Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Rehabilitation of the Jetty System at the Mouth of the Columbia River: Jetty A, North Jetty, and South Jetty, in Washington and Oregon, 10286-10309 [2017-02782]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 27 (Friday, February 10, 2017)]
[Rules and Regulations]
[Pages 10286-10309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02782]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160405311-6999-02]
RIN 0648-BF95


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Rehabilitation of the Jetty System at the Mouth of the 
Columbia River: Jetty A, North Jetty, and South Jetty, in Washington 
and Oregon

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

ACTION: Final rule.

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SUMMARY: NMFS, upon request of the U.S. Army Corps of Engineers 
(Corps), hereby issues a regulation to govern the unintentional taking 
of marine mammals incidental to the rehabilitation of the Jetty System 
at the Mouth of the Columbia River (MCR), over the course of five 
years. This regulation, which allows for the issuance of a Letter of 
Authorization (LOA) for the incidental take of marine mammals during 
the described activities and specified timeframes, prescribes the 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, as well as requirements pertaining to the monitoring and 
reporting of such taking.

DATES: Effective May 1, 2017, through April 30, 2022.

ADDRESSES: An electronic copy of the application, containing a list of 
references used in this document, and the associated Environmental 
Assessment (EA) and Finding of No Significant Impact (FONSI) may be 
obtained by telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm.

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

SUPPLEMENTARY INFORMATION:

Executive Summary

    This regulation, issued under the Marine Mammal Protection Act 
(MMPA) (16 U.S.C. 1361 et seq.), establishes a framework for 
authorizing the take of marine mammals incidental to the Corps' 
rehabilitation of the Jetty System, including Jetty A, North Jetty and 
South Jetty at the Mouth of the Columbia River in Washington and 
Oregon.

Purpose and Need for This Regulatory Action

    NMFS received an application from the Corps requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. We anticipate take to occur in the vicinity of the MCR Jetty 
System by Level B harassment incidental to the use of vibratory pile 
driving and pedestrian surveys of the jetties. This regulation is valid 
for five years from the date of issuance. Please see ``Background'' 
later in this document for definitions of harassment.
    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if, after notice and 
public comment, the agency makes certain findings and issues 
regulations. This regulation contains mitigation, monitoring, and 
reporting requirements.

Legal Authority for the Regulatory Action

    Section 101(a)(5)(A) of the MMPA and the implementing regulations 
at 50 CFR part 216, subpart I provide the legal basis for issuing the 
five-year regulations and any subsequent Letters of Authorization.

Summary of Major Provisions Within the Final Regulation

    The following provides a summary of some of the major provisions 
within this regulation for the MCR Jetty System rehabilitation project. 
We have determined that the Corps' adherence to the mitigation, 
monitoring, and reporting measures listed later in this regulation 
would achieve the least practicable adverse impact on the affected 
marine mammals. They include:
     Establishment and monitoring of shutdown zones to reduce 
likelihood of injury to marine mammals;
     Establishment and monitoring of Level B harassment zones 
or zones of influence (ZOI) to record instances of behavioral 
harassment;
     Implementation of hydroacoustic monitoring plan to ensure 
that shutdown zones and ZOIs have been delineated appropriately; and
     Shutdown between May 1 and July 1 when killer whales are 
sighted within the ZOIs to avoid take of Southern Resident killer 
whales which are listed

[[Page 10287]]

as Endangered under the Endangered Species Act (ESA);

Availability of Supporting Information

    We provided SUPPLEMENTARY INFORMATION for this activity in the 
Notice of Proposed Rulemaking published in the Federal Register on 
August 25, 2016 (81 FR 58443) and a correction on September 6, 2016 (81 
FR 61160). The correction notice noted that NMFS used an incorrect 
document identifier number ``NOAA-NMFS-2014-0144'' rather than the 
correct document identifier of ``NOAA-NMFS-2016-0108'' in the Federal 
e-Rulemaking Portal hyperlink. We do not reprint all of that 
information here in its entirety. Instead, we provide either a summary 
of the material presented in the proposed rule or a note referencing 
the page(s) in the proposed rule where the public can find the 
information. We do address any information that has changed since the 
proposed rule was published. Additionally, this final rule contains a 
section that responds to the public comments submitted during the 40-
day public comment period, including the extension of the public 
comment period from September 26, 2016 to October 6, 2016 (81 FR 
61160).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: ``any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).''

Summary of Request

    On February 13, 2015, NMFS received an application from the Corps 
for the taking of marine mammals incidental to the rehabilitation of 
the Jetty System at the MCR in Washington and Oregon. On June 9, 2015, 
NMFS received a revised application. NMFS determined that the 
application was adequate and complete on June 12, 2015. NMFS issued an 
incidental harassment authorization (IHA) to the Corps on August 31, 
2015 (80 FR 53777; September 8, 2015) to cover pile installation at 
Jetty A which is valid from May 1, 2016 through April 30, 2017. The 
Corps will conduct additional work under an LOA that may result in the 
incidental harassment of marine mammals. A notice of receipt was 
published in the Federal Register on October 26, 2015 (80 FR 65214). On 
August 25, 2016 NMFS published a notice in the Federal Register of our 
proposal to issue regulations and subsequent LOAs with preliminary 
determinations (81 FR 58443). A corrected notice was published in the 
Federal Register on September 6, 2016 (81 FR 61160). The filing of the 
corrected notice extended the original 30-day comment period to 40 days 
with a closing date of October 6, 2016. The comments and our responses 
are discussed later in this document.
    The Corps is seeking an LOA for continuation of work begun on Jetty 
A under an IHA issued by NMFS that expires on April 30, 2017. The 
activity will occur annually between the periods of May 1 through 
September 30 of each year between May 2017 and April 2022. If there is 
any remaining work from the IHA at Jetty A that may need to be 
completed under the LOA, it would likely include pile maintenance and 
pile removal of a barge offloading facility at that jetty. Any work on 
the North and South Jetties will be covered under the LOA. The 
following specific aspects of the activity are likely to result in the 
take of marine mammals: Vibratory pile driving and removal. Take, by 
Level B Harassment only, of individuals of seven species or stocks of 
marine mammals may result from the specified activity.
    On August 4, 2016, NMFS released its Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
(Guidance) (81 FR 51694). This new Guidance established new thresholds 
for predicting auditory injury, which equates to Level A harassment 
under the MMPA. NMFS explained the approach it would take during a 
transition period, wherein we balance the need to consider this new 
best available science with the fact that some applicants have already 
committed time and resources to the development of analyses based on 
our previous thresholds and have constraints that preclude the 
recalculation of take estimates, as well as consideration of where the 
action is in the agency's decision-making pipeline. In that notice, we 
included a non-exhaustive list of factors that would inform the most 
appropriate approach for considering the new Guidance, including: The 
scope of effects; how far in the process the applicant has progressed; 
when the authorization is needed; the cost and complexity of the 
analysis; and the degree to which the Guidance is expected to affect 
our analysis.
    As described above, NMFS published a notice in the Federal Register 
of our proposal to issue regulations and subsequent LOAs with 
preliminary determinations (81 FR 58443; August 25, 2016). A corrected 
notice was published in the Federal Register on September 6, 2016 (81 
FR 61160). Theses notices did not include the standards contained in 
the new Guidance. NMFS received comment from the Marine Mammal 
Commission to use the new Guidance for this rulemaking (see below). 
NMFS agreed with this comment and used the Guidance for this final 
rule.
    The Guidance indicates that there is a greater likelihood of 
auditory injury in the form of permanent threshold shift (PTS) for low-
frequency cetaceans (i.e., humpback whale, gray whale) and for high-
frequency cetaceans (i.e., harbor porpoise) than was considered in our 
notice of proposed rulemaking (81 FR 52614; August 9, 2016) because the 
Level A harassment isopleths are larger. To account for the slightly 
larger Level A zones that exist for these species, NMFS increased the 
shutdown zone from 20 meters (m) to 30 m for the two whale species and 
from 20 m to 40 m for the harbor porpoise. Therefore, no Level A take 
is likely or authorized for this action. With these changes, the 
required mitigation measures, and the monitoring and mitigation 
program, impacts to the affected species or stocks will be minimized.

[[Page 10288]]

    In summary, we have considered the new Guidance and believe that 
the likelihood of injury is adequately addressed in the analysis 
contained herein and appropriate protective measures are in place in 
the regulations and LOAs.

Description of the Specified Activity

Overview

    There are numerous steps involved in the planned multi-year effort 
to rehabilitate the MCR Jetty System. This notice will focus only on 
those components of the project under the MMPA. Additional detailed 
information about the project in its entirety is contained in the 
application which may be found at: https://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Construction of three offloading 
facilities will be necessary to transport materials to these specific 
project locations. These will be located at Jetty A, North Jetty and 
South Jetty. Pile installation at Jetty A is covered under an existing 
IHA. The LOA will cover remaining pile installation, pile maintenance 
and pile removal at Jetty A depending on how much work is accomplished 
under the current IHA. The LOA will also cover pile installation and 
removal of the facility at North Jetty and the one at South Jetty. In 
addition, all work related to pedestrian surveys of the South Jetty 
that could result in visual disturbance to pinnipeds will be covered 
under the LOA.
    The scheduled program of repair and rehabilitation priorities is 
described in detail in Section 1 of the Corps' LOA application. The 
sequence and timing for work under the LOA at the three MCR jetties 
includes:
    1. The Jetty A scheduled repairs and head stabilization task will 
be covered under the current IHA. This would include pile installation 
related to construction of an offloading facility as well as 
construction and stone placement. There will be at least one season of 
in-water work but two seasons are likely to be required to complete 
these activities. The second season of pile maintenance and removal 
would occur in 2017 and be covered under the LOA.
    2. The North Jetty scheduled repair and head stabilization task 
will occur under the LOA and include pile installation and removal at 
an offloading facility. Construction and placement will occur from 2017 
through 2019 as this task will require three placement seasons.
    3. The South Jetty interim repair and head determination task will 
occur under the LOA and will include pile installation and removal at 
two facilities with one being on the trunk near the head and the other 
at Clatsop Spit. This task will require four placement seasons running 
from 2018 through 2021.
    Installation and removal of piles with a vibratory hammer will 
introduce sound waves into the MCR area intermittently for up to seven 
years (depending on funding streams and construction sequences). In 
terms of actual on-the-ground work it is possible, but unlikely, that 
driving will occur at multiple facilities on the same day. For the 
purposes of this LOA, NMFS will be assuming that driving will occur 
only at a single facility on any given day.
    The Federal Register Notice of Proposed Rulemaking (81 FR 58443, 
August 25, 2016) described the construction of four offloading 
facilities, not three, that would require pile driving. Piles would be 
a maximum diameter of 24 inches and would only be installed by 
vibratory driving method due to the soft sediments (sand) in the 
project area. No impact driving will be necessary or authorized under 
these regulations and LOA. The piles will be located within 200 feet 
(ft) (60.96 m) of each jetty structure. The dolphins' Z- and H-piles 
would be composed of either untreated timber or steel piles installed 
to a depth of approximately 15 to 25 ft (4.5-7.6 m) below grade in 
order to withstand the needs of offloading barges and heavy 
construction equipment.
    In the Federal Register Notice of Proposed Rulemaking (81 FR 58443; 
August 25, 2016), it was assumed that pile installation and removal 
would occur for about 10 hours per day over the span of about 67 days. 
Approximately 96 piles and up to 373 sections of sheet pile to retain 
rock fill would be installed and removed, totaling 469 initial 
installation and 469 removal events over the span of about 67 days. In 
order to round the math, NMFS assumed 68 days, with each of the four 
offloading facilities taking about 17 days total for installation and 
removal.
    Since the Notice of Proposed Rulemaking was published, the Corps 
has submitted an Addendum revising their project estimates to include 
only 5 hours of daily vibratory operations. The addendum is available 
at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. The vibratory 
duration, or number of days, remains the same at 17 days per facility. 
However, only one of the two sites originally planned for the South 
Jetty will be constructed resulting in a total of just three offloading 
facilities. Note that the Jetty A pile installation, requiring 10 pile 
driving days was completed under the existing IHA. Jetty A pile 
extraction is not expected to occur until May 2017 and, therefore, will 
be covered under this LOA. The Corps is still assuming a seven-day 
duration for the extraction at Jetty A. Additionally, pedestrian 
surveys on South Jetty outside of the construction seasons will take 
six additional days. In the Corps' updated addendum, the number of 
piles to be driven and/or extracted decreased from 96 to 52 while the 
number of sheet or Z- or H-piles went down from 373 to 139. A total of 
49 days of pile driving work will be required, consisting of 41 days 
associated with installation and extraction at Jetty A, North Jetty and 
South Jetty and eight days of maintenance at South Jetty as shown in 
Table 1. Six days of pedestrian surveys at South Jetty will also be 
required. This activity will not affect the underwater soundscape but 
will result in some behavior disturbance to hauled out pinnipeds. The 
result is decreased impacts to marine mammals compared to impacts 
originally described in the proposed rule.

                                            Table 1--Estimated Days of Pile Driving and Removal Activities *
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                                                                                                                     Duration     Duration     Duration
        Jetty          Timeframe  (install)    Timeframe  (removal)   Timeframe  (maint.)    Pile type and number   (install)    (removal)     (maint.)
                                                                                                                      (days)       (days)       (days)
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Jetty A.............  ......................  May 2017.............  .....................  4-24'' dia Piles + 19  ...........            7  ...........
                                                                                             H-piles.
North...............  May 2018..............  Sep 2019.............  .....................  24-24'' dia Piles +             10            7  ...........
                                                                                             20 H-piles.
South...............  May 2020..............  Sep 2021.............  May-June 2020 + May-   24-24'' dia Piles +             10            7            8
                                                                      June 2021.             100 Z/Sheet piles.
                                                                                                                  --------------------------------------

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    Totals..........  ......................  .....................  .....................  .....................           20           21           8
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* Six days of pedestrian surveys will also be required.

