Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Pile Driving Activities for the Restoration of Pier 62, Seattle Waterfront, Elliot Bay, 34486-34506 [2017-15522]

Download as PDF 34486 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XF444 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Pile Driving Activities for the Restoration of Pier 62, Seattle Waterfront, Elliot Bay National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed incidental harassment authorization; request for comments. AGENCY: NMFS has received a request from the Seattle Department of Transportation (Seattle DOT) for authorization to take marine mammals incidental to pile driving activities for the restoration of Pier 62, Seattle Waterfront, Elliot Bay in Seattle, Washington. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. SUMMARY: Comments and information must be received no later than August 24, 2017. DATES: Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 EastWest Highway, Silver Spring, MD 20910 and electronic comments should be sent to ITP.egger@noaa.gov. Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/ incidental/construction.htm without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. mstockstill on DSK30JT082PROD with NOTICES ADDRESSES: VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 Stephanie Egger, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at www.nmfs.noaa.gov/pr/permits/ incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. The MMPA states that the term ‘‘take’’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. 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). National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must review our proposed action with respect to environmental consequences on the human environment. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. Summary of Request On January 27, 2017, NMFS received a request from the Seattle DOT for an IHA to take marine mammals incidental to pile driving activities for the restoration of Pier 62, Seattle Waterfront, Elliot Bay in Seattle, Washington. Seattle DOT’s request is for take of 11 species of marine mammals, by Level A and Level B harassment. Neither Seattle DOT nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate. This proposed IHA would cover one year of a larger project for which Seattle DOT intends to request take authorization for subsequent facets of the project. The 2-year project involves pile driving the remainder of piles for Pier 62 and Pier 63. Description of Specified Activities Overview The proposed project will replace Pier 62 and make limited modifications to Pier 63 on the Seattle waterfront of Elliot Bay, Seattle, Washington. The existing piers are constructed of creosote-treated timber piles and treated timber decking, which are failing. The proposed project would demolish and remove the existing timber piles and decking of Pier 62, and replace them with concrete deck planks, concrete pile caps, and steel piling. The footprint of Pier 62 will remain as it currently is, with a small amount of additional over-water coverage (approximately 3,200 square feet) created by a new float system added to the south side of Pier 62. This float system is intended for moorage of transient, small-boat traffic, and will not be designed to accommodate mooring or berthing for larger vessels. This includes removing 815 timber piles, and will require installation of 180 steel piles for E:\FR\FM\25JYN1.SGM 25JYN1 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices Pier 62. To offset the additional overwater coverage associated with the new float system, approximately 3,700 square feet of Pier 63 will be removed. This includes removing 65 timber piles, and will require installation of nine steel piles to provide structural support for the remaining portion of Pier 63. In addition, approximately 5,900 square feet of grated decking will be installed to replace solid timber decking in the nearshore environment of both piers. In-water noise from pile driving activities will result in the take, by Level A and Level B harassment only, of 11 species of marine mammals. Pile driving activities for this project will occur from September 2017 through February 2018. mstockstill on DSK30JT082PROD with NOTICES Dates and Duration In-water construction for this application is proposed from September 1, 2017 to February 28, 2018. It is assumed that a second season of inwater pile driving will be required to finish the pile installation. The specific scope of the second season of work will depend on work accomplished during the first season. A separate IHA application will be prepared for the second season of work. In-water work will occur within a modified or shortened work window (September through February) to reduce or minimize effect on juvenile salmonids. Seattle DOT estimates 49 days will be needed to remove the old timber piles and 64 days for installation of steel piles for a total of 113 in-water construction days for both Pier 62 and Pier 63. It is likely some of these installation days for Pier 62 will be carried over into a second season of work (which will have a separate IHA application). Pile driving (removal and installation activities) will occur approximately eight hours a day during daylight hours only. Specified Geographic Region Pier 62 and Pier 63 are located on the downtown Seattle waterfront on Elliot Bay in King County, Washington just north of the Seattle Aquarium (see Figure 1 from the Seattle DOT application). The project will occur between Pike Street and Lenora Street, an urban embayment in central Puget Sound. This is an important industrial region and home to the Port of Seattle, which ranked 8th in the top 10 metropolitan port complexes in the U.S. in 2015. The region of the specified activity is the area in which elevated sound levels from pile-related activities could result in the take of marine VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 mammals. This area includes the proposed construction zone, Elliott Bay, and a portion of Puget Sound. Detailed