Taking of Marine Mammals Incidental to Specified Activities; Bremerton Ferry Terminal Wingwall Replacement Project, 11844-11856 [2013-03808]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 34 (Wednesday, February 20, 2013)]
[Notices]
[Pages 11844-11856]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03808]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC360


Taking of Marine Mammals Incidental to Specified Activities; 
Bremerton Ferry Terminal Wingwall Replacement Project

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

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

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SUMMARY: NMFS has received a request from the Washington State 
Department of Transportation (WSDOT) Ferries Division (WSF) for an 
authorization to take small numbers of six species of marine mammals, 
by Level B harassment, incidental to proposed construction activities 
for the replacement of wingwalls at the Bremerton ferry terminal in 
Washington State. Pursuant to the Marine Mammal Protection Act (MMPA), 
NMFS is requesting comments on its proposal to issue an authorization 
to WSDOT to incidentally take, by harassment, small numbers of marine 
mammals for a period of 1 year.

DATES: Comments and information must be received no later than March 
22, 2013.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910. The mailbox address for providing email 
comments is itp.guan@noaa.gov. NMFS is not responsible for email 
comments sent to addresses other than the one provided here. Comments 
sent via email, including all attachments, must not exceed a 25-
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 
(for example, name, address, etc.) 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 may be obtained by writing to the address 
specified above 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: Shane Guan, 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 
provided to the public for review.
    An 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 U.S. can apply for a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. 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.

Summary of Request

    On August 14, 2012, WSDOT submitted a request to NOAA requesting an 
IHA for the possible harassment of small numbers of six marine mammal 
species incidental to construction associated with the replacement of 
wingwalls at the Bremerton ferry terminal in Washington State. On 
December 4, 2012, WSDOT submitted a revised IHA application. The action 
discussed in this document is based on WSDOT's December 4, 2012, IHA 
application. NMFS is proposing to authorize the Level B harassment of 
the following marine mammal species: harbor seal, California sea lion, 
Steller sea lion, killer whale, gray whale, and humpback whale.

[[Page 11845]]

Description of the Specified Activity

    Wingwalls are structures that protect the vehicle transfer span 
from direct vessel impact and help guide and hold the vessel in 
position when the ferry is docked. There are two types of wingwalls 
common at WSF ferry terminals: timber and steel. Timber wingwalls are 
older structures, typically constructed of creosote treated pilings 
lashed together by galvanized steel rope, and reinforced as needed with 
13'' plastic/steel core piles. The current timber wingwalls at the 
Bremerton terminal are near the end of their design life, and must be 
replaced with steel wingwalls to ensure safe and reliable functioning 
of the terminal.
    Steel wingwalls are designed similarly to timber wingwalls in that 
they contain two rows of plumb piling and one row of batter piling or a 
third row of plumb piling. A rubber fender between the first and second 
rows of plumb piling absorbs much of the energy and returns the front 
row to its original vertical position after an impact. The second row 
of plumb piling is driven deeper into the sediment and braced with 
batter piling to minimize movement of the structure. Both pile rows are 
welded together with horizontal I-beams to which rubbing timbers are 
attached faced with ultra-high molecular weight (UHMW) plastic, which 
acts as a rub surface for the ferry. They are designed for a 25-year 
life span.
    The proposed project at the Bremerton Ferry Terminal is to replace 
the existing Slip 2 timber wingwalls with new standard steel design 
wingwalls.

Overview of the Planned Activities

    The following construction activities are anticipated for the 
proposed wingwall replacement project:
     Remove two timber wingwalls (112 13-inch timber piles and 
100 tons of creosote-treated timber) with a vibratory hammer, direct 
pull or clamshell removal. Vibratory pile-drive eight 24- and two 30-
inch hollow steel piles for each wingwall (20 piles total). Attach rub 
timbers to new wingwall faces.
     A total of 100 tons of creosote-treated timbers will be 
removed from the marine environment. The total mudline footprint of the 
existing wingwalls is 206 square feet (ft\2\). The total mudline 
footprint of the new wingwalls will be 95 ft\2\, a reduction of 111 
ft\2\. The new wingwalls will have 20 piles, compared to the existing 
wingwalls, which have approximately 112 tightly clustered piles with no 
space between them. The footprint of the new steel wingwalls will be 
more open, allowing fish movement between the piles.

Construction Activity Elements

1. Vibratory Hammer Removal
    Vibratory hammer extraction is a common method for removing timber 
piling. A vibratory hammer is a large mechanical device mostly 
constructed of steel (weighing 5 to 16 tons) that is suspended from a 
crane by a cable. It is attached to a derrick and positioned on the top 
of a pile. The pile is then unseated from the sediments by engaging the 
hammer, creating a vibration that loosens the sediments binding the 
pile, and then slowly lifting up on the hammer with the aid of the 
crane.
    Once unseated, the crane would continue to raise the hammer and 
pull the pile from the sediment. When the pile is released from the 
sediment, the vibratory hammer is disengaged and the pile is pulled 
from the water and placed on a barge for transfer upland. Vibratory 
removal would take approximately 10 to 15 minutes per pile, depending 
on sediment conditions.
2. Direct Pull and Clamshell Removal
    Older timber pilings are particularly prone to breaking at the 
mudline because of damage from marine borers and vessel impacts and 
must be removed because they can interfere with the installation of new 
pilings. In some cases, removal with a vibratory hammer is not possible 
if the pile is too fragile to withstand the hammer force. Broken or 
damaged piles may be removed by wrapping the piles with a cable and 
pulling them directly from the sediment with a crane. If the piles 
break below the waterline, the pile stubs would be removed with a 
clamshell bucket, a hinged steel apparatus that operates like a set of 
steel jaws. The bucket would be lowered from a crane and the jaws would 
grasp the pile stub as the crane pulled up. The broken piling and stubs 
would be loaded onto the barge for off-site disposal. Clamshell removal 
would be used only if necessary. Direct pull and clamshell removal are 
not expected to produce noise that could impact marine mammals.
3 Vibratory Hammer Installation
    Vibratory hammers are commonly used in steel pile installation 
where sediments allow and involve the same vibratory hammer used in 
pile extraction. The pile is placed into position using a choker and 
crane, and then vibrated between 1,200 and 2,400 vibrations per minute. 
The vibrations liquefy the sediment surrounding the pile allowing the 
pile to penetrate to the required seating depth. The type of vibratory 
hammer that will be used for the project will likely be an APE 400 King 
Kong (or equivalent) with a drive force of 361 tons.

Sound Levels From Proposed Construction Activity

    As mentioned earlier, the proposed project includes vibratory 
removal of 13-inch timber piles, and vibratory driving of 24-inch and 
30-inch hollow steel piling.
    No source level data is available for 13-inch timber piles. Based 
on in-water measurements at the WSF Port Townsend Ferry Terminal 
(Laughlin 2011), removal of 12-inch timber piles generated 149 to 152 
dBrms re 1 [mu]Pa with an overall average root-mean-square 
(RMS) value of 150 dBrms re 1 [mu]Pa measured at 16 meters. 
A worst-case noise level for vibratory removal of 13-inch timber piles 
will be 152 dBrms re 1 [mu]Pa at 16 m.
    Based on in-water measurements at the WSF Friday Harbor Ferry 
Terminal, vibratory pile driving of a 24-inch steel pile generated 162 
dBrms re 1 [mu]Pa measured at 10 meters (Laughlin 2010a).
    Based on in-water measurements during a vibratory test pile at the 
WSF Port Townsend Ferry Terminal, vibratory pile driving of a 30-inch 
steel pile generated 170 dBrms re 1 [mu]Pa (overall 
average), with the highest measured at 174 dBrms re 1 [mu]Pa 
measured at 10 meters (Laughlin 2010b). A worst-case noise level for 
vibratory driving of 30-inch steel piles will be 174 dBrms 
re 1 [mu]Pa at 10 m.
    Using practical spreading model to calculate sound propagation 
loss, Table 1 provides the estimated distances where the received 
underwater sound levels drop to 120 dBrms re 1 [mu]Pa, which 
is the threshold that is currently used for determining Level B 
behavioral harassment (see below) from non-impulse noise sources based 
on measurements of different pile sizes.