Dates and Duration

    The current IHA, for which take has been authorized, is valid from 
May 1, 2016, through April 30, 2017. The LOA will be valid from May 1, 
2017, through April 30, 2022. The work season generally extends from 
April through October, with extensions, contractions, and additional 
work windows outside of the summer season varying by weather patterns. 
To avoid the presence of Southern Resident killer whales, the Corps 
will prohibit pile installation or removal from October 1 until April 
30 because that is the killer whales' primary feeding season when they 
may be present at the MCR plume. Installation and removal will occur 
from May 1 to September 30 each year.

Specified Geographic Region

    This activity will take place at the three MCR jetties in Pacific 
County, Washington, and Clatsop County, Oregon. These are Jetty A, 
North Jetty and South Jetty. See Figure 1 in the application for a map 
of the MCR Jetty system and surrounding areas.

Detailed Description of Activities

    The notice of proposed rulemaking (NPRM) (81 FR 58443; August 25, 
2016) contains a full detailed description of project activities and 
timelines. Other than the decreased hours of pile diving per day, 
reduction in the number of piles being driven, and reduction in pile 
driving days contained as shown in Table 1, the information in that 
NPRM has not changed and is not repeated here.

Comments and Responses

    The proposed rule was published in the Federal Register on August 
26, 2016 (81 FR 58443) for public comment. A correction notice was 
published in the Federal Register on September 6, 2016 (81 FR 61160) 
extending the public comment period until October 6, 2016. The Marine 
Mammal Commission (Commission) timely requested an extension for their 
comment letter which was granted by NMFS. The Commission submitted 
comments on November 15, 2016. No other comments nor other requests for 
extensions to file late comments were received past the October 6, 2016 
comment deadline. The comment letter is available on our Web site at: 
https://www.nmfs.noaa.gov/pr/permits/incidental.htm. Following is a 
summary of the public comments and NMFS' responses.
    Comment 1: The Commission recommended removing all references to 
impact pile driving, drilling, and installation of concrete piles 
because those activities would not occur.
    Response: NMFS has made these changes in the final rule.
    Comment 2: The Commission recommends using the standard clearance 
time of 15 minutes for small cetaceans rather than 30 minutes.
    Response: NMFS has made this change in the final rule.
    Comment 3: The Commission recommended incorporating NMFS' new Level 
A harassment thresholds, revising the exclusion zones accordingly, and 
requiring implementation of standard mitigation and monitoring measures 
based on those revised zones.
    Response: NMFS has utilized the new Level A harassment thresholds 
to revise exclusion zones for the final rule. Appropriate mitigation 
and monitoring measures will be enacted based on these updated 
thresholds and corresponding shutdown zones.
    Comment 4: The Commission recommended using the most recent version 
of the Pacific Navy Marine Species Density Database (Navy 2015) rather 
than the 2014 edition (Navy, 2014) as the basis for cetacean density 
estimates and choosing the appropriate densities from the seasonal 
distribution maps.
    Response: NMFS has applied these recommendations and revised take 
calculations accordingly for the final rule.
    Comment 5: The Commission recommended reducing the number of Level 
B harassment takes of California sea lions and harbor seals based on 
computational errors.
    Response: NMFS has corrected computational errors in the Final 
Rule.
    Comment 6: Thus, the Commission recommended that NMFS (1) follow 
its policy of a 24-hour reset for enumerating the number of each 
species that could be taken during the proposed activities, (2) apply 
standard rounding rules before summing the numbers of estimated takes 
across days, and (3) for species that have the potential to be taken 
but model-estimated or calculated takes round to zero, use group size 
to inform the take estimates--these methods should be used consistently 
for all future incidental take authorizations.
    Response: While NMFS uses a 24-hour reset for its take calculation 
to ensure that individual animals are not counted as a take more than 
once per day, that fact does not make the summing of take across the 
entire activity period before rounding incorrect. The calculation of 
predicted take is not an exact science and there are arguments for 
taking different mathematical approaches in different situations, and 
for making qualitative adjustments in other situations. NMFS is 
currently engaged in developing a protocol to guide more consistent 
take calculation given certain circumstances. In this case, group size 
was used to inform the take estimates and we believe that the 
prediction for this action remains appropriate.

Description of Marine Mammals in the Area of the Specified Activity

    Marine mammals known to occur in the Pacific Ocean offshore at the 
MCR include whales, orcas, dolphins, porpoises, sea lions, and harbor 
seals. Most cetacean species observed by Green and others (1992) 
occurred in Pacific slope or offshore waters 182 m to 1,828 m (600 to 
6,000 ft) in depth. Harbor porpoises (Phocoena phocoena) and gray 
whales (Eschrichtius robustus) were prevalent in shelf waters less than 
182 m (600 ft) in depth. Killer whales (Orcinus orca) are known to feed 
on Chinook salmon at the MCR, and humpback whales (Megaptera 
novaeangliae) may transit through the area offshore of the jetties. 
Pinniped species that occur in the vicinity of the jetties include 
Pacific harbor seals (Phoca vitulina richardsi), California sea lions 
(Zalophus californianus), and Steller sea lions (Eumetopias jubatus). A 
haulout used by all of these species is located on the open ocean side 
of the South Jetty. The marine mammal species potentially present in 
the activity area are shown in Table 2.

[[Page 10290]]

    We have reviewed the Corps' detailed species descriptions, 
including life history information, for accuracy and completeness and 
refer the reader to the application instead of reprinting the 
information here. We provided additional information for marine mammals 
with potential for occurrence in the area of the specified activity in 
our Federal Register NPRM (81 FR 58443; August 26, 2016). Information 
regarding these species is also available in the NMFS Marine Mammal 
Stock Assessment Reports, which may be found at: https://www.nmfs.noaa.gov/pr/species/.

                     Table 2--Marine Mammal Species Potentially Present in the Project Area
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                                    Stock(s)
           Species                 abundance        ESA * status     MMPA ** status     Frequency of occurrence
                                  estimate \1\                                                    \3\
----------------------------------------------------------------------------------------------------------------
Killer Whale (Orcinus orca)                   82  Endangered......  Depleted and      Infrequent/Rare.
 Eastern N. Pacific, Southern                                        Strategic.
 Resident Stock.
Killer Whale (Orcinus orca)                  243  ................  Non-depleted....  Rare.
 Eastern N. Pacific, West
 Coast Transient Stock.
Gray Whale (Eschrichtius            20,990 (197)  Delisted/         Non-depleted....  Rare.
 robustus) Eastern North                           Recovered
 Pacific Stock, (Pacific                           (1994).
 Coast Feed Group).
Humpback Whale (Megaptera                  1,918  Endangered......  Depleted and      Rare.
 novaeangliae) California/                                           Strategic.
 Oregon/Washington Stock.
Harbor Porpoise (Phocoena                 21,487  ................  Non-depleted....  Likely.
 phocoena) Northern Oregon/
 Washington Coast Stock.
Steller Sea Lion (Eumetopias       60,131-74,448  Delisted/         Depleted and      Likely.
 jubatus) Eastern U.S. Stock/                      Recovered         Strategic \2\.
 DPS ***.                                          (2013).
California Sea Lion (Zalophus            296,750  ................  Non-depleted....  Likely.
 californianus) U.S. Stock.
Harbor Seal (Phoca vitulina           \4\ 24,732  ................  Non-depleted....  Seasonal.
 richardii) Oregon and
 Washington Stock.
----------------------------------------------------------------------------------------------------------------
\1\ NOAA/NMFS 2015 marine mammal stock assessment reports at https://www.nmfs.noaa.gov/pr/sars/species.htm.
\2\ May be updated based on the recent delisting status.
\3\ Frequency defined here in the range of:
 Rare--Few confirmed sightings, or the distribution of the species is near enough to the area that the
  species could occur there.
 Infrequent--Confirmed, but irregular sightings.
 Likely--Confirmed and regular sightings of the species in the area year-round.
 Seasonal--Confirmed and regular sightings of the species in the area on a seasonal basis.
4 Data is 8 years old. No current abundance estimates exist.
* ESA = Endangered Species Act.
** MMPA = Marine Mammal Protection Act.
*** DPS = Distinct population segment.

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
stressors, (e.g. pile driving) and potential mitigation activities, 
associated with the MCR jetty rehabilitation project, may impact marine 
mammals and their habitat. The Estimated Take by Incidental Harassment 
section will include an analysis of the number of individuals that are 
expected to be taken by this activity. The Estimated Take by Incidental 
Harassment section, together with the Mitigation section will also draw 
conclusions regarding the likely impacts of this activity on the 
reproductive success or survivorship of individuals and, from that, on 
the affected marine mammal populations or stocks. The Negligible Impact 
Analysis section will include the analysis of how this specific 
activity will impact marine mammals. In this section, we provide 
general background information on sound and marine mammal hearing 
before considering potential effects to marine mammals from sound 
produced by vibratory pile driving.
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks of a sound wave; lower frequency sounds have 
longer wavelengths than higher frequency sounds and attenuate 
(decrease) more rapidly in shallower water. Amplitude is the height of 
the sound pressure wave or ``loudness'' of a sound and is typically 
measured using the decibel (dB) scale. A dB is the ratio between a 
measured pressure (with sound) and a reference pressure (sound at a 
constant pressure, established by scientific standards). It is a 
logarithmic unit that accounts for large variations in amplitude; 
therefore, relatively small changes in dB ratings correspond to large 
changes in sound pressure. When referring to sound pressure levels 
(SPLs; the sound force per unit area), sound is referenced in the 
context of underwater sound pressure to 1 microPascal ([mu]Pa). One 
pascal is the pressure resulting from a force of one newton exerted 
over an area of one square meter. The source level (SL) represents the 
sound level at a distance of 1 m from the source (referenced to 1 
[mu]Pa). The received level is the sound level at the listener's 
position. Note that all underwater sound levels in this document are 
referenced to a pressure of 1 [mu]Pa, and all airborne sound levels in 
this document are referenced to a pressure of 20 [mu]Pa.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Rms is calculated by squaring all of the 
sound amplitudes, averaging the squares, and then taking the square 
root of the average (Urick 1983). Rms accounts for both positive and 
negative values; squaring the pressures makes all values positive so 
that they may be accounted for in the summation of pressure levels 
(Hastings and Popper 2005). This measurement is often used in the 
context of discussing behavioral effects, in part because behavioral 
effects, which often result from auditory cues,

[[Page 10291]]

may be better expressed through averaged units than by peak pressures.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in all 
directions away from the source (similar to ripples on the surface of a 
pond), except in cases where the source is directional. The 
compressions and decompressions associated with sound waves are 
detected as changes in pressure by aquatic life and man-made sound 
receptors such as hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound. Ambient 
sound is defined as environmental background sound levels lacking a 
single source or point (Richardson et al., 1995), and the sound level 
of a region is defined by the total acoustical energy being generated 
by known and unknown sources. These sources may include physical (e.g., 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
sound (e.g., vessels, dredging, aircraft, construction). A number of 
sources contribute to ambient sound, including the following 
(Richardson et al., 1995):

     Wind and waves: The complex interactions between wind 
and water surface, including processes such as breaking waves and 
wave-induced bubble oscillations and cavitation, are a main source 
of naturally occurring ambient noise for frequencies between 200 Hz 
and 50 kHz (Mitson 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Surf noise 
becomes important near shore, with measurements collected at a 
distance of 5.2 miles (mi) (8.5 kilometers (km)) from shore showing 
an increase of 10 dB in the 100 to 700 Hz band during heavy surf 
conditions.
     Precipitation: Sound from rain and hail impacting the 
water surface can become an important component of total noise at 
frequencies above 500 Hz, and possibly down to 100 Hz during quiet 
times.
     Biological: Marine mammals can contribute significantly 
to ambient noise levels, as can some fish and shrimp. The frequency 
band for biological contributions is from approximately 12 Hz to 
over 100 kHz.
     Anthropogenic: Sources of ambient noise related to 
human activity include transportation (surface vessels and 
aircraft), dredging and construction, oil and gas drilling and 
production, seismic surveys, sonar, explosions, and ocean acoustic 
studies. Shipping noise typically dominates the total ambient noise 
for frequencies between 20 and 300 Hz. In general, the frequencies 
of anthropogenic sounds are below 1 kHz and, if higher frequency 
sound levels are created, they attenuate rapidly (Richardson et al., 
1995). Sound from identifiable anthropogenic sources other than the 
activity of interest (e.g., a passing vessel) is sometimes termed 
background sound, as opposed to ambient sound. Representative levels 
of anthropogenic sound are displayed in Table 3.

                                              Table 3--Representative Sound Levels of Anthropogenic Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Frequency range
              Sound source                      (Hz)          Underwater sound level                                Reference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small vessels..........................          250-1,000  151 dB rms at 1 m.........  Richardson et al., 1995.
Tug docking gravel barge...............          200-1,000  149 dB rms at 100 m.......  Blackwell and Greene, 2002.
Vibratory driving of 72-in steel pipe             10-1,500  180 dB rms at 10 m........  Reyff, 2007.
 pile.
Impact driving of 36-in steel pipe pile           10-1,500  195 dB rms at 10 m........  Laughlin, 2007.
Impact driving of 66-in cast-in-steel-            10-1,500  195 dB rms at 10 m........  Reviewed in Hastings and Popper, 2005.
 shell (CISS) pile.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals, 
and exposure to sound can have deleterious effects. To appropriately 
assess these potential effects, it is necessary to understand the 
frequency ranges marine mammals are able to hear. Current data indicate 
that not all marine mammal species have equal hearing capabilities 
(e.g., Richardson et al., 1995; Wartzok and Ketten 1999; Au and 
Hastings, 2008). To reflect this, Southall et al. (2007) recommended 
that marine mammals be divided into functional hearing groups based on 
measured or estimated hearing ranges on the basis of available 
behavioral data, audiograms derived using auditory evoked potential 
techniques, anatomical modeling, and other data. The lower and/or upper 
frequencies for some of these functional hearing groups have been 
modified from those designated by Southall et al. (2007), and the 
revised generalized hearing ranges are presented in the new Guidance. 
The functional hearing groups and the associated frequencies are 
indicated in Table 4.

   Table 4--Marine Mammal Hearing Groups and Their Generalized Hearing
                                  Range
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range\*\
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger and L. australis).

