Takes of Marine Mammals Incidental to Specified Activities; Piling and Structure Removal in Woodard Bay Natural Resources Conservation Area, WA, 67419-67424 [2011-28307]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Notices]
[Pages 67419-67424]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-28307]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA743


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

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued an Incidental Harassment Authorization (IHA) to 
the Washington State Department of Natural Resources (DNR) to 
incidentally harass, by Level B harassment only, small numbers of 
harbor seals during restoration activities within the Woodard Bay 
Natural Resources Conservation Area (NRCA) in Washington.

DATES: This authorization is effective from November 1, 2011, through 
February 28, 2012.

ADDRESSES: A copy of the IHA and DNR's application and monitoring 
report are available by writing 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.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the above address, 
telephoning the contact listed here (see FOR FURTHER INFORMATION 
CONTACT) or visiting the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Supplemental documents, including 
NMFS' Environmental Assessment and associated Finding of No Significant 
Impact, prepared pursuant to the National Environmental Policy Act 
(NEPA), are available at the same site. Documents cited in this notice 
may 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 authorize, 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 taking of small numbers of marine 
mammals shall be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s), and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant). The authorization must 
set forth the permissible methods of taking, requirements pertaining to 
the mitigation, monitoring, and reporting of such taking, and other 
means of effecting the least practicable adverse impact on the species 
or stock and its habitat. 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 U.S. citizens can apply for an authorization to incidentally 
take small numbers of marine mammals, by harassment only, as defined 
below. This provision mandates a 45-day time limit for NMFS' review of 
an application, followed by a 30-day public notice and comment period 
on a proposed authorization for the incidental harassment of marine 
mammals. Within 45 days of the close of the public comment period, NMFS 
must either issue or deny the authorization. If authorized, the IHA may 
be effective for a maximum of one year from the 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,

[[Page 67420]]

nursing, breeding, feeding, or sheltering [Level B harassment].


Summary of Request

    On July 1, 2011, NMFS received an application from the DNR 
requesting 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. Following NMFS review, DNR 
submitted an adequate and complete application on August 3, 2011. The 
DNR's habitat restoration project is a long-term effort to restore 
Woodard Bay habitat by removing or maintaining, as appropriate, 
derelict structures associated with a defunct log dump. 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 pier superstructure and 400 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 will be removed by vibratory hammer extraction methods 
or by direct pull with cables. The superstructure materials will be 
removed by excavator and/or cables suspended from a barge-mounted 
crane. Maintenance and enhancement of bat roost habitat will require 
the use of power tools and a generator. The proposed activities will 
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

    In accordance with regulations implementing the MMPA, NMFS 
published notice of the proposed IHA in the Federal Register on 
September 12, 2011 (76 FR 56172). A complete description of the action 
was included in that notice and will not be reproduced here.
    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 using barges 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 will be 
removed near but not directly adjacent to haul-outs. Pilings associated 
with remnant log booms used by seals as haul-outs will not be removed. 
An approximate maximum of 60 pilings will be removed per day. The 
vibratory hammer typically vibrates for less than one minute per pile, 
so there will 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, will be recorded 
via global positioning system for divers to relocate for removal at the 
final phase of project activities.
    Operations will 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 contracted work crews 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 will be spent 
removing pier superstructure, which does not involve vibratory 
extraction. NMFS anticipates that the presence of crew and use of a 
vibratory hammer will result in behavioral harassment. Although the 
removal of Chapman Bay Pier superstructure does not involve vibratory 
extraction, it has the potential to result in behavioral harassment due 
to the close proximity of working crew to harbor seal haul-outs.
    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 through flushing of seals from the haul-out.

Comments and Responses

    On September 12, 2011, NMFS published a notice of proposed IHA (76 
FR 56172) in response to DNR's request to take marine mammals 
incidental to restoration activities and requested comments and 
information concerning that request. During the 30-day public comment 
period, NMFS received comments from the Marine Mammal Commission 
(Commission) on the proposed IHA. No comments were received by any 
other members of the public.
    Comment 1: The Commission recommends that NMFS require the DNR to 
monitor the presence and behavior of marine mammals during all proposed 
activities.
    Response: NMFS and the DNR proposed that monitoring be conducted 
for a total of 15 days out of an estimated 40 days total work, as was 
the case for the monitoring plan implemented under the previous year's 
IHA. As it indicated in commenting on the previous year's IHA proposal, 
the Commission believes that this level of monitoring effort is not 
sufficient, and that monitoring should be conducted during 100 percent 
of restoration activity. The Commission states that because marine 
mammal reactions to different sources of disturbance are not always 
predictable, continuous monitoring is the only way to ensure that 
unexpected reactions are detected, documented, and evaluated. In 
support, the Commission gives as an example a scenario where monitoring 
does not coincide with the presence of marine mammals and vessels, thus 
resulting in observations that may not be indicative of actual impacts 
and underestimation of the total number of takes. While it is true that 
marine mammal reactions to a given stimulus are not always predictable, 
the scenario given by the Commission in support is not realistic. The 
15 monitoring days are not selected haphazardly, but are chosen such 
that days of heightened activity are monitored, while the remainder is 
days that are representative of typical levels of activity. Further, 
while dedicated observers are not present during the non-monitored 
days, construction personnel and DNR staff are on-site. As reported 
anecdotally, no significantly deviant behavior or numbers of harbor 
seals were observed on non-monitored days during the previous year's 
IHA. As such, the estimated number of total takes, extrapolated from 
the 14 monitored days to the total 35 work days, likely represents an 
overestimate because the days with heaviest activity were monitored.