Description of Specific Activities The 14-inch (in) timber piles will be removed with a vibratory hammer or pulled with a clamshell bucket. The 30in steel piles will be installed with a vibratory hammer to the extent possible. An impact hammer will be used for proofing steel piles or when encountering obstructions or difficult ground conditions. Vibratory hammers are commonly used for pile removal and installation where sediments allow. The pile is placed into position using a choker and crane, and then vibrated between 1,200 and 2,400 vibrations per minute (Washington State Ferries (WSF) 2016). The vibrations liquefy the sediment surrounding the pile, allowing it to penetrate to the required seating depth, or to be removed (WSF 2016). Impact hammers are typically used to install plastic/steel core, wood, concrete, or steel piles. An impact hammer is a steel device that works like a piston (WSF 2016). To drive the pile, the pile is first moved into position and set in the proper location using a choker cable or vibratory hammer. Once the pile is set in place, installation can take less than 15 minutes under good conditions, to over an hour under poor conditions, such as glacial till and bedrock, or exceptionally loose material in which the pile repeatedly moves out of position (WSF 2016). The project includes vibratory removal of 14-in timber piles and vibratory and impact pile driving of 30in steel piles. The maximum extent of pile removal and installation activities are described in Table 1. TABLE 1—IN-WATER PILE REMOVAL AND INSTALLATION TOTALS Structure Pile type and number Pier 62 ..... 815 Timber Piles (14-in) Removed. Up to 180 Steel Piles (30-in) Installed. 65 Timber Piles (14-in) Removed. Up to 9 Steel Piles (30-in) Installed. Pier 63 ..... The contractor may elect to operate multiple pile crews for the Pier 62 Project. As a result, more than one vibratory or impact hammer may be active at the same time. Operating multiple noise sources at the same time PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 34487 results in a louder noise than one source alone, so the noises are added together to provide a more realistic source level of the sound for calculating the potential effects on marine mammals. Decibels cannot be added by standard addition because they are measured on a logarithmic scale. Washington State Department of Transportation (WSDOT) provides guidance for adding decibel values from multiple noise sources (WSDOT 2015a). For example, based on guidance used by WSDOT (2015a), when more than one impact or vibratory hammer is being used close enough to another hammer to create overlapping noise fields, the physical area of potential effects on marine mammals is larger, and must be accounted for through a multiple-source ‘‘decibel addition’’ rule. The increased noise generated by multiple impact hammers would potentially create a larger zone of influence (ZOI). For the Pier 62 Project, there is a low likelihood that multiple impact hammers would operate in a manner that piles would be struck simultaneously; however, as a conservative approach we used multiple-source decibel rule when determining the Level A and B harassment zones for this project. Table 2 provides guidance on adding decibels to account for multiple sources (WSDOT 2015a): TABLE 2—MULTIPLE SOURCE DECIBEL ADDITION When two decibel values differ by: 0 or 1 dBA ...................... 2 or 3 dBA ...................... 4 to 9 dBA ...................... 10 dBA or more .............. Add the following to the higher decibel value: (dBA) 3. 2. 1. 0. It is not possible to know in advance the location of the crews and hammers on a given day, nor how many crews will be working each day. The multiplesource decibel addition method does not result in significant increases in the noise source when an impact hammer and vibratory hammer are working at the same time, because the difference in noise sources is greater than 10 dBA. For periods when two vibratory hammers are operating simultaneously, an increase in noise level could be generated, and this will be accounted for when determining PTS isopleths and Level B Harassment Zones for all marine mammal hearing groups (Table 3). E:\FR\FM\25JYN1.SGM 25JYN1 34488 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices TABLE 3—SUMMARY OF THE PROPOSED IN-WATER PILE INSTALLATION AND REMOVAL PLAN AND THE ASSOCIATED SOUND SOURCE LEVELS Anticipated duration (days) Construction phase Type Number of piles Removal ........... Creosote-treated Timber 14-in 1. Steel Pile 30-in ................ 880 ................................... Totals ......... .......................................... 189 Installed .................... 880 Removed .................. Single source sound levels Additive source sound levels Vibratory .......... 152 dBrms 2 (at 16 m) ....... 155 dBrms. 3 8 4 53 5 11 Installation ........ Installation/ removal method 8 49 189 ................................... .......................................... Maximum hours per day Vibratory .......... Impact ............. 177 dBrms. 2 (at 10 m) ...... 189 dBrms 2 (at 14 m) ....... 180 dBrms. 4 189 dBrms. 6 113 1 Assumed to be 14-in diameter. 2 Source sound level obtained from Washington State Ferries Request for an Incidental Harassment Authorization under the Marine Mammal Protection Act—Seattle Multimodal Project at Colman Dock (WSDOT 2016b). 3 Up to two vibratory hammers removing timber piles, operating simultaneously. Value based on identical single source level dB rms, adding 3 dB, based on WSDOT Additive noise model. 4 For simultaneous operation of two vibratory hammers installing steel pipe piles, the 180 dB rms value is based on identical single source levels, adding 3 dB, based on WSDOT rules for decibel addition (2016a). 5 Approximately 20 percent of the pile driving effort is anticipated to require an impact hammer. 6 For simultaneous operation of one impact hammer and one vibratory hammer installing 30-in piles, the original dB rms estimates differ by more than 10 dB, so the higher value, 189 dBrms, is used, based on WSDOT rules for decibel addition. dB—decibels. rms—root mean square: the square root of the energy divided by the impulse duration. This level is the mean square pressure level of the pulse. Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see ‘‘Proposed Mitigation’’ and ‘‘Proposed Monitoring and Reporting’’). Description of Marine Mammals in the Area of Specified Activities The marine mammal species under NMFS’s jurisdiction that have the potential to occur in the proposed construction area include Pacific harbor seal (Phoca vitulina), northern elephant seal (Mirounga angustirostris), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall’s porpoise (Phocoenoides dalli), long-beaked common dolphin (Delphinus capensis), both southern resident and transient killer whales (Orcinus orca), humpback whale (Megaptera novaengliae), gray whale (Eschrichtius robustus), and minke whale (Balaenoptera acutorostrata) (Table 4). Of these, the southern resident killer whale (SRKW) and humpback whale are protected under the Endangered Species Act (ESA). Pertinent information for each of these species is presented in this document to provide the necessary background to understand their demographics and distribution in the area. TABLE 4—MARINE MAMMAL SPECIES POTENTIALLY PRESENT IN REGION OF ACTIVITY Common name Scientific name ESA/MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae Gray whale .................... Eschrichtius robustus .... Eastern North Pacific .... -; N 20,990 (0.05; 20,125; 2011). 624 132 1,918 (0.03; 1,855; 2011). 636 (0.72, 369, 2014) ... 11.0 ≥5.5 3.5 ≥1.3 Family Balaenidae Humpback whale ........... Minke whale .................. Megaptera novaeangliae novaeangliae. Balaenoptera acutorostrata scammoni. California/Oregon/Washington. California/Oregon/Washington. E; D -; N Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae mstockstill on DSK30JT082PROD with NOTICES Killer whale .................... Orcinus orca ................. Killer whale .................... Orcinus orca ................. Long-beaked common dolphin. Dephinus capensis ....... Eastern North Pacific Offshore. Eastern North Pacific Southern Resident. California ....................... -; N 240 (0.49, 162, 2008) ... 1.6 0 E; D 78 (na, 78, 2014) .......... 0.14 0 -; N 101,305 (0.49; 68,432, 2014). 657 ≥35.4 66 ≥7.2 Family Phocoenidae (porpoises) Harbor Porpoise ............ VerDate Sep<11>2014 Phocoena phocoena ..... 19:30 Jul 24, 2017 Jkt 241001 PO 00000 Washington Inland Waters. Frm 00017 Fmt 4703 -; N Sfmt 4703 11,233 (0.37; 8,308; 2015). E:\FR\FM\25JYN1.SGM 25JYN1 34489 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices TABLE 4—MARINE MAMMAL SPECIES POTENTIALLY PRESENT IN REGION OF ACTIVITY—Continued ESA/MMPA status; strategic (Y/N) 1 Common name Scientific name Stock Dall’s Porpoise .............. Phocoenoides dalli ........ California/Oregon/Washington. -; N Stock abundance (CV, Nmin, most recent abundance survey) 2 25,750 (0.45, 17,954, 2014). PBR Annual M/SI 3 172 ≥0.4 9,200 389 1,645 Insig. Undet. 9.8 4,882 8.8 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion .......... Zalophus californianus .. U.S ................................ -; N Steller sea lion ............... Eumetopias jubatus ...... Eastern DPS ................. -; N 296,750 (na, 153,337, 2011). 60,131–74,448 (–; 36,551; 2013). Family Phocidae (earless seals) Harbor seal .................... Phoca vitulina ............... Northern elephant seal .. Mirounga angustirostris Washington Northern Inland Waters stock. California breeding ........ -; N 11,036 (0.15, –, 1999) .. -; N 179,000 (na; 81,368, 2010). mstockstill on DSK30JT082PROD with NOTICES 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS’s Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s Web site (www.nmfs.noaa.gov/pr/ species/mammals/). Table 4 lists all species with expected potential for occurrence in Elliot Bay and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’s SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’s U.S. 2015 SARs (Carretta et al. 2016). All values presented in Table 4 are the most recent available at the time of publication and are available in the 2015 SARs (Carretta et al. 2016). Additional information may be found in the 2015 Pacific Navy Marine Species Density Database (U.S. Department of the Navy (U.S. Navy) 2015) and can also be accessed online at: http:// nwtteis.com/Portals/NWTT/files/ supporting_technical/REVISED_NWTT_ FINAL_NMSDD_Technical_Report_04_ MAY_2015.pdf. All species that could potentially occur in the proposed survey areas are included in Table 4. As described below, all 11 species temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it. PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 Harbor Seal Individual harbor seals occur along the Elliott Bay shoreline. There is one documented harbor seal haulout area near Bainbridge Island, approximately 6 miles (9.66 km) from Pier 62. The haulout, which is estimated at less than 100 animals, consists of intertidal rocks and reef areas around Blakely Rocks and is within the area of potential effects but at the outer extent near Bainbridge Island (Jefferies et al. 2000), though harbor seals also make use of docks, buoys and beaches in the area. The level of use of this haulout during the fall and winter is unknown, but is expected to be much less than during the spring and summer, as air temperatures become colder than water temperatures, resulting in seals in general hauling out less. Harbor seals are perhaps the most commonly observed marine mammal in the area of potential effects. Marine mammal monitoring occurred on 158 days during Seasons 1, 2, and 3 of the Elliot Bay Seawall Project (EBSP), during which 267 harbor seals were documented as takes in the Pier 62 Project area (Anchor QEA 2014, 2015, and 2016). Additional marine mammal monitoring results in the vicinity of the projects, are as follows: D 2012 Seattle Slip 2 Batter Pile Project: Six harbor seals were observed during this one-day project in the area E:\FR\FM\25JYN1.SGM 25JYN1 34490 