Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Wharf Construction Project, 43429-43443 [2014-17451]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 143 (Friday, July 25, 2014)]
[Notices]
[Pages 43429-43443]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17451]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD282


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Wharf Construction Project

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

ACTION: Notice; issuance of an 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 we have issued an incidental harassment authorization (IHA) to the 
U.S. Navy (Navy) to incidentally harass, by Level B harassment only, 
five species of marine mammals during construction activities 
associated with a wharf construction project in Hood Canal, Washington.

DATES: This authorization is effective from July 16, 2014, through 
February 15, 2015.

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

SUPPLEMENTARY INFORMATION: 

Availability

    An electronic copy of the Navy's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental.htm. A memorandum describing our adoption of the 
Navy's Environmental Impact Statement (2011) and our associated Record 
of Decision, prepared pursuant to the National Environmental Policy 
Act, are also available at the same site. In case of problems accessing 
these documents, please call the contact listed above (see FOR FURTHER 
INFORMATION CONTACT).

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 by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified area, the incidental, but not intentional, 
taking of small numbers of marine mammals, providing that certain 
findings are made and the necessary prescriptions are established.
    The incidental taking of small numbers of marine mammals may be 
allowed only if NMFS (through authority delegated by the Secretary) 
finds that the total taking by the specified activity during the 
specified time period will (i) have a negligible impact on the species 
or stock(s) and (ii) not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant). Further, the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such taking 
must be set forth, either in specific regulations or in an 
authorization.
    The allowance of such incidental taking under section 101(a)(5)(A), 
by harassment, serious injury, death, or a combination thereof, 
requires that regulations be established. Subsequently, a Letter of 
Authorization may be issued pursuant to the prescriptions established 
in such regulations, providing that the level of taking will be 
consistent with the findings made for the total taking allowable under 
the specific regulations. Under section 101(a)(5)(D), NMFS may 
authorize such incidental taking by harassment only, for periods of not 
more than one year, pursuant to requirements and conditions contained 
within an IHA. The establishment of prescriptions through either 
specific regulations or an authorization requires notice and 
opportunity for public comment.
    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.'' Except with respect to certain activities 
not pertinent here, section 3(18) of 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; 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering.'' The former is termed Level A harassment and 
the latter is termed Level B harassment.

Summary of Request

    On January 10, 2014, we received a request from the Navy for 
authorization to take marine mammals incidental to pile driving 
associated with the construction of an explosives handling wharf (EHW-
2) in the Hood Canal at Naval Base Kitsap in Bangor, WA (NBKB). The 
Navy submitted a revised version of the request on April 11, 2014, 
which we deemed adequate and complete. The Navy plans to continue this 
multi-year project, involving impact and vibratory pile driving 
conducted within the approved in-water work window. This IHA covers 
only the third year (in-water work window) of the project, from July 
16, 2014, through February 15, 2015.
    The use of both vibratory and impact pile driving is expected to 
produce underwater sound at levels that have the potential to result in 
behavioral harassment of marine mammals. Species with the expected 
potential to be present during all or a portion of the in-water work 
window include the Steller sea lion (Eumetopias jubatus monteriensis), 
California sea lion (Zalophus californianus), harbor seal (Phoca 
vitulina richardii), killer whale (transient only; Orcinus orca), and 
harbor porpoise (Phocoena phocoena vomerina). These species may occur 
year-round in the Hood Canal, with the exception of the Steller sea 
lion, which is present only from fall to late spring (approximately 
late September to early May), and the California sea lion, which is 
only present from late summer to late spring (approximately late August 
to early June).
    This is the third IHA issued to the Navy for this project. The Navy 
received IHAs, effective from July 16-February 15, in 2012-13 (77 FR 
42279) and 2013-14 (78 FR 43148). Additional IHAs were issued to the 
Navy in recent years for marine construction projects on the NBKB 
waterfront. These projects include the Test Pile Project (TPP), 
conducted in 2011-12 in the proposed footprint of the EHW-2 to collect 
geotechnical data and test methodology in advance of EHW-2 (76 FR 
38361); a two-year maintenance project on the existing explosives 
handling wharf (EHW-1) conducted in 2011-12 and 2012-13 (76 FR 30130 
and 77 FR 43049); and a minor project to install a new mooring for an 
existing research barge, conducted in 2013-14 (78 FR 43165). In-water 
work associated with all projects was conducted only during the 
approved in-water work window (July 16-February 15). Monitoring reports 
for all of these projects are available on the Internet at

[[Page 43430]]

www.nmfs.noaa.gov/pr/permits/incidental.htm.

Description of the Specified Activity

Overview

    NBKB provides berthing and support services to Navy submarines and 
other fleet assets. The Navy plans to continue construction of the EHW-
2 facility at NBKB in order to support future program requirements for 
submarines berthed at NBKB. The Navy has determined that construction 
of EHW-2 is necessary because the existing EHW alone will not be able 
to support future program requirements. All piles will be driven with a 
vibratory hammer for their initial embedment depths, while select piles 
may be finished with an impact hammer for proofing, as necessary. A 
maximum of three vibratory drivers and one impact driver may be used 
simultaneously. Proofing involves striking a driven pile with an impact 
hammer to verify that it provides the required load-bearing capacity, 
as indicated by the number of hammer blows per foot of pile 
advancement. Sound attenuation measures (i.e., bubble curtain) will be 
used during all impact hammer operations.

Dates and Duration

    The allowable season for in-water work, including pile driving, at 
NBKB is July 16 through February 15, a window established by the 
Washington Department of Fish and Wildlife in coordination with NMFS 
and the U.S. Fish and Wildlife Service (USFWS) to protect juvenile 
salmon. Under this action--which includes only the portion of the 
project that would be completed under this IHA--a maximum of 195 pile 
driving days may occur. Pile driving may occur on any day during the 
in-water work window.
    Impact pile driving during the first half of the in-water work 
window (July 16 to September 15) may only occur between two hours after 
sunrise and two hours before sunset to protect breeding marbled 
murrelets (an Endangered Species Act [ESA]-listed bird under the 
jurisdiction of USFWS). Vibratory driving during the first half of the 
window, and all in-water work conducted between September 16 and 
February 15, may occur during daylight hours (sunrise to sunset). Other 
construction (not in-water) may occur between 7:00 a.m. and 10:00 p.m., 
year-round. Therefore, in-water work is restricted to daylight hours 
(at minimum) and there is at least a nine-hour break during the 24-hour 
cycle from all construction activity.

Specific Geographic Region

    NBKB is located on the Hood Canal approximately 32 km west of 
Seattle, Washington (see Figures 2-1 through 2-4 in the Navy's 
application). The Hood Canal is a long, narrow fjord-like basin of the 
western Puget Sound. Throughout its 108-km length, the width of the 
canal varies from 1.6-3.2 km and exhibits strong depth/elevation 
gradients and irregular seafloor topography in many areas. Although no 
official boundaries exist along the waterway, the northeastern section 
extending from the mouth of the canal at Admiralty Inlet to the 
southern tip of Toandos Peninsula is referred to as northern Hood 
Canal. NBKB is located within this region. Please see Section 2 of the 
Navy's application for detailed information about the specific 
geographic region, including physical and oceanographic 
characteristics.

Detailed Description of Activities

    Development of necessary facilities for handling of explosive 
materials is part of the Navy's sea-based strategic deterrence mission. 
The EHW-2 consists of two components: (1) the wharf proper (or 
Operations Area), including the warping wharf; and (2) two access 
trestles. Please see Figures 1-1 and 1-2 of the Navy's application for 
conceptual and schematic representations of the EHW-2.
    For the entire project, a total of up to 1,250 permanent piles 
ranging in size between 24-48 inches in diameter will be driven in-
water to construct the wharf, with up to three vibratory rigs and one 
impact driving rig operating simultaneously. The overall wharf 
construction plan also requires temporary installation of up to 150 
falsework piles used as an aid to guide permanent piles to their proper 
locations. Falsework piles, which are removed upon installation of the 
permanent piles, are likely steel pipe piles and will be driven and 
removed using a vibratory driver. Pile installation will employ 
vibratory pile drivers to the greatest extent possible, and the Navy 
anticipates that most piles will be able to be vibratory driven to 
within several feet of the required depth. Difficulties during pile 
driving may be encountered as a result of obstructions that may exist 
throughout the project area and, if difficult driving conditions occur, 
increased usage of an impact hammer will be required.
    Exactly what parts or how much of the project will be constructed 
in any given year is generally undetermined; however, a maximum of 195 
days of pile driving may occur per in-water work window. The analysis 
contained herein is based upon the maximum of 195 pile driving days, 
rather than any specific number of piles driven. Additional detail 
regarding construction plans for the project were described in our 
Federal Register notice of proposed authorization (79 FR 32828; June 6, 
2014); please see that document or the Navy's application for more 
information.
    Description of Work Accomplished--During the first in-water work 
season, the contractor completed installation of 184 piles to support 
the main segment of the access trestle. Driven piles ranged in size 
from 24- to 36-in at depths ranging from 0 to 15 m. A maximum of two 
vibratory pile drivers and one impact hammer were operated 
concurrently. During the second season, installation of 411 total piles 
was completed, including all 315 of the wharf deck plumb piles (non-
fender) and 24 of the 34 total wharf deck Lead Rubber Bearing (LRB) 
dolphins (clusters of four piles per dolphin). Installed piles ranged 
in size from 36- to 48-in at depths ranging from 12-29 m. As before, a 
maximum two vibratory pile drivers and one impact hammer were operated 
concurrently.
    During the third season, the Navy expects to complete installation 
of the wharf deck LRBs, piling support for the warping wharf, lightning 
towers, and trestle deck closure as well as all fender piles. The Navy 
expects to complete the project in January 2016. The amount of progress 
made under this proposed IHA, if issued, would determine necessity of a 
fourth IHA for the 2015-16 in-water work window.