[[Page 11846]]



Table 1--Estimated Distances Where Vibratory Pile Driving Received Sound
 Levels Drop to 120 dBrms re 1 [mu]Pa Based on Measurements of Different
                               Pile Sizes
------------------------------------------------------------------------
                                                         Distance to 120
        Pile size (inch)         Measured source levels     dBrms re 1
                                                           [mu]Pa (km)
------------------------------------------------------------------------
13.............................  152 dBrms re 1 [mu]Pa               2.2
                                  @ 16 m.
24.............................  162 dBrms re 1 [mu]Pa               6.3
                                  @ 10 m.
30.............................  174 dBrms re 1 [mu]Pa              39.8
                                  @ 10 m.
------------------------------------------------------------------------

    However, land mass is intersected before the extent of vibratory 
pile driving is reached, at a maximum of 4.7 km (2.9 miles) at the 
Bremerton Terminal proposed construction area.
    For airborne noise, currently NMFS uses an in-air noise disturbance 
threshold of 90 dBrms re 20 [mu]Pa (unweighted) for harbor 
seals, and 100 dBrms re 20 [mu]Pa (unweighted) for all other 
pinnipeds. Using the above aforementioned measurement of 97.8 
dBrms re 20 [mu]Pa @ 50 ft, and attenuating at 6 dBA per 
doubling distance, in-air noise from vibratory pile removal and driving 
will attenuate to the 90 dBrms re 20 [mu]Pa within 
approximately 37 m, and the 100 dBrms re 20 [mu]Pa within 
approximately 12 m.

Dates, Duration, and Region of Activity

    In-water construction is planned to take place between September 1, 
2013, and February 15, 2014.
    The number of days it will take to remove and install the pilings 
largely depends on the condition of the piles being removed and the 
difficulty in penetrating the substrate during pile installation. 
Duration estimates of each of the pile driving elements follow:
     The daily construction window for pile removal or driving 
would begin no sooner than 30 minutes after sunrise to allow for 
initial marine mammal monitoring, and would end at sunset (or soon 
after), when visibility decreases to the point that effective marine 
mammal monitoring is not possible.
     Vibratory pile removal of the existing timber piles would 
take approximately 10 to 15 minutes per pile. Vibratory removal would 
take less time than driving, because piles are vibrated to loosen them 
from the soil, then pulled out with the vibratory hammer turned off. 
Assuming the worst case of 15 minutes per pile (with no direct pull or 
clamshell removal), removal of 112 piles would take 28 hours over four 
days of pile removal (Table 2).
     Vibratory pile driving of the steel piles would take 
approximately 20 minutes per pile, with three to five piles installed 
per day. Assuming 20 minutes per pile, and three piles per day, driving 
of 20 piles would take 6 hours 45 minutes over seven days.
    The total worst-case time for pile removal is four days, and seven 
days for pile installation. The actual number of pile-removal/driving 
days is expected to be less (Table 2).

  Table 2--Worst Case Pile Removal and Driving for the Proposed Bremerton Wingwalls Dolphin Replacement Project
----------------------------------------------------------------------------------------------------------------
                                                                  Maximum number
                        Removal/Installed                            of piles      Time  (hrs.)        Days
----------------------------------------------------------------------------------------------------------------
Vibratory pile removal..........................................             112           28                  4
Vibratory pile installation.....................................              20            6.75               7
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Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the proposed construction area include Pacific harbor seal 
(Phoca vitulina richardsi), California sea lion (Zalophus 
californianus), Steller sea lion (Eumetopias jubatus), killer whale 
(Orcinus orca), gray whale (Eschrichtius robustus), and humpback whale 
(Megaptera novaeangliae).
    General information on the marine mammal species found in 
California waters can be found in Caretta et al. (2011), which is 
available at the following URL: https://www.nmfs.noaa.gov/pr/pdfs/sars/po2011.pdf. Refer to that document for information on these species. 
Specific information concerning these species in the vicinity of the 
proposed action area is provided below.

Harbor Seal

    Harbor seals are members of the true seal family (Phocidae). For 
management purposes, differences in mean pupping date (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 State (including Hood Canal, Puget 
Sound, Georgia Basin and the Strait of Juan de Fuca out to Cape 
Flattery), (2) outer coast of Oregon and Washington, and (3) California 
(Carretta et al. 2011).
    Pupping seasons vary by geographic region. For the southern Puget 
Sound region, pups are born from late June through September. After 
October 1 all pups in the inland waters of Washington are weaned.
    Harbor seals, like all pinnipeds, communicate both on land and 
underwater. Harbor seals have the broadest auditory bandwidth of the 
pinnipeds, estimated by Southall et al. (2007) as between 75 hertz (Hz) 
and 75 kilohertz (kHz) for ``functional'' in-water hearing and between 
75 Hz and 30 kHz for ``functional'' in-air hearing. At lower 
frequencies (below 1 kHz) sounds must be louder to be heard (Kastak and 
Schusterman 1998). Studies indicated that pinnipeds are sensitive to a 
broader range of sound frequencies in-water than in-air (Southall et 
al. 2007). Hearing capabilities for harbor seals in-water are 25 to 30 
dB better than in-air (Kastak and Schusterman 1998).
    Of the two pinniped species that commonly occur within the region 
of activity, harbor seals are the most

[[Page 11847]]

numerous and the only one that breeds in the inland marine waters of 
Washington (Calambokidis and Baird 1994). In 1999, Jeffries et al. 
(2003) recorded a mean count of 9,550 harbor seals in Washington's 
inland marine waters, and estimated the total population to be 
approximately 14,612 animals (including the Strait of Juan de Fuca). 
The population across Washington increased at an average annual rate of 
10 percent between 1991 and 1996 (Jeffries et al. 1997) and is thought 
to be stable (Jeffries et al. 2003).
    The nearest documented harbor seal haulout site to the Bremerton 
ferry terminal is 8.5 km north and west (shoreline distance). The 
number of harbor seals using the haulout is less than 100.
    From July 2006 to January 2007, a consultant completed 10 at-sea 
surveys in preparation for replacement of the WSDOT Manette Bridge, 
located in Bremerton. Marine mammals were recorded during these 
surveys: 29 harbor seals were observed in an area approximately the 
same as the Bremerton wingwalls project ZOI. Seals observed outside of 
the Bremerton ZOI were subtracted from the total observed (36) during 
this project. According to the dates on harbor seal observation tags, 
the most seals seen in any one day is two (given that two tags cover 
others, the dates may be the same underneath).
    From August 2010 to January 2012, marine mammal monitoring was 
implemented during construction of the Manette Bridge. Counts were 
conducted only during pile removal/driving days, not every day of the 
month. Counts were recorded in blocks of working days (not counts per 
day). The highest number of harbor seals observed was 93 over three 
days (10/18-20, 2011). The highest number observed during one day was 
59 (10/18/2011). It was assumed that these included multiple 
observations of the same animal by different observers (David Evans & 
Assoc. Inc. 2011a; 2011b).
    Harbor seals are not listed as endangered or threatened under the 
ESA or as depleted under the MMPA. They are not considered a strategic 
stock under the MMPA,