[[Page 10292]]

 
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

Acoustic Impacts

    Potential Effects of Pile Driving Sound--The effects of sounds from 
pile driving might result in one or more of the following: Temporary or 
permanent hearing impairment, non-auditory physical or physiological 
effects, behavioral disturbance, and masking (Richardson et al., 1995; 
Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). The 
effects of pile driving on marine mammals are dependent on several 
factors, including the size, type, and depth of the animal; the depth, 
intensity, and duration of the pile driving sound; the depth of the 
water column; the substrate of the habitat; the standoff distance 
between the pile and the animal; and the sound propagation properties 
of the environment. Impacts to marine mammals from pile driving 
activities are expected to result primarily from acoustic pathways. As 
such, the degree of effect is intrinsically related to the received 
level and duration of the sound exposure, which are in turn influenced 
by the distance between the animal and the source. The further away 
from the source, the less intense the exposure should be. The substrate 
and depth of the habitat affect the sound propagation properties of the 
environment. Shallow environments are typically more structurally 
complex, which leads to rapid sound attenuation. In addition, 
substrates that are soft (e.g., sand) would absorb or attenuate the 
sound more readily than hard substrates (e.g., rock) which may reflect 
the acoustic wave. Soft porous substrates would also likely require 
less time to drive the pile, and possibly less forceful equipment, 
which would ultimately decrease the intensity of the acoustic source.
    In the absence of mitigation, impacts to marine species would be 
expected to result from physiological and behavioral responses to both 
the type and strength of the acoustic signature (Viada et al., 2008). 
The type and severity of behavioral impacts are more difficult to 
define due to limited studies addressing the behavioral effects of 
impulse sounds on marine mammals. Potential effects from impulse sound 
sources can range in severity from effects such as behavioral 
disturbance or tactile perception to physical discomfort, slight injury 
of the internal organs and the auditory system, or mortality (Yelverton 
et al., 1973).
    Hearing Impairment and Other Physical Effects--Marine mammals 
exposed to high intensity sound repeatedly or for prolonged periods can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt 
et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), 
in which case the loss of hearing sensitivity is not recoverable, or 
temporary (TTS), in which case the animal's hearing threshold would 
recover over time (Southall et al., 2007). Marine mammals depend on 
acoustic cues for vital biological functions (e.g., orientation, 
communication, finding prey, avoiding predators). Thus, TTS may result 
in reduced fitness in survival and reproduction. However, this depends 
on the frequency and duration of TTS, as well as the biological context 
in which it occurs. TTS of limited duration, occurring in a frequency 
range that does not coincide with that used for recognition of 
important acoustic cues, would have little to no effect on an animal's 
fitness. Repeated sound exposure that leads to TTS could cause PTS. PTS 
constitutes injury, but TTS does not (Southall et al., 2007). The 
following subsections discuss in somewhat more detail the possibilities 
of TTS, PTS, and non-auditory physical effects.
    Temporary Threshold Shift--TTS is the mildest form of hearing 
impairment that can occur during exposure to a strong sound (Kryter 
1985). While experiencing TTS, the hearing threshold rises, and a sound 
must be stronger in order to be heard. In terrestrial mammals, TTS can 
last from minutes or hours to days (in cases of strong TTS). For sound 
exposures at or somewhat above the TTS threshold, hearing sensitivity 
in both terrestrial and marine mammals recovers rapidly after exposure 
to the sound ends. Few data on sound levels and durations necessary to 
elicit mild TTS have been obtained for marine mammals, and none of the 
published data concern TTS elicited by exposure to multiple pulses of 
sound. Available data on TTS in marine mammals are summarized in 
Southall et al. (2007) and more recently in Finneran (2016).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to 
serious. For example, a marine mammal may be able to readily compensate 
for a brief, relatively small amount of TTS in a non-critical frequency 
range that occurs during a time where ambient noise is lower and there 
are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin, beluga whale, harbor porpoise, and Yangtze finless 
porpoise) and three species of pinnipeds (northern elephant seal, 
harbor seal, and California sea lion) exposed to a limited number of 
sound sources (i.e., mostly tones and octave-band noise) in laboratory 
settings (e.g., Finneran, 2016; Finneran et al., 2002; Finneran and 
Schlundt, 2010, 2013; Nachtigall et al., 2004; Kastaket et al., 2005; 
Lucke et al., 2009; Popov et al., 2011). In general, harbor seals and 
harbor porpoises have a lower TTS onset than other measured pinniped or 
cetacean species (Kastak et al., 2005; Kastelein et al., 2011, 2012a, 
2012b, 2013a, 2013b, 2014a, 2014b, 2015a, 2015b, 2015c, 2016). 
Additionally, the existing marine mammal TTS data come from a limited 
number of individuals within these species. There are no data available 
on noise-induced hearing loss for mysticetes. For summaries of data on 
TTS in marine mammals or for further discussion of TTS onset 
thresholds, please see Southall et al. (2007),

[[Page 10293]]

Finneran and Jenkins (2012), and Finneran (2016).
    Permanent Threshold Shift--When PTS occurs, there is physical 
damage to the sound receptors in the ear. In severe cases, there can be 
total or partial deafness, while in other cases the animal has an 
impaired ability to hear sounds in specific frequency ranges (Kryter 
1985). There is no specific evidence that exposure to pulses of sound 
can cause PTS in any marine mammal. However, given the possibility that 
mammals close to a sound source might incur TTS, there has been further 
speculation about the possibility that some individuals might incur 
PTS. Single or occasional occurrences of mild TTS are not indicative of 
permanent auditory damage, but repeated or (in some cases) single 
exposures to a level well above that causing TTS onset might elicit 
PTS.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals but are assumed to be similar to those in humans and 
other terrestrial mammals. Available data from humans and other 
terrestrial mammals indicate that a 40 dB threshold shift approximates 
PTS onset (see Ward et al., 1958; Ward et al., 1959; Ward, 1960; Kryter 
et al., 1966; Miller, 1974; Ahroon et al., 1996; Henderson et al., 
2008). Southall et al., (2007) also recommended this definition of PTS 
onset.
    PTS onset acoustic thresholds for marine mammals have not been 
directly measured and must be extrapolated from available TTS onset 
measurements. Thus, based on cetacean measurements from TTS studies 
(see Southall et al., 2007; Finneran, 2015; Finneran, 2016 (found in 
Appendix A of the Guidance)) a threshold shift of 6 dB is considered 
the minimum threshold shift clearly larger than any day-to-day or 
session-to-session variation in a subject's normal hearing ability and 
is typically the minimum amount of threshold shift that can be 
differentiated in most experimental conditions (Finneran et al., 2000; 
Schlundt et al., 2000; Finneran et al., 2002).
    Measured source levels from impact pile driving can be as high as 
214 dB rms. Although no marine mammals have been shown to experience 
TTS or PTS as a result of being exposed to pile driving activities, 
captive bottlenose dolphins and beluga whales exhibited changes in 
behavior when exposed to strong-pulsed sounds (Finneran et al., 2000, 
2002, 2005). The animals tolerated high received levels of sound before 
exhibiting aversive behaviors. Experiments on a beluga whale showed 
that exposure to a single watergun impulse at a received level of 207 
kilopascal (kPa) (30 psi) peak-to-peak (p-p), which is equivalent to 
228 dB p-p, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 
30 kHz, respectively. Thresholds returned to within 2 dB of the pre-
exposure level within four minutes of the exposure (Finneran et al., 
2002). Although the source level of pile driving from one hammer strike 
is expected to be much lower than the single watergun impulse cited 
here, animals being exposed for a prolonged period to repeated hammer 
strikes could receive more sound exposure in terms of sound exposure 
level (SEL) than from the single watergun impulse (estimated at 188 dB 
re 1 [mu]Pa\2\-s) in the aforementioned experiment (Finneran et al., 
2002). However, in order for marine mammals to experience TTS or PTS, 
the animals have to be close enough to be exposed to high intensity 
sound levels for a prolonged period of time. Based on the best 
scientific information available, these SPLs are below the thresholds 
that could cause TTS or the onset of PTS.
    Non-auditory Physiological Effects--Non-auditory physiological 
effects or injuries that theoretically might occur in marine mammals 
exposed to strong underwater sound include stress, neurological 
effects, bubble formation, resonance effects, and other types of organ 
or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies 
examining such effects are limited. In general, little is known about 
the potential for pile driving to cause auditory impairment or other 
physical effects in marine mammals. Available data suggest that such 
effects, if they occur at all, would presumably be limited to short 
distances from the sound source and to activities that extend over a 
prolonged period. The available data do not allow identification of a 
specific exposure level above which non-auditory effects can be 
expected (Southall et al., 2007) or any meaningful quantitative 
predictions of the numbers (if any) of marine mammals that might be 
affected in those ways. Marine mammals that show behavioral avoidance 
of pile driving, including some odontocetes and some pinnipeds, are 
especially unlikely to incur auditory impairment or non-auditory 
physical effects.

Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes 
in behavior, more conspicuous changes in activities, and displacement. 
Behavioral responses to sound are highly variable and context-specific 
and reactions, if any, depend on species, state of maturity, 
experience, current activity, reproductive state, auditory sensitivity, 
time of day, and many other factors (Richardson et al., 1995; Wartzok 
et al., 2003; Southall et al., 2007).
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. Behavioral state may affect the type of response as well. For 
example, animals that are resting may show greater behavioral change in 
response to disturbing sound levels than animals that are highly 
motivated to remain in an area for feeding (Richardson et al., 1995; 
NRC 2003; Wartzok et al., 2003).
    Controlled experiments with captive marine mammals showed 
pronounced behavioral reactions, including avoidance of loud sound 
sources (Ridgway et al., 1997; Finneran et al., 2000). Observed 
responses of wild marine mammals to loud pulsed sound sources 
(typically seismic guns or acoustic harassment devices but also 
including pile driving) have been varied but often consist of avoidance 
behavior or other behavioral changes suggesting discomfort (Morton and 
Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; 
Wartzok et al., 2003; Nowacek et al., 2007). Responses to continuous 
sound, such as vibratory pile installation, have not been documented as 
well as responses to pulsed sounds.
    With both types of pile driving, it is likely that the onset of 
pile driving could result in temporary, short term changes in an 
animal's typical behavior and/or avoidance of the affected area. These 
behavioral changes may include (Richardson et al., 1995): Changing 
durations of surfacing and dives; number of blows per surfacing; moving 
direction and/or speed; reduced/increased vocal activities; changing/
cessation of certain behavioral activities (such as socializing or 
feeding); visible startle response or aggressive behavior (such as 
tail/fluke slapping or jaw clapping); avoidance of areas where sound 
sources are located; and/or flight responses (e.g., pinnipeds flushing 
into water from haul-outs or rookeries). Pinnipeds may increase their 
haul-out time, possibly to avoid in-water disturbance (Thorson and 
Reyff 2006).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected

[[Page 10294]]

disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, or reproduction. Significant 
behavioral modifications that could potentially lead to effects on 
growth, survival, or reproduction include:

     Drastic changes in diving/surfacing patterns (such as 
those thought to cause beaked whale stranding due to exposure to 
military mid-frequency tactical sonar);
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cessation of feeding or social interaction.

    The onset of behavioral disturbance from anthropogenic sound 
depends on both external factors (characteristics of sound sources and 
their paths) and the specific characteristics of the receiving animals 
(hearing, motivation, experience, demography) and is difficult to 
predict (Southall et al., 2007).
    Auditory Masking--Natural and artificial sounds can disrupt 
behavior by masking, or interfering with, a marine mammal's ability to 
hear other sounds. Masking occurs when the receipt of a sound is 
interfered with by another coincident sound at similar frequencies and 
at similar or higher levels. Chronic exposure to excessive, though not 
high-intensity, sound could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions. 
Masking can interfere with detection of acoustic signals such as 
communication calls, echolocation sounds, and environmental sounds 
important to marine mammals. Therefore, under certain circumstances, 
marine mammals whose acoustical sensors or environment are being 
severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction. If the coincident 
(masking) sound were anthropogenic, it could be potentially harassing 
if it disrupted hearing-related behavior. It is important to 
distinguish TTS and PTS, which persist after the sound exposure, from 
masking, which occurs only during the sound exposure. Because masking 
(without resulting in TS) is not associated with abnormal physiological 
function, it is not considered a physiological effect, but rather a 
potential behavioral effect.
    Masking occurs at the frequency band which the animals utilize so 
the frequency range of the potentially masking sound is important in 
determining any potential behavioral impacts. Because sound generated 
from in-water vibratory pile driving is mostly concentrated at low 
frequency ranges, it may have less effect on high frequency 
echolocation sounds made by porpoises. However, lower frequency man-
made sounds are more likely to affect detection of communication calls 
and other potentially important natural sounds such as surf and prey 
sound. It may also affect communication signals when they occur near 
the sound band and thus reduce the communication space of animals 
(Clark et al., 2009) and cause increased stress levels (Foote et al., 
2004; Holt et al., 2009).
    Masking has the potential to impact species at the population or 
community levels as well as at individual levels. Masking affects both 
senders and receivers of the signals and can potentially have long-term 
chronic effects on marine mammal species and populations. Recent 
research suggests that low frequency ambient sound levels have 
increased by as much as 20 dB (more than three times in terms of SPL) 
in the world's ocean from pre-industrial periods, and that most of 
these increases are from distant shipping (Hildebrand 2009). All 
anthropogenic sound sources, such as those from vessel traffic, pile 
driving, and dredging activities, contribute to the elevated ambient 
sound levels, thus intensifying masking.
    Vibratory pile driving is relatively short-term, with rapid 
oscillations occurring for 10 to 30 minutes per installed pile. It is 
possible that vibratory pile driving resulting from this action may 
mask acoustic signals important to the behavior and survival of marine 
mammal species, but the short-term duration and limited affected area 
would result in insignificant impacts from masking. Any masking event 
that could possibly rise to Level B harassment under the MMPA would 
occur concurrently within the zones of behavioral harassment already 
estimated for vibratory pile driving, and which have already been taken 
into account in the exposure analysis.
    Acoustic Effects, Airborne--Marine mammals that occur in the 
project area could be exposed to airborne sounds associated with pile 
driving that have the potential to cause harassment, depending on their 
distance from pile driving activities. Airborne pile driving sound 
would have less impact on cetaceans than pinnipeds because sound from 
atmospheric sources does not transmit well underwater (Richardson et 
al., 1995). Thus, airborne sound would only be an issue for pinnipeds 
either hauled-out or looking with heads above water in the project 
area. Most likely, airborne sound would cause behavioral responses 
similar to those discussed above in relation to underwater sound. For 
instance, anthropogenic sound could cause hauled-out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to temporarily abandon their habitat and 
move further from the source. Studies by Blackwell et al. (2002) and 
Moulton et al. (2005) indicate a tolerance or lack of response to 
unweighted airborne sounds as high as 112 dB peak and 96 dB rms.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by vibratory and impact 
pile driving and removal in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.
    Potential Pile Driving Effects on Prey--Construction activities 
would produce continuous (i.e., vibratory pile driving) sounds. Fish 
react to sounds that are especially strong and/or intermittent low-
frequency sounds. Short duration, sharp sounds can cause overt or 
subtle changes in fish behavior and local distribution. Hastings and 
Popper (2005) identified several studies that suggest fish may relocate 
to avoid certain areas of sound energy. Additional studies have 
documented effects of pile driving on fish, although several are based 
on studies in support of large, multiyear bridge construction projects 
(e.g., Scholik and Yan 2001, 2002; Popper and Hastings 2009). Sound 
pulses at received levels of 160 dB may cause subtle changes in fish 
behavior. SPLs of 180 dB may cause noticeable changes in behavior 
(Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient 
strength have been known to cause injury to fish and fish mortality. 
The most likely impact to fish from pile driving activities at the 
project area would be temporary behavioral avoidance of the area. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution, and 
behavior is anticipated. Additionally, NMFS developed a Biological 
Opinion in 2011 which indicated that no adverse effects were 
anticipated for critical habitat of prey species for marine mammals. In 
general, impacts to marine mammal prey species are expected to be minor 
and temporary due to the short timeframe for the project.
    Effects to Foraging Habitat--Pile installation may temporarily 
increase turbidity resulting from suspended sediments. Any increases 
would be temporary, localized, and minimal. The Corps must comply with 
state water