Comments and Responses

    We published a notice of receipt of the Navy's application and 
proposed IHA in the Federal Register on June 6, 2014 (79 FR 32828). We 
received comments from the Marine Mammal Commission (Commission), Whale 
and Dolphin Conservation (WDC), and from two private citizens. The 
comments and our responses are provided here, and the comments have 
been posted on the Internet at: www.nmfs.noaa.gov/pr/permits/incidental.htm. Please see the comment letters for full rationale 
behind the recommendations we respond to below. Before providing 
responses to the specific recommendations we received, we provide some 
brief additional information in relation to two points of discussion 
provided by the Commission separately from their formal 
recommendations.
    Pinniped haul-out behavior may be used to produce correction 
factors used to ultimately derive a density from

[[Page 43431]]

numbers of seals observed hauled out during surveys, as described in 
our Federal Register notice of proposed authorization. First, a 
correction factor based on the proportion of time seals spend on land 
versus in the water over the course of a day must be applied to account 
for animals in the water and not observed during survey counts. This 
correction allows estimation of total abundance in the survey area and 
therefore derivation of a density estimate. Next, a correction may be 
applied secondarily to account for harbor seals that are hauled out at 
any given moment and therefore unavailable to receive underwater 
acoustic stimuli that may result in harassment. In this case, we have 
chosen in consultation with the Navy to apply such a correction factor 
in arriving at the ultimate density estimate used for take estimation 
(as described in full in our Federal Register notice of proposed 
authorization). Although the Commission limits their formal 
recommendations in relation to the take estimate for harbor seals to 
use of the information provided by London et al. (2012) (see below), 
they also note in their letter that they do not feel use of such a 
secondary correction factor is appropriate here. We appreciate but 
disagree with the Commission's comment, and explained our rationale in 
detail on pages 32853-32854 of the Federal Register notice of proposed 
authorization.
    As noted by the Commission in their current letter, they 
recommended in a previous letter that we require the Navy to consult 
with the Washington State Department of Transportation (WSDOT) and/or 
the California Department of Transportation (Caltrans) to determine if 
soft start procedures can be used safely with the vibratory hammers 
used by the Navy in context of this project. Please see page 32843 of 
our Federal Register notice of proposed authorization for background on 
this issue. We report here that since publishing our Federal Register 
notice of proposed authorization, we have successfully facilitated the 
Navy's discussion with these practitioners (including staff with 
relevant expertise from the Navy, WSDOT, and Caltrans), with a goal of 
determining to the extent possible the cause of the technical issues 
with human safety implications encountered by the Navy and, on the 
basis of the project specifications, under what circumstances we might 
expect similar issues to be encountered for other projects. In brief, 
discussion participants were able to reach the general conclusion that 
technical requirements of the Navy's EHW-2 project (e.g., relatively 
large piles in relatively deep water in an area with stiff substrate 
coupled with regulatory requirements to minimize the use of impact 
hammers) create a unique (insofar as we could determine) set of 
circumstances resulting in technical infeasibility of vibratory soft 
start implementation. The results of this meeting support our 
determination to not require vibratory soft start for this particular 
project due to the potential for human safety issues.
    The Commission notes concern that the measure may in future be 
inappropriately eliminated for projects where it is a viable, effective 
component of a mitigation plan designed to effect the least practicable 
impact on marine mammals. In response to this concern, we state that we 
do not plan to cease requiring vibratory soft start procedures for any 
construction activities other than the current Navy EHW-2 project. We 
will evaluate the use of the measure on a case-by-case basis, but only 
from the perspective of potential human safety concerns.
    Comment 1: The Commission recommends that we require the Navy to 
re-estimate the number of harbor seal takes using information from 
London et al. (2012) rather than Huber et al. (2001) or Jeffries et al. 
(2003), specifically by using a haul-out correction factor and 
percentage of time seals are in the water from the more recent work to 
arrive at a final density estimate.
    Response: While the relevant information presented by London et al. 
(2012) is more recent than that found in Huber et al. (2001) or 
Jeffries et al. (2003) (i.e., 2002 and 2006 versus 1991-92 and 1999-
2000) and the former work was conducted in Hood Canal, as opposed to 
other locations in Washington inland and coastal waters, we do not 
believe it appropriate to use that information for this purpose. In 
brief, relevant information from London et al. (2012) indicates that 
harbor seals in Hood Canal spend a significantly lower proportion of 
time ashore than was shown by Huber et al. (2001), as described in the 
Commission's letter. However, the London et al. (2012) study was not 
designed to address haul-out behavior, but rather was a foraging 
ecology study used opportunistically to take advantage of a unique 
opportunity that arose to examine the impact of exposure to increased 
killer whale predation on haul-out probability. The authors acknowledge 
the study limitations and imply caution in application of the results. 
Several points are worth noting:
     In comparison with the Huber et al. (2001) study, London 
et al. (2012)'s study design is poorly balanced across study sites 
(primarily two sites with regular human disturbance versus six 
different sites separated widely across inland and coastal waters) with 
a small sample size (29 versus 164).
     London et al. (2012) note that VHF deployments 
(representing approximately half of total sample size) may be 
confounded because they were only able to detect hauled animals within 
approximately 8 km line-of-sight from the Skokomish site, meaning that 
animals could have hauled out undetected at other sites. Tracking 
studies and behavioral observations suggest that there is interchange 
between sites in the Hood Canal.
     The results indicate a higher level of plasticity in haul-
out behavior for harbor seals than previously described, underscoring 
the likelihood that these data regarding proportion of time spent 
ashore are confounded by human usage characteristics at the two primary 
study sites (discussed further below).
    Further, while it would seem superficially that use of results 
specific to the Hood Canal may offer greater relevance to the Navy's 
activity, we believe it likely that the results of Huber et al. (2001) 
are in fact more indicative of the haul-out behavior that may be 
exhibited by seals within the project area. All regularly used Hood 
Canal harbor seal haul-outs (see Figure 4-1 of the Navy's application) 
are located at significant distance from the NBKB waterfront; seals 
entering and exiting the water from these haul-outs are not within or 
near the acoustic harassment zone resulting from the Navy's action. The 
two primary haul-out sites where London et al. (2012) tagged seals are 
exposed to human disturbance on a regular basis. The Dosewallips haul-
out is located within Dosewallips State Park, a popular area for 
canoers and kayakers that is also located near a marina and its 
attendant motorized vessel traffic. The Skokomish site is close to a 
kayak rental facility and is also regularly used for tribal and 
commercial fisheries. Given the well-known sensitivity of harbor seals 
to disturbance, it is likely that this level of human activity results 
in significant reduction to the proportion of time seals spend ashore. 
The authors note that their results bear this out, in that the seasonal 
aspect of human disturbance (there is a noticeable drop-off in human 
activity beginning in September and continuing into the fall) 
correlates well with observed behavior. By October and November, seals 
exhibited more typical haul-out behavior, but the period of