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices that corresponds to the upcoming project ZOIs (WSF 2012). D 2016 Seattle Test Pile Project: 56 harbor seals were observed over 10 days in the area that corresponds to the upcoming project ZOIs. The maximum number sighted during one day was 13 (WSF 2016). D 2012 Seattle Aquarium Pier 60 Project: 281 harbor seals were observed over 29 days in the area that corresponds to the upcoming project ZOIs (HiKARI 2012). mstockstill on DSK30JT082PROD with NOTICES Northern Elephant Seal Marine mammal monitoring occurred on 158 days during Seasons 1, 2, and 3 of the EBSP, during which no elephant seals were observed in the project area (Anchor QEA 2014, 2015, and 2016). Similarly, no elephant seals were observed during monitoring for the 2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile Project, or the 2012 Seattle Aquarium Pier 60 Project (WSF 2016). California Sea Lion California sea lions are often observed in the area of potential effects. The nearest documented California sea lion haulout sites are 3 km (2 miles) southwest of Pier 62, although sea lions also make use of docks and buoys in the area. Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 3, and 4 of the EBSP, during which 937 California sea lions were documented as takes in the project area (Anchor QEA 2014, 2015, 2016, and unpublished data). California sea lions were frequently (average seven per day and a maximum of 15 over a day) observed hauled out on two navigational buoys within the project area (near Alki Point) and swimming along the shoreline. Additional marine mammal monitoring results in the vicinity of the projects, are as follows: D During the 2012 Seattle Slip 2 Batter Pile project, 15 California sea lions were observed during this one-day project in the area that corresponds to the upcoming project ZOIs (WSF 2012). D During the 2016 Seattle Test Pile project, 12 California sea lions were observed over 10 days in the area that corresponds to the upcoming project ZOIs. The maximum number sighted during one day was four (WSF 2016). D During the 2012 Seattle Aquarium Pier 60 project, 382 California sea lions were observed over 29 days in the area that corresponds to the upcoming project ZOIs. The maximum number sighted during one day was 37; however seals, may have been double counted during these observations (HiKARI 2012). VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 Steller Sea Lion Steller sea lions are a rare visitor to the Pier 62 area of potential effects. Steller sea lions use haulout locations in Puget Sound. The nearest haulout to the project area is located approximately six miles away (9.66 km). This haulout is composed of net pens offshore of the south end of Bainbridge Island. The population of Steller sea lions at this haulout has been estimated at less than 100 individuals (Jeffries et al. 2000). Marine mammal monitoring occurred on 158 days during Seasons 1, 2, and 3 of the EBSP, during which three Steller sea lions were observed and documented as takes in the project area (Anchor QEA 2014, 2015, and 2016). No Steller sea lions were observed during monitoring for the 2012 Seattle Slip 2 Batter Pile Project or the 2016 Seattle Test Pile Project (WSF 2016). Killer Whale The Eastern North Pacific Southern Resident (SRKW) and West Coast Transient (transient) stocks of killer whale may be found near the project site. The SRKW live in three family groups known as the J, K and L pods. Transient killer whales generally occur in smaller (less than 10 individuals), less structured pods (NMFS 2013). According to the Center for Whale Research (CWR) (2015), they tend to travel in small groups of one to five individuals, staying close to shorelines, often near seal rookeries when pups are being weaned. The transient killer whale sightings have become more common since mid-2000. Unlike the SRKW pods, transients may be present in an area for hours or days as they hunt pinnipeds. A long-term database maintained by the Whale Museum contains sightings and geospatial locations of SRKWs, among other marine mammals, in inland waters of Washington State (Osborne 2008). Data are largely based on opportunistic sightings from a variety of sources (i.e., public reports, commercial whale watching, Soundwatch, Lime Kiln State Park landbased observations, and independent research reports), but the database is regarded as a robust but difficult to quantify inventory of occurrences. The data provide the most comprehensive assemblage of broad-scale habitat use by the SRKW in inland waters. Based on reports from 1990 to 2008, the greatest number of unique killer whale sighting-days near or in the area of potential effects occurred from November through January, although observations were made during all months except May (Osborne 2008). PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 Most observations were of SRKWs passing west of Alki Point (82 percent of all observations), which lies on the edge or outside the area of potential effects; this pattern is potentially due to the high level of human disturbance or highly degraded habitat features currently found within Elliott Bay. J Pod, with an estimated 24 members, is the pod most likely to appear yearround near the San Juan Islands, in the lower Puget Sound near Seattle, and in Georgia Strait at the mouth of the Fraser River. J Pod tends to frequent the west side of San Juan Island in mid to late spring (CWR 2011). An analysis of sightings in 2011 described an estimated 93 sightings of SRKWs near the area of potential effects (Whale Museum 2011). During this same analysis period, 12 transient killer whales were also observed near the area of potential effects. The majority of all sightings in this area are of groups of killer whales moving through the main channel between Bainbridge Island and Elliott Bay and outside the area of potential effects (Whale Museum 2011). The purely descriptive format of these observations makes it impossible to discern what proportion of the killer whales observed entered the area of potential effects; however, it is