[[Page 10295]]

quality standards during these operations by limiting the extent of 
turbidity to the immediate project area. In general, turbidity 
associated with pile installation is localized to about a 25-ft (7.62 
m) radius around the pile (Everitt et al., 1980). Cetaceans are not 
expected to be close enough to the project pile driving areas to 
experience effects of turbidity, and any pinnipeds will be transiting 
the terminal area and could avoid localized areas of turbidity. 
Therefore, the impact from increased turbidity levels is expected to be 
discountable to marine mammals. Furthermore, pile driving and removal 
at the project site will not obstruct movements or migration of marine 
mammals.
    Natural tidal currents and flow patterns in MCR waters routinely 
disturb sediments. High volume tidal events can result in hydraulic 
forces that re-suspend benthic sediments, temporarily elevating 
turbidity locally. Any temporary increase in turbidity as a result of 
the action is not anticipated to measurably exceed levels caused by 
these normal, natural periods.

Mitigation Measures

    In order to issue an LOA under section 101(a)(5)(A) 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.
    The Corps' calculation of the Level A harassment zones utilized the 
methods presented in Appendix D of NMFS' Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
(the Guidance, available at https://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm) and the accompanying User Spreadsheet. The Guidance 
provides updated PTS onset thresholds using the cumulative SEL 
(SELcum) metric, which incorporates marine mammal auditory 
weighting functions, to identify the received levels, or acoustic 
thresholds, at which individual marine mammals are predicted to 
experience changes in their hearing sensitivity for acute, incidental 
exposure to all underwater anthropogenic sound sources. The Guidance 
(Appendix D) and its companion User Spreadsheet provide alternative 
methodology for incorporating these more complex thresholds and 
associated weighting functions.
    The User Spreadsheet accounts for effective hearing ranges using 
Weighting Factor Adjustments (WFAs), and the Corps' application uses 
the recommended values for vibratory driving therein. NMFS' new 
acoustic thresholds use SELcum for non-impulsive sounds 
(e.g., vibratory pile driving) (Table 5). The Corps used the User 
Spreadsheet to determine isopleth estimates for PTS onset using the 
cumulative sound exposure level metric (LE) (https://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm). In determining the 
cumulative sound exposure levels, the Guidance considers the duration 
of the activity (5 hours), the sound exposure level produced by the 
source (163 rms SPL) during one working day, and the effective hearing 
range of the receiving species. These values were then used to develop 
mitigation measures for pile driving activities. The shutdown zone 
effectively represents the mitigation zone that would be established 
around each pile to prevent Level A harassment (PTS onset) to marine 
mammals (Table 5), while the ZOIs provide estimates of the areas within 
which Level B harassment might occur for vibratory pile driving.

   Table 5--Summary of PTS Onset Acoustic Thresholds and PTS Isopleths
------------------------------------------------------------------------
                                     PTS onset  acoustic
                                      thresholds-- non-
                                         impulsive,        PTS isopleth
     Functional hearing group            stationary,       to threshold
                                         continuous          (meters)
                                      (received level)
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans......  LE,LF,24h: 199 dB...            27.1
Mid-Frequency (MF) Cetaceans......  LE,MF,24h: 198 dB...             2.4
High-Frequency (HF) Cetaceans.....  LE,HF,24h: 173 dB...            40.1
Phocid Pinnipeds (PW) (Underwater)  LE,PW,24h: 201 dB...            16.5
Otariid Pinnipeds (OW)              LE,OW,24h: 219 dB...             1.2
 (Underwater).
------------------------------------------------------------------------
Note: Peak sound pressure (L) has a reference value of 1 [micro]Pa, and
  cumulative sound exposure level (L) has a reference value of
  1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect
  American National Standards Institute standards (ANSI 2013). However,
  peak sound pressure is defined by ANSI as incorporating frequency
  weighting, which is not the intent for this Technical Guidance. Hence,
  the subscript ``flat'' is being included to indicate peak sound
  pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure
  level thresholds indicates the designated marine mammal auditory
  weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The
  cumulative sound exposure level thresholds could be exceeded in a
  multitude of ways (i.e., varying exposure levels and durations, duty
  cycle). When possible, it is valuable for action proponents to
  indicate the conditions under which these acoustic thresholds will be
  exceeded.

    For this project, the Corps worked with NMFS to develop the 
following mitigation measures to minimize the potential impacts to 
marine mammals in the project vicinity. The primary purposes of these 
mitigation measures are to minimize sound levels from the activities, 
avoid unnecessary exposure to elevated sound levels, and to monitor 
marine mammals within designated ZOIs corresponding to NMFS' Level A 
and B harassment thresholds. The following measures would apply to the 
Corps' mitigation through shutdown zone and ZOI:
    Shutdown Zone--For all pile driving activities, the Corps will 
establish a shutdown zone intended to contain the area in which Level A 
harassment thresholds are exceeded. The purpose of the exclusion zone 
is to define an area within which shutdown of construction activity 
would occur upon sighting of a marine mammal within that area (or in 
anticipation of an animal entering the defined area), preventing 
potential injury of marine mammals. Calculated distances to the updated 
PTS onset acoustic thresholds are shown in Table 5. Distances to the 
PTS onset threshold during vibratory pile driving range from a maximum 
of 40.1 m for high-frequency cetaceans to 1.2 m for otariid

[[Page 10296]]

pinnipends. Shutdown zone ispopleths for the species for which take are 
authorized is shown in Table 6.
    Level B Harassment Zone (Zone of influence)--The ZOI refers to the 
area(s) in which SPLs equal or exceed NMFS' current Level B harassment 
thresholds (120 dB rms for non-pulsed continuous sound). ZOIs provide 
utility for monitoring that is conducted for mitigation purposes (i.e., 
exclusion zone monitoring) by establishing monitoring protocols for 
areas adjacent to the exclusion zone. Monitoring of the ZOI enables 
observers to be aware of, and communicate about, the presence of marine 
mammals within the project area but outside the exclusion zone and 
prepare for potential shutdowns of activity should those marine mammals 
approach the exclusion zone. However, the primary purpose of ZOI 
monitoring is to allow documentation of incidents of Level B 
harassment; ZOI monitoring is discussed in greater detail later (see 
Monitoring and Reporting). The modeled radial distances for ZOIs for 
vibratory pile driving (not taking into account landmasses which are 
expected to limit the actual ZOI radii) are shown in Table 6 in the 
Estimated Take by Harassment section.
    The Corps will implement a marine mammal monitoring plan as 
described in Sections 13 and 16 of the application as well as the 
November 2016 Addendum to the application. This plan includes the 
following measures:

     The Corps will conduct briefings between construction 
supervisors and crews, the marine mammal monitoring team, and Corps 
staff prior to the start of all pile driving activity in order to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
     All pile driving and removal activities will be 
conducted only using a vibratory hammer.
     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 20 m, operations shall 
cease and vessels shall reduce speed to the minimum level required 
to maintain steerage and safe working conditions.
     If the shutdown zone is obscured by fog or poor 
lighting conditions, pile driving will not be initiated until the 
entire shutdown zone is visible.
     If a marine mammal approaches or enters the shutdown 
zone during pile driving, work will be halted and delayed until 
either the animal's voluntary departure has been visually confirmed 
beyond the disturbance zone, or 15 minutes have passed without re-
detection of the animal.
     Marine Mammal Observers (MMO) will scan the waters 
starting 30 minutes before and continuing through duration of all 
pile driving. If any species for which take is not authorized are 
observed within the area of potential sound effects during or 30 
minutes before pile driving, the observer(s) will immediately notify 
the on-site supervisor or inspector, and require that pile driving 
either not initiate or temporarily cease until the animals have 
moved outside of the area of potential sound effects.
     Work will occur only during daylight hours, when visual 
monitoring of marine mammals can be conducted.
     In order to minimize impact to Southern Resident killer 
whales, in-water pile driving work will not be conducted during 
their primary feeding season extending from October 1 until April 
30. Installation will occur from May 1 through September 30 each 
year. In order to avoid take of endangered Southern Resident killer 
whales, which may be indistinguishable from transient whales, if 
between May 1 and July 1 any killer whales are observed within the 
area of ZOI, comprising the shutdown and Level B thresholds, the 
Corps will immediately shut down all pile installation, removal, or 
maintenance activities. Operations will either remain shutdown or 
will not be initiated until all killer whales have moved outside of 
the area of the ZOI. After July 1 until September 30 all killer 
whales will be assumed to be transients because the presence of 
Southern Resident killer whales at that time would be highly 
improbable. No shutdown is required for killer whales observed after 
July 1 until September 30 in the Level B harassment zone, but 
animals must be recorded as Level B takes in the approved monitoring 
forms.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's mitigation measures 
and considered a range of other measures in the context of ensuring 
that NMFS prescribes the means of affecting 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:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that 
these mitigation measures provide the means of effecting the least 
practicable impact on marine mammals 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 Incidental Take Authorization (ITA) for an 
activity, section 101(a)(5)(D) of the MMPA states that NMFS must set 
forth ``requirements pertaining to the monitoring and reporting of such 
taking.'' The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area. The Corps submitted information regarding 
marine mammal monitoring to be conducted during pile driving and 
removal operations as part of the application. That information can be 
found in sections 13 and 16 of the application as well as the November 
2016 Addendum.
    Monitoring measures prescribed by NMFS should contribute to or 
accomplish one or more of the following top-level goals:
    1. An increase in our understanding of the likely occurrence of 
marine mammal species in the vicinity of the action, i.e., presence, 
abundance, distribution, and/or density of species.
    2. An increase in our understanding of the nature, scope, or 
context of the likely exposure of marine mammal species to any of the 
potential stressor(s) associated with the action (e.g. sound or visual 
stimuli), through better understanding of one or more of the following: 
the action itself and its environment (e.g. sound source 
characterization, propagation, and ambient noise levels); the affected 
species (e.g. life history or dive pattern); the likely co-occurrence 
of marine mammal species with the action (in whole or part) associated 
with specific adverse effects; and/or the likely biological or 
behavioral context of exposure to the stressor for the marine mammal 
(e.g. age class of exposed animals or known pupping, calving or feeding 
areas).
    3. An increase in our understanding of how individual marine 
mammals respond (behaviorally or physiologically) to the specific 
stressors associated with the action (in specific contexts, where 
possible, e.g., at what distance or received level).
    4. An increase in our understanding of how anticipated individual 
responses, to individual stressors or anticipated combinations of 
stressors, may impact either: the long-term fitness and survival of an 
individual; or the population, species, or stock (e.g.,

[[Page 10297]]

through effects on annual rates of recruitment or survival).
    5. An increase in our understanding of how the activity affects 
marine mammal habitat, such as through effects on prey sources or 
acoustic habitat (e.g., through characterization of longer-term 
contributions of multiple sound sources to rising ambient noise levels 
and assessment of the potential chronic effects on marine mammals).
    6. An increase in understanding of the impacts of the activity on 
marine mammals in combination with the impacts of other anthropogenic 
activities or natural factors occurring in the region.
    7. An increase in our understanding of the effectiveness of 
mitigation and monitoring measures.
    8. An increase in the probability of detecting marine mammals 
(through improved technology or methodology), both specifically within 
the safety zone (thus allowing for more effective implementation of the 
mitigation) and in general, to better achieve the above goals.

Monitoring Measures

Visual Monitoring

    The following monitoring measures are required as part of this 
authorization.