[[Page 43432]]

study does not align well with the Navy's period of activity. On the 
basis of this information, we would expect typical haul-out behavior 
(i.e., haul-out behavior more similar to that described by Huber et al. 
(2001)) from mid-fall through the end of the Navy's work period in 
February (greater than half of the total work period), but London et 
al. (2012)'s period of study covered the last week of May through the 
first week of November (with the majority of tags falling off between 
mid-September and mid-October). Therefore, the study results largely 
reflect the increased human disturbance of the summer months due to 
both location and season of study. Due to the distance between the 
Navy's action area and the regularly used Hood Canal haul-outs, we 
expect that (1) local behavior of seals at those haul-outs in response 
to human activity is irrelevant to the Navy's activity and (2) that 
seals in the Navy's project area will display more typical haul-out 
behavior in terms of the proportion of time spent ashore.
    As a result of the foregoing discussion, we believe it appropriate 
to retain usage of the information provided by Huber et al. (2001) and 
Jeffries et al. (2003) for the purpose of estimating take incidental to 
the Navy's specified activity. However, in consideration of the 
Commission's view on this issue, we propose to discuss appropriate 
usage of available information for harbor seals prior to considering 
any future requests for take authorization in the Hood Canal.
    Comment 2: The Commission recommends that we require the Navy to 
monitor the extent of the Level B harassment zone for vibratory pile 
driving and removal using additional platform-, shore-, or vessel-based 
observers beyond the waterfront restricted area to (1) determine the 
numbers of marine mammals taken during pile driving and removal 
activities and (2) characterize the effects on those mammals, including 
cetaceans.
    Response: The Commission provided this recommendation in relation 
to our proposed IHA for the second year of this project. In summary, we 
believe that we have developed, in consultation with the Navy, a 
strategy that is appropriate to accomplish the stated objectives of the 
Commission's recommendation. For our full rationale supporting this 
conclusion, please see pages 43155-43156 of our Federal Register notice 
announcing issuance of that authorization (78 FR 43148; July 19, 2013).
    However, in response to the rationale provided by the Commission 
for this recommendation in their current letter, we agreed to explore 
with the Navy the feasibility of expanding visual observation coverage 
of the larger Level B harassment zone through placement of additional 
shore-based observers. In consultation with the Navy, we identified 
five potential locations along the NBKB waterfront for evaluation of 
suitability. We initially ruled out placement of observers on the 
Toandos Peninsula, along the Hood Canal waterfront opposite the project 
site (see Figure 2-1 in the Navy's application), because no viable 
access exists to get an observer onto that shoreline and because the 
beach area is lost at high tide. To access that area by water, 
observers would have to clear through Navy security in and out of the 
Waterfront Restricted Area (WRA) at NBKB, a process that would require 
up to two hours each way. For reference in describing the five sites 
(described from north to south), please see Figure 2-2 of the Navy's 
application.
     Site 1: This is a site located to the north of the 
existing EHW facility, and is not shown on the Navy's Figure 2-2. The 
site features a noticeable projection into the Hood Canal and ideally 
could provide a suitable observation location. However, the site is 
inaccessible due to security protocols during security convoys used to 
move weapons, which would occur on approximately sixty percent of 
construction days. In addition, this site does not provide sufficient 
elevation to give observers a reasonable opportunity to see animals 
(including cetaceans) that may occur in the deeper waters of the Level 
B harassment zone, meaning that the effective observation zone from 
this site would be indistinguishable from the WRA area, which is 
effectively monitored under the existing plan.
     Site 2: Located just north of the existing EHW, the view 
is obscured to the south by the existing structure, and the site cannot 
be accessed on days when weapons handling occurs (approximately sixty 
percent of construction days).
     Site 3: Located between Marginal Wharf and Delta Pier, 
this site does not offer an useful vantage outside of the WRA. The area 
viewable from this site is already effectively monitored.
     Site 4: Located south of Delta Pier, this site has a 
significantly obscured view due to the position of Delta Pier, and also 
does not offer any useful advantage over existing observation 
positions.
     Site 5: Site 5 is located on K/B Dock between Delta Pier 
and the Service Pier and is outside of the floating barrier that 
delineates the WRA boundary. Along with Site 1, this would seem to 
offer the best vantage for expanding the visual coverage of the larger 
Level B harassment zone. However, as for Site 1, there are factors that 
limit the utility of the site such that we do not believe any benefit 
offered would be commensurate with cost (e.g., the addition of two 
observers would cost approximately $390,000 over the course of this 
IHA). This location is within a second WRA fenced area for the 
facilities at Delta Pier and further south along the waterfront. As a 
result, the view provided is a small water space inside another section 
of WRA fencing and does not provide a view outside of it and, as for 
Site 1, the effective observation space would be little different from 
what is effectively observed within the WRA under the existing plan. 
Access would be limited during classified activities that take place at 
K/B Dock, and these activities are often scheduled ad hoc, meaning that 
we do not have any understanding of when or for what proportion of the 
project an observer might be able to be stationed at the location.
    As a result of the foregoing evaluation of these sites, we do not 
believe that placement of observers at any of these sites would offer 
any advantage over the existing monitoring plan. These sites generally 
offer limited vantage points and limited access, and the observation 
that may be accomplished from the sites would not offer appreciable 
improvements, compared with the existing monitoring plan, towards 
accomplishing the objectives stated by the Commission. The Navy 
currently conducts opportunistic monitoring at many of these locations 
during non-construction periods, providing data used here to estimate 
takes for sea lions.
    Comment 3: The Commission recommends that we require the Navy to 
use better methods to estimate the numbers of marine mammals taken 
rather than the extrapolation method recently used for EHW-2 
activities.
    Response: The Commission believes that the extrapolation methods 
used currently in the Navy's required reporting likely produce 
underestimates of certain species, while potentially overestimating 
other species, and state that they would be willing to work with us 
towards accomplishing this recommendation. We appreciate and accept 
this offer and will discuss the matter with the Commission prior to 
Navy's submission of reporting required under this IHA.
    Comment 4: WDC states that we should deny the request for 
incidental take authorization due to insufficiencies in mitigation and 
monitoring, with specific reference to potential effects to transient 
and resident killer whales and

[[Page 43433]]

to the potential for Level A incidental take of harbor seals.
    Response: The Navy recorded fourteen observations of marine mammals 
(all harbor seals) within the defined 190-dB exclusion zones (shutdown 
zones, i.e., 20 m for impact driving and 10 m for vibratory driving) 
while conducting impact and vibratory pile driving under the year two 
(2013-14) IHA for the EHW-2 project. Please see the Navy's monitoring 
report (available at www.nmfs.noaa.gov/pr/permits/incidental.htm) and 
``Monitoring Results from Previously Authorized Activities'' (later in 
this document) for details. All fourteen of these incidents resulted 
when individual seals surfaced within the zones, and pile driving 
activity was immediately halted in each case. We do not believe that 
these incidents reflect any insufficiency in the mitigation monitoring 
program designed with the Navy, and WDC does not present any 
recommendations as to how the mitigation measures described in this 
document and included in the Navy's IHA may be improved such that these 
incidents may have been avoided.
    It is also important to note that the shutdown zones were defined 
in an intentionally precautionary manner. Modeling of these zones using 
proxy source levels (see Table 3) predicted distances to the 190-dB 
isopleth of 4.9 and 2.1 m for impact and vibratory pile driving, 
respectively. The shutdown zone for impact pile driving was increased 
to 20 m radius on the basis of the maximum distance to the isopleth 
recorded during acoustic monitoring conducted during the 2011 Test Pile 
Project (located within the proposed EHW-2 project footprint), while 
the zone for vibratory driving was increased to 10 m as a strictly 
precautionary measure. For reference, the average radial distance to 
the 190-dB isopleths measured during acoustic monitoring was less than 
10 m (it is generally difficult to meaningfully specify a distance to 
isopleths at less than 10 m) and 12 m under the IHAs issued for the 
Test Pile Project and for year one of the EHW-2 project, respectively 
(for 36-in piles). During a combined five in-water work seasons for 
three projects at NBKB over three calendar years (including year one of 
the EHW-2 project), under the same mitigation monitoring regime 
described here, no other observations of marine mammals within the 
defined shutdown zones have been recorded. We believe that placement of 
an observer in the optimal location for visual observation of the 
shutdown zone, in concert with additional observers outside the 
shutdown zone who may communicate animal movements with the observer 
assigned to the shutdown zone, is the most effective and only feasible 
way to prevent potential injury of marine mammals. These incidents were 
not predicted through the take estimation process, and we have no 
reason to believe that additional incidents will occur. Please see the 
``Mitigation'' and ``Monitoring and Reporting'' sections below for 
further details. We have determined that the mitigation measures 
described here and included in the Navy's IHA provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat.
    WDC provides additional specific concerns about the effects of the 
Navy's activity on transient and resident killer whales. As described 
in our Federal Register notice of proposed authorization, resident 
killer whales have not been observed in Hood Canal in over fifteen 
years, no incidental take of resident killer whales was proposed for 
authorization and the Navy is not authorized to incidentally take 
resident killer whales. Transient killer whales have most recently been 
observed in Hood Canal in 2003 and 2005 and, on the basis of these 
observations, we proposed and have authorized the incidental take of 
small numbers of transient killer whales. Given that transient killer 
whales have not been observed in Hood Canal in nine years, we believe 
it unlikely that the authorized levels of incidental take will actually 
occur but have nevertheless authorized the incidental take as a 
precautionary measure. WDC conflates concerns regarding the adequacy of 
the mitigation techniques in relation to potential injury of seals with 
the possibility of additional effects to killer whales. However, no 
cetacean has ever been observed within the WRA (possibly due to the 
presence of the port security barrier, approximately 600 m from the 
project site) and we do not believe that there is reasonable 
possibility of Level A harassment of any cetacean, even in the absence 
of the described mitigation and monitoring procedures. With regard to 
the potential for Level B harassment of resident killer whales, in the 
unlikely event that a group entered Hood Canal, existing sighting 
networks (e.g., Orca Network) and the high public profile of these 
animals mean that such an occurrence would almost certainly be well 
known and allow the Navy to appropriately restrict the specified 
activity such that take of resident killer whales would be avoided. For 
example, the rare occurrence of a single humpback whale in Hood Canal 
in 2012 was well-documented.
    Comment 5: A private citizen states that we should deny the request 
for incidental take authorization for the following reasons: (1) 
failure to analyze the cumulative impacts of the Navy's sonar and 
noise-producing activities at NBKB; (2) failure to fully disclose 
project impacts; and (3) the Navy is not a citizen of the United 
States.
    Response: 1. Section 101(a)(5)(D) of the MMPA requires NMFS to make 
a determination that the harassment incidental to a specified activity 
will have a negligible impact on the affected species or stocks of 
marine mammals, and will not result in an unmitigable adverse impact on 
the availability of marine mammals for taking for subsistence uses. 
Neither the MMPA nor NMFS' implementing regulations specify how to 
consider other activities and their impacts on the same populations. 
However, consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into the 
negligible impact analysis via their impacts on the environmental 
baseline (e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and ambient noise).
    In addition, cumulative effects were addressed in the Navy's 
Environmental Impact Statement, as well as in the NEPA analyses 
prepared for other actions conducted at the NBKB waterfront. These 
documents, as well as the relevant Stock Assessment Reports, are part 
of NMFS' Administrative Record for this action, and provided the 
decision-maker with information regarding other activities in the 
action area that affect marine mammals, an analysis of cumulative 
impacts, and other information relevant to the determination made under 
the MMPA.
    2. The comment letter states that the potential exists for a future 
incident at the EHW-2 to result in an explosion and that, because of 
the follow-on potential for such a hypothetical explosion to result in 
the injury or death of a marine mammal, we have not fully disclosed the 
potential level of take that may occur. However, Section 101(a)(5)(D) 
of the MMPA requires that we prescribe the permissible methods of 
taking by harassment pursuant to the specified activity. Here, we 
specify that Level B harassment of certain species of marine mammal 
could occur incidental to the Navy's use of impact and vibratory pile 
driving associated with construction of