assumed that individuals do enter this area on occasion. Marine mammal monitoring occurred on 158 days during Seasons 1, 2, and 3 (2014, 2015, and 2016) of the EBSP, during which two killer whales were documented as takes in the project area (unknown if SRKW or transient), and one pod of six whales was also observed in Elliott Bay more than 30 minutes before or after pile driving activity (no take documented; Anchor QEA 2014, 2015, and 2016). During the 2016 Seattle Test Pile project, 0 SRKW were observed over 10 days in the area that corresponds to the upcoming project ZOIs (WSF 2016). During the 2012 Seattle Slip 2 Batter Pile project, 0 SRKW were observed during this one day project in the area that corresponds to the upcoming project ZOIs (WSF 2012). On February 5, 2016, a pod of up to 7 transients were reported in the area (Orca Network Archive Report 2016a). Long-Beaked Common Dolphin Marine mammal monitoring occurred on 158 days during Seasons 1, 2, and 3 (2014, 2015, and 2016) of the EBSP, during which no long-beaked common dolphins were observed in the project area (Anchor QEA 2014, 2015, and 2016). No long-beaked common dolphins were observed during monitoring for the E:\FR\FM\25JYN1.SGM 25JYN1 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices 2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile Project, or the 2012 Seattle Aquarium Pier 60 project. However, there were reported sightings in the Puget Sound in the summer of 2016. Beginning on June 16, longbeaked common dolphins were observed near Victoria, British Columbia. Over the following weeks, a pod of 15 to 20 (including a calf) was observed in central and southern Puget Sound. They were positively identified as long-beaked common dolphins (Orca Network 2016a). This is the first confirmed observation of a pod of longbeaked common dolphins in Washington waters—NMFS states that as of 2012, long-beaked common dolphins had not been observed during surveys in Washington waters (Carretta et al. 2016). Two individual long-beaked common dolphins were observed in 2011, one in August and one in September (Whale Museum 2015). Gray Whale Gray whale sightings are typically reported in February through May and include an observation of a gray whale off the ferry terminal at Pier 52 heading toward the East Waterway in March 2010 (CWR 2011). Three gray whales were observed near the project area during 2011 (Whale Museum 2011), but the narrative format of the observations make it difficult to discern whether these individuals entered the area of potential effects. It is assumed that gray whales might rarely occur in the area of potential effects. No gray whales were observed during monitoring for the EBSP, the 2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile Project, or the 2012 Seattle Aquarium Pier 60 Project (Anchor QEA 2014, 2015, 2016; WSF 2016a). mstockstill on DSK30JT082PROD with NOTICES Humpback Whale Humpbacks are only rare visitors to Puget Sound. There is evidence of increasing numbers in recent years (Falcone et al. 2005). A rare encounter with one and possibly two humpbacks occurred in Hood Canal (well away from the area of potential effects) as recently as February 2012 (Whale Museum 2012). Humpbacks do not visit Puget Sound every year and are considered rare in the area of potential effects (Whale Museum 2011); however, they have the potential to occur at least during the Pier 62 Project construction period. Marine mammal monitoring occurred on 158 days during Seasons 1, 2, and 3 (2014, 2015, and 2016) of the EBSP, during which two humpback whales VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 were observed in the project area (Anchor QEA 2014, 2015, and 2016). No humpback whales were observed during monitoring for the 2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile Project, or the 2012 Seattle Aquarium Pier 60 Project (WSF 2016a). Minke Whale Minke whales are relatively common in the San Juan Islands and Strait of Juan de Fuca (especially around several of the banks in both the central and eastern Strait), but are relatively rare in Puget Sound (WSF 2016a). No minke whales were observed during monitoring for the EBSP, the 2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile Project, or the 2012 Seattle Aquarium Pier 60 Project (Anchor QEA 2014, 2015, 2016; WSF 2016). Harbor Porpoise and Dall’s Porpoise Marine mammal monitoring occurred on 158 days during Seasons 1, 2, and 3 (2014, 2015, and 2016) of the EBSP, during which one harbor porpoise was observed and documented as a take in the project area; no Dall’s porpoises were observed (Anchor QEA 2014, 2015, and 2016). During the 2012 Seattle Aquarium Pier 60 Project, five harbor porpoises and one Dall’s porpoise were observed over 29 days in the area that corresponds to the upcoming project ZOIs, with a maximum of three observed in one day (HiKARI 2012). Neither harbor porpoise nor Dall’s porpoise were observed during monitoring for the 2012 Seattle Slip 2 Batter Pile Project or the 2016 Seattle Test Pile Project (WSF 2016). Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, 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 directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 34491 measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016a) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for lowfrequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group): D Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 hertz (Hz) and 35 kilohertz (kHz), with best hearing estimated to be from 100 Hz to 8 kHz; D Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz, with best hearing from 10 to less than 100 kHz; D High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz. D Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz, with best hearing between 1– 50 kHz; D Pinnipeds in water; Otariidae (eared seals and sea lions): Generalized hearing is estimated to occur between 60 Hz and 39 kHz, with best hearing between 2–48 kHz. The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range ¨ (Hemila et al. 2006; Kastelein et al. 