California Sea Lion

    NMFS recognizes three stocks of California sea lion based on their 
geographic distribution: (1) The U.S. stock begins at the U.S./Mexico 
border and extends northward into Canada; (2) the Western Baja 
California stock extends from the U.S./Mexico border to the southern 
tip of the Baja California Peninsula; and (3) the Gulf of California 
stock, which includes the Gulf of California from the southern tip of 
the Baja California peninsula and across to the mainland and extends to 
southern Mexico (Lowry et al. 1992). California sea lions in the 
Washington State belong to the U.S. stock.
    The U.S. stock was estimated at 296,750 in the 2011 Stock 
Assessment Report (SAR) and may be at carrying capacity (Carretta et 
al. 2011). The number of California sea lions in the San Juan Islands 
and the adjacent Strait of Juan de Fuca totaled fewer than 3,000 in the 
mid-1980s (Bigg 1985; Gearin et al. 1986). In 1994, it was reported 
that the number of sea lions had stabilized or decreased in some areas 
(Gearin et al. 1988; Calambokidis and Baird 1994). More recently, 3,000 
to 5,000 animals are estimated to move into northwest waters (both 
Washington and British Columbia) during the fall (September) and remain 
until the late spring (May) when most return to breeding rookeries in 
California and Mexico (Jeffries et al. 2000; WSDOT 2012). Peak counts 
of over 1,000 animals have been made in Puget Sound (Jeffries et al. 
2000).
    The closest documented California sea lion haulout site to the 
Bremerton Ferry Terminal is the Puget Sound Naval Shipyard security 
barrier, located approximately 435 m SW of the ferry terminal. The next 
closest documented California sea lion haulout sites to the Bremerton 
Ferry Terminal are navigation buoys and net pens in Rich Passage, 
approximately nine and ten km east of the terminal, respectively. The 
number of California sea lions using each haulout is less than 10.
    From August 2010 to February 2011, marine mammal monitoring was 
implemented during construction of the Manette Bridge. Counts were 
conducted only during pile removal/driving days, not every day of the 
month. Counts were recorded in blocks of working days (not counts per 
day). The highest number of California sea lions observed was 21 
(September) over six days, an average of 3.5/day (David Evans & Assoc. 
Inc. 2011a; 2011b).
    The Bremerton Puget Sound Naval Shipyard (PSNS) is located to the 
west of the Bremerton Ferry Terminal. Since November 2010, PSNS 
personnel have been conducting monthly counts of the number of sea 
lions that use the security barrier floats as a haulout. As of June 13, 
2012, the highest count has been 144 observed during one day in 
November 2011. All are believed to be California sea lions.
    California sea lions do not avoid areas with heavy or frequent 
human activity, but rather may approach certain areas to investigate. 
This species typically does not flush from a buoy or haulout if 
approached.
    California sea lions are not listed as endangered or threatened 
under the ESA or as depleted under the MMPA. They are not considered a 
strategic stock under the MMPA,

Steller Sea Lion

    Steller sea lions comprise two recognized management stocks 
(eastern and western), separated at 144[deg] W longitude (Loughlin 
1997). Only the eastern stock is considered here because the western 
stock occurs outside of the geographic area of the proposed activity. 
Breeding rookeries for the eastern stock are located along the 
California, Oregon, British Columbia, and southeast Alaska coasts, but 
not along the Washington coast or in inland Washington waters (Angliss 
and Outlaw 2007). Steller sea lions primarily use haulout sites on the 
outer coast of Washington and in the Strait of Juan de Fuca along 
Vancouver Island in British Columbia. Only sub-adults or non-breeding 
adults may be found in the inland waters of Washington (Pitcher et al. 
2007).
    The eastern stock of Steller sea lions is estimated to be between 
58,334 and 72,223 individuals based on 2006 through 2009 pup counts 
(Allens and Angliss 2011). Washington's estimate including the outer 
coast is 651 individuals (non-pups only) (Pitcher et al. 2007). 
However, recent estimates are that 1,000 to 2,000 individuals enter the 
Strait of Juan de Fuca during the fall and winter months (WSDOT 2012).
    Steller sea lions in Washington State decline during the summer 
months, which correspond to the breeding season at Oregon and British 
Columbia rookeries (approximately late May to early June) and peak 
during the fall and winter months (Jeffries et al. 2000). A few Steller 
sea lions can be observed year-round in Puget Sound/Georgia Basin 
although most of the breeding age animals return to rookeries in the 
spring and summer.
    For Washington inland waters, Steller sea lion abundances vary 
seasonally with a minimum estimate of 1,000 to 2,000 individuals 
present or passing through the Strait of Juan de Fuca in fall and 
winter months. However, the number of haulout sites has increased in 
recent years. The nearest documented Steller sea lion haulout site to 
the Bremerton ferry terminal are the Orchard Rocks in Rich Passage, 
approximately nine and ten km east of the terminal, respectively 
(Kitsap Transit 2012).
    From July 2006 to January 2007, a consultant completed 10 at-sea 
surveys in preparation for replacement of the

[[Page 11848]]

WSDOT Manette Bridge that is located in Bremerton. Marine mammals were 
recorded during these surveys: no Stellar sea lions were observed (USDA 
2007).
    From August 2010 to February 2011, marine mammal monitoring was 
implemented during construction of the Manette Bridge. No Stellar sea 
lions were observed (David Evans & Assoc. Inc. 2011).
    Steller sea lions were listed as threatened range-wide under the 
ESA on November 26, 1990 (55 FR 49204). After division into two stocks, 
the western stock was listed as endangered under the ESA on May 4, 1997 
and the eastern stock remained classified as threatened (62 FR 24345). 
On August 27, 1993, NMFS published a final rule designating critical 
habitat for the Steller sea lion (NMFS 1993). No critical habitat has 
been designated in Washington (NMFS 1993). Critical habitat is 
associated with breeding and haulout areas in Alaska, California, and 
Oregon (NMFS 1993).
    On June 29, 2010, NMFS initiated a review of the eastern stock of 
Steller sea lion status to reassess the listing classification under 
the ESA (75 FR 37385). Based on the comprehensive review, NMFS proposed 
to delist the eastern stock of Steller sea lion on April 18, 2012 (77 
FR 23209).
    Steller sea lions are listed as depleted under the MMPA. Both 
stocks are thus classified as strategic.

Killer Whale

    Two sympatric ecotypes of killer whales are found within the 
proposed activity area: transient and resident. These types vary in 
diet, distribution, acoustic calls, behavior, morphology, and 
coloration (Baird 2000; Ford et al. 2000). The ranges of transient and 
resident killer whales overlap; however, little interaction and high 
reproductive isolation occurs among the two ecotypes (Barrett-Lennard 
2000; Barrett-Lennard and Ellis 2001; Hoelzel et al. 2002. Resident 
killer whales are primarily piscivorous, whereas transients primarily 
feed on marine mammals, especially harbor seals (Baird and Dill 1996). 
Resident killer whales also tend to occur in larger (10 to 60 
individuals), stable family groups known as pods, whereas transients 
occur in smaller (less than 10 individuals), less structured pods.
    One stock of transient killer whale, the West Coast Transient 
stock, occurs in Washington State. West Coast transients primarily 
forage on harbor seals (Ford and Ellis 1999), but other species such as 
porpoises and sea lions are also taken (NMFS 2008a). Two stocks of 
resident killer whales occur in Washington State: the Southern Resident 
and Northern Resident stocks. Southern Residents occur within the 
activity area, in the Strait of Juan de Fuca, Strait of Georgia, and in 
coastal waters off Washington and Vancouver Island, British Columbia 
(Ford et al. 2000). Northern Residents occur primarily in inland and 
coastal British Columbia and Southeast Alaska waters and rarely venture 
into Washington State waters. Little interaction (Ford et al. 2000) or 
gene flow (Barrett-Lennard 2000; Barrett-Lennard and Ellis 2001; 
Hoelzel et al. 2004) is known to occur between the two resident stocks.
    The West Coast Transient stock, which includes individuals from 
California to southeastern Alaska, was estimated to have a minimum 
number of 354 (NMFS 2010b). Trends in abundance for the West Coast 
Transients were unavailable in the most recent stock assessment report 
(Angliss and Outlaw 2007).
    The Southern Resident stock was first recorded in a 1974 census, at 
which time the population comprised 71 whales. This population peaked 
at 97 animals in 1996, declined to 79 by 2001 (Center for Whale 
Research 2011), and then increased to 89 animals by 2006 (Carretta et 
al. 2007a). As of October 2012, the population collectively numbers 85 
individuals: J pod has 25 members, K pod has 20 members, and L pod has 
40 members (Whale Museum 2012b).
    Both West Coast Transient and the Southern Resident stocks are 
found within Washington inland waters. Individuals of both forms have 
long-ranging movements and thus regularly leave the inland waters 
(Calambokidis and Baird 1994).
    The West Coast Transient stock occurs in California, Oregon, 
Washington, British Columbia, and southeastern Alaskan waters. Within 
the inland waters, they may frequent areas near seal rookeries when 
pups are weaned (Baird and Dill 1995).
    There are only two reports of Transient killer whale in the 
Bremerton terminal area. From May 18-19 of 2004, a group of up to 12 
individuals entered Sinclair and Dyes Inlet. From May 26-27 of 2010, a 
group of up to five individuals again entered the same area (Orca 
Network 2012b).
    Southern Residents are documented in coastal waters ranging from 
central California to the Queen Charlotte Islands, British Columbia 
(NMFS 2008a). They occur in all inland marine waters within the 
activity area. While in the activity area, resident killer whales 
generally spend more time in deeper water and only occasionally enter 
water less than 15 feet deep (Baird 2000). Distribution is strongly 
associated with areas of greatest salmon abundance, with heaviest 
foraging activity occurring over deep open water and in areas 
characterized by high-relief underwater topography, such as subsurface 
canyons, seamounts, ridges, and steep slopes (Wiles 2004).
    West Coast Transients are documented intermittently year-round in 
Washington inland waters. Records from 1976 through 2006 document 
Southern Residents in the inland waters of Washington during the months 
of March through June and October through December, with the primary 
area of occurrence in inland waters north of Admiralty Inlet, located 
in north Puget Sound (The Whale Museum 2008a).
    Beginning in May or June and through the summer months, all three 
pods (J, K, and L) of Southern Residents are most often located in the 
protected inshore waters of Haro Strait (west of San Juan Island), in 
the Strait of Juan de Fuca, and Georgia Strait near the Fraser River. 
Historically, the J pod also occurred intermittently during this time 
in Puget Sound; however, records from The Whale Museum (2008a) from 
1997 through 2007 show that J pod did not enter Puget Sound south of 
the Strait of Juan de Fuca from approximately June through August.
    In fall, all three pods occur in areas where migrating salmon are 
concentrated such as the mouth of the Fraser River. They may also enter 
areas in Puget Sound where migrating chum and Chinook salmon are 
concentrated (Osborne 1999). In the winter months, the K and L pods 
spend progressively less time in inland marine waters and depart for 
coastal waters in January or February. The J pod is most likely to 
appear year-round near the San Juan Islands, and in the fall/winter, in 
the lower Puget Sound and in Georgia Strait at the mouth of the Fraser 
River.
    Under contract with the NMFS, the Friday Harbor Whale Museum keeps 
a database of verified marine mammal sightings by location quadrants. 
Whale sightings do not indicate sightings of individual animals. 
Instead, sightings can be any number of animals. Between 1990 and 2008, 
in the September to February window proposed for the Bremerton project, 
an average of 2.9 SR killer whale sightings/month were annually 
reported for Quad 411 (which encompasses the Bremerton action area) 
(WSDOT 2012).
    Between September 2009 and February 2012, there was one unconfirmed 
report of a single SR killer