     Visual vessel-based monitoring--The Corps will employ 
two vessels to monitor disturbance zones associated with pile-
driving and removal activities at the North Jetty and South Jetty 
offloading facilities. Section 16 of the Corps' application 
indicates roughly where these vessels will be located. These vessels 
will be traversing across the delineated disturbance zones while 
pile driving is occurring.
     Visual shore-based monitoring will be conducted by 
qualified, trained MMOs. Visual monitoring will be implemented 
during all pile installation activities at all jetties. An observer 
must meet the qualifications stated in the application, have prior 
training and experience conducting marine mammal monitoring or 
surveys, and have the ability to identify marine mammal species and 
describe relevant behaviors that may occur in proximity to in-water 
construction activities.
     MMOs must be approved in advanced by NMFS.
     Trained MMOs will be placed at the best vantage points 
practicable (e.g., at the pile location on construction barges, on 
shore, or aboard vessels, etc. as noted in the figures) to monitor 
for marine mammals and implement shutdown/delay procedures when 
applicable by calling for the shutdown to the hammer operator. 
Likely shore-based MMO locations are described in section 16 of the 
application.
     During pedestrian surveys, personnel will avoid as much 
as possible direct approach towards pinnipeds that are hauled out. 
If it is absolutely necessary to make movements towards pinnipeds, 
approach in a slow and steady manner to reduce the behavioral 
harassment to the animals as much as possible.
     MMOs will use a hand-held or boat-mounted GPS device 
and rangefinder to verify the required monitoring distance from the 
project site. MMOs will use range finders to determine distance to 
marine mammals, boats, buoys, and construction equipment.
     MMOs will be equipped with camera and video capable of 
recording any necessary take information, including data required in 
the event of an unauthorized Level A take.
     MMOs will scan the waters within the area of potential 
sound effects using high-quality binoculars (e.g., Zeiss 10x42, or 
similar) or spotting scopes (20-60 zoom or equivalent), and by 
making visual observations.
     MMOs shall be equipped with radios or cell phones for 
maintaining immediate contact with other observers, Corps engineers, 
and personnel operating pile equipment.
     Monitoring would be conducted before, during, and after 
pile driving and removal 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 would be halted.
     Monitoring will take place from 30 minutes prior to 
initiation through 30 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 30 minutes.

Hydroacoustic Monitoring

    A hydroacoustic monitoring plan submitted by the Corps has been 
approved by NMFS and will be implemented during construction. This will 
ensure that the shutdown and harassment isopleths are aligned with the 
initial distances established as part of these regulations. The 
complete hydroacoustic monitoring plan may be found in the November 
2016 Addendum to the application at https://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Data Collection

    Observers shall use approved data forms. Among other pieces of 
information, the Corps 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 Corps 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 Measures

    The Corps will submit an annual report to NMFS' Permits and 
Conservation Division within 90 days of the end of every operating 
season (September 30) during the 5-year authorization period. The 
annual report would detail the monitoring protocol, summarize the data 
recorded during monitoring, and estimate the number of marine mammals 
that may have been harassed. If no comments are received from NMFS 
within 30 days, the draft final report will become final. If comments 
are received, a final report must be submitted up to 30 days after 
receipt of comments. Reports shall contain the following information:

     Summaries of monitoring effort (e.g., total hours, 
total distances, and marine mammal distribution through the study 
period, accounting for sea state and other factors affecting 
visibility and detectability of marine mammals);
     Analyses of the effects of various factors influencing 
detectability of marine mammals (e.g., sea state, number of 
observers, and fog/glare);
     Species composition, occurrence, and distribution of 
marine mammal sightings, including date, numbers, age/size/gender 
categories (if determinable), and group sizes;
     Observed behavioral responses to pile driving including 
bearing and direction of travel and distance from pile driving 
activity; and
     Results of hydroacoustic monitoring program.

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the LOA, 
such as an injury (Level A harassment), serious injury or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), the

[[Page 10298]]

Corps will immediately cease the specified activities and immediately 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the West Coast 
Regional Stranding Coordinator. The report will include the following 
information:

     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved (if applicable);
     Vessel's speed during and leading up to the incident 
(if applicable);
     Description of the incident;
     Status of all sound source used in the 24 hours 
preceding the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and 
direction, Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).

    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with the Corps to 
determine necessary actions to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Corps will not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the Corps discovers an injured or dead marine 
mammal, and the lead MMO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
the Corps will immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator. The report will 
include the same information identified in the section above. 
Activities will be able to continue while NMFS reviews the 
circumstances of the incident. NMFS will work with the Corps to 
determine whether modifications in the activities are appropriate.
    In the event that the Corps discovers an injured or dead marine 
mammal, and the lead MMO determines that the injury or death is not 
associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Corps will report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the NMFS West Coast Stranding Hotline or 
West Coast Regional Stranding Coordinator, within 24 hours of the 
discovery. The Corps will provide photographs or video footage (if 
available) or other documentation of the stranded animal sighting to 
NMFS and the Marine Mammal Stranding Network. Pile driving activities 
will be permitted to continue.

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 (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).''
    All anticipated takes would be by Level B harassment resulting from 
vibratory pile driving and removal and may result in temporary changes 
in behavior. Injurious or lethal takes are not expected due to the 
expected source levels and sound source characteristics associated with 
the activity, and the mitigation and monitoring measures are expected 
to further minimize the possibility of such take.
    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, and to use 
those values to estimate take.
    Upland work can generate airborne sound and create visual 
disturbance that could potentially result in disturbance to marine 
mammals (specifically, pinnipeds) that are hauled out or at the water's 
surface with heads above the water. The Corps will also be conducting 
pedestrian surveys on each of the jetties during the summer, lasting 
about two days for each survey. During the life of this action, about 
six days of surveys over three seasons will occur at the South Jetty, 
which is the only jetty survey with the potential to impact pinnipeds.
    The Corps requested authorization for the incidental taking of 
small numbers of killer whale, gray whale, humpback whale, harbor 
porpoise, Steller sea lion, California sea lion, and harbor seal near 
the MCR project area that may result from vibratory pile driving and 
removal during construction activities associated with the 
rehabilitation of the Jetty system at the MCR. In order to estimate the 
potential incidents of take that may occur incidental to the specified 
activity, we must first estimate the extent of the sound field that may 
be produced by the activity and then consider that in combination with 
information about marine mammal density or abundance in the project 
area. We first provide information on applicable sound thresholds for 
determining effects to marine mammals before 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.

Sound Thresholds

    We use sound exposure thresholds to determine when an activity that 
produces sound might result in impacts to a marine mammal such that a 
``take'' by harassment might occur. As discussed above, NMFS has 
recently revised PTS (and TTS) onset acoustic thresholds for impulsive 
and non-impulsive sound as part of its new acoustic guidance. 
Information on applicable sound thresholds for determining Level A 
auditory injury harassment may be found in the new Guidance document 
(81 FR 51694; August 4, 2016). NMFS' calculation of the Level A 
harassment zones utilized the methods presented in Appendix D of the 
new Guidance and the accompanying Optional User Spreadsheet. The 
spreadsheet accounts for a marine mammal hearing group's potential 
susceptibility to noise-induced hearing loss at different frequencies 
(i.e., auditory weighting functions) using Weighting Factor Adjustments 
(WFA). NMFS' new acoustic thresholds use cumulative sound exposure 
level for non-impulsive sounds (e.g., vibratory pile driving). NMFS 
used source level measurements from similar vibratory pile driving 
events coupled with

[[Page 10299]]

practical spreading loss (15 log R), and applied the updated PTS onset 
thresholds for cumulative sound exposure level (SELcum) 
metric using the Optional User spreadsheet derived from the new 
acoustic guidance to determine isopleth estimates for PTS onset using 
the SELcum metric (https://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm). In determining the cumulative sound exposure levels, 
the Guidance considers the duration of the activity within a 24-hour 
period, and the associated adjustment from the WFAs by hearing group. 
All calculated distances to marine mammal sound thresholds for PTS 
injury are provided in Table 6.

      Table 6--PTS Isopleths and Shutdown Zone Radii at MCR Jetties
------------------------------------------------------------------------
                                                        Shutdown radius
      Species (hearing group)        PTS isopleth (m)         (m)
------------------------------------------------------------------------
Western Transient Killer Whale                    2.4                 20
 (Mid-frequency cetaceans)........
Humpback Whale (Low-frequency                    27.1                 30
 cetaceans).......................
Gray Whale (Low-frequency                        27.1                 30
 cetaceans).......................
Harbor Porpoise (High-frequency                  40.1                 40
 cetaceans).......................
Steller Sea Lion (Otariid                         1.2                 20
 pinnipeds).......................
California Sea Lion (Otariid                      1.2                 20
 pinnipeds).......................
Harbor Seal (Phoccid pinnipeds)...               16.5                 20
------------------------------------------------------------------------

    These values were then used to develop mitigation measures for pile 
driving activities. The new Guidance indicates that there is a greater 
likelihood of auditory injury for low-frequency cetaceans (i.e., 
humpback whales, gray whales) and high-frequency cetaceans (i.e., 
harbor porpoise) than was considered in our Federal Register Notice of 
Proposed Rulemaking. In that Federal Register notice, NMFS proposed a 
shutdown zone of 20 m for all species during vibratory driving. In 
order to address this increased likelihood of PTS, we increased the 
shutdown zones required for low-frequency cetacean hearing group to 30 
m and for high-frequency cetacean hearing group to 40 m. For harbor 
porpoise we assumed that 0.1 m (40.1 m vs. 40 m) would not make a 
significant difference in susceptibility to injury and set the PTS 
isopleth at 40 m. Because the shutdown zones for all hearing groups and 
species are greater than or equivalent to the PTS injury isopleths, 
NMFS does not authorize any Level A harassment take.
    The Guidance does not address Level B harassment or airborne noise 
harassment; therefore, the Corps uses the current NMFS acoustic 
exposure criteria to determine exposure to airborne and underwater 
noise sound pressure levels for Level B harassment (Table 7).

 Table 7--Current NMFS Acoustic Exposure Criteria for Level B Harassment
------------------------------------------------------------------------
           Criterion                Definition           Threshold
------------------------------------------------------------------------
Level B harassment              Behavioral         160 dB re: 1
 (underwater).                   disruption.        [micro]Pa (impulsive
                                                    source *)/120 dB re:
                                                    1 [micro]Pa
                                                    (continuous source
                                                    *) (rms).
Level B harassment (airborne)   Behavioral         90 dB re: 20
 **.                             disruption.        [micro]Pa (harbor
                                                    seals)/100 dB re: 20
                                                    [micro]Pa (other
                                                    pinnipeds)
                                                    (unweighted).
------------------------------------------------------------------------
* Impact pile driving produces impulsive noise; vibratory pile driving
  produces non-pulsed (continuous) noise.
** NMFS has not established any formal criteria for harassment resulting
  from exposure to airborne sound. However, these thresholds represent
  the best available information regarding the effects of pinniped
  exposure to such sound and NMFS' practice is to associate exposure at
  these levels with Level B harassment.

Distance to Sound Thresholds

    Underwater Sound Propagation Formula--Pile driving generates 
underwater noise that can potentially result in disturbance to marine 
mammals in the project area. Transmission loss (TL) is the decrease in 
acoustic intensity as an acoustic pressure wave propagates out from a 
source. TL parameters vary with frequency, temperature, sea conditions, 
current, source and receiver depth, water depth, water chemistry, and 
bottom composition and topography. The general formula for underwater 
TL is:

TL = B * log10 (R1/R2),

Where

TL = transmission loss in dB
B = wave mode coefficient
R1= the distance of the modeled SPL from the driven pile, 
and
R2= the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log[range]). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log(range)). A 
practical spreading value of 15 is often used under conditions where 
water increases with depth as the receiver moves away from the 
shoreline, resulting in an expected propagation environment that would 
lie between spherical and cylindrical spreading loss conditions. 
Practical spreading loss (15*log(range)) with a 4.5 dB reduction in 
sound level for each doubling of distance is assumed here.
    The Corps does not have information or modeling results related to 
pile installation activities. However, some features of the action are 
similar to those recently carried out by the Navy, the Washington State 
Department of Transportation (WSDOT), and other entities which were 
issued IHA/LOAs. For these reasons, NMFS considered

[[Page 10300]]

some of the results from previous, representative monitoring efforts. 
Though the MCR navigation channel is a major commercial thoroughfare, 
there are no ports or piers in the immediate proximity of the jetties, 
as the seas are too dangerous. The locations and settings of the MCR 
jetties are far more dynamic than a naval pier setting in the Puget 
Sound, the substrate is mostly sand, and the natural background noise 
is likely to be much higher with the large, breaking wave sets, dynamic 
currents, and high winds.
    NMFS considered representative results from underwater monitoring 
for steel and wood piles that were installed via both impact and 
vibratory hammers in water depths from 5 to 15 meters (Illingworth and 
Rodkin 2007; WSDOT 2011 cited in Naval Base Kitsap 2014; Navy 2014; and 
NMFS 2011b). Transmission loss and propagation estimates are affected 
by the size and depth of the piles, the type of hammer and installation 
method, frequency, temperature, sea conditions, currents, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. NMFS reviewed several documents that included relevant 
monitoring results for radial distances and proxy sound levels 
encompassed by underwater pile driving noise. These distances for 
vibratory driving for 24-in steel piles were summarized previously in 
Table 16 in the application.
    Because no site-specific, in-water noise attenuation data is 
available, the practical spreading model described and used by NMFS was 
used to determine transmission loss and the distances at which impact 
and vibratory pile driving or removal source levels are expected to 
attenuate down to the pertinent acoustic thresholds. The underwater 
practical spreading model is provided below:

R2 = R1 * 10[supcaret] ((dBat R1 - 
dBacoustic threshold)/15)

Where:

R1 = distance of a known or measured sound level
R2 = estimated distance required for sound to attenuate 
to a prescribed acoustic threshold