2009; Reichmuth and Holt, 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2016a) for a review of available information. Eleven marine mammal species (7 cetacean and 4 pinniped (2 otariid and 2 phocid) E:\FR\FM\25JYN1.SGM 25JYN1 34492 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices mstockstill on DSK30JT082PROD with NOTICES species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 4. Of the cetacean species that may be present, three are classified as low-frequency cetaceans (i.e., all mysticete species), two are classified as mid-frequency cetaceans (i.e., all delphinid and ziphiid species), and two are classified as highfrequency cetaceans (i.e., harbor porpoise). Potential Effects of Specified Activities on Marine Mammals and Their Habitat This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The ‘‘Estimated Take by Incidental Harassment’’ section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The ‘‘Negligible Impact Analysis and Determination’’ section will consider the content of this section, the ‘‘Estimated Take by Incidental Harassment’’ section, and the ‘‘Proposed Mitigation’’ section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. The Seattle DOT’s Pier 62 Project using in-water pile driving and pile removal could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area. Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift (TS)—an increase in the auditory threshold after exposure to noise (Finneran et al. 2005). Factors that influence the amount of threshold shift include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing threshold shift normally decreases over time following cessation of the noise exposure. The amount of threshold shift just after exposure is the initial threshold shift. If the threshold shift eventually returns to zero (i.e., the threshold returns to the pre-exposure value), it is a temporary threshold shift (Southall et al. 2007). Threshold Shift (noise-induced loss of hearing)—When animals exhibit reduced hearing sensitivity (i.e., sounds must be louder for an animal to detect them) following exposure to an intense sound or sound for long duration, it is referred to as TS. An animal can experience temporary threshold shift VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 (TTS) or permanent threshold shift (PTS). TTS can last from minutes or hours to days (i.e., there is complete recovery), can occur in specific frequency ranges (i.e., an animal might only have a temporary loss of hearing sensitivity between the frequencies of 1 and 10 kHz), and can be of varying amounts (for example, an animal’s hearing sensitivity might be reduced initially by only 6 dB or reduced by 30 dB). PTS is permanent, but some recovery is possible. PTS can also occur in a specific frequency range and amount as mentioned above for TTS. For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran et al. 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; Finneran and Schlundt, 2010; Lucke et al. 2009; Mooney et al. 2009a, 2009b; Popov et al. 2011a, 2011b; Kastelein et al. 2012a; Schlundt et al. 2000; Nachtigall et al. 2003, 2004). For pinnipeds in water, data are limited to measurements of TTS in harbor seals, an elephant seal, and California sea lions (Kastak et al. 1999, 2005; Kastelein et al. 2012b). Lucke et al. (2009) found a TS of a harbor porpoise after exposing it to airgun noise with a received SPL at 200.2 dB (peak-to-peak) re: 1 mPa, which corresponds to a sound exposure level (SEL) of 164.5 dB re: 1 mPa2 s after integrating exposure. NMFS currently uses the rms of received SPL at 180 dB and 190 dB re: 1 mPa as the threshold above which PTS could occur for cetaceans and pinnipeds, respectively. Because the airgun noise is a broadband impulse, one cannot directly determine the equivalent of rms SPL from the reported peak-to-peak SPLs. However, applying a conservative conversion factor of 16 dB for broadband signals from seismic surveys (McCauley et al. 2000) to correct for the difference between peak-to-peak levels reported in Lucke et al. (2009) and rms SPLs, the rms SPL for TTS would be approximately 184 dB re: 1 mPa, and the received levels associated with PTS (Level A harassment) would be higher. However, NMFS recognizes that TTS of harbor porpoises is lower than other cetacean species empirically tested (Finneran and Schlundt 2010; Finneran et al. 2002; Kastelein and Jennings 2012). 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 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious (similar to those discussed in auditory masking, below). 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. Also, depending on the degree and frequency range, the effects of PTS on an animal could range in severity, although it is considered generally more serious because it is a permanent condition. Of note, reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al. 2007), so one can infer that strategies exist for coping with this condition to some degree, though likely not without cost. Masking—In addition, chronic exposure to excessive, though not highintensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark et al. 2009). Acoustic masking is when other noises such as from human sources interfere with animal 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. Masking occurs at the frequency band that the animals utilize. Therefore, since noise generated from vibratory pile driving activity is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clark et al. 2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt et al. 2009). Unlike TS, masking, which can occur over large temporal and spatial scales, E:\FR\FM\25JYN1.SGM 25JYN1 mstockstill on DSK30JT082PROD with NOTICES Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of sound pressure level) in the world’s ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). For Seattle DOT’s Pier 62 Project, noises from vibratory pile driving and pile removal contribute to the elevated ambient noise levels in the project area, thus increasing potential for or severity of masking. Baseline ambient