2010 IHA.
    The IHA stipulated that monitoring be conducted on at least 15 days 
of work, at the following times:
     The first two days of the project;

[[Page 56178]]

     When the contractors were mobilizing to a new location;
     During two days of every week when activities were 
occurring within 100 yd (91 m) of the haul-out area;
     During five of the days of work on the Chapman Bay Pier; 
and
     For at least six other days during the 40-day work period, 
which were decided when the project schedule was provided by the 
contractor.
    However, due to a scheduling error on the part of the monitoring 
contractor, observations in fact occurred on only 14 days. Restoration 
activities ended before the final required day of monitoring could be 
conducted.
    At least one protected species observer (PSO) was stationed at both 
of the observation sites on 14 of the days that construction occurred 
in the NRCA. Monitoring began 30 minutes prior to the contractor's 
start time (7 a.m.) and ended 30 minutes after the contractor left the 
site. Counts were conducted every half hour unless there was a 
disturbance, in which case another count was conducted. Each of the two 
haul-outs was counted separately and added together for the total 
number of seals hauled out. In the event of harassment, PSOs recorded 
the nature of the activity, proximity to haul-outs, and the number of 
seals that flushed into the water (i.e., were harassed). The take 
number was calculated by subtracting the number of seals hauled out 
after the disturbance from the most recent count prior to the 
disturbance.
    Harbor seal disturbances were recorded and broken down into 
disturbance types based on cause of disturbance. Each disturbance was 
given a code and proximity in meters from haul-outs was recorded (Table 
1). Proximity in relation to haul-outs was calculated using satellite 
imagery. All incidental harassment takes related to construction 
activity occurred at the south haul-out (site 1; see Figure 1 in DNR's 
monitoring report). In total, 356 takes by harassment were observed 
during the 14 days of observation (Table 1) resulting in a mean of 25 
seals disturbed per monitored day. Extrapolating that average out for 
all 35 days of restoration activity that occurred provides a total 
estimated take of 875, less than the authorized take (by Level B 
harassment) of 1,539. This extrapolated estimate is likely to be biased 
high since monitored days were chosen in part to sample days with 
activities most likely to disturb seals.

                                     Table 1--Aggregate Harbor Seal Counts and Disturbances From Two Haul-Out Sites
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Pre-                                              Proximity
            Date              Start    Finish          Conditions            activity    Peak daily       Disturbance code      to haul-out  Total daily
                               time     time                                  count        count                                    (m)         takes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nov 1......................     0930     1630  Overcast, rain............            8           18  MS, PP                             <10            5
Nov 2......................     0630     1800  Sunny.....................           97          127  DB                                >300           69
Nov 9......................     0630     1800  Overcast, rain............           71           72  MS                                >160           31
Nov 12.....................     0630     1730  Sunny.....................           67          100  MS, MB                            >150           76
Nov 15.....................     0630     1730  Overcast, rain............           27           39  N/A                               >130            0
Nov 16.....................     0630     1700  Overcast, rain............           40           54  BC                                <250           25
Nov 18.....................     0630     1750  Partly cloudy.............            8           15  BC                                >130            6
Nov 19.....................     0630     1730  Partly cloudy.............          121          127  MS                                >130           34
Nov 22.....................     0630     1730  Partly cloudy, snow.......           35           37  MS, BC                            >130           13
Dec 8......................     0630     1730  Overcast, rain............            1           17  N/A                               >300            0
Dec 10.....................     0630     1600  Partly cloudy.............           20           34  BC                                >100           30
Dec 16.....................     0630     1730  Sunny.....................           36           41  MS, VH                            >100           38
Dec 20.....................     0630     1600  Overcast, rain............            0            0  N/A                               >130            0
Dec 21.....................     0630     1700  Sunny.....................           43           43  MS, DB                             >75           29
--------------------------------------------------------------------------------------------------------------------------------------------------------
Activity codes: MS: motorized skiff; BC: Barge/Crane; VH: Vibratory hammer; PR: Pile removal; PP: Pile painting; MB: Mobilize barge; DB: Dive boat