[[Page 43434]]

the EHW-2 during July 16, 2014, through February 15, 2015 only. We have 
not proposed nor authorized the take of marine mammals in any other 
manner or by any other means.
    3. Section 101(a)(5)(D) of the MMPA allows the authorization of 
take incidental to a specified activity (other than commercial fishing) 
only when the activity is conducted by citizens of the United States. 
Section 3(10) of the MMPA defines the term ``person'', in part, as 
``any . . . department, or instrumentality of the Federal Government . 
. . .'', and NMFS has defined ``U.S. citizens'' at 50 CFR 216.103 as 
``individual U.S. citizens or any corporation or similar entity if it 
is organized under the laws of the United States . . . .'', also 
stating that ``U.S. Federal, state and local government agencies shall 
also constitute citizens of the United States . . . .'' Therefore, the 
U.S. Navy is appropriately considered a U.S. citizen under the MMPA.
    Comment 6: A private citizen states that we should deny the Navy's 
request for authorization because the Navy has left equipment and 
hardware in the project area outside the in-water work window without 
addressing effects from the project outside the in-water work window.
    Response: We do not approve or deny the Navy's action, or any 
component thereof, but rather the incidental take of marine mammals 
that may occur as a result of the Navy's specified activity. In this 
case, the specified activity includes impact and vibratory pile driving 
activity that may occur during July 16, 2014, through February 15, 2015 
only. As allowed through other permitting or authorization processes, 
the Navy may conduct construction activities not considered in-water 
work year-round, including leaving construction equipment at the site. 
Although not included in the description of specified activity provided 
by the Navy in their request for authorization, we have no reason to 
believe that the presence of this equipment has any potential to result 
in the incidental take of marine mammals.

Description of Marine Mammals in the Area of the Specified Activity

    There are eight marine mammal species with recorded occurrence in 
the Hood Canal during the past fifteen years, including five cetaceans 
and three pinnipeds. The harbor seal resides year-round in Hood Canal, 
while the Steller sea lion and California sea lion inhabit Hood Canal 
during portions of the year. Harbor porpoises may transit through the 
project area and occur regularly in Hood Canal, while transient killer 
whales could be present in the project area but do not have regular 
occurrence in the Hood Canal. The Dall's porpoise (Phocoenoides dalli 
dalli), humpback whale (Megaptera novaeangliae), and gray whale 
(Eschrichtius robustus) have been observed in Hood Canal, but their 
presence is sufficiently rare that we do not believe there is a 
reasonable likelihood of their occurrence in the project area during 
the proposed period of validity for this IHA. The latter three species 
are not carried forward for further analysis beyond this section.
    Table 1 lists the marine mammal species with expected potential for 
occurrence in the vicinity of NBKB during the project timeframe and 
summarizes key information regarding stock status and abundance. We 
provided additional information for marine mammals with potential for 
occurrence in the area of the specified activity in our Federal 
Register notice of proposed authorization (79 FR 32828; June 6, 2014).

                                           Table 1--Marine Mammals Potentially Present in the Vicinity of NBKB
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Stock abundance (CV,                       Relative occurrence in
               Species                         Stock             ESA/MMPA  status;       Nmin, most recent     PBR \3\  Annual M/  Hood Canal; season of
                                                                strategic  (Y/N) \1\   abundance survey) \2\             SI \4\         occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
                                                                   Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale........................  West coast transient 5   -; N.................  243 (n/a; 2006).......       2.4         0  Rare; year-round (but
                                       6.                                                                                          last observed in
                                                                                                                                   2005).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocoenidae (porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor porpoise.....................  Washington inland        -; N.................  10,682 (0.38; 7,841;          63     >=2.2  Possible regular
                                       waters \7\.                                     2003).                                      presence; year-round.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
                                                      Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion.................  U.S....................  -; N.................  296,750 (n/a; 153,337;     9,200     >=431  Seasonal/common; Fall
                                                                                       2008).                                      to late spring (Aug
                                                                                                                                   to Jun).
Steller sea lion....................  Eastern U.S. \5\.......  -; N \8\.............  63,160-78,198 (n/a;         \10\      65.1  Seasonal/occasional;
                                                                                       57,966; 2008-11) \9\.     1,552             Fall to late spring
                                                                                                                                   (Sep to May).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.........................  Washington inland        -; N.................  14,612 (0.15; 12,844;        771      13.4  Common; year-round
                                       waters \7\.                                     1999).                                      resident.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see
  footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.

[[Page 43435]]

 
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For killer whales, the
  abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated
  CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction
  factor derived from knowledge of the specie's (or similar species') life history to arrive at a best abundance estimate; therefore, there is no
  associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
  values presented here are from the draft 2013 SARs (www.nmfs.noaa.gov/pr/sars/draft.htm).
\5\ Abundance estimates (and resulting PBR values) for these stocks are new values presented in the draft 2013 SARs. This information was made available
  for public comment and is currently under review and therefore may be revised prior to finalizing the 2013 SARs. However, we consider this information
  to be the best available for use in this document.
\6\ The abundance estimate for this stock includes only animals from the ``inner coast'' population occurring in inside waters of southeastern Alaska,
  British Columbia, and Washington--excluding animals from the ``outer coast'' subpopulation, including animals from California--and therefore should be
  considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now
  considered outdated, was 354.
\7\ Abundance estimates for these stocks are greater than eight years old and are therefore not considered current. PBR is considered undetermined for
  these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates
  and PBR values, as these represent the best available information for use in this document.
\8\ The eastern distinct population segment of the Steller sea lion, previously listed under the ESA as threatened, was delisted on December 4, 2013 (78
  FR 66140; November 4, 2013). Because this stock is not below its OSP size and the level of direct human-caused mortality does not exceed PBR, this
  delisting action implies that the stock is no longer designated as depleted or as a strategic stock under the MMPA.
\9\ Best abundance is calculated as the product of pup counts and a factor based on the birth rate, sex and age structure, and growth rate of the
  population. A range is presented because the extrapolation factor varies depending on the vital rate parameter resulting in the growth rate (i.e.,
  high fecundity or low juvenile mortality).
\10\ PBR is calculated for the U.S. portion of the stock only (excluding animals in British Columbia) and assumes that the stock is not within its OSP.
  If we assume that the stock is within its OSP, PBR for the U.S. portion increases to 2,069.

Potential Effects of the Specified Activity on Marine Mammals

    Our Federal Register notice of proposed authorization (79 FR 32828; 
June 6, 2014) provides a general background on sound relevant to the 
specified activity as well as a detailed description of marine mammal 
hearing and of the potential effects of these construction activities 
on marine mammals.

Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat in detail 
in our Federal Register notice of proposed authorization (79 FR 32828; 
June 6, 2014). In summary, we have determined that given the short 
daily duration of sound associated with individual pile driving events 
and the relatively small areas being affected, pile driving activities 
associated with the proposed action are not likely to have a permanent, 
adverse effect on any fish habitat, or populations of fish species. 
Thus, any impacts to marine mammal habitat are not expected to cause 
significant or long-term consequences for individual marine mammals or 
their populations.

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 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.
    Measurements from similar pile driving events were coupled with 
practical spreading loss to estimate zones of influence (ZOI; see 
``Estimated Take by Incidental Harassment''). These values were then 
refined based on in situ measurements performed during the TPP, for 
similar pile driving activity and within the EHW-2 project footprint, 
to develop mitigation measures for EHW-2 pile driving activities. The 
ZOIs effectively represent the mitigation zone that will be established 
around each pile to prevent Level A harassment to marine mammals, while 
providing estimates of the areas within which Level B harassment might 
occur. While the ZOIs vary between the different diameter piles and 
types of installation methods, the Navy plans to establish mitigation 
zones for the maximum ZOI for all pile driving conducted in support of 
the wharf construction project. In addition to the measures described 
later in this section, the Navy will employ the following standard 
mitigation measures:
    (a) Conduct briefings between construction supervisors and crews, 
marine mammal monitoring team, and Navy staff prior to the start of all 
pile driving activity, and when new personnel join the work, in order 
to explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (b) For in-water heavy machinery work other than pile driving 
(using, e.g., standard barges, tug boats, barge-mounted excavators, or 
clamshell equipment used to place or remove material), if a marine 
mammal comes within 10 m, operations shall cease and vessels shall 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions. This type of work could include the following 
activities: (1) movement of the barge to the pile location; (2) 
positioning of the pile on the substrate via a crane (i.e., stabbing 
the pile); (3) removal of the pile from the water column/substrate via 
a crane (i.e., deadpull); or (4) the placement of sound attenuation 
devices around the piles. For these activities, monitoring will take 
place from 15 minutes prior to initiation until the action is complete.

Monitoring and Shutdown for Pile Driving

    The following measures apply to the Navy's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--For all pile driving activities, the Navy will 
establish a shutdown zone intended to contain the area in which SPLs 
equal or exceed the 180/190 dB rms acoustic injury criteria. The 
purpose of a shutdown zone is to define an area within which shutdown 
of activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area), thus preventing 
injury of marine mammals. Modeled distances for shutdown zones are 
shown in Table 3. However, during impact pile driving, the Navy will 
implement a minimum shutdown zone of 85 m radius for cetaceans and 20 m 
radius for pinnipeds around all pile driving activity. The modeled 
injury threshold distances are approximately 22 m and 5 m, 
respectively, but the distances are increased based on in-situ recorded 
sound pressure levels during the TPP.

[[Page 43436]]

During vibratory driving, the shutdown zone will be 10 m distance from 
the source for all animals. These precautionary measures are intended 
to further reduce any possibility of acoustic injury, as well as to 
account for any undue reduction in the modeled zones stemming from the 
assumption of 10 dB attenuation from use of a bubble curtain (see 
discussion later in this section).
    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 160 and 120 dB rms (for pulsed and non-pulsed 
continuous sound, respectively). Disturbance zones provide utility for 
monitoring conducted for mitigation purposes (i.e., shutdown zone 
monitoring) by establishing monitoring protocols for areas adjacent to 
the shutdown zones. Monitoring of disturbance zones enables observers 
to be aware of and communicate the presence of marine mammals in the 
project area but outside the shutdown zone and thus prepare for 
potential shutdowns of activity. However, the primary purpose of 
disturbance zone monitoring is for documenting incidents of Level B 
harassment; disturbance zone monitoring is discussed in greater detail 
later (see ``Monitoring and Reporting''). Nominal radial distances for 
disturbance zones are shown in Table 3. Given the size of the 
disturbance zone for vibratory pile driving, it is impossible to 
guarantee that all animals would be observed or to make comprehensive 
observations of fine-scale behavioral reactions to sound, and only a 
portion of the zone (e.g., what may be reasonably observed by visual 
observers stationed within the WRA) will be monitored.
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location, as well as the location of the pile being driven, 
is known from a GPS. The location of the animal is estimated as a 
distance from the observer, which is then compared to the location from 
the pile. The received level may be estimated on the basis of past or 
subsequent acoustic monitoring. It may then be determined whether the 
animal was exposed to sound levels constituting incidental harassment 
in post-processing of observational data, and a precise accounting of 
observed incidents of harassment created. Therefore, although the 
predicted distances to behavioral harassment thresholds are useful for 
estimating harassment for purposes of authorizing levels of incidental 
take, actual take may be determined in part through the use of 
empirical data. That information may then be used to extrapolate 
observed takes to reach an approximate understanding of actual total 
takes.
    Monitoring Protocols--Monitoring will be conducted before, during, 
and after pile driving activities. In addition, observers shall record 
all incidents of marine mammal occurrence, regardless of distance from 
activity, and shall document any behavioral reactions in concert with 
distance from piles being driven. Observations made outside the 
shutdown zone will not result in shutdown; that pile segment would be 
completed without cessation, unless the animal approaches or enters the 
shutdown zone, at which point all pile driving activities must be 
halted. Monitoring will take place from fifteen minutes prior to 
initiation through thirty minutes post-completion of pile driving 
activities. Pile driving activities include the time to remove a single 
pile or series of piles, as long as the time elapsed between uses of 
the pile driving equipment is no more than thirty minutes. Please see 
the Marine Mammal Monitoring Plan (available at www.nmfs.noaa.gov/pr/permits/incidental.htm), developed by the Navy with our approval, for 
full details of the monitoring protocols.
    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by qualified observers, who will 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown/delay procedures when applicable 
by calling for the shutdown to the hammer operator. Qualified observers 
are trained biologists, with the following minimum qualifications:
     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 
may be necessary to correctly identify the target;
     Advanced education in biological science or related field 
(undergraduate degree or higher required);
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     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.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for fifteen minutes to ensure that it is clear of 
marine mammals. Pile driving will only commence once observers have 
declared the shutdown zone clear of marine mammals; animals will be 
allowed to remain in the shutdown zone (i.e., must leave of their own 
volition) and their behavior will be monitored and documented. The 
shutdown zone may only be declared clear, and pile driving started, 
when the entire shutdown zone is visible (i.e., when not obscured by 
dark, rain, fog, etc.). In addition, if such conditions should arise 
during impact pile driving that is already underway, the activity must 
be halted.
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of pile driving operations, activity will be halted 
and delayed until either the animal has voluntarily left and been 
visually confirmed beyond the shutdown zone or fifteen minutes have 
passed without re-detection of the animal. Monitoring will be conducted 
throughout the time required to drive a pile.

Sound Attenuation Devices

    Sound levels can be greatly reduced during impact pile driving 
using sound attenuation devices, including bubble curtains. Bubble 
curtains were described in detail in our Federal Register notice of 
proposed authorization (79 FR 32828; June 6, 2014). To avoid loss of 
attenuation from design and implementation errors, the Navy has 
required specific bubble curtain design specifications, including 
testing requirements for air pressure and flow prior to initial impact 
hammer use, and a requirement for placement on the substrate. We 
considered TPP measurements (approximately 7 dB overall) and other 
monitored projects (typically at least 8 dB realized attenuation), and 
consider 8 dB as potentially the best estimate of average SPL (rms) 
reduction, assuming appropriate deployment and no

[[Page 43437]]

problems with the equipment. In looking at other monitored projects 
prior to completion of the TPP, the Navy determined with our 
concurrence that an assumption of 10 dB realized attenuation was 
realistic. Therefore, a 10 dB reduction was used in the Navy's analysis 
of pile driving noise in the initial environmental analyses for the 
EHW-2 project. The Navy's analysis is retained here. While 
acknowledging that empirical evidence from the TPP indicates that the 
10 dB target has not been consistently achieved, we did not require the 
Navy to revisit their acoustic modeling because (1) shutdown and 
disturbance zones for the second and third construction years are based 
on in situ measurements rather than the original modeling that assumed 
10 dB attenuation from a bubble curtain and (2) take estimates are not 
affected because they are based on a combined modeled sound field 
(i.e., concurrent operation of impact and vibratory drivers) rather 
than there being separate take estimates for impact and vibratory pile 
driving.
    Bubble curtains shall be used during all impact pile driving. The 
device will distribute air bubbles around 100 percent of the piling 
perimeter for the full depth of the water column, and the lowest bubble 
ring shall be in contact with the mudline for the full circumference of 
the ring. Testing of the device by comparing attenuated and 
unattenuated strikes is not possible because of requirements in place 
to protect marbled murrelets (an ESA-listed bird species under the 
jurisdiction of the USFWS). However, in order to avoid loss of 
attenuation from design and implementation errors in the absence of 
such testing, a performance test of the device shall be conducted prior 
to initial use. The performance test shall confirm the calculated 
pressures and flow rates at each manifold ring. In addition, the 
contractor shall also train personnel in the proper balancing of air 
flow to the bubblers and shall submit an inspection/performance report 
to the Navy within 72 hours following the performance test.