    NMFS used representative sound levels from different studies to 
determine appropriate proxy sound levels and to model estimated 
distances until pertinent thresholds (R1 and dB at 
R1). Studies which met the following parameters were 
considered: Pile materials comprised of wood and steel pipe piles; pile 
sizes from 24- to 30-inches diameter; and pile driver type of either 
vibratory and impact hammers. These types and sizes of piles were 
considered in order to evaluate a representative range of sound levels 
that may result from the action. In some cases, because there was 
little or no data specific to 24-inch piles, NMFS analyzed 30-inch 
piles as the next larger pile size with available data. The Corps will 
include a maximum pile size of 24-inches as a constraint in its 
construction contracts.
    Results of the practical spreading model provided the distance of 
the radii that were used to establish a ZOI or area affected by the 
noise criteria. At the MCR, the channel is about 3 miles across between 
the South and North Jetty. These jetties, as well as Jetty A, could 
attenuate noise, but the flanking sides on two of the jetties are open 
ocean, and Jetty A is slightly further interior in the estuary. Clatsop 
Spit, Cape Disappointment, Hammond Point, and the Sand Islands are also 
land features that would attenuate noise. Therefore, as a conservative 
estimate, NMFS is using (and showing on ZOI maps) the maximum distance 
and area (See Figures 1, 2, 3, and 4 in the November 2016 Addendum to 
the application). The actual area ensonified by pile driving activities 
is significantly constrained by local topography relative to the total 
threshold radius. The ensonified area was determined using a straight 
line-of-sight projection from the anticipated pile driving locations. 
Note that figures are provided for the ZOIs for both the South Jetty 
and the South Jetty Clatsop Spit. Only one of those two offloading 
facilities will be constructed, resulting in a total of three 
offloading facilities for the entire project.
    NMFS selected proxy values for impact installation methods and 
calculated distances to acoustic thresholds for comparison and 
contextual purposes. NMFS ultimately relied most heavily on the proxy 
values developed by the Navy (2014).
    For vibratory pile driving source level installation, NMFS used a 
figure of 163 dB re 1 [micro]Pa rms at 10 m. The proxy value of 163 dB 
re 1 [micro]Pa rms at 10 m is greater than the 24-in pipe pile proxy 
and equal to the sheet pile values proposed by Navy (2014) at 161 dB re 
1 [micro]Pa rms and 163 dB re 1 [micro]Pa rms, respectively, and is 
also higher than the Friday Harbor Ferry sample (162 dB re 1 [micro]Pa 
rms) (Navy 2014 and Laughlin 2010a cited in Washington State Ferries 
2013, respectively). NMFS also used 163 dB re 1 [micro]Pa rms to 
represent sheet pile installation, which registered higher than the 
pipe pile levels in the proxy study. Given the comparative differences 
between the substrate and context used in the Navy study relative to 
the MCR, 163 dB re 1 [micro]Pa rms is a very conservative evaluation 
level.
    Airborne construction sound may also cause behavioral responses. 
Again, the Corps does not have specific, in-situ data and has used 
monitoring results from similar actions to obtain representative proxy 
SPLs. This also included the Navy (2014) proxy study for acoustic 
values from both vibratory and impact installation methods.
    During the Navy study (2014), a maximum level of 110 re 20 
[micro]Pa at 15 m was measured for a single 24-inch pile installed via 
impact hammer and was selected as the most representative value for 
modeling analysis under the Navy proxy study. The site was located in 
the Puget Sound. A single 30-second measurement was made for 24-inch 
piles during the Test Pile Program at NBK, Bangor via vibratory 
installation, and because these data fit the overall trend of smaller 
and larger pile sizes, the limited data set for 24-inch steel pipe 
supported the Navy (2014) representative proxy value of 92 dB re 20 
[micro]Pa at 15 m (Navy 2014) for vibratory installation. The rms 
Leq value for 24-inch steel pipe piles was also chosen as 
the best estimate for 24-inch sheet piles in the Navy study (Navy 
2014).
    The method used for calculating potential exposures to vibratory 
pile driving noise for each threshold was estimated using local marine 
mammal data sets, the Biological Opinion and data from LOA/IHA 
estimates on similar projects with similar actions. All estimates are 
conservative and include the following assumptions:

     During construction, each species could be present in 
the project area each day. The potential for a take is based on a 
24-hour period. The model assumes that there can be one potential 
take (Level B harassment exposure) per individual per 24-hours;
     All pilings installed at each site would have an 
underwater noise disturbance equal to the piling that causes the 
greatest noise disturbance (i.e., the piling furthest from shore) 
installed with the method that has the largest ZOI. The largest 
underwater disturbance ZOI would be produced by vibratory driving 
steel piles. The ZOIs for each threshold are not spherical and are 
truncated by land masses which would dissipate sound pressure waves;
     Exposures were based on estimated work days. 
Construction and maintenance at the three jetties will result in 49 
days of pile driving activity as shown in Table 1. Additionally, six 
days of pedestrian surveys are planned to occur on South Jetty which 
may result in pinniped disturbance at haulout sites; and
     In absence of site specific underwater acoustic 
propagation modeling, the practical spreading loss model was used to 
determine the ZOI.


[[Page 10301]]


    Note that pinnipeds that occur near the project sites could be 
exposed to airborne sounds associated with pile driving that have the 
potential to cause behavioral harassment, depending on their distance 
from pile driving activities. Cetaceans are not expected to be exposed 
to airborne sounds that would result in harassment as defined under the 
MMPA. Airborne noise will primarily be an issue for pinnipeds that are 
swimming or hauled out near the project site within the range of noise 
levels elevated above the airborne acoustic criteria. NMFS recognizes 
that pinnipeds in the water could be exposed to airborne sound that may 
result in behavioral harassment when looking with heads above water. 
However, these animals would previously have been taken by exposure to 
underwater sound above the behavioral harassment thresholds, which are 
in all cases larger than those associated with airborne sound. Thus, 
the behavioral harassment of these animals is already accounted for in 
these estimates of potential take. Multiple incidents of exposure to 
sound above NMFS' thresholds for behavioral harassment are not believed 
to result in increased behavioral disturbance, in either nature or 
intensity of disturbance reaction. Therefore, we do not believe that 
authorization of incidental take resulting from airborne sound for 
pinnipeds is warranted, and airborne sound is not discussed further 
here.
    Level B Take ZOI calculations are based on revised PTS isopleths 
and subsequent revised shutdown zones as well as the revised location 
of North Jetty barge offloading facility (moved 3,000 ft to the east). 
The ZOI is calculated by taking the area within the vibratory driving 
disturbance area established at the 120 dB level (7,356 m radius) and 
subtracting the shutdown zone radii, land mass and land mass shadow. 
Revised ZOI are provided in Table 8 below.

                                       Table 8--Revised Zone of Influences
----------------------------------------------------------------------------------------------------------------
                                                                                                 Area excluding
                  Jetty                                Species               Revised shutdown     land & jetty
                                                                              ZOI radius (m)    masses (km) \2\
----------------------------------------------------------------------------------------------------------------
Jetty A.................................  Killer Whale, Stellar &                          20             27.020
                                           California Sea lion and Harbor
                                           Seal.
                                          Humpback & Gray Whale...........                 30             27.019
                                          Harbor Porpoise.................                 40             27.017
North Jetty--(STA 40 + 00)..............  Killer Whale, Stellar &                          20             44.336
                                           California Sea lion and Harbor
                                           Seal.
                                          Humpback & Gray Whale...........                 30             44.335
                                          Harbor Porpoise.................                 40             44.335
South Jetty--(STA 270 + 00).............  Killer Whale, Stellar &                          20             56.778
                                           California Sea lion and Harbor
                                           Seal.
                                          Humpback & Gray Whale...........                 30             56.777
                                          Harbor Porpoise.................                 40             56.776
*South Jetty--Clatsop Spit..............  Killer Whale, Stellar &                          20             56.506
                                           California Sea lion and Harbor
                                           Seal.
                                          Humpback & Gray Whale...........                 30             56.504
                                          Harbor Porpoise.................                 40             56.502
----------------------------------------------------------------------------------------------------------------

    To determine the total number of days required to calculate take, 
it is assumed that pile driving installation will take longer than 
extraction. Therefore, the number of pile driving days for installation 
is assumed to be 10 while extraction will take up to 7 days, for a 
total of 41 days [17 + 17 + 7] of vibratory activity. Furthermore, the 
South Jetty pile installation is anticipated to require maintenance 
after the installation due to harsher wave conditions during offloading 
activities that may loosen the 24 inch pile dolphins at that location. 
As such, we are assuming eight (8) additional days, four days per 
season, for maintenance activities most likely to occur in the May-June 
timeframe. Therefore, the total number of days is 41 + 8 = 49 days as 
is shown in Table 1.
    In general, the following equation is used to calculate exposure 
estimate Level B Take for cetaceans:

Take Estimate = (NDensityEstimate * 
AreaZOI Jetty A * 7days) + 
(NDensityEstimate * Area ZOI North Jetty * 
17days) + (NDensityEstimate * Area 
ZOI South Jetty Channel * 17days)

    However, because densities vary depending on season, a more 
expanded equation is necessary to more accurately reflect potential 
exposure for some species based on the activities expected and 
described above. Calculations are shown in Table 9.

Take Estimate =

For Jetty A Extraction: (NDensityEstimate-May/June * 
AreaZOI Jetty A * 7days) +
For NJ Installation/Extraction: Area ZOI North Jetty 
*[(NDensityEstimate-May/June * 10days) + 
(NDensityEstimate-July-Sep * 7days)] +
For SJ Installation/Extraction: Area ZOI South Jetty 
*[(NDensityEstimate-May/June * 10days) + 
(NDensityEstimate-July-Sep * 7days)] +
For SJ Maintenance: (Area ZOI South Jetty * 
NDensityEstimate-May/June * 8days)

                                                                        Table 9--Level B Take Calculations for Cetaceans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                  Days       Days
                                                                      Density      Density                                      install    extract   SJ maint.      JA                 Requested
                              Species                                (May/June)  (July/Sept)    SJ ZOI     NJ ZOI     JA ZOI    NJ & SJ    NJ & SJ      days     extract     Takes       takes
                                                                        \1\          \1\                                          each       each                  days
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale......................................................       0.0051       0.0051     56.778     44.336    \2\ n/a         10          7          8        n/a      11.08          20
Humpback whale....................................................      0.00015     0.008976     56.777     44.335     27.019         10          7          8          7       6.60          15
Gray whale........................................................      0.04857      .000678     56.777     44.335     27.019         10          7          8          7      80.83          81
Harbor Porpoise...................................................       0.6935       0.6935     56.776     44.335     27.017         10          7          8          7   1,638.19       1,638
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Hanser et al. (2015).
\2\ Shut-down procedures initiated for killer whales sited within the ZOI between 1 May and 1 July. Jetty A Extraction will occur in May 2017 so no takes associated with Jetty A.


[[Page 10302]]

Estimated Take for Cetaceans

Killer Whale
    Southern Resident killer whales have been observed offshore near 
the study area and ZOI. While killer whales do occur in the Columbia 
River plume, where fresh water from the river intermixes with salt 
water from the ocean, they are rarely seen in the interior of the 
Columbia River Jetty system. Because Southern Residents have been known 
to feed in the area offshore, the Corps has limited its pile 
installation window in order to avoid peak salmon runs and any overlap 
with the presence of Southern Residents. To ensure no Level B 
acoustical harassment of endangered Southern Resident killer whales 
occurs, the Corps will prohibit pile installation from October 1 until 
April 30 of each season. The Corps will use vessels to survey and to 
implement a shut-down procedure if killer whales occur in the ZOI 
during pile installation/removal/repair activities from May 1 to July 1 
to avoid take. After July 1, any animals taken are assumed to be 
transient killer whales rather than Southern Residents. As such NMFS is 
not anticipating any acoustic exposure to Southern Residents. 
Therefore, NMFS has determined that authorization of take for Southern 
Residents is not warranted.
    Western transient killer whales may be traversing offshore over a 
greater duration of time than the feeding Southern Resident killer 
whales. While the calculated exposure is 11 (11.08) whales using Navy 
data (Hanser et al., 2015), NMFS believes that an authorized take of 20 
over the 5 year LOA period is warranted because solitary killer whales 
are rarely observed, and transient whales travel in pods of 6 or less 
(Dalheim et al., 2008) members. NMFS has conservatively assumed that 
four pods of five killer whales will exposed to Level B harassment.
Humpback Whale
    Humpback whales have been observed on both the ocean side of the 
Jetty System as well as in the Columbia River. Based on the Hanser et 
al. (2015) data, the calculated take for humpback whales is 7 (6.60). 
However, these animals also travel in groups although group size may 
vary. NMFS will assume that a group of three humpbacks will occur in a 
ZOI each year for which take is authorized under these regulations, 
resulting in a total of 15 Level B takes.
Gray Whale
    Anecdotal evidence indicates gray whales occur near the MCR but are 
not a common visitor, as they mostly remain in the vicinity of the 
further offshore shelf-break (Griffith 2015). According to NOAA's 
Cetacean Mapping classification the waters in the vicinity of the MCR 
are classified as a Biologically Important Area (BIA) for gray whales. 
These whales use the area as a migration corridor (Calambokidis et al., 
2015). As primarily bottom feeders, gray whales are the most coastal of 
all great whales. They primarily feed in shallow continental shelf 
waters and are often observed within a few miles of shore (Barlow et 
al., 2009). The Pacific Coast Feeding Group (PCFG) or northbound summer 
migrants would be the most likely gray whales to be in the vicinity of 
the MCR.
    Based on the Navy data (Hanser et al., 2015), NMFS has authorized 
81 (80.83) gray whale takes. Because gray whales are known to inhabit 
nearshore environments in greater numbers than humpback whales, this 
higher number of gray whales takes would be expected.
Harbor Porpoise
    Harbor porpoises are known to occupy shallow, coastal waters and, 
therefore, are likely to be found in the vicinity of the MCR. They have 
also been documented within the project area (Griffith 2015). The Navy 
data (Hanser et al., 2015) indicates that 1,638 (1,638.19) harbor 
porpoise will be taken during the 5-year period, and NMFS has 
authorized that number of takes during the 5-year period covered by 
these regulations.
Pinnipeds
    There are haulout sites on the South Jetty used by pinnipeds, 
especially Steller sea lions. It is likely that pinnipeds that use the 
haulout area would be exposed to 120 dB threshold acoustic threshold if 
they enter the water during pile driving activities. The number of 
exposures would vary based on weather conditions, season, and daily 
fluctuations in abundance. Based on a survey by the WDFW (2014), the 
number of affected Steller sea lions could range from 209 to 824 
animals per day depending on the particular month. California sea lion 
numbers could range from 1 to 249 per day and the number of harbor 
seals could be as low as 1 to as high as 57 per day. Exposure and take 
estimates, below, are based on past pinniped data from Washington 
Department of Fish & Wildlife (WDFW) (2000-2014 data), which had a more 
robust monthly sampling frequency relative to Oregon Department of Fish 
and Wildlife (ODFW) (2014) counts. The exception to this was for harbor 
seal counts, for which ODFW (also 2000-2014 data) had more sampling 
data in certain months. Therefore, ODFW harbor seal data was used for 
the month of May, which indicated zero harbor seal sightings in May. 
NMFS will conservatively assume that all pinnipeds both hauled out and 
in-water would enter the water at some point during a single day of 
driving and transit into one of the three ensonified zones associated 
with each offloading facility. Therefore, they would be exposed to 
noise at or above the Level B thresholds.
    To calculate take for pinnipeds the average daily count of each 
pinniped from the months of May through September was multiplied by 49 
pile installation/removal/maintenance days. As was stated previously, 
the total vibration pile driving days is 49 which includes 17 days each 
for both North and South Jetties for install and extraction, 7 days for 
Jetty A extraction and 8 days for South Jetty maintenance. This figure 
was added to 1 percent of the highest average daily count for months 
May-August multiplied by six days. Calculations are shown in Table 10.