[[Page 67421]]

    As described in the IHA proposal and in this document, the 15 days 
will include: (1) The first 5 days of project activities, when the 
contractors are mobilizing and starting use of the vibratory hammer; 
(2) 5 days when activities are occurring nearest to the haul-out area; 
and (3) 5 additional days, to be decided when the schedule of work is 
provided by the contractor. At least one observer will conduct 
monitoring at both the north and south haul-outs. NMFS will specify 
that the 5 additional monitoring days shall be either additional days 
of heightened activity (if they occur) or representative of typical 
levels of activity. 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.
    In addition, NMFS considered and rejected this expanded plan when 
developing the proposed IHA, and provided a discussion of the reasoning 
and justification for that decision in the proposed IHA Federal 
Register notice. Please see that discussion for complete justification 
of this decision. The Commission has not provided any new information 
that would change NMFS' determination that the monitoring plan is 
sufficient when considering benefit to the species and practicability 
for the applicant.
    Comment 2: The Commission recommends that NMFS require the presence 
of approved observers before, during, and after all soft starts of pile 
removal activities to gather the data needed to determine the 
effectiveness of this technique as a mitigation measure.
    Response: The Commission repeats its previous recommendation, but 
limits it to a subset of activity--the soft start of the vibratory 
hammer. The reasoning for this recommendation is that the efficacy of 
the soft start technique has not been empirically verified and, as 
such, NMFS should not assume that this mitigation method is effective. 
While it is reasonable to assume that the gradual introduction of sound 
into the marine environment would alert animals and allow them to 
depart an area before the sound reached levels that could result in 
injury (no sound that could result in injury to pinnipeds will be 
produced by this project; thus, use of soft start is precautionary), 
NMFS concurs that it is improper to assume any reduction in incidental 
take absent empirical verification. As such, in conducting its required 
analyses before determining whether a negligible impact determination 
may be reached, NMFS does not consider that the soft start technique 
will result in any reduction of incidental take. NMFS does consider 
soft start to be a mitigation measure, and accordingly recommends the 
measure to applicants, but does not attempt to quantify the level of 
mitigation that the technique may provide, nor does it rely on any 
assumption of efficacy in reaching its negligible impact determination. 
Further, it is unclear how expanded monitoring, in the absence of 
specific experimental design, would empirically verify the efficacy of 
this technique. The Commission does not provide any information that 
would be useful in this regard.
    For the reasons discussed in NMFS' Federal Register notice of 
proposed IHA, and in the preceding response, an expanded monitoring 
program is not warranted or considered practicable in this instance.
    Comment 3: The Commission recommends that NMFS require the DNR to 
(1) Immediately report all injured or dead marine mammals to NMFS and 
the local stranding network and (2) suspend the construction activities 
if a marine mammal is seriously injured or killed and the injury or 
death could have been caused by those activities (e.g., a fresh carcass 
is discovered). The Commission also recommends that if further measures 
are not likely to reduce the risk of additional serious injuries or 
deaths to a very low level, NMFS should require the DNR to obtain the 
necessary authorization for such takings under section 101(a)(5)(A) of 
the MMPA before resuming its construction activities.
    Response: NMFS concurs with the Commission's recommendation.

Description of Marine Mammals in the Area of the Specified Activity

    The only marine mammal species that may be harassed incidental to 
DNR's restoration activities is the harbor seal. Harbor seals are not 
listed as threatened or endangered under the ESA, nor are they 
categorized as depleted under the MMPA. NMFS presented a more detailed 
discussion of the status of the Washington Inland Waters stock of 
harbor seals and its occurrence in the action area in the notice of the 
proposed IHA (76 FR 56172; September 12, 2011).

Potential Effects of the Activity on Marine Mammals

    Potential effects of DNR's proposed activities are likely to be 
limited to behavioral disturbance of seals at the two log boom haul-
outs located in the action area. 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 will 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 will not result in higher sound pressure levels 
(SPLs) than vibratory installation of piles. As such, NMFS assumes that 
source levels from the proposed activity will 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 will not result in sound levels near 190 dB; 
therefore, injury will not occur. However, noise from vibratory 
extraction will 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 currently used by NMFS for 
Level B 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 will be 
outfitted with a muffling device ensuring that airborne SPLs are no 
higher than 80 dB.
    Potential effects of sound produced by the action on harbor seals 
were detailed in the notice of the proposed IHA (76 FR 56172; September 
12, 2011). In short, while it may be inferred that temporary hearing 
impairment (temporary threshold shift; TTS) could theoretically result 
from the DNR project, it is highly unlikely, due to the source levels 
and duration of exposure possible. It is expected that elevated sound 
will have

[[Page 67422]]

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 will 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). Results of these studies are described in 
the proposed IHA notice for this action. Based on these studies, NMFS 
anticipates that the presence of work crews and vessels will result in 
behavioral harassment, primarily by flushing seals off log booms, or by 
causing short-term avoidance of the area or similar short-term 
behavioral disturbance.
    In summary, based on the preceding discussion and on observations 
of harbor seals during past management activities in Woodard Bay, NMFS 
has determined that impacts to harbor seals during restoration 
activities will 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 
will not occur and TTS is not likely. Alternatively, the presence of 
work crews and vessels, or the introduction of sound into the water, 
could result in short-term avoidance of the area by seals seeking to 
use the haul-out. Abandonment of any portion of the haul-out is not 
expected, 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

    NMFS provided a detailed discussion of the potential effects of 
this action on marine mammal habitat in the notice of the proposed IHA 
(76 FR 56172; September 12, 2011). While marine mammal habitat will be 
temporarily ensonified by low sound levels resulting from habitat 
restoration effort, no impacts to the physical availability of haul-out 
habitat will occur. It is expected that, at most, temporary disturbance 
of habitat potentially utilized by harbor seal prey species may occur 
as piles are removed. The DNR's restoration activities will result in a 
long-term net positive gain for marine mammal habitat, compared with 
minimal short-term, temporary impacts.

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 will continue certain mitigation measures 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 will only occur between November 
and February (i.e., within the designated in-water 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 or 
molting individuals from the specified activity during these sensitive 
time periods will occur. In addition, the following measures will be 
implemented:
     The DNR will approach the action area slowly to alert 
seals to their presence from a distance and will begin pulling piles at 
the farthest location from the log booms used as harbor seal haul-out 
areas;
     The contractor or PSO will 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 will require the contractor to initiate a 
vibratory hammer soft start at the beginning of each work day; and
     The vibratory hammer power pack will 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 1-minute waiting period. 
This method will be repeated twice before commencing with operations at 
full power.
    In addition, and as a result of an unauthorized mortality resulting 
from entanglement, 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 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; and (3) the 
practicability of the measure for applicant implementation, including 
consideration of personnel safety.
    Injury, serious injury, or mortality to pinnipeds could likely only 
potentially result from startling animals inhabiting the haul-out into 
a stampede reaction. However, 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 will 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 will 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 
an atypical event that was outside

[[Page 67423]]

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, information 
from monitoring DNR's implementation of the mitigation measures as 
prescribed under the previous IHA, and NMFS' evaluation of the 
applicant's proposed measures and other measures considered by NMFS, 
NMFS has 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.

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 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 will occur for a total 
of 15 out of the 40 work days. Monitoring will occur 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 will be performed by at 
least one protected species observer (PSO). The PSO will (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 or 
other restoration activities, and for 30 minutes after crew leave the 
site (or until dark).
    The PSO will record incidental takes (i.e., numbers of seals 
flushed from the haul-out). This information will be determined by 
recording the number of seals using the haul-out on each monitoring day 
prior to the start of 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 will also be noted. In addition, the 
PSO will 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 will submit a 
monitoring report to NMFS that will include a summary of findings and 
copies of field data sheets and relevant daily logs from the 
contractor.

Estimated Take by Incidental Harassment

    NMFS is authorizing DNR to take harbor seals, by Level B harassment 
only, incidental to specified restoration activities. These activities, 
involving extraction of creosoted timber piles and removal of derelict 
pier superstructure, are expected to harass marine mammals present in 
the vicinity of the project site through behavioral disturbance only. 
Estimates of the number of marine mammals that may be harassed by the 
activities are based upon actual counts of harbor seals harassed during 
days monitored under the previous IHA, and the estimated total number 
of working days. Methodology of take estimation was discussed in detail 
in NMFS' notice of proposed IHA (76 FR 56172; September 12, 2011).
    DNR considers that 40 total work days may occur, potentially 
resulting in incidental harassment of harbor seals. Using the average 
count from monitoring under the previous IHA (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 or stocks, NMFS considers a 
number of criteria regarding the impact of the proposed action, 
including the number, nature, intensity, and duration of take that may 
occur. DNR's restoration activities may harass only those pinnipeds 
hauled out in Woodard Bay, a relatively small and localized group of 
animals. No mortality or injury is anticipated or proposed for 
authorization, nor will the proposed action result in long-term impacts 
such as permanent abandonment of the haul-out. Seals will likely become 
alert or, at most, flush into the water in reaction to the presence of 
crews and equipment. However, seals have been observed as becoming 
habituated to physical presence of work crews, and quickly re-inhabit 
haul-outs upon cessation of stimulus. In addition, the proposed 
restoration actions may provide improved habitat function for seals, 
both indirectly through a healthier prey base and directly through 
restoration and maintenance of man-made haul-out habitat. No impacts 
will be expected at the population or stock level.
    No pinniped stocks known from the action area are listed as 
threatened or endangered under the ESA or determined to be strategic or 
depleted under the MMPA. Recent data suggests that harbor seal 
populations have reached carrying capacity.
    Although the estimated take of 2,080 is relatively high in 
comparison with the estimated population of 14,612 for the Washington 
Inland Waters stock of harbor seals (14 percent), the number of 
individual seals harassed will be low, with individual seals likely 
harassed multiple times. In addition, although the estimated take is 
based upon the best scientific information available, NMFS considers 
the estimate to be highly conservative. For similar restoration 
activities in 2010, estimated actual take was much lower (875 seals, 
albeit over 35 work days rather than the 40 estimated for 2011).
    Mitigation measures will minimize onset of sudden and potentially 
dangerous reactions as well as overall disturbance. In addition, 
restoration work is not likely to affect seals at both

[[Page 67424]]

haul-outs simultaneously, based on location of the crew and barge. 
Further, although seals may initially flush into the water, based on 
previous disturbance studies and maintenance activity at the haul-outs, 
the DNR expects seals will quickly habituate to piling and structure 
removal operations. For these reasons no long term or permanent 
abandonment of the haul-out is anticipated. The proposed action is not 
anticipated to result in injury, serious injury, or mortality to any 
harbor seal. The DNR will not conduct habitat restoration operations 
during the pupping and molting season; therefore, no pups or molting 
individuals will be affected by the proposed action and no impacts to 
any seals will occur as a result of the specified activity during these 
sensitive time periods.
    Based on the foregoing analysis, behavioral disturbance to 
pinnipeds in Woodard Bay will be of low intensity and limited duration. 
To ensure minimal disturbance, DNR will implement the mitigation 
measures described previously, which NMFS has determined will serve as 
the means for effecting the least practicable adverse effect on marine 
mammal stocks or populations and their habitat. NMFS finds that DNR's 
restoration activities will result in the incidental take of small 
numbers of marine mammals, and that the requested number of takes will 
have no more than a negligible impact on the affected species and 
stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    There are no ESA-listed marine mammals found in the action area; 
therefore, no consultation under the ESA is required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS prepared an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to the human environment resulting from issuance of an IHA to DNR. NMFS 
signed a Finding of No Significant Impact on October 27, 2010. NMFS has 
reviewed the proposed application and determined that there are no 
substantial changes to the proposed action or new environmental impacts 
or concerns. Therefore, NMFS has determined that a new or supplemental 
EA or Environmental Impact Statement is unnecessary. The EA referenced 
above is available for review at https://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Determinations

    NMFS has determined that the impact of conducting the specific 
activities described in this notice and in the IHA request in Woodard 
Bay, Washington may result, at worst, in temporary modifications in 
behavior (Level B harassment) of small numbers of marine mammals. 
Further, this activity is expected to result in a negligible impact on 
the affected stock of marine mammals. The provision requiring that the 
activity not have an unmitigable impact on the availability of the 
affected species or stock of marine mammals for subsistence uses is not 
implicated for this action.

Authorization

    As a result of these determinations, NMFS has issued an IHA to DNR 
to conduct habitat restoration activities in Woodard Bay during the 
period of November 1, 2011, through February 28, 2012, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: October 26, 2011.
Wanda L. Cain,
Chief, Planning and Program Coordination Division, Office of Protected 
Resources, National Marine Fisheries Service.
[FR Doc. 2011-28307 Filed 10-31-11; 8:45 am]
BILLING CODE 3510-22-P