    Harbor seals were generally hauled out prior to the work day with 
the majority of seals at the south haul-out. The construction crew 
stayed at a distance of over 150 m from the haul-outs when maneuvering 
back and forth from shore to their barge anchored greater than 150 m 
offshore from the haul-outs. The seals appeared to be relatively 
unaffected by the movement of the crane barge at distances greater than 
150 m. The majority of incidental harassment takes were caused by the 
work skiff maneuvering back and forth, despite the distance from the 
haul-outs. Once the seals entered the water, the majority typically did 
not return to the haul-out during same-day monitoring effort, although 
there were never large groups of seals observed in the water after a 
disturbance. Seals that remained on the haul-out after a disturbance 
showed no signs of adverse behavior. Given that there have been no 
dedicated observations at the NRCA during this time of year (i.e., 
November-February) it is difficult to say whether the decreased number 
of harbor seals hauled out (as compared with average October counts) 
was caused by construction activity or seasonal distribution. It is 
likely, however, that the latter is the case, as November represents 
the post-breeding and molting period, when harbor seals are less 
reliant on the haul-outs.
    On December 21, 2010, divers retrieving underwater broken pilings 
discovered a deceased young female harbor seal entangled in a line 
attached to a buoy used to mark the location of broken pilings. It is 
uncertain how long the seal had been entangled in the line; however, 
DNR reported that the line was placed there sometime November 1-3, 
2010, when the DNR dive team was marking the broken pilings. Gross 
necropsy showed the seal was in good body condition, and drowning due 
to entanglement was likely the cause of death for this animal. All 
appropriate reporting protocols were followed.

Proposed Mitigation

    In order to issue an IHA 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, and on the availability of such species or stock for 
taking for certain subsistence uses.
    The DNR has proposed to continue mitigation measures, as stipulated 
in the 2010 IHA, designed to minimize disturbance to harbor seals 
within the action area in consideration of timing, location, and 
equipment use. Foremost, pile and structure removal would only occur 
between November and February (i.e., within the designated in-water

[[Page 56179]]