[[Page 11849]]

whale in the Bremerton action area (January 2009) during the proposed 
in-water work window for this project (Orca Network 2012b). Based on 
this information, the possibility of encountering killer whales during 
the Bremerton project is low to medium, depending on the actual work 
month.
    In one highly unusual 1997 event, 19 L pod individuals entered 
Sinclair and Dyes Inlet, and remained in Dyes Inlet for 30 days, from 
October 21 to November 19. As this event unfolded, whale specialists 
became increasingly concerned that the whale's exit was blocked by 
shallow water and the need to pass under several bridges, even though 
they had passed under the same bridges to enter the inlet. After 
several individuals displayed signs of weight loss, hazing was 
considered to drive them out of the inlet. However, on day 30 the group 
exited on their own (Kitsap Sun 2012).
    Killer whales are protected under the MMPA of 1972. The West Coast 
Transient stock is not designated as depleted under the MMPA or listed 
as ``threatened or ``endangered'' under the ESA. The Southern Resident 
stock is listed as an endangered distinct population segment (DPS) 
under the ESA. On November 29, 2006, NMFS published a final rule 
designating critical habitat for the Southern Resident killer whale DPS 
(71 FR 69054). Both Puget Sound and the San Juan Islands are designated 
as core areas of critical habitat under the ESA, but areas less than 20 
feet deep relative to extreme high water are not designated as critical 
habitat (71 FR 69054). A final recovery plan for southern residents was 
published in January of 2008 (NMFS 2008a).

Gray Whale

    Gray whales are recorded in Washington waters during feeding 
migrations between late spring and autumn with occasional sightings 
during winter months (Calambokidis et al. 1994, 2002; Orca Network 
2011).
    Early in the 20th century, it is believed that commercial hunting 
for gray whales reduced population numbers to below 2,000 individuals 
(Calambokidis and Baird 1994). After listing of the species under the 
ESA in 1970, the number of gray whales increased dramatically resulting 
in their delisting in 1994. Population surveys since the delisting 
estimate that the population fluctuates at or just below the carrying 
capacity of the species (~26,000 individuals) (Rugh et al. 1999; 
Calambokidis et al. 1994; Angliss and Outlaw 2007).
    Gray whales migrate within 5 to 43 km of the coast of Washington 
during their annual north/south migrations (Green et al. 1995). Gray 
whales migrate south to Baja California where they calve in November 
and December, and then migrate north to Alaska from March through May 
(Rice et al. 1984; Rugh et al. 2001) to summer and feed. A very few 
gray whales are observed in Washington inland waters between the months 
of September and January, with peak numbers of individuals from March 
through May. Peak months of gray whale observations in the area of 
activity occur outside the proposed work window of September through 
February. The average tenure within Washington inland waters is 47 days 
and the longest stay was 112 days.
    Although typically seen during their annual migrations on the outer 
coast, a regular group of gray whales annually comes into the inland 
waters at Saratoga Passage and Port Susan from March through May to 
feed on ghost shrimp (Weitkamp et al. 1992). During this time frame 
they are also seen in the Strait of Juan de Fuca, the San Juan Islands, 
and areas of Puget Sound, although the observations in Puget Sound are 
highly variable between years (Calambokidis et al. 1994).
    Between December 2002 and May 2012, there were three reports of 
gray whale in the Bremerton area during the proposed in-water work 
window months for this project: January 8 and 10, 2008 (likely the same 
individual); November 28-29, 2008; and December 2-6, 2009 (Orca Network 
2012b). There were also two reports of gray whale stranding, one on May 
3, 2005 at the US Navy Puget Sound Naval Shipyard to the west of the 
Bremerton terminal (Cascadia 2005), and one on a beach in the Bremerton 
area on July 27, 2011. Typically 4-6 gray whales strand every year in 
Washington State (Cascadia 2011).
    The Eastern North Pacific stock of gray whales was removed from 
listing under the ESA in 1994 after a 5-year review by NOAA Fisheries 
(Angliss and Outlaw 2007). In 2001 NOAA Fisheries received a petition 
to relist the stock under the ESA, but it was determined that there was 
not sufficient information to warrant the petition (Angliss and Outlaw 
2007).

Humpback Whale

    Humpback whales are wide-ranging baleen whales that can be found 
virtually worldwide. They summer in temperate and polar waters for 
feeding, and winter in tropical waters for mating and calving. 
Humpbacks are vulnerable to whaling due to their tendency to feed in 
near shore areas. Recent studies have indicated that there are three 
distinct stocks of humpback whale in the North Pacific: California-
Oregon-Washington (formerly Eastern North Pacific), Central North 
Pacific and Western North Pacific (NMFS 2011e).
    The California-Oregon-Washington (CA-OR-WA) stock calve and mate in 
coastal Central America and Mexico and migrate up the coast from 
California to southern British Columbia in the summer and fall to feed 
(NMFS 1991; Marine Mammal Commission 2003; Carretta et al. 2011). 
Although infrequent, interchange between the other two stocks and the 
Eastern North Pacific stock occurs in breeding areas (Carretta et al. 
2011). Few Eastern North Pacific stock humpback whales are seen in 
Puget Sound, but more frequent sightings occur in the Strait of Juan de 
Fuca and near the San Juan Islands. Most sightings are in spring and 
summer. Humpback whales feed on krill, small shrimp-like crustaceans 
and various kinds of small fish.
    The 2007/2008 estimate of 2,043 humpback whales is the best 
estimate for abundance for this stock, though it does exclude some 
whales in Washington (Calambokidis et al. 2009).
    Historically, humpback whales were common in inland waters of Puget 
Sound and the San Juan Islands (Calambokidis et al. 2002). In the early 
part of this century, there was a productive commercial hunt for 
humpbacks in Georgia Strait that was probably responsible for their 
long disappearance from local waters (Osborne et al. 1988). Since the 
mid-1990s, sightings in Puget Sound have increased. Between 1996 and 
2001, Calambokidis et al. (2002) recorded only six individuals south of 
Admiralty Inlet (northern Puget Sound).
    Between September 2003 and February 2012, there was one unconfirmed 
report (February 24, 2012) of humpback whale in the Bremerton action 
area (Orca Network 2012).
    Humpback whales are listed as ``endangered'' under the ESA, and 
consequently the stock is automatically considered a depleted stock 
under the MMPA.