noise levels in the vicinity of project area are high due to ongoing shipping, construction and other activities in the Puget Sound. Behavioral disturbance—Finally, marine mammals’ exposure to certain sounds could lead to behavioral disturbance (Richardson et al. 1995), such as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries). The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall et al. 2007). Currently NMFS uses a received level of 160 dB re 1 mPa (rms) to predict the onset of behavioral harassment from impulse noises (such as impact pile driving), and 120 dB re 1 mPa (rms) for continuous noises (such as vibratory pile driving). For the Seattle DOT’s Pier 62 Project, both of these noise levels are considered for effects analysis because Seattle DOT plans to use both impact and vibratory pile driving, as well as vibratory pile removal. The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 depends on the severity, duration, and context of the effects. Habitat—The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by pile driving and removal associated with marine mammal prey species. However, other potential impacts to the surrounding habitat from physical disturbance are also possible. Prey species for the various marine mammals include marine invertebrates and fish species. Short-term effects would occur to marine invertebrates during removal of existing piles. This effect is expected to be minor and shortterm on the overall population of marine invertebrates in Elliott Bay. Construction will also have temporary effects on salmonids and other fish species in the project area due to disturbance, turbidity, noise, and the potential resuspension of contaminants. All in-water work will occur during the designated in-water work window, to minimize effects on juvenile salmonids with the exception of some Chinook salmon that may be found along the seawall into October. Additionally, marine resident fish species are only present in limited numbers along the seawall during the in-water work season and primarily occur during the summer months, when work would not be occurring (Anchor QEA 2012). SPLs from impact pile driving has the potential to injure or kill fish in the immediate area. These few isolated fish mortality events are not anticipated to have a substantial effect on prey species population or their availability as a food resource for marine mammals. Studies also suggest that larger fish are generally less susceptible to death or injury than small fish. Moreover, elongated forms that are round in cross section are less at risk than deep-bodied forms. Orientation of fish relative to the shock wave may also affect the extent of injury. Open water pelagic fish (e.g., mackerel) seem to be less affected than reef fishes. The results of most studies are dependent upon specific biological, environmental, explosive, and data recording factors. The huge variation in fish populations, including numbers, species, sizes, and orientation and range from the detonation point, makes it very difficult to accurately predict mortalities at any specific site of detonation. Most fish species experience a large number of natural mortalities, especially during early life-stages, and any small level of mortality caused by the Seattle DOT’s impact pile driving will likely be insignificant to the population as a whole. PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 34493 For non-impulsive sound such as that of vibratory pile driving, experiments have shown that fish can sense both the strength and direction of sound (Hawkins 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level. The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona 1988); however, the response threshold can depend on the time of year and the fish’s physiological condition (Engas et al. 1993). During construction activity of the Pier 62 Project, only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on the abilities of marine mammals to feed in the area where construction work is planned. Finally, the time of the proposed construction activity would avoid the spawning season of the ESA-listed salmonid species between March and July. Short-term turbidity is a water quality effect of most in-water work, including pile driving. Cetaceans are not expected to be close enough to the Pier 62 Project to experience 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. For these reasons, any adverse effects to marine mammal habitat in the area from the Seattle DOT’s proposed Pier 62 would not be significant. Estimated Take This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS’s consideration of whether the number of takes is ‘‘small’’ and the negligible impact determination. Harassment is the only type of take expected to result from these activities. 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); E:\FR\FM\25JYN1.SGM 25JYN1 34494 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices 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). Authorized takes would primarily be by Level B harassment, as exposure to pile driving activities has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency species due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for mid-frequency species and most pinnipeds. The proposed mitigation and monitoring measures (i.e., exclusion zones, use of a bubble curtain, etc. as discussed in detail below in ‘‘Proposed Mitigation’’ section), are expected to minimize the severity of such taking to the extent practicable. Below we describe how the take is estimated. Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the 1 mPa (rms) for continuous (e.g., vibratory pile-driving, drilling) sources and above 160 dB re 1 mPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific Acoustic Thresholds sonar) sources. Seattle DOT’s proposed Using the best available science, activity includes the use of continuous NMFS has developed acoustic (vibratory pile driving and removal) and thresholds that identify the received impulsive (impact pile driving) sources, level of underwater sound above which and therefore the 120 and 160 dB re 1 exposed marine mammals would be mPa (rms) are applicable. reasonably expected to be behaviorally Level A harassment for non-explosive harassed (equated to Level B sources—NMFS’s Technical Guidance harassment) or to incur PTS of some for Assessing the Effects of degree (equated to Level A harassment). Level B Harassment for non-explosive Anthropogenic Sound on Marine sources—Though significantly driven by Mammal Hearing (NMFS, 2016a) identifies dual criteria to assess auditory received level, the onset of behavioral injury (Level A harassment) to five disturbance from anthropogenic noise different marine mammal groups (based exposure is also informed to varying on hearing sensitivity) as a result of degrees by other factors related to the exposure to noise from two different source (e.g., frequency, predictability, types of sources (impulsive or nonduty cycle), the environment (e.g., impulsive). Seattle DOT’s proposed bathymetry), and the receiving animals activity includes the use of continuous (hearing, motivation, experience, (vibratory pile driving and removal) and demography, behavioral context) and can be difficult to predict (Southall et al. impulsive (impact pile driving) sources. These thresholds were developed by 2007, Ellison et al. 2011). Based on what compiling and synthesizing the best the available science indicates and the available science and soliciting input practical need to use a threshold based multiple times from both the public and on a factor that is both predictable and peer reviewers to inform the final measurable for most activities, NMFS product, and are provided in Table 5 uses a generalized acoustic threshold below. The references, analysis, and based on received level to estimate the methodology used in the development onset of behavioral harassment. NMFS predicts that marine mammals are likely of the thresholds are described in NMFS to be behaviorally harassed in a manner 2016 Technical Guidance, which may be accessed at: http:// we consider Level B harassment when www.nmfs.noaa.gov/pr/acoustics/ exposed to underwater anthropogenic noise above received levels of 120 dB re guidelines.htm. number of days of activities. Below, we describe these components in more detail and present the proposed take estimate. TABLE 5—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset thresholds Hearing group Impulsive Low-Frequency (LF) Cetaceans ........................................... Mid-Frequency (MF) Cetaceans ........................................... High-Frequency (HF) Cetaceans .......................................... Phocid Pinnipeds (PW) (Underwater) ................................... Otariid Pinnipeds (OW) (Underwater) ................................... Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,LF,24h: 183 dB ......................................... LE,MF,24h: 185 dB ........................................ LE,HF,24h: 155 dB ........................................ LE,PW,24h: 185 dB ........................................ LE,OW,24h: 203 dB ....................................... LE,LF,24h: 199 dB. LE,MF,24h: 198 dB. LE,HF,24h: 173 dB. LE,PW,24h: 201 dB. LE,OW,24h: 219 dB. mstockstill on DSK30JT082PROD with NOTICES * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1 μPa2s. 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. Ensonified Area Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds. VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 Background noise is the sound level that would exist without the proposed activity (pile driving and removal, in this case), while ambient sound levels are those without human activity (NOAA 2009). The marine waterway of PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 Elliott Bay is very active, and human factors that may contribute to background noise levels include ship traffic and fishing-boat depth sounders. Natural actions that contribute to ambient noise include waves, wind, E:\FR\FM\25JYN1.SGM 25JYN1 34495 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices rainfall, current fluctuations, chemical composition, and biological sound sources (e.g., marine mammals, fish, and shrimp; Carr et al. 2006). Background noise levels will be compared to the NOAA/NMFS threshold levels designed to protect marine mammals to determine the Level B Harassment Zones for noise sources. Based on work completed by WSDOT for Washington State Ferries (WSF) to determine background noise in the vicinity of Elliott Bay, specifically at the Seattle Ferry terminal, the background level of 124 dB rms was used to calculate the attenuation for vibratory pile driving and removal (WSDOT 2015b). Although NMFS’s harassment threshold is typically 120 dB for continuous noise, based on multiple measurements, the data collected by WSDOT (2015b) indicate that ambient sound levels are typically higher than this sound level and ranged from 124 dB to 141 dB; therefore, we accepted the 124 dB rms as a proxy for the relevant threshold for the Seattle DOT Pier 62 project. The sound source levels for installation of the 30-in steel piles are based on surrogate data compiled by WSDOT. The source level of vibratory removal of 14-in timber piles were based on measurements conducted at the Port Townsend Ferry Terminal during vibratory removal of 12-in timber piles by WSDOT (Laughlin 2011). The recorded source level is 152 decibels (dB) re 1 micropascal (mPa) at 16 meters (m) from the pile. This value was also used for other pile driving projects (WSDOT Seattle Multimodal Construction Project—Colman Dock IHA RIN 0648–XF250) in the same area as the proposed Seattle Pier 62 project. In February of 2016, WSDOT conducted a test pile project at Colman Dock and the measured results from that project were used for that project and here to provide source levels for the prediction of isopleths ensonified over thresholds for the Seattle Pier 62 project. The results showed that the sound pressure level (SPL) root-mean-square (rms) for impact pile driving of 36-in steel pile is 189 dB re 1 mPa at 14 m from