work window designed to reduce impacts to fish species in Woodard Bay), 
outside of harbor seal pupping and molting seasons. Therefore, no 
impacts to pups from the specified activity during these sensitive time 
periods would occur. In addition, the following measures would be 
implemented:
     The DNR would approach the action area slowly to alert 
seals to their presence from a distance and would begin pulling piles 
at the farthest location from the log booms used as harbor seal haul-
out areas;
     No piles within 30 yards (27 m) of the two main haul-out 
locations identified in the IHA application would be removed;
     The contractor or PSO would survey the operational area 
for seals before initiating activities and wait until the seals are at 
a sufficient distance (i.e., 50 ft [15 m]) from the activity so as to 
minimize the risk of direct injury from the equipment or from a piling 
or structure breaking free;
     The DNR would require the contractor to initiate a 
vibratory hammer soft start at the beginning of each work day; and
     The vibratory hammer power pack would be outfitted with a 
muffler to reduce in-air noise levels to a maximum of 80 dB.
    The soft start method involves a reduced energy vibration from the 
hammer for the first 15 seconds and then a one minute waiting period. 
This method would be repeated twice before commencing with operations 
at full power.
    In addition, and as a result of the unauthorized mortality 
described previously, DNR will no longer mark broken pilings with buoys 
for later retrieval by divers. The entanglement and subsequent death of 
a harbor seal in one of these buoy lines was considered to be an 
unusual occurrence and is unlikely to happen again. Nonetheless, 
contractors will be required to record broken piling locations for 
divers using a global positioning system instead of marking pilings 
with buoys or flags. This measure eliminates the possibility of such 
mortality.
    NMFS considered but rejected one additional mitigation measure, the 
requirement to conduct a sound source verification study. NMFS has in 
the past required some applicants to conduct such a study to ensure 
that the production of increased levels of sound is no greater than the 
level analyzed in estimating incidental take. However, as described 
previously in this document, source levels produced by the vibratory 
hammer would be no greater than 80 dB in-air and are conservatively 
estimated at approximately 155-165 dB underwater. The underwater source 
levels would likely be lower, as those are measured levels from 
installation of steel piles. Underwater source levels from this project 
would likely be less both because the action is extraction, not 
installation, and because of the pile material (timber rather than 
steel). Further, seals exposed to sound greater than 120 dB would 
likely be previously disturbed by the presence of crews and vessels and 
by vessel noise. NMFS acknowledges that sound source verification would 
be preferred; however, the applicant is funding-limited, and the 
significant expenditure required by such a study would result in a 
correspondingly lesser amount of restoration work able to be completed. 
The requirement of a sound source verification study would have limited 
utility for the harbor seals, would be impracticable for the applicant, 
and would result in less restoration accomplished. Thus, the end result 
would likely be a long-term net negative for the harbor seals 
considered in this document.
    NMFS has carefully evaluated the applicant's mitigation measures as 
proposed and considered their effectiveness in past implementation to 
preliminarily determine whether they are likely to effect the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. Our evaluation of potential measures includes 
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; (3) the practicability 
of the measure for applicant implementation, including consideration of 
personnel safety, and practicality of implementation.
    Injury, serious injury, or mortality to pinnipeds could likely only 
result from startling animals inhabiting the haul-out into a stampede 
reaction. Even in the event that such a reaction occurred, it is 
unlikely that it would result in injury, serious injury, or mortality, 
as the activities would occur outside of the pupping season, and access 
to the water from the haul-outs is relatively easy and unimpeded. 
However, DNR has proposed to approach haul-outs gradually from a 
distance, and would begin daily work at the farthest distance from the 
haul-out in order to eliminate the possibility of such events. During 
the previous year of work under NMFS' authorization, implementation of 
similar mitigation measures has resulted in no known injury, serious 
injury, or mortality (other than the previously described incident, 
which may be considered atypical and outside the scope of the 
mitigation measures considered in relation to disturbing seals from the 
haul-outs). Based upon the DNR's record of management in the NRCA, as 
well as information from monitoring DNR's implementation of the 
improved mitigation measures as prescribed under the previous IHA, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means of effecting the least practicable adverse impacts on 
marine mammal species or stocks and their habitat.

Proposed Monitoring and Reporting

    In order to issue an ITA 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 IHAs 
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.
    DNR's proposed monitoring plan adheres to protocols already 
established for Woodard Bay to the maximum extent practical for the 
specified activity. Monitoring of both the north and south haul-outs 
would occur for a total of 15 out of the 40 work days, during the first 
5 days of project activities, when the contractors are mobilizing and 
starting use of the vibratory hammer; during 5 days when activities are 
occurring within 100 yd (91 m) of the haul-out area; and during 5 
additional days, to be decided when the schedule of work is provided by 
the contractor. Monitoring of both haul-outs would be performed by at 
least one NMFS approved PSO. The PSO would (1) Be on-site prior to crew 
and vessel arrival to determine the number of seals present pre-
disturbance; (2) maintain a low profile during this time to minimize 
disturbance from monitoring; and (3) conduct monitoring beginning 30 
minutes prior to crew arrival, during pile removal activities, and for 
30 minutes after crew leave the site.
    The PSO would record incidental takes (i.e., numbers of seals 
flushed from the haul-out). This information would be determined by 
recording the number of seals using the haul-out on each monitoring day 
prior to the start of