Timing Restrictions

    In Hood Canal, designated timing restrictions exist for pile 
driving activities to avoid in-water work when salmonids and other 
spawning forage fish are likely to be present. The in-water work window 
is July 16-February 15. Until September 23, impact pile driving will 
only occur starting two hours after sunrise and ending two hours before 
sunset due to marbled murrelet nesting season. After September 23, in-
water construction activities will occur during daylight hours (sunrise 
to sunset).

Soft Start

    The use of a soft-start procedure is believed to provide additional 
protection to marine mammals by warning or providing a chance to leave 
the area prior to the hammer operating at full capacity, and typically 
involves a requirement to initiate sound from vibratory hammers for 
fifteen seconds at reduced energy followed by a thirty-second waiting 
period. This procedure is repeated two additional times. Issues 
associated with vibratory soft start, specific to the EHW-2 project, 
were described in detail in our Federal Register notice of proposed 
authorization (79 FR 32828; June 6, 2014). For this IHA and for the 
remainder of the EHW-2 project, as a result of the potential risk to 
human safety, we have determined vibratory soft start to not currently 
be practicable. Therefore, the measure will not be required. We have 
further determined this measure unnecessary to providing the means of 
effecting the least practicable impact on marine mammals and their 
habitat.
    For impact driving, soft start will be required, and contractors 
will provide an initial set of strikes from the impact hammer at 
reduced energy, followed by a thirty-second waiting period, then two 
subsequent reduced energy strike sets. The reduced energy of an 
individual hammer cannot be quantified because of variation in 
individual drivers. The actual number of strikes at reduced energy will 
vary because operating the hammer at less than full power results in 
``bouncing'' of the hammer as it strikes the pile, resulting in 
multiple ``strikes.'' Soft start for impact driving will be required at 
the beginning of each day's pile driving work and at any time following 
a cessation of impact pile driving of thirty minutes or longer.
    We have carefully evaluated the Navy's proposed mitigation measures 
and considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included 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.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the Navy's planned measures, including 
information from monitoring of the Navy's implementation of the 
mitigation measures as prescribed under previous IHAs for this and 
other projects in the Hood Canal, we have determined that the planned 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA 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

[[Page 43438]]

regulations at 50 CFR 216.104(a)(13) indicate that requests for 
incidental take authorizations 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.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
Affected species (e.g., life history, dive patterns); (3) Co-occurrence 
of marine mammal species with the action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    The Navy submitted a marine mammal monitoring plan as part of the 
IHA application for year two of this project. It will be applied to 
year three of this project and can be found on the Internet at 
www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan has been 
successfully implemented by the Navy under the previous IHA.

Visual Marine Mammal Observations

    The Navy will collect sighting data and behavioral responses to 
construction for marine mammal species observed in the region of 
activity during the period of activity. All observers will be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. The 
Navy will monitor the shutdown zone and disturbance zone before, 
during, and after pile driving, with observers located at the best 
practicable vantage points. Based on our requirements, the Marine 
Mammal Monitoring Plan would implement the following procedures for 
pile driving:
     MMOs will be located at the best vantage point(s) in order 
to properly see the entire shutdown zone and as much of the disturbance 
zone as possible.
     During all observation periods, observers will use 
binoculars and the naked eye to search continuously for marine mammals.
     If the shutdown zones are obscured by fog or poor lighting 
conditions, pile driving at that location will not be initiated until 
that zone is visible. Should such conditions arise while impact driving 
is underway, the activity must be halted.
     The shutdown and disturbance zones around the pile will be 
monitored for the presence of marine mammals before, during, and after 
any pile driving or removal activity.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. Monitoring biologists will 
use their best professional judgment throughout implementation and seek 
improvements to these methods when deemed appropriate. Any 
modifications to protocol will be coordinated between NMFS and the 
Navy.

Data Collection

    We require that observers use approved data forms. Among other 
pieces of information, the Navy will record detailed information about 
any implementation of shutdowns, including the distance of animals to 
the pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, the Navy will attempt to 
distinguish between the number of individual animals taken and the 
number of incidents of take. We require that, at a minimum, the 
following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Reporting

    A draft report will be submitted within ninety calendar days of the 
completion of the in-water work window. The report will include marine 
mammal observations pre-activity, during-activity, and post-activity 
during pile driving days, and will also provide descriptions of any 
problems encountered in deploying sound attenuating devices, any 
behavioral responses to construction activities by marine mammals and a 
complete description of all mitigation shutdowns and the results of 
those actions and an extrapolated total take estimate based on the 
number of marine mammals observed during the course of construction. A 
final report must be submitted within thirty days following resolution 
of comments on the draft report.

Monitoring Results From Previously Authorized Activities

    The Navy complied with the mitigation and monitoring required under 
the previous authorizations for this project. Marine mammal monitoring 
occurred before, during, and after each pile driving event. During the 
course of these activities, the Navy did not exceed the take levels 
authorized under the IHAs. However, the Navy did record fourteen 
observations of marine mammals (harbor seals only) within the defined 
190-dB shutdown zones. Please see the Navy's monitoring report for 
details of these incidents (including, specifically, Table 10). Results 
of acoustic monitoring from the first year of the EHW-2 project were 
provided in our Federal Register notice of proposed authorization (79 
FR 32828; June 6, 2014).
    During year two of the EHW-2 project, the Navy recorded four 
construction delays due to harbor seals observed within or near 
shutdown zones, and seventeen construction shutdowns, also due to 
harbor seals surfacing within or near shutdown zones. Of the seventeen 
shutdowns, the Navy was able to determine that fourteen of these 
involved animals surfacing within the shutdown zone. In each case, the 
animals were not observed approaching the zone prior to their emergence 
within the zone, and the Navy immediately and appropriately halted 
construction activity as required. With one exception, all animals were 
subsequently observed outside of the shutdown zone and did not exhibit 
behaviors consistent with injury or distress. For the one exception, 
the animal was not resighted and activity

[[Page 43439]]

was restarted after fifteen minutes, as allowed under the IHA. Twelve 
of the incidents occurred during impact pile driving, with animals 
sighted at distances between 9-20 m (mean distance approximately 16 m) 
from the pile at the time the shutdown was implemented. The remaining 
two incidents occurred during vibratory pile driving, with both animals 
sighted at 8 m from the pile. As noted previously under ``Comments and 
Responses'', the shutdown zones were defined in an intentionally 
precautionary manner, and it is not clear that these animals 
experienced any auditory injury.
    In accordance with the 2012 IHA, the Navy submitted a Year 1 Marine 
Mammal Monitoring Report (2012-2013), covering the period of July 16 
through February 15. Due to delays in beginning the project the first 
day of monitored pile driving activity occurred on September 28, 2012, 
and a total of 78 days of pile driving occurred between then and 
February 14, 2013. That total included 56 days of vibratory driving 
only, three days of only impact driving, and 19 days where both 
vibratory and impact driving occurred, with a maximum concurrent 
deployment of two vibratory drivers and one impact driver.
    Monitoring was conducted in two areas: (1) primary visual surveys 
within the disturbance and shutdown zones in the WRA (approximately 
500-m radius), (2) boat surveys outside the WRA but within the 
disturbance zone. The latter occurred only during acoustic monitoring 
accomplished at the outset of the work period, which required a small 
vessel be deployed outside the WRA. Marine mammal observers were placed 
on construction barges, the construction pier, and vessels located in 
near-field (within the WRA) and far-field (outside the WRA) locations, 
in accordance with the Marine Mammal Monitoring Plan.
    Monitoring for the second year of construction was conducted 
throughout the 2013-14 work window (i.e., mid-July to mid-February). 
The monitoring was conducted in the same manner as the first year, but 
was limited to within the WRA as no acoustic monitoring was conducted 
during the second year.
    Table 2 summarizes monitoring results from years one and two of the 
EHW-2 project, including observations from all monitoring effort 
(including while pile driving was not actively occurring) and records 
of unique observations during active pile driving (seen in the far 
right column). Primary surveys refer to observations by stationary and 
vessel-based monitors within the WRA. Boat surveys refer to vessel-
based surveys conducted outside the WRA (Year 1 only). No Steller sea 
lions have been observed within defined ZOIs during active pile 
driving, and no killer whales have been observed during any project 
monitoring at NBKB. For more detail, including full monitoring results 
and analysis, please see the monitoring reports at www.nmfs.noaa.gov/pr/permits/incidental.htm.