Potential Effects of the Specified Activity on Marine Mammals

    WSDOT and NMFS determined that open-water pile driving and pile 
removal associated with the construction activities at Bremerton Ferry 
Terminal has the potential to result in behavioral harassment of marine 
mammal species and stocks in the vicinity of the proposed activity.

[[Page 11850]]

    Marine mammals exposed to high intensity sound repeatedly or for 
prolonged periods can experience hearing threshold shift (TS), which is 
the loss of hearing sensitivity at certain frequency ranges (Kastak et 
al. 1999; Schlundt et al. 2000; Finneran et al. 2002; 2005). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is 
unrecoverable, or temporary (TTS), in which case the animal's hearing 
threshold will recover over time (Southall et al. 2007). Since marine 
mammals depend on acoustic cues for vital biological functions, such as 
orientation, communication, finding prey, and avoiding predators, 
hearing impairment could result in the reduced ability of marine 
mammals to detect or interpret important sounds. Repeated noise 
exposure that leads to TTS could cause PTS.
    Experiments on a bottlenose dolphin (Tursiops truncates) and beluga 
whale (Delphinapterus leucas) showed that exposure to a single watergun 
impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p), 
which is equivalent to 228 dB (p-p) re 1 [mu]Pa, resulted in a 7 and 6 
dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds 
returned to within 2 dB of the pre-exposure level within 4 minutes of 
the exposure (Finneran et al. 2002). No TTS was observed in the 
bottlenose dolphin. Although the source level of pile driving from one 
hammer strike is expected to be much lower than the single watergun 
impulse cited here, animals being exposed for a prolonged period to 
repeated hammer strikes could receive more noise exposure in terms of 
SEL than from the single watergun impulse (estimated at 188 dB re 1 
[mu]Pa\2\-s) in the aforementioned experiment (Finneran et al. 2002).
    Current NMFS acoustic thresholds that identify the received sound 
levels above which permanent hearing impairment (permanent threshold 
shift, PTS) or other injury could potentially occur are 180 and 190 dB 
re 1 [mu]Pa (rms) for cetaceans and pinnipeds, respectively. The 
established 180- and 190-dB re 1 [mu]Pa (rms) criteria are the received 
levels above which, in the view of a panel of bioacoustics specialists 
convened by NMFS before direct data on temporary threshold shift (TTS) 
(from which PTS is primarily extrapolated) for marine mammals became 
available, one could not be certain that there would be no injurious 
effects, auditory or otherwise, to marine mammals. For the proposed 
wingwall replacement work at the Bremerton Ferry Terminal, only 
vibratory pile driving would be used. Noise levels measured near the 
source of vibratory hammers (10 m and 16 m from the source, see above) 
are much lower than the 180 dB re 1 [mu]Pa (rms) threshold currently 
used by NMFS. Therefore, it is very unlikely that any marine mammals 
would experience TTS or PTS as a result of noise exposure to WSDOT's 
proposed construction activities at Bremerton Ferry Terminal.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions (Clark 
et al. 2009). Masking can interfere with detection of acoustic signals 
such as communication calls, echolocation sounds, and environmental 
sounds important to marine mammals. Therefore, under certain 
circumstances, marine mammals whose acoustical sensors or environment 
are being severely masked could also be impaired.
    Masking occurs at the frequency band which the animals utilize. 
Therefore, since noise generated from in-water vibratory pile driving 
and removal is mostly concentrated at low frequency ranges, it may have 
less effect on high frequency echolocation sounds by odontocetes 
(toothed whales). However, lower frequency man-made noises are more 
likely to affect detection of communication calls and other potentially 
important natural sounds such as surf and prey noise. It may also 
affect communication signals when they occur near the noise band and 
thus reduce the communication space of animals (e.g., Clark et al. 
2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt 
et al. 2009).
    Unlike TS, masking can potentially impact the species at 
population, community, or even ecosystem levels, as well as individual 
levels. Masking affects both senders and receivers of the signals and 
could have long-term chronic effects on marine mammal species and 
populations. Recent science suggests that low frequency ambient sound 
levels have increased by as much as 20 dB (more than 3 times in terms 
of SPL) in the world's ocean from pre-industrial periods, and most of 
these increases are from distant shipping (Hildebrand 2009). All 
anthropogenic noise sources, such as those from vessels traffic, pile 
driving, dredging, and dismantling existing bridge by mechanic means, 
contribute to the elevated ambient noise levels, thus intensify 
masking.
    Nevertheless, the sum of noise from the proposed WSDOT construction 
activities is confined in an area that is bounded by landmass, 
therefore, the noise generated is not expected to contribute to 
increased ocean ambient noise. Due to shallow water depths near the 
ferry terminals, underwater sound propagation for low-frequency sound 
(which is the major noise source from pile driving) is expected to be 
poor.
    Finally, exposure of marine mammals to certain sounds could lead to 
behavioral disturbance (Richardson et al. 1995), such as: changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities, 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping), avoidance of 
areas where noise sources are located, and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, and reproduction. Some of these 
significant behavioral modifications include:
     Drastic change in diving/surfacing patterns (such as those 
thought to be causing beaked whale stranding due to exposure to 
military mid-frequency tactical sonar);
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cease feeding or social interaction.
    For example, at the Guerreo Negro Lagoon in Baja California, 
Mexico, which is one of the important breeding grounds for Pacific gray 
whales, shipping and dredging associated with a salt works may have 
induced gray whales to abandon the area through most of the 1960s 
(Bryant et al. 1984). After these activities stopped, the lagoon was 
reoccupied, first by single whales and later by cow-calf pairs.
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al. 2007).
    The proposed project area is not a prime habitat for marine 
mammals, nor is it considered an area frequented by marine mammals. 
Therefore, behavioral disturbances that could result from anthropogenic 
noise associated with WSDOT construction activities are expected to 
affect only a small number of marine mammals on an infrequent basis.

[[Page 11851]]

    Currently NMFS uses 120 dBrms re 1 [mu]Pa received level 
for non-impulse noises (such as vibratory pile driving, saw cutting, 
drilling, and dredging) for the onset of marine mammal Level B 
behavioral harassment.
    As far as airborne noise is concerned, the estimated in-air source 
level from vibratory pile driving a 30-in steel pile is estimated at 
97.8 dB re 1 [mu]Pa at 15 m (50 feet) from the pile (Laughlin 2010b). 
Using the spreading loss of 6 dB per doubling of distance, it is 
estimated that the distances to the 90 dB and 100 dB thresholds were 
estimated at 37 m and 12 m, respectively.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by vibratory pile 
removal and pile driving in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.

Potential Impacts on Prey Species

    With regard to fish as a prey source for cetaceans and pinnipeds, 
fish are known to hear and react to sounds and to use sound to 
communicate (Tavolga et al. 1981) and possibly avoid predators (Wilson 
and Dill 2002). Experiments have shown that fish can sense both the 
strength and direction of sound (Hawkins 1981). Primary factors 
determining whether a fish can sense a sound signal, and potentially 
react to it, are the frequency of the signal and the strength of the 
signal in relation to the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al. 1993). In general, fish react more strongly to pulses of 
sound rather than non-pulse signals (such as noise from vessels) 
(Blaxter et al. 1981), and a quicker alarm response is elicited when 
the sound signal intensity rises rapidly compared to sound rising more 
slowly to the same level.
    Further, during the coastal construction only a small fraction of 
the available habitat would be ensonified at any given time. 
Disturbance to fish species would be short-term and fish would return 
to their pre-disturbance behavior once the pile driving activity 
ceases. Thus, the proposed construction would have little, if any, 
impact on the abilities of marine mammals to feed in the area where 
construction work is planned.
    Finally, the time of the proposed construction activity would avoid 
the spawning season of the ESA-listed salmonid species.