[[Page 56180]]

restoration activities and recording the number of seals that flush 
from the haul-out or, for animals already in the water, display adverse 
behavioral reactions to vibratory extraction. A description of the 
disturbance source, the proximity in meters of the disturbance source 
to the disturbed animals, and observable behavioral reactions to 
specific disturbances would also be noted. In addition, the PSO would 
record:
     The number of seals using the haul-out on each monitoring 
day prior to the start of restoration activities for that day;
     Seal behavior before, during and after pile and structure 
removal;
     Monitoring dates, times and conditions;
     Dates of all pile and structure removal activities; and
     After correcting for observation effort, the number of 
seals taken over the duration of the habitat restoration project.
    Within 30 days of the completion of the project, DNR would submit a 
monitoring report to NMFS that would include a summary of findings and 
copies of field data sheets and relevant daily logs from the 
contractor.
    NMFS considered but rejected an expanded monitoring plan that would 
require DNR to conduct monitoring as described but for every day of 
construction (40 days). NMFS does not believe that monitoring need be 
conducted at all times during this low-level activity as there is no 
potential for serious injury or mortality (the previously described 
entanglement incident notwithstanding) and the probability of an animal 
being physically injured from the equipment is extremely low if not 
discountable. In addition, no other marine mammal species are likely to 
be present within the action area, and are therefore not likely to be 
affected by DNR's activities. Similar to scientific research studies, 
when correcting for effort, the DNR and NMFS should be able to 
adequately determine the number of animals taken and impacts of the 
project on marine mammals based on the proposed monitoring plan. Should 
extreme reactions of seals occur (e.g., apparent abandonment of the 
haul-out) at any time during the project, DNR will stop removal 
activities and consult with NMFS. However, as described in this notice, 
based on previous scientific disturbance studies at NRCA, extreme 
reactions are not anticipated. Finally, as described previously, 
funding is limited for DNR's important restoration work, requiring a 
balance between the level of monitoring that is necessary to adequately 
characterize disturbance of harbor seals and the significant funding 
required to implement monitoring. NMFS feels that the proposed 
monitoring plan strikes the proper balance.

Estimated Take by Incidental Harassment

    As described previously in this document, annual seal counts in 
Woodard Bay end by October. Seals utilize haul-out habitat from spring 
or summer until approximately October for breeding, pupping, and 
molting. After October, numbers of individuals at the haul-outs are 
expected to decline throughout the winter. From 2006 to 2009, October 
counts averaged 171 and ranged between 79 and 275 (Lambourn, 2010).
    Under the 2010 IHA, seals were monitored for 14 days during 
November and December 2010. During that time, total peak counts ranged 
from 0 to 127, and averaged 52 (Oliver and Calambokidis, 2011), 
confirming that seal numbers decline after October. In estimating take 
under the previous IHA, DNR used the mean number of seals from October 
counts (171) in the absence of any data from the months when the 
activity would take place. However, DNR also assumed that seals would 
not be disturbed by activity occurring greater than 100 yd (91 m) away 
from the haul-outs, and proposed to conduct a portion of activity at 
the Woodard Bay trestle, which is not located near the haul-outs. The 
result was that DNR considered only 9 days of activity to have the 
potential for harassment of harbor seals. The assumption that harbor 
seals would not be disturbed at distances greater than 100 yd proved to 
be incorrect; however, because the best available data regarding 
numbers of seals (October count data) was very conservative, DNR did 
not underestimate take (1,539 takes estimated versus 875 takes 
estimated based on monitoring data).
    DNR now proposes that all potential days of activity (40 days) may 
potentially result in incidental harassment of harbor seals. Using the 
average count from November-December 2010 (52), the result is an 
estimated incidental take of 2,080 harbor seals (40 days x 52 seals per 
day). NMFS considers this to be a highly conservative estimate in 
comparison with the estimated actual take of 875 seals from 2010, which 
is nonetheless based upon the best available scientific information.

Negligible Impact and Small Numbers Analysis and Determination

    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.'' In determining whether or not authorized 
incidental take will have a negligible impact on affected species 
stocks, NMFS considers a number of criteria regarding the impact of the 
proposed action, including the number, nature, intensity, and duration 
of Level B h