                       Table 2--Summary Marine Mammal Monitoring Results, EHW-2 Years 1-2
----------------------------------------------------------------------------------------------------------------
                                                                                                       Total
                                                                                                    individuals
                                                                                                     observed
                                                   Total number    Total number    Maximum group   (active pile
         Activity \1\                Species          groups        individuals        size         driving and
                                                     observed        observed                         within
                                                                                                    disturbance
                                                                                                    zone only)
----------------------------------------------------------------------------------------------------------------
Primary surveys, Y1...........  California sea                30              30               1               4
                                 lion.
                                Harbor seal.....             939             984               4             214
Boat surveys, Y1..............  California sea                21             126              20              22
                                 lion.
                                Steller sea lion               3               3               1               0
                                Harbor seal.....              73              76               2              22
                                Harbor porpoise.              10              57              10              36
Primary surveys, Y2...........  California sea                77              83               3              10
                                 lion.
                                Harbor seal.....           3,046           3,229               5             713
----------------------------------------------------------------------------------------------------------------
\1\ Total observation effort during active pile driving: Year 1--530 hours, 50 minutes on eighty construction
  days; Year 2--1,247 hours, 27 minutes on 162 construction days.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of 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; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering.'' The former is termed Level A harassment and the latter is 
termed Level B harassment.
    All anticipated takes would be by Level B harassment resulting from 
vibratory and impact pile driving and involving temporary changes in 
behavior. The planned mitigation and monitoring measures are expected 
to minimize the possibility of injurious or lethal takes such that take 
by Level A harassment, serious injury, or mortality is considered 
discountable. However, it is unlikely that injurious or lethal takes 
would occur even in the absence of the planned mitigation and 
monitoring measures.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given 
the many uncertainties in predicting the quantity and types of impacts 
of sound on marine mammals, it is common practice to estimate how many 
animals are likely to be present within a particular distance of a 
given activity, or exposed to a particular level of sound.
    This practice potentially overestimates the numbers of marine 
mammals taken. For example, during the past fifteen years, killer 
whales have been observed within the project area twice. On the basis 
of that information, an estimated amount of potential takes for killer 
whales is presented here.

[[Page 43440]]

However, while a pod of killer whales could potentially visit again 
during the project timeframe, and thus be taken, it is more likely that 
they will not. Although incidental take of killer whales and Dall's 
porpoises was authorized for 2011-12 and 2012-13 activities at NBKB on 
the basis of past observations of these species, no such takes were 
recorded and no individuals of these species were observed. Similarly, 
estimated actual take levels (observed takes extrapolated to the 
remainder of unobserved but ensonified area) were significantly less 
than authorized levels of take for the remaining species. In addition, 
it is often difficult to distinguish between the individuals harassed 
and incidences of harassment. In particular, for stationary activities, 
it is more likely that some smaller number of individuals may accrue a 
number of incidences of harassment per individual than for each 
incidence to accrue to a new individual, especially if those 
individuals display some degree of residency or site fidelity and the 
impetus to use the site (e.g., because of foraging opportunities) is 
stronger than the deterrence presented by the harassing activity.
    The project area is not believed to be particularly important 
habitat for marine mammals, nor is it considered an area frequented by 
marine mammals, although harbor seals are year-round residents of Hood 
Canal and sea lions are known to haul-out on submarines and other man-
made objects at the NBKB waterfront (although typically at a distance 
of a mile or greater from the project site). Therefore, behavioral 
disturbances that could result from anthropogenic sound associated with 
these activities are expected to affect only a relatively small number 
of individual marine mammals, although those effects could be recurring 
over the life of the project if the same individuals remain in the 
project vicinity.
    The Navy requested authorization for the incidental taking of small 
numbers of Steller sea lions, California sea lions, harbor seals, 
transient killer whales, and harbor porpoises in the Hood Canal that 
may result from pile driving during construction activities associated 
with the wharf construction project described previously in this 
document. In order to estimate the potential incidents of take that may 
occur incidental to the specified activity, we first estimated the 
extent of the sound field that may be produced by the activity and then 
considered that in combination with information about marine mammal 
density or abundance in the project area. We provided detailed 
information on applicable sound thresholds for determining effects to 
marine mammals as well as describing the information used in estimating 
the sound fields, the available marine mammal density or abundance 
information, and the method of estimating potential incidences of take, 
in our Federal Register notice of proposed authorization (79 FR 32828; 
June 6, 2014). That information is unchanged, and our take estimates 
were calculated in the same manner and on the basis of the same 
information as what was described in the Federal Register notice. 
Modeled distances to relevant thresholds are shown in Table 3 and total 
estimated incidents of take are shown in Table 4. Please see Federal 
Register notice of proposed authorization (79 FR 32828; June 6, 2014) 
for full details of the process and information used in the take 
estimation process.

  Table 3--Calculated Distance(s) to and Area Encompassed by Underwater
         Marine Mammal Sound Thresholds During Pile Installation
------------------------------------------------------------------------
             Threshold                 Distance \1\       Area (km\2\)
------------------------------------------------------------------------
Impact driving, pinniped injury                 4.9 m             0.0001
 (190 dB).........................
Impact driving, cetacean injury                  22 m              0.002
 (180 dB).........................
Impact driving, disturbance (160                724 m               1.65
 dB) \2\..........................
Vibratory driving, pinniped injury              2.1 m           < 0.0001
 (190 dB).........................
Vibratory driving, cetacean injury               10 m             0.0003
 (180 dB).........................
Vibratory driving, disturbance               13,800 m               41.4
 (120 dB) \3\.....................
------------------------------------------------------------------------
\1\ SPLs used for calculations were: 185 dB for impact and 180 dB for
  vibratory driving.
\2\ Area of 160-dB zone presented for reference. Estimated incidental
  take calculated on basis of larger 120-dB zone.
\3\ Hood Canal average width at site is 2.4 km, and is fetch limited
  from N to S at 20.3 km. Calculated range (over 222 km) is greater than
  actual sound propagation through Hood Canal due to intervening land
  masses. The greatest line-of-sight distance from pile driving
  locations unimpeded by land masses is 13.8 km (i.e., the maximum
  possible distance for propagation of sound).

    Hood Canal does not represent open water, or free field, 
conditions. Therefore, sounds would attenuate as they encounter land 
masses or bends in the canal. As a result, the calculated distance and 
areas of impact for the 120-dB threshold cannot actually be attained at 
the project area. See Figure 6-1 of the Navy's application for a 
depiction of the size of areas in which each underwater sound threshold 
is predicted to occur at the project area due to pile driving.

     Table 4--Number of Potential Incidental Takes of Marine Mammals Within Various Acoustic Threshold Zones
----------------------------------------------------------------------------------------------------------------
                                                                                                  Total proposed
                     Species                          Density         Level A      Level B (120     authorized
                                                                                      dB) \1\        takes \2\
----------------------------------------------------------------------------------------------------------------
California sea lion.............................           \3\34               0           6,630           6,630
Steller sea lion................................           \3\ 2               0             585             585
Harbor seal.....................................            1.06               0           8,580           8,580
Killer whale (transient)........................             n/a               0             180         \4\ 180
Harbor porpoise.................................           0.149               0           1,170           1,170
----------------------------------------------------------------------------------------------------------------
\1\ The 160-dB acoustic harassment zone associated with impact pile driving would always be subsumed by the 120-
  dB harassment zone produced by vibratory driving. Therefore, takes are not calculated separately for the two
  zones.

[[Page 43441]]

 
\2\ For species with associated density, density was multiplied by largest ZOI (i.e., 41.4 km). The resulting
  value was rounded to the nearest whole number and multiplied by the 195 days of activity. For species with
  abundance only, that value was multiplied directly by the 195 days of activity. We assume for reasons
  described earlier that no takes would result from airborne noise.
\3\ Figures presented are abundance numbers, not density, and are calculated as the average of average daily
  maximum numbers per month. Abundance numbers are rounded to the nearest whole number for take estimation. The
  Steller sea lion abundance was increased to three for take estimation purposes.
\4\ We assumed that a single pod of six killer whales could be present for as many as 30 days of the duration.

Analyses and Determinations

Negligible Impact Analysis

    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.'' 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, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Pile driving activities associated with the wharf construction 
project, as outlined previously, have the potential to disturb or 
displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) only, from underwater sounds generated from pile driving. 
Potential takes could occur if individuals of these species are present 
in the ensonified zone when pile driving is happening, which is likely 
to occur because (1) harbor seals, which are frequently observed along 
the NBKB waterfront, are present within the WRA; (2) sea lions, which 
are less frequently observed, transit the WRA en route to haul-outs to 
the south at Delta Pier; or (3) cetaceans or pinnipeds transit the 
larger Level B harassment zone outside of the WRA.
    No injury, serious injury, or mortality is anticipated given the 
methods of installation and measures designed to minimize the 
possibility of injury to marine mammals. The potential for these 
outcomes is minimized through the construction method and the 
implementation of the planned mitigation measures. Specifically, 
vibratory hammers will be the primary method of installation, and this 
activity does not have significant potential to cause injury to marine 
mammals due to the relatively low source levels produced (likely less 
than 180 dB rms) and the lack of potentially injurious source 
characteristics. Impact pile driving produces short, sharp pulses with 
higher peak levels and much sharper rise time to reach those peaks. 
When impact driving is necessary, required measures (use of a sound 
attenuation system, which reduces overall source levels as well as 
dampening the sharp, potentially injurious peaks, and implementation of 
shutdown zones) significantly reduce any possibility of injury. Given 
sufficient ``notice'' through use of soft start (for impact driving), 
marine mammals are expected to move away from a sound source that is 
annoying prior to its becoming potentially injurious. The likelihood 
that marine mammal detection ability by trained observers is high under 
the environmental conditions described for Hood Canal further enables 
the implementation of shutdowns to avoid injury, serious injury, or 
mortality.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from past 
projects at NBKB, will likely be limited to reactions such as increased 
swimming speeds, increased surfacing time, or decreased foraging (if 
such activity were occurring). Most likely, individuals will simply 
move away from the sound source and be temporarily displaced from the 
areas of pile driving, although even this reaction has been observed 
primarily only in association with impact pile driving. In response to 
vibratory driving, harbor seals (which may be somewhat habituated to 
human activity along the NBKB waterfront) have been observed to orient 
towards and sometimes move towards the sound. Repeated exposures of 
individuals to levels of sound that may cause Level B harassment are 
unlikely to result in hearing impairment or to significantly disrupt 
foraging behavior. Thus, even repeated Level B harassment of some small 
subset of the overall stock is unlikely to result in any significant 
realized decrease in fitness to those individuals, and thus would not 
result in any adverse impact to the stock as a whole. Level B 
harassment will be reduced to the level of least practicable impact 
through use of mitigation measures described herein and, if sound 
produced by project activities is sufficiently disturbing, animals are 
likely to simply avoid the project area while the activity is 
occurring.
    For pinnipeds, no rookeries are present in the project area, there 
are no haul-outs other than those provided opportunistically by man-
made objects, and the project area is not known to provide foraging 
habitat of any special importance (other than is afforded by the known 
migration of salmonids generally along the Hood Canal shoreline). No 
cetaceans are expected within the WRA. The pile driving activities 
analyzed here are similar to other nearby construction activities 
within the Hood Canal, including recent projects conducted by the Navy 
at the same location (TPP and EHW-1 pile replacement project, Years 1-2 
of EHW-2; barge mooring project) as well as work conducted in 2005 for 
the Hood Canal Bridge (SR-104) by the Washington State Department of 
Transportation, which have taken place with no reported injuries or 
mortality to marine mammals, and no known long-term adverse 
consequences from behavioral harassment.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidences of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any major 
rookeries and only a few isolated and opportunistic haul-out areas near 
or adjacent to the project site; (4) the absence of cetaceans within 
the WRA and generally sporadic occurrence outside the WRA; (5) the 
absence of any other known areas or features of special significance 
for foraging or reproduction within the project area; and (6) the 
presumed efficacy of the planned mitigation measures in reducing the 
effects of the specified activity to the level of least practicable 
impact. In addition, none of these stocks are listed under the ESA or 
designated as depleted under the MMPA. All of the stocks for which take 
is authorized are thought to be increasing or to be within OSP size. In

[[Page 43442]]

combination, we believe that these factors, as well as the available 
body of evidence from other similar activities, including those 
conducted at the same time of year and in the same location, 
demonstrate that the potential effects of the specified activity will 
have only short-term effects on individuals. The specified activity is 
not expected to impact rates of recruitment or survival and will 
therefore not result in population-level impacts. Based on the analysis 
contained herein of the likely effects of the specified activity on 
marine mammals and their habitat, and taking into consideration the 
implementation of the proposed monitoring and mitigation measures, we 
find that the total marine mammal take from Navy's wharf construction 
activities will have a negligible impact on the affected marine mammal 
species or stocks.

Small Numbers Analysis

    The numbers of animals authorized to be taken for Steller and 
California sea lions would be considered small relative to the relevant 
stocks or populations (less than one percent for Steller sea lions and 
less than three percent for California sea lions) even if each 
estimated taking occurred to a new individual--an extremely unlikely 
scenario. For pinnipeds occurring at the NBKB waterfront, there will 
almost certainly be some overlap in individuals present day-to-day. 
Further, for the pinniped species, these takes could potentially occur 
only within some small portion of the overall regional stock. For 
example, of the estimated 296,500 California sea lions, only certain 
adult and subadult males--believed to number approximately 3,000-5,000 
by Jeffries et al. (2000)--travel north during the non-breeding season. 
That number has almost certainly increased with the population of 
California sea lions--the 2000 SAR for California sea lions reported an 
estimated population size of 204,000-214,000 animals--but likely 
remains a relatively small portion of the overall population.
    For harbor seals, animals found in Hood Canal belong to a closed, 
resident population estimated at approximately 1,000 animals by 
Jeffries et al. (2003), and takes are likely to occur only within some 
portion of that closed population, rather than to animals from the 
Washington inland waters stock as a whole. The animals that are 
resident to Hood Canal, to which any incidental take would accrue, 
represent only seven percent of the best estimate of regional stock 
abundance. For transient killer whales, we estimate take based on an 
assumption that a single pod of whales, comprising six individuals, is 
present in the vicinity of the project area for the entire duration of 
the project. These six individuals represent a small number of 
transient killer whales, for which a conservative minimum estimate of 
243 animals is given in the draft 2013 SAR.
    Little is known about harbor porpoise use of Hood Canal, and prior 
to monitoring associated with recent pile driving projects at NBKB, it 
was believed that harbor porpoises were infrequent visitors to the 
area. It is unclear from the limited information available what 
relationship harbor porpoise occurrence in Hood Canal may hold to the 
regional stock or whether similar usage of Hood Canal may be expected 
to be recurring. It is unknown how many unique individuals are 
represented by sightings in Hood Canal, although it is unlikely that 
these animals represent a large proportion of the overall stock. While 
we believe that the authorized numbers of incidental take would be 
likely to occur to a much smaller number of individuals, the number of 
incidents of take relative to the stock abundance (approximately eleven 
percent) remains within the bounds of what we consider to be small 
numbers.
    As summarized here, the estimated numbers of potential incidents of 
harassment for these species are likely much higher than will 
realistically occur. This is because (1) we use the maximum possible 
number of days (195) in estimating take, despite the fact that multiple 
delays and work stoppages are likely to result in a lower number of 
actual pile driving days; (2) sea lion estimates rely on the averaged 
maximum daily abundances per month, rather than simply an overall 
average which would provide a much lower abundance figure; and (3) the 
estimates for transient killer whales use sparse information to attempt 
to account for the potential presence of species that have not been 
observed in Hood Canal since 2005. In addition, potential efficacy of 
mitigation measures in terms of reduction in numbers and/or intensity 
of incidents of take has not been quantified. Therefore, these 
estimated take numbers are likely to be precautionary. Based on the 
analysis contained herein of the likely effects of the specified 
activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, we find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or 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. Therefore, we have determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be 
affected by these activities. Therefore, we have determined that a 
section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In compliance with the NEPA of 1969 (42 U.S.C. 4321 et seq.), as 
implemented by the regulations published by the Council on 
Environmental Quality (CEQ; 40 CFR parts 1500-1508), the Navy prepared 
an Environmental Impact Statement (EIS) and issued a Record of Decision 
(ROD) for this project. We acted as a cooperating agency in the 
preparation of that document, and reviewed the EIS and the public 
comments received and determined that preparation of additional NEPA 
analysis was not necessary. In compliance with NEPA, the CEQ 
regulations, and NOAA Administrative Order 216-6, we subsequently 
adopted the Navy's EIS and issued our own ROD for the issuance of the 
first IHA on July 6, 2012, and reaffirmed the ROD before issuing a 
second IHA in 2013.
    We have reviewed the Navy's application for a renewed IHA for 
ongoing construction activities for 2014-15 and the 2013-14 monitoring 
report. Based on that review, we have determined that the proposed 
action is very similar to that considered in the previous IHAs. In 
addition, no significant new circumstances or information relevant to 
environmental concerns have been identified. Thus, we have determined 
that the preparation of a new or supplemental NEPA document is not 
necessary, and, after review of public comments, reaffirm our 2012 ROD. 
The 2012 NEPA documents are available for review at www.nmfs.noaa.gov/pr/permits/incidental.htm.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Navy for conducting the described wharf construction activities in the 
Hood Canal, from July 16, 2014 through

[[Page 43443]]

February 15, 2015, provided the previously described mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: July 16, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-17451 Filed 7-24-14; 8:45 am]
BILLING CODE 3510-22-P