Water and Sediment Quality

    Short-term turbidity is a water quality effect of most in-water 
work, pile removal and driving. WSF must comply with state water 
quality standards during these operations by limiting the extent of 
turbidity to the immediate project area.
    Roni and Weitkamp (1996) monitored water quality parameters during 
a pier replacement project in Manchester, Washington. The study 
measured water quality before, during and after pile removal and 
driving. The study found that construction activity at the site had 
``little or no effect on dissolved oxygen, water temperature and 
salinity,'' and turbidity (measured in nephelometric turbidity units 
[NTU]) at all depths nearest the construction activity was typically 
less than 1 NTU higher than stations farther from the project area 
throughout construction.
    Similar results were recorded during pile removal operations at two 
WSF ferry facilities. At the Friday Harbor terminal, localized 
turbidity levels (from three timber pile removal events) were generally 
less than 0.5 NTU higher than background levels and never exceeded 1 
NTU. At the Eagle Harbor maintenance facility, local turbidity levels 
(from removal of timber and steel piles) did not exceed 0.2 NTU above 
background levels. In general, turbidity associated with pile 
installation is localized to about a 25-foot radius around the pile 
(Everitt et al. 1980).
    Cetaceans are not expected to be close enough to the Bremerton 
ferry terminal to experience effects of turbidity, and any pinnipeds 
will be transiting the terminal area and could avoid localized areas of 
turbidity. Therefore, the impact from increased turbidity levels is 
expected to be discountable to marine mammals.
    Removal of the timber wingwalls at the Bremerton ferry terminal 
will result in 112 creosote-treated piles (100 tons) removed from the 
marine environment. This will result in the potential, temporary and 
localized sediment re-suspension of some of the contaminants associated 
with creosote, such as polycyclic aromatic hydrocarbons. However, the 
actual removal of the creosote-treated wood piles from the marine 
environment will result in a long-term improvement in water and 
sediment quality. The net impact is a benefit to marine organisms, 
especially toothed whales and pinnipeds that are high in the food chain 
and bioaccumulate these toxins. This is especially a concern for long-
lived species that spend their entire life in Puget Sound, such as 
Southern Resident killer whales (NMFS 2008a).

Potential Impacts on Availability of Affected Species or Stock for 
Taking for Subsistence Uses

    No subsistence harvest of marine mammals occur in the proposed 
action area.

Proposed Mitigation Measures

    In order to issue an incidental take authorization 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.
    For the proposed Bremerton Ferry Terminal wingwall replacement 
project, WSDOT proposed the following mitigation measures to minimize 
the potential impacts to marine mammals in the project vicinity. These 
mitigation measures would be employed during all pile removal and 
installation activities at the Bremerton Ferry Terminal. WSDOT has 
informed NMFS that any monitoring measures required by the IHA would be 
imposed upon contracting parties, through the Contract Plans and 
Specifications, and contractors.
    Since the measured source levels (at 10 and 16 m, Table 1) of the 
vibratory hammer involved in pile removal and pile driving are below 
NMFS current thresholds for Level A takes, i.e., below 180 dB re 1 
[mu]Pa (rms), no exclusion zone would be established, and there would 
be no required power-down and shutdown measures. Instead, WSDOT would 
establish and monitor the 120 dB re 1 [mu]Pa (rms) zone of influence 
(ZOI, see below Proposed Monitoring and Reporting section).
    One major mitigation measure for WSDOT's proposed pile removal and 
pile driving activities is ramping up, or soft start, of vibratory pile 
hammers. The purpose of this procedure is to reduce the startling 
behavior of marine mammals in the vicinity of the proposed construction 
activity from sudden loud noise.
    Soft start requires contractors to initiate the vibratory hammer at 
reduced power for 15 seconds with a 1 minute

[[Page 11852]]

interval, and repeat such procedures for an additional two times.
    In addition, monitoring for marine mammal presence will take place 
20 minutes before, during and 30 minutes after pile driving to ensure 
that marine mammals takes will not exceed the authorized levels.
    Furthermore, a containment boom surrounding the work area would be 
used during creosote-treated pile removal to contain and collect any 
floating debris and sheen, provided that the boom does not interfere 
with operations. The contractor would also retrieve any debris 
generated during construction and properly disposed of at an approved 
upland location. The contractor would have oil-absorbent materials on 
site to be used in the event of a spill if any oil product is observed 
in the water.
    Finally, if the number of any allotted marine mammal takes (see 
Estimated Take by Incidental Harassment section below) reaches the 
limit under the IHA (if issued), WSDOT would implement shutdown and 
power down measures if such species/stock of animal approaches the 
Level B harassment zone.

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 ITAs 
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 in the proposed action area.

Proposed Monitoring Measures

    The monitoring plan proposed by WSDOT can be found in its IHA 
application. The plan may be modified or supplemented based on comments 
or new information received from the public during the public comment 
period. A summary of the primary components of the plan follows.
(1) Marine Mammal Monitoring Coordination
    WSDOT would conduct briefings between the construction supervisors 
and the crew and protected species observers (PSOs) prior to the start 
of pile-driving activity, marine mammal monitoring protocol and 
operational procedures.
    Prior to the start of pile driving, the Orca Network and/or Center 
for Whale Research would be contacted to find out the location of the 
nearest marine mammal sightings. The Orca Sightings Network consists of 
a list of over 600 (and growing) residents, scientists, and government 
agency personnel in the U.S. and Canada. Sightings are called or 
emailed into the Orca Network and immediately distributed to other 
sighting networks including: the NMFS Northwest Fisheries Science 
Center, the Center for Whale Research, Cascadia Research, the Whale 
Museum Hotline and the British Columbia Sightings Network.
    Sighting information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study 
killer whale communication, in-water noise, bottom fish ecology and 
local climatic conditions. A hydrophone at the Port Townsend Marine 
Science Center measures average in-water sound levels and automatically 
detects unusual sounds. These passive acoustic devices allow 
researchers to hear when different marine mammals come into the region. 
This acoustic network, combined with the volunteer (incidental) visual 
sighting network allows researchers to document presence and location 
of various marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile removal or driving.
(2) Protected Species Observers (PSOs)
    WSDOT will employ qualified PSOs to monitor the 120 
dBrms re 1 [mu]Pa for marine mammals. Qualifications for 
marine mammal observers include:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance. Use of binoculars 
will be necessary to correctly identify the target.
     Advanced education in biological science, wildlife 
management, mammalogy or related fields (Bachelors degree or higher is 
preferred), but not required.
     Experience or training in the field identification of 
marine mammals (cetaceans and pinnipeds).
     Sufficient training, orientation or experience with the 
construction operation to provide for personal safety during 
observations.
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real time information on marine mammals 
observed in the area as necessary.
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
     Writing skills sufficient to prepare a report of 
observations that would include such information as the number and type 
of marine mammals observed; the behavior of marine mammals in the 
project area during construction, dates and times when observations 
were conducted; dates and times when in-water construction activities 
were conducted; and dates and times when marine mammals were present at 
or within the defined ZOI.
(3) Monitoring Protocols
    PSOs would be present on site at all times during pile removal and 
driving. Marine mammal behavior, overall numbers of individuals 
observed, frequency of observation, and the time corresponding to the 
daily tidal cycle would be recorded.
    WSDOT proposes the following methodology to estimate marine mammals 
that were taken as a result of the proposed Bremerton Ferry Terminal 
construction work:
     A range finder or hand-held global positioning system 
device would be used to ensure that the 120 dBrms re 1 
[mu]Pa Level B behavioral harassment ZOI is monitored.
     The vibratory Level B acoustical harassment ZOI would be 
monitored for the presence of marine mammals 20 minutes before, during, 
and 30 minutes after any pile removal or driving activity.
     Monitoring would be continuous unless the contractor takes 
a significant break--then the 20 minutes before, during, and 30 minutes 
monitoring sequence will begin again.
     If marine mammals are observed, the following information 
will be documented:
    [ssquf] Species of observed marine mammals;
    [ssquf] Number of observed marine mammal individuals;
    [ssquf] Behavioral of observed marine mammals;
    [ssquf] Location within the ZOI; and
    [ssquf] Animals' reaction (if any) to pile-driving activities.
     During vibratory pile removal and driving, one land-based 
biologist would monitor the area from the terminal work site, and one 
monitor will move among a number of access points along the southern 
Sinclair Inlet shore. Binoculars

[[Page 11853]]

shall be used during marine mammal monitoring.
    NMFS has reviewed the WSDOT's proposed marine mammal monitoring 
protocol, and has determined the applicant's monitoring program is 
adequate, particularly as it relates to assessing the level of taking 
or impacts to affected species. The land-based PSO is expected to be 
positioned in a location that will maximize his/her ability to detect 
marine mammals and will also utilize binoculars to improve detection 
rates. In addition, the boat-based PSO will cruise within the 120 dB 
ZOI, which is not a particularly large zone, thereby allowing him/her 
to conduct additional monitoring with binoculars. With respect to 
WSDOT's take limits, NMFS is primarily concerned that WSDOT could reach 
its Southern Resident killer whale limit. However, killer whales have 
large dorsal fins and can be easily spotted from great distances. 
Further, Southern Resident killer whales typically move in groups, 
which makes visual detection much easier. In addition, added underwater 
acoustic monitoring by Orca Network in the region would further provide 
additional detection, since resident killer whales are very vocal.