Pinniped take estimate = (average daily countMay-Sept. * 49 
pile driving days) + (1 percent highest average daily 
countMay-August * 6 pedestrian survey days)


                                Table 10--Level B Take Calculations for Pinnipeds
----------------------------------------------------------------------------------------------------------------
                                                                   Steller  sea     California      Harbor seal
                                                                       lion          sea lion    ---------------
                              Month                              --------------------------------
                                                                   Avg 1 number    Avg 1 number   Avg 1 2 number
 
----------------------------------------------------------------------------------------------------------------
May.............................................................             824             125               0
June............................................................             676             202              57
July............................................................             358               1              10

[[Page 10303]]

 
August..........................................................             324             115               1
September.......................................................             209             249  ..............
Avg Daily Count (May-Sept) \3\..................................             478             138              17
Total Pile Driving Exposures (49 days)..........................          23,422            6762             833
Pedestrian Survey Exposures--1% of highest monthly Avg. May-                  49              12               3
 August (6 days)................................................
                                                                 -----------------------------------------------
    Total Takes (rounded).......................................          23,471           6,774             836
----------------------------------------------------------------------------------------------------------------
\1\ WDFW average daily count per month from 2000-2014.
\2\ ODFW average daily count per month for May and July 2000-2014 due to additional available sampling data.
\3\ Conservatively assumes each exposure is to new individual, all individuals are new arrivals each month, and
  no individual is exposed more than one time.

    Based on the above equation, NMFS authorizes the Level B take of 
23,471 Steller sea lions, 6,774 California sea lions, and 836 harbor 
seals over the 5-year authorization period.

Analyses and Determinations

Negligible Impact Analysis

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, effects on habitat, and the status 
of the species.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 2, with the exception of Southern Resident 
killer whales and gray whales, given that the anticipated effects of 
this pile driving project on marine mammals are expected to be 
relatively similar in nature. There is no information about the size, 
status, or structure of any species or stock that would lead to a 
different analysis for this activity. Thus species-specific factors 
cannot be identified and analyzed.
    Pile driving activities associated with the rehabilitation of the 
Jetty system at the MCR, as outlined previously, have the potential to 
disturb or displace marine mammals. Specifically, the planned 
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. No injury, serious injury, or mortality is anticipated given 
the nature of the activity 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 only method of installation utilized. No 
impact driving is planned. Vibratory driving does not have significant 
potential to cause injury to marine mammals due to the relatively low 
source levels produced and the lack of potentially injurious source 
characteristics. The likelihood of marine mammal detection ability by 
both land-based and vessel-based observers is high under the 
environmental conditions described for the rehabilitation of the Jetty 
System. MMO's ability to readily implement shutdowns as necessary 
during Jetty System construction activities will result in avoidance of 
injury, serious injury, or mortality.
    The Corps' pile driving activities are localized and of short 
duration. The entire project area is limited to three jetty offloading 
facilities and their immediate surroundings. Pile driving activities 
covered under these regulations would take approximately 5 hours per 
day for 49 days over a 5-year period. Six days of pedestrian surveys at 
a single jetty across the five-year period are also planned. The piles 
would be a maximum diameter of 24 inches and would only be installed by 
vibratory driving method. The possibility exists that smaller diameter 
piles may be used, but for this analysis it is conservatively assumed 
that 24-inch piles will be driven.
    These localized and short-term noise exposures may cause brief 
startle reactions or short-term behavioral modification by the animals. 
These reactions and behavioral changes are expected to subside quickly 
when the exposures cease. Moreover, the mitigation and monitoring 
measures are expected to reduce potential exposures and behavioral 
modifications even further. Additionally, no important feeding and/or 
reproductive areas for marine mammals are known to be near the action 
areas.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the Anticipated Effects on Marine Mammal Habitat section. The project 
activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range. However, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g.,Thorson and Reyff 
2006; Lerma 2014). Most likely, individuals will

[[Page 10304]]

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, pinnipeds (which may become somewhat 
habituated to human activity in industrial or urban waterways) have 
been observed to orient towards and sometimes move towards the sound. 
The pile driving activities analyzed here are similar to or less 
impactful than numerous construction activities conducted in other 
similar locations, which have taken place with no reported injuries or 
mortality to marine mammals, and no known long-term adverse 
consequences from behavioral harassment. 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 stocks is unlikely to result in any significant 
realized decrease in fitness for the affected 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.
    While NMFS is not aware of comparable construction projects near 
the MCR Jetty system, the pile driving activities analyzed here are 
similar to other in-water construction activities that have received 
incidental harassment authorizations previously, including a Unisea 
dock construction project in neighboring Iliuliuk Harbor, and at Naval 
Base Kitsap Bangor in Hood Canal, Washington, and at the Port of Friday 
Harbor in the San Juan Islands. These projects were completed with no 
reported injuries or mortalities to marine mammals, and no known long-
term adverse consequences to marine mammals from behavioral harassment.
    Note that NMFS has not authorized take for the endangered Southern 
Resident killer whales. Take has not been authorized because the Corps 
will prohibit pile driving from October 1 through April 30, which is 
considered the primary feeding season for Southern Residents and when 
their presence in the project areas is likely to be greatest. 
Additionally, the Corps will shut down all pile driving activities 
between May 1 and July 1 if any killer whale is observed approaching 
the ZOI. While unlikely, Southern Residents may occur near the project 
areas during this time. Because it may be difficult to differentiate 
between Southern Resident and transient populations, this conservative 
measure will ensure that no Southern Residents are taken. After July1 
it would be highly unlikely for Southern Residents to occur in the 
project area. Therefore, shut down for Southern Residents will not be 
necessary, and any killer whales observed in the ZOI during this time 
are assumed to be transient killer whales.
    The area offshore of MCR has been identified as a BIA for migrating 
gray whales (Calambokidis et al., 2015). Members of the PCFG as well as 
other animals from both the eastern and western North Pacific 
populations travel through the area. However, this region has not been 
identified as one of six distinct PCFG feeding BIAs where PCFG animals 
are likely to stay for extended periods. Furthermore, anecdotal 
evidence indicates that while members of the PCFG have been observed 
near the MCR, they are not a common visitor, as they mostly remain in 
the vicinity of the offshore shelf-break (Griffith 2015).
    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 incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any other known 
areas or features of special significance for reproduction within the 
project area; and (4) the presumed efficacy of the mitigation measures 
in reducing the effects of the specified activity to the level of least 
practicable impact. In combination, we believe that these factors, as 
well as the available body of evidence from other similar activities, 
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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the Corps' 
rehabilitation of the MCR Jetty System will have a negligible impact on 
the affected marine mammal species or stocks.

Small Numbers Analysis

    Table 11 illustrates the number of animals that could be exposed to 
received noise levels that could cause Level B behavioral harassment 
for the work associated with the rehabilitation of the Jetty System at 
MCR. The total number of allowed takes was estimated and then divided 
equally over five years, which is the length of the LOA.

           Table 11--Estimated Percentage of Species/Stocks That May Be Exposed to Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                          Total authorized                       Percentage of
                                                            takes over 5                       total stock taken
                        Species                            years/average        Abundance       annually over 5
                                                            annual take                         year LOA period
                                                             (rounded)                                (%)
----------------------------------------------------------------------------------------------------------------
Killer whale (Western transient stock).................               20/4                243                1.6
Humpback whale (California/Oregon/Washington stock)....               15/3              1,918                0.1
Gray whale (Eastern North Pacific Stock)...............              81/16             18,017              <0.01
Harbor porpoise........................................          1,638/328             21,487                1.5
Steller sea lion.......................................       23,471/4,694      63,160-78,198            7.4-6.0
California sea lion....................................        6,774/1,355            296,750                0.5
Harbor seal............................................            836/167             24,732                0.7
----------------------------------------------------------------------------------------------------------------


[[Page 10305]]

    Note that the work at the three jetty offloading facilities will 
not be spread evenly over the five-year authorization period. Because 
the schedule for pile driving over the five-year period is uncertain 
and susceptible to change depending on future funding availability, it 
is not possible for NMFS to estimate exposure and subsequent take for 
specific years. As such, the actual take per species may be higher or 
lower than the annual average for a specific year. Because the take 
numbers generated by NMFS are annualized averages, NMFS will assume 
that in any one year the actual take will be up to two times greater 
than the projected average annual take. As such, the greatest 
percentage of a total stock taken annually is not likely to exceed 14.7 
percent (9,388 Steller sea lions). Furthermore, the small numbers 
analyses of annual averages shown in Table 11 represents between <0.01 
and 7.4 percent of the populations of these stocks that could be 
affected by Level B behavioral harassment. The numbers of animals 
authorized to be taken for all species would be considered small 
relative to the relevant stocks or populations even if each estimated 
taking occurred to a new individual--an extremely unlikely scenario. 
For pinnipeds occurring in the vicinity of the offloading facilities, 
especially those hauled out at South Jetty, there will almost certainly 
be overlap in individuals present day-to-day, and these takes are 
likely to occur only within some small portion of the overall regional 
stock.
    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, which are expected to reduce the number of marine mammals 
potentially affected by the action, NMFS finds 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 subsistence uses of marine mammals in the project area 
and, thus, no subsistence uses impacted by this action.

Endangered Species Act

    NMFS, Permits and Conservation Division (PR1), Office of Protected 
Resources sent a request for consultation under section 7(a)(2) of the 
ESA to the West Coast Region (WCR), Protected Resources Division 1 
(PR1) on August 12, 2016, for the issuance of an LOA to the Corps. To 
meet the requirements under section 7(a)(2), the WCR sent a memo to PR1 
on August 25, 2016, referencing an existing formal consultation that 
analyzed the same effects and take as the issuance of the LOA. The WCR 
previously consulted with the Corps on the major rehabilitation of MCR 
Jetty System and issued a biological opinion on March 18, 2011. NMFS 
analyzed the effects of the action and concluded in the biological 
opinion that the effects of pile driving and pile removal activities at 
the MCR jetties were likely to adversely affect, but not likely to 
jeopardize the continued existence of humpback whales.
    Since the biological opinion was finalized, NMFS has published a 
final rule that identified 14 distinct population segments (DPSs) of 
humpback whales (81 FR 62259; September 8, 2016). Three DPSs could 
occur in the action area, the Hawaii DPS, the Mexico DPS and the 
Central America DPS. The Mexico DPS is listed as threatened while the 
Central America DPS is listed as endangered.
    Subsequent to the completion of the 2011 biological opinion, the 
WCR prepared an Incidental Take Statement (ITS) to be appended to the 
biological opinion. The WCR compared the ITS, as well as the effects 
analysis and conclusions in the biological opinion, with the amount of 
and conditions of take listed in the LOA. The WCR determined that the 
effects of NMFS' issuing an LOA to the Corps for the taking of humpback 
whales incidental to construction activities are consistent with those 
described in the 2011 biological opinion. The extent of the takes 
analyzed in the biological opinion ranged from 0-19 whales per day, 
which is more than the 15 individual takes being authorized under the 
MMPA over the 5-year authorization period. In addition, the short-term 
potential displacement or deflection around the action area and the 
small number of takes would also not be expected to have population 
level impacts or jeopardize any of the DPSs that could occur in the 
action area. The 2011 biological opinion remains valid and the MMPA 
authorization provides no new information about the effects of the 
action, nor does it change the extent of effects of the action. Based 
on the conclusions in the biological opinion, the takes would not 
jeopardize the continued existence of the two humpback whale DPSs 
currently listed under the ESA, and no further consultation was needed.

National Environmental Policy Act (NEPA)

    The Corps issued the Final Environmental Assessment Columbia River 
at the Mouth, Oregon and Washington Rehabilitation of the Jetty System 
at the Mouth of the Columbia River (EA) and Finding of No Significant 
Impact (FONSI) in 2011. The EA and FONSI were revised in 2012 with a 
FONSI being signed on July 26, 2012. NMFS has reviewed the Corps' 
application for a rehabilitation of the MCR Jetty System. Based on that 
review, we have determined that the action closely follows the 
activities described in the EA and does not present any substantial 
changes, or significant new circumstances or information relevant to 
environmental concerns which would require a supplement to the 2012 EA 
or preparation of a new NEPA document. Therefore, we have determined 
that a new or supplemental EA or Environmental Impact Statement is 
unnecessary. After review of public comments, we determined it was 
appropriate to adopt the existing EA and develop a FONSI, which was 
signed in December 2016. The 2012 EA and 2016 FONSI are available for 
review at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Classification

    The Office of Management and Budget has determined that this rule 
is not significant for purposes of Executive Order 12866. NMFS has 
considered all provisions of E.O. 12866 and analyzed this action's 
impact. Based on that review, this action is not expected to have an 
annual effect on the economy of $100 million or more, or have an 
adverse effect in a material way on the economy. Furthermore, this 
action would not create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; or materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or raise 
novel or policy issues.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities. The RFA requires Federal agencies to prepare an 
analysis of a rule's impact on small entities whenever the agency is 
required to publish a notice of proposed

[[Page 10306]]

rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 
605(b), that the action will not have a significant economic impact on 
a substantial number of small entities. The U.S. Army Corps of 
Engineers is the only entity that would be subject to the requirements 
in these regulations. The SBA defines a small entity as one that is 
independently owned and operated, and not dominant in its field of 
operation. The U.S. Army Corps of Engineers is not a small governmental 
jurisdiction, small organization, or small business, as defined by the 
RFA. Any requirements imposed by an LOA issued pursuant to these 
regulations, and any monitoring or reporting requirements imposed by 
these regulations, would be applicable only to the U.S. Army Corp of 
Engineers. NMFS does not expect the issuance of these regulations or 
the associated LOAs to result in any impacts to small entities. Because 
this action, if adopted, would directly affect only the U.S. Army Corps 
of Engineers and not a small entity, NMFS concludes the action would 
not result in a significant economic impact on a substantial number of 
small entities. Thus, a regulatory flexibility analysis is not required 
and none has been prepared.
    This rule does not contain a collection-of-information requirement 
subject to the provisions of the Paperwork Reduction Act (PRA) because 
the applicant is a federal agency. Notwithstanding any other provision 
of law, no person is required to respond to nor shall a person be 
subject to a penalty for failure to comply with a collection of 
information subject to the requirements of the PRA unless that 
collection of information displays a currently valid OMB control 
number.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: February 7, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.


0
2. Add subpart X to part 217 to read as follows:
Subpart X--Taking Marine Mammals Incidental to Rehabilitation of the 
Jetty System at the Mouth of the Columbia River in Oregon and 
Washington
Sec.
217.230 Specified activity and specified geographical region.
217.231 Effective dates.
217.232 Permissible methods of taking.
217.233 Prohibitions.
217.234 Mitigation requirements.
217.235 Requirements for monitoring and reporting.
217.236 Letters of Authorization.
217.237 Renewals and modifications of Letters of Authorization.

Subpart X--Taking Marine Mammals Incidental to Rehabilitation of 
the Jetty System at the Mouth of the Columbia River in Oregon and 
Washington


Sec.  217.230  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Army Corps 
of Engineers (Corps) and those persons it authorizes to conduct 
activities on its behalf for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and that occurs 
incidental to the jetty rehabilitation program.
    (b) The taking of marine mammals by the Corps may be authorized in 
a Letter of Authorization (LOA) only if it occurs within the nearshore 
marine environment at the Mouth of the Columbia River in Oregon and 
Washington.


Sec.  217.231  Effective dates.

    Regulations in this subpart are effective May 1, 2017 through April 
30, 2022.


Sec.  217.232  Permissible methods of taking.

    Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.236, the Holder of the LOA (hereinafter ``Corps'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.230(b), provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.


Sec.  217.233  Prohibitions.

    (a) Notwithstanding takings contemplated in Sec.  217.230 and 
authorized by an LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.236, no person in connection with the activities described in 
Sec.  217.230 may:
    (1) Take any marine mammal not specified in Sec.  217.236;
    (2) Take any marine mammal specified in Sec.  217.236(a) other than 
by incidental Level B harassment;
    (3) Take a marine mammal specified in Sec.  217.236 if the National 
Marine Fisheries Service (NMFS) determines such taking results in more 
than a negligible impact on the species or stocks of such marine 
mammal;
    (4) Take a marine mammal specified in Sec.  217.236 if NMFS 
determines such taking results in an unmitigable adverse impact on the 
species or stock of such marine mammal for taking for subsistence uses; 
or
    (5) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.236.
    (b) [Reserved]


Sec.  217.234  Mitigation requirements.

    (a) When conducting the activities identified in Sec.  217.130(a), 
the mitigation measures contained in any LOA issued under Sec.  216.106 
of this chapter and Sec.  217.236 must be implemented. These mitigation 
measures include, but are not limited to:
    (1) General conditions:
    (i) The Corps shall conduct briefings as necessary between vessel 
crews, the marine mammal monitoring team, and other relevant personnel 
prior to the start of all pile driving and removal activity, and when 
new personnel join the work, in order to explain responsibilities, 
communication procedures, marine mammal monitoring protocol, and 
operational procedures;
    (ii) Each Marine Mammal Observer (MMO) will maintain a copy of the 
LOA at their respective monitoring location, as well as a copy in the 
main construction office;
    (iii) Pile activities are limited to the use of a vibratory hammer. 
Impact hammers are prohibited;
    (iv) Pile installation/maintenance/removal activities are limited 
to the time frame starting May 1 and ending September 30 each season; 
and
    (v) The Corps must notify NMFS' West Coast Regional Office (562-
980-3232), at least 24-hours prior to start of activities impacting 
marine mammals.
    (2) [Reserved]
    (b) Establishment of Level B harassment zone:
    (1) The Corps shall establish Level B behavioral harassment Zone of 
Influence (ZOI) where received underwater sound pressure levels (SPLs) 
are higher than 120 dB (rms) re 1 [mu]Pa for non-pulse sources (i.e., 
vibratory hammer). The ZOI delineates where Level B harassment would 
occur; and
    (2) For vibratory driving, the level B harassment area is comprised 
of a radius

[[Page 10307]]

between the shutdown zone for a specified species and 7.35 km from 
driving operations.
    (c) Establishment of shutdown zone:
    (1) Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.236, the Corps shall establish shutdown zones that are in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA;
    (2) 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), operations shall 
cease if a marine mammal comes within 20 m and vessels shall reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions;
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of vibratory pile driving operations, the activity 
will be halted and delayed until the animal has voluntarily left and 
been visually confirmed beyond the shutdown zone or 15 minutes have 
passed with the animal being resighted;
    (4) If a marine mammal is seen above water within or approaching a 
shutdown zone then dives below, the contractor would wait 15 minutes. 
If no marine mammals are seen by the observer in that time it will be 
assumed that the animal has moved beyond the exclusion zone;
    (5) If the shutdown zone is obscured by fog or poor lighting 
conditions, pile driving shall not be initiated until the entire 
shutdown zone is visible;
    (6) Disturbance zones shall be established as described in 
paragraph (b) of this section, and shall encompass the Level B 
harassment zones established by LOAs issued pursuant to Sec.  216.106 
of this chapter and Sec.  217.236 provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA. These zones shall 
be monitored to maximum line-of-sight distance from established vessel- 
and shore-based monitoring locations. If marine mammals other than 
those listed in Sec.  216.106 and Sec.  217.236 are observed within the 
disturbance zone, the observation shall be recorded and communicated as 
necessary to other MMOs responsible for implementing shutdown/power 
down requirements and any behaviors documented;
    (7) Between May 1 and July 1, the observation of any killer whales 
within the ZOI shall result in immediate shut-down all of pile 
installation, removal, or maintenance activities. Pile driving shall 
not resume until all killer whales have moved outside of the ZOI; and
    (8) After July 1, no shutdown is required for Level B killer whale 
take, but animals must be recorded as Level B take in the monitoring 
forms described below.
    (d) If the allowable number of takes for any marine mammal species 
in Sec.  216.106 of this chapter and Sec.  217.236 is exceeded, or if 
any marine mammal species not listed in Sec.  216.236 is exposed to 
SPLs greater than or equal to 120 dB re 1 [micro]Pa (rms), the Corps 
shall immediately shutdown activities involving the use of active sound 
sources (e.g., vibratory pile driving equipment), record the 
observation, and notify NMFS Office of Protected Resources.


Sec.  217.235  Requirements for monitoring and reporting.

    (a) Monitoring. (1) Qualified Marine Mammal Observers (MMOs) shall 
be used for both shore and vessel-based monitoring;
    (2) All MMOs must be approved by NMFS;
    (3) A qualified MMO is a third-party trained biologist with the 
following minimum qualifications:
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient to discern moving targets at the water's surface with 
ability to estimate target size and distance. Use of binoculars or 
spotting scope may be necessary to correctly identify the target;
    (ii) Advanced education in biological science, wildlife management, 
mammalogy or related fields (Bachelor's degree or higher is preferred);
    (iii) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
    (iv) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds);
    (v) Sufficient training, orientation or experience with vessel 
operation and pile driving operations to provide for personal safety 
during observations;
    (vi) Writing skills sufficient to prepare a report of observations; 
and
    (vii) 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 needed.
    (4) MMOs must be equipped with the following:
    (i) Binoculars (10x42 or similar), laser rangefinder, GPS, big eye 
binoculars and/or spotting scope 20-60 zoom or equivalent; and
    (ii) Camera and video capable of recording any necessary take 
information, including data required in the event of an unauthorized 
take; and
    (5) MMOs shall conduct monitoring as follows;
    (i) During all pile driving and removal activities;
    (ii) Only during daylight hours from sunrise to sunset when it is 
possible to visually monitor mammals;
    (iii) Scan the waters for 30 minutes before and during all pile 
driving. If any species for which take is not authorized are observed 
within the area of potential sound effects during or 30 minutes before 
pile driving, the MMO(s) will immediately notify the on-site supervisor 
or inspector, and require that pile driving either not initiate or 
temporarily cease until the animals have moved outside of the area of 
potential sound effects;
    (iv) If weather or sea conditions restrict the observer's ability 
to observe, or become unsafe for the monitoring vessel(s) to operate, 
pile installation shall not begin or shall cease until conditions allow 
for monitoring to resume;
    (v) Trained land-based observers will be placed at the best vantage 
points practicable. The observers' position(s) will either be from the 
top of jetty or adjacent barge at the location of the pile activities 
and from Cape Disappointment Visitors Center during work at North and 
South Jetty, and Clatsop Spit for work at Jetty A;
    (vi) Vessel-based monitoring for marine mammals must be conducted 
for all pile-driving activities at the North Jetty and two South Jetty 
offloading facilities. Two vessels may be utilized as necessary to 
adequately monitor the offshore ensonified zone;
    (vii) Any marine mammals listed in Sec.  217.236 entering into the 
Level B harassment zone will be recorded as take by the MMO and listed 
on the appropriate monitoring forms described below;
    (viii) During pedestrian surveys, personnel will avoid as much as 
possible direct approach towards pinnipeds that are hauled out. If it 
is absolutely necessary to make movements towards pinnipeds, personnel 
will approach in a slow and steady manner to reduce the behavioral 
harassment to the animals as much as possible; and
    (ix) Hydroacoustic monitoring shall be performed using methodology 
described in the November 2016 Addendum containing the Hydroacoustic 
Monitoring Plan.
    (b) Reporting. (1) MMOs must use NMFS-approved monitoring forms and 
shall record the following information when a marine mammal is 
observed:

[[Page 10308]]

    (i) Date and time that pile removal and/or installation begins and 
ends;
    (ii) Construction activities occurring during each observation 
period;
    (iii) Weather parameters (e.g., percent cover, visibility);
    (iv) Water conditions [e.g., sea state, tidal state (incoming, 
outgoing, slack, low, and high)];
    (v) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (vi) Marine mammal behavior patterns observed, including bearing 
and direction of travel, and, if possible, the correlation to SPLs;
    (vii) Distance from pile removal and/or installation activities to 
marine mammals and distance from the marine mammal to the observation 
point;
    (viii) Locations of all marine mammal observations; and
    (ix) Other human activity in the area.
    (2) [Reserved]
    (c) Annual report. (1) The Corps shall submit a draft annual report 
to NMFS Office of Protected Resources covering a given calendar year 
within 90 days of the last day of pile driving operations. The annual 
report shall include summaries of the information described in 
paragraph (b)(1) of this section.
    (2) The Corps shall submit a final annual report to the Office of 
Protected Resources, NMFS, within 30 days after receiving comments from 
NMFS on the draft report.
    (d) Notification of dead or injured marine mammals. (1) In the 
unanticipated event that the specified activity clearly causes the take 
of a marine mammal in a manner prohibited by this Authorization, such 
as an injury, serious injury, or mortality, The Corps shall immediately 
cease the specified activities and report the incident to the Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator, NMFS.
    (i) The report must include the following information:
    (A) Time, date, and location (latitude/longitude) of the incident;
    (B) Description of the incident;
    (C) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (D) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (E) Species identification or description of the animal(s) 
involved;
    (F) Status of all sound source use in the 24 hours preceding the 
incident;
    (G) Fate of the animal(s); and
    (H) Photographs or video footage of the animal(s). Activities shall 
not resume until NMFS is able to review the circumstances of the 
prohibited take. NMFS shall work with the Corps to determine what 
measures are necessary to minimize the likelihood of further prohibited 
take and ensure MMPA compliance. The Corps may not resume their 
activities until notified by NMFS.
    (ii) In the event that the Corps discovers an injured or dead 
marine mammal, and the lead MMO determines that the cause of the injury 
or death is unknown and the death is relatively recent (e.g., in less 
than a moderate state of decomposition), the Corps shall immediately 
report the incident to the Office of Protected Resources, NMFS, and the 
West Coast Regional Stranding Coordinator, NMFS. The report must 
include the same information identified in this paragraph (d). If the 
observed marine mammal is dead, activities may continue while NMFS 
reviews the circumstances of the incident. If the observed marine 
mammal is injured, measures described in this paragraph (d) must be 
implemented. NMFS will work with the Corps to determine whether 
additional mitigation measures or modifications to the activities are 
appropriate.
    (iii) In the event that the Corps discovers an injured or dead 
marine mammal, and the lead MMO determines that the injury or death is 
not associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), the Corps shall report the incident 
to the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS, within 24 hours of the discovery. The 
Corps shall provide photographs or video footage or other documentation 
of the stranded animal sighting to NMFS. If the observed marine mammal 
is dead, activities may continue while NMFS reviews the circumstances 
of the incident. If the observed marine mammal is injured, measures 
described in this paragraph (d) must be implemented. In this case, NMFS 
will notify the Corps when activities may resume.


Sec.  217.236  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Corps must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, the Corps may apply for and obtain a renewal of the Letter 
of Authorization.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Corps must 
apply for and obtain a modification of the Letter of Authorization as 
described in Sec.  217.237.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  217.237  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.236 for the activity identified in Sec.  217.230(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section); and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in Sec.  217.247(c)(1)) that do not change the findings made 
for the regulations or result in no more than a minor change in the 
total estimated number of takes (or distribution by species or years), 
NMFS may publish a notice of LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.236 for the activity identified in Sec.  217.230(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting

[[Page 10309]]

with the Corps regarding the practicability of the modifications) if 
doing so creates a reasonable likelihood of more effectively 
accomplishing the goals of the mitigation and monitoring set forth in 
the preamble for these regulations;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from the Corps' monitoring from the previous year(s);
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs; and
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of LOA in the Federal Register and solicit public 
comment; and
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  217.236, an LOA may be modified 
without prior notice or opportunity for public comment. Notice will be 
published in the Federal Register within thirty days of the action.

[FR Doc. 2017-02782 Filed 2-9-17; 8:45 am]
BILLING CODE 3510-22-P