Proposed Reporting Measures

    WSDOT would provide NMFS with a draft monitoring report within 90 
days of the conclusion of the proposed construction work. This report 
will detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    If comments are received from the NMFS Northwest Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report will be submitted to NMFS within 30 days 
thereafter. If no comments are received from NMFS, the draft report 
will be considered to be the final report.

Estimated Take by Incidental Harassment

    As mentioned earlier in this document, a worst-case scenario for 
the Bremerton Ferry Terminal project assumes that it may take four days 
to remove the existing piles and seven days to install the new piles. 
The maximum total number of hours of pile removal activity is about 28 
hours, and pile-driving activity is about 6.75 hours (averaging about 
3.2 hours of active pile removal/driving for each construction day). 
The actual number of hours for both projects is expected to be less.
    Also, as described earlier, for non-impulse noise, NMFS uses 120 dB 
re 1 [mu]Pa (rms) as the threshold for Level B behavioral harassment. 
The distance to the 120 dB contour Level B acoustical harassment 
threshold due to vibratory pile driving for the Bremerton ferry 
terminal project extends a maximum of 4.7 km (2.9 miles) before land is 
intersected. The ZOI would be monitored during construction to estimate 
actual harassment take of marine mammals.
    Airborne noises can affect pinnipeds, especially resting seals 
hauled out on rocks or sand spits. The airborne 90 dB Level B threshold 
for hauled out harbor seals was estimated at 37 m, and the airborne 100 
dB Level B threshold for all other pinnipeds is estimated at 12 m.
    The nearest known harbor seal haulout site to the Bremerton ferry 
terminal is 8.5 km north and west (shoreline distance). The nearest 
documented California and Steller sea lion haulout sites to the 
Bremerton ferry terminal are navigation buoys in Rich Passage, 
approximately 9 and 10 km east of the terminal. The Puget Sound Naval 
Shipyard security barrier California sea lion haulout is located 
approximately 435 m SW of the ferry terminal.
    In-air noise from this project will not reach to haulout sites, but 
harbor seals swimming on the surface through the 37 m zone, and other 
pinnipeds swimming on the surface through the 12 m zone during 
vibratory pile removal or driving may be temporarily disturbed.
    Incidental take is estimated for each species by estimating the 
likelihood of a marine mammal being present within a ZOI during active 
pile removal or driving. Expected marine mammal presence is determined 
by past observations and general abundance near the Bremerton Ferry 
Terminal during the construction window. Typically, potential take is 
estimated by multiplying the area of the ZOI by the local animal 
density. This provides an estimate of the number of animals that might 
occupy the ZOI at any given moment. However, there are no density 
estimates for any Puget Sound population of marine mammal. As a result, 
the take requests were estimated using local marine mammal data sets 
(e.g., Orca Network, state and federal agencies), opinions from state 
and federal agencies, and observations from Navy biologists.
    Based on the estimates, approximately 649 Pacific harbor seals, 
1,584 California sea lions, 66 Steller sea lions, 40 killer whales (24 
transient, 16 Southern Resident killer whales), 8 gray whales, and 8 
humpback whales could be exposed to received sound levels above 120 dB 
re 1 [mu]Pa (rms) from the proposed Bremerton Ferry Terminal wingwall 
dolphin replacement work. A summary of the estimated takes is presented 
in Table 3.

   Table 3--Estimated Numbers of Marine Mammals That May Be Exposed To
 Received Pile Driving and Pile Removal Levels Above 120 dB re 1 [mu]Pa
                                  (rms)
------------------------------------------------------------------------
                                             Estimated
                 Species                   marine mammal    Percentage
                                               takes
------------------------------------------------------------------------
Pacific harbor seal.....................             649            4.4
California sea lion.....................           1,584            0.53
Steller sea lion........................              66            0.11
Killer whale, transient.................              24            6.8
Killer whale, Southern Resident.........              16           18.8
Gray whale..............................               8            0.03
Humpback whale..........................               8            0.7
------------------------------------------------------------------------

    The requested takes represent 4.4% of the Inland Washington stock 
harbor seals (estimated at 14,612), 0.53% of the U.S. stock California 
sea lion (estimated at 296,750), 0.11% of the eastern stock Steller sea 
lion (estimated at 58,334), 6.8% of the West Coast transient killer 
whale (estimated at 354), 18.8% of Southern Resident killer whale 
(estimated at 85), 0.03% of the Eastern North Pacific stock gray whale 
(estimated at 26,000), and 0.7% of the

[[Page 11854]]

Eastern North Pacific stock humpback whale (estimated at 1,100).

Negligible Impact and Small Numbers Analysis and Preliminary 
Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the species or stock. Level B (behavioral) 
harassment occurs at the level of the individual(s) and does not assume 
any resulting population-level consequences, though there are known 
avenues through which behavioral disturbance of individuals can result 
in population-level effects. A negligible impact finding is based on 
the lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination.
    In addition to considering estimates of the number of marine 
mammals that might be ``taken'' through behavioral harassment, NMFS 
considers other factors, such as the likely nature of any responses 
(their intensity, duration, etc.), the context of any responses 
(critical reproductive time or location, migration, etc.), as well as 
the number and nature of estimated Level A takes, the number of 
estimated mortalities, and effects on habitat.
    The WSDOT's proposed Bremerton Ferry Terminal construction project 
would conduct vibratory pile removal and pile driving to replace 
wingwall structures. Elevated underwater noises are expected to be 
generated as a result of pile removal and pile driving activities. 
However, noise levels from the machinery and activities are not 
expected to reach to the level that may cause TTS, injury (PTS 
included), or mortality to marine mammals. Therefore, NMFS does not 
expect that any animals would experience Level A (including injury) 
harassment or Level B harassment in the form of TTS from being exposed 
to in-water pile driving and pile removal associated with WSDOT 
construction project.
    Based on long-term marine mammal monitoring and studies in the 
vicinity of the proposed construction areas, it is estimated that 
approximately 649 Pacific harbor seals, 1,584 California sea lions, 66 
Steller sea lions, 40 killer whales (24 transient, 16 Southern Resident 
killer whales), 8 gray whales, and 8 humpback whales could be exposed 
to received noise levels above 120 dBrms re 1 [mu]Pa from 
the proposed construction work at the Bremerton Ferry Terminal. These 
numbers represent approximately 0.03%-18.8% of the stocks and 
populations of these species could be affected by Level B behavioral 
harassment. As mentioned earlier in this document, the worst case 
scenario for the proposed construction work would only take a total of 
34.75 hours (28 hours for pile removal and 6.75 hours for pile 
driving).
    In addition, these low intensity, localized, and short-term noise 
exposures may cause brief startle reactions or short-term behavioral 
modification by the animals. These reactions and behavioral changes are 
expected to subside quickly when the exposures cease. In addition, no 
important feeding and/or reproductive areas of marine mammals is known 
to be near the proposed action area. Therefore, the take resulting from 
the proposed Bremerton Ferry Terminal construction projects is not 
reasonably expected to, and is not reasonably likely to, adversely 
affect the marine mammal species or stocks through effects on annual 
rates of recruitment or survival. The maximum estimated 120 dB 
isopleths from vibratory pile driving is approximately 4.7 km at from 
the pile before being blocked by landmass.
    The closest documented California sea lion haulout site to the 
Bremerton Ferry Terminal is the Puget Sound Naval Shipyard security 
barrier, located approximately 435 m SW of the ferry terminal. The next 
closest documented California sea lion haulout sites to the Bremerton 
Ferry Terminal are navigation buoys and net pens in Rich Passage, 
approximately nine and ten km east of the terminal, respectively. 
However, it is estimated that airborne noise from vibratory pile 
driving a 30-in steel pile would fall below 90 dB and 100 dB re 1 20 
[mu]Pa at 37 m and 12 m from the pile, respectively. Therefore, 
pinnipeds hauled out at the Puget Sound Naval Shipyard security barrier 
will not be affected.
    For the reasons discussed in this document, NMFS has preliminarily 
determined that the impact of vibratory pile removal and pile driving 
associated with wingwall replacements at Bremerton Ferry Terminal would 
result, at worst, in the Level B harassment of small numbers of six 
marine mammals that inhabit or visit the area. While behavioral 
modifications, including temporarily vacating the area around the 
construction site, may be made by these species to avoid the resultant 
visual and acoustic disturbance, the availability of alternate areas 
within Washington coastal waters and haul-out sites has led NMFS to 
preliminarily determine that this action will have a negligible impact 
on these species in the vicinity of the proposed construction area.
    In addition, no take by TTS, Level A harassment (injury) or death 
is anticipated and harassment takes should be at the lowest level 
practicable due to incorporation of the mitigation and monitoring 
measures mentioned previously in this document.

Proposed Incidental Harassment Authorization

    This section contains a draft of the IHA itself. The wording 
contained in this section is proposed for inclusion in the IHA (if 
issued).
    1. This Authorization is valid from September 1, 2013, through 
February 15, 2014.
    2. This Authorization is valid only for activities associated in-
water construction work at the Bremerton Ferry Terminals in the State 
of Washington.
    3. (a) The species authorized for incidental harassment takings, 
Level B harassment only, are: Pacific harbor seal (Phoca vitulina 
richardsi), California sea lion (Zalophus californianus), Steller sea 
lion (Eumetopias jubatus), transient and Southern Resident killer 
whales (Orcinus orca), gray whale (Eschrichtius robustus), and humpback 
whale (Megaptera novaeangliae).
    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
    (i) Vibratory pile removal; and
    (ii) Vibratory pile driving.
    (c) The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported within 24 hours of the taking to 
the Northwest Regional Administrator (206-526-6150), National Marine 
Fisheries Service (NMFS) and the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, at (301) 427-8401, or 
his designee (301-427-8418).
    4. The holder of this Authorization must notify the Chief of the 
Permits and Conservation Division, Office of Protected Resources, at 
least 48 hours prior to the start of activities identified in 3(b) 
(unless constrained by the date of issuance of this Authorization in 
which case notification shall be made as soon as possible).
    5. Prohibitions.
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a)

[[Page 11855]]

above and by the numbers listed in Table 3. The taking by Level A 
harassment, injury or death of these species or the taking by 
harassment, injury or death of any other species of marine mammal is 
prohibited and may result in the modification, suspension, or 
revocation of this Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
7(a), are not present in conformance with condition 7(a) of this 
Authorization.
    6. Mitigation.
    (a) Ramp Up (Soft Start):
    Vibratory hammer for pile removal and pile driving shall be 
initiated at reduced power for 15 seconds with a 1 minute interval, and 
be repeated with this procedure for an additional two times.
    (b) Marine Mammal Monitoring:
    Monitoring for marine mammal presence shall take place 20 minutes 
before, during and 30 minutes after pile driving.
    (c) Power Down and Shutdown Measures
    If the number of any allotted marine mammal takes reaches the limit 
under the IHA (if issued), WSDOT shall implement shutdown and power 
down measures if such species/stock of animal approaches the Level B 
harassment zone.
    7. Monitoring.
    (a) Protected Species Observers: WSDOT shall employ qualified 
protected species observers (PSOs) to monitor the 120 dBrms 
re 1 [mu]Pa zone of influence (ZOI) for marine mammals. Qualifications 
for marine mammal observers include:
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance. Use of binoculars 
will be required to correctly identify the target.
    (ii) Advanced education in biological science, wildlife management, 
mammalogy or related fields (bachelors degree or higher is preferred), 
but not required.
    (iii) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds).
    (iv) Sufficient training, orientation or experience with the 
construction operation to provide for personal safety during 
observations.
    (v) Ability to communicate orally, by radio or in person, with 
project personnel to provide real time information on marine mammals 
observed in the area as necessary.
    (vi) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
    (vii) Writing skills sufficient to prepare a report of observations 
that would include such information as the number and type of marine 
mammals observed; the behavior of marine mammals in the project area 
during construction, dates and times when observations were conducted; 
dates and times when in-water construction activities were conducted; 
and dates and times when marine mammals were present at or within the 
defined ZOI.
    (b) Monitoring Protocols: PSOs shall be present on site at all 
times during pile removal and driving.
    (i) A range finder or hand-held global positioning system device 
will be used to ensure that the 120 dBrms re 1 [mu]Pa Level 
B behavioral harassment ZOI is monitored.
    (ii) A 20-minute pre-construction marine mammal monitoring will be 
required before the first pile driving or pile removal of the day. A 
30-minute post-construction marine mammal monitoring will be required 
after the last pile driving or pile removal of the day. If the 
constructors take a break between subsequent pile driving or pile 
removal for more than 30 minutes, then additional pre-construction 
marine mammal monitoring will be required before the next start-up of 
pile driving or pile removal.
    (iii) If marine mammals are observed, the following information 
will be documented:
    (A) Species of observed marine mammals;
    (B) Number of observed marine mammal individuals;
    (C) Behavioral of observed marine mammals;
    (D) Location within the ZOI; and
    (E) Animals' reaction (if any) to pile-driving activities
    (iv) During vibratory pile removal and driving, one land-based 
biologist would monitor the area from the terminal work site, and one 
monitor will move among a number of access points along the southern 
Sinclair Inlet shore. Binoculars shall be used during marine mammal 
monitoring.
    (v) WSDOT shall contact the Orca Network and/or Center for Whale 
Research to find out the location of the nearest marine mammal 
sightings.
    (vi) WSDOT shall also utilize marine mammal occurrence information 
collected by the Orca Network using hydrophone systems to maximize 
marine mammal detection in the project vicinity.
    8. Reporting:
    (a) WSDOT shall provide NMFS with a draft monitoring report within 
90 days of the conclusion of the construction work. This report shall 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    (b) If comments are received from the NMFS Northwest Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report shall be submitted to NMFS within 30 days 
thereafter. If no comments are received from NMFS, the draft report 
will be considered to be the final report.
    9. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals, or if there is an 
unmitigable adverse impact on the availability of such species or 
stocks for subsistence uses.
    10. A copy of this Authorization and the Incidental Take Statement 
must be in the possession of each contractor who performs the 
construction work at the Bremerton Ferry Terminals.
    11. WSDOT is required to comply with the Terms and Conditions of 
the Incidental Take Statement corresponding to NMFS' Biological 
Opinion. National Environmental Policy Act (NEPA)
    NMFS is currently preparing an Environmental Assessment, pursuant 
to NEPA, to determine whether or not the issuance of the proposed IHA 
may have a significant effect on the human environment. This analysis 
will be completed prior to the issuance or denial of the IHA.

Endangered Species Act (ESA)

    The humpback whale, Southern Resident stock of killer whale, and 
the eastern population of Steller sea lions, are the only marine mammal 
species currently listed under the ESA that could occur in the vicinity 
of WSDOT's proposed construction projects. NMFS' Permits and 
Conservation Division has initiated consultation with NMFS' Protected 
Resources Division under section 7 of the ESA on the issuance of an IHA 
to WSDOT under section 101(a)(5)(D) of the MMPA for this activity. 
Consultation will be concluded prior to a determination on the issuance 
of an IHA.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
authorize the take of marine mammals incidental to WSDOT's Bremerton 
Ferry Terminal construction projects,

[[Page 11856]]

provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: February 14, 2013.
Helen Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-03808 Filed 2-19-13; 8:45 am]
BILLING CODE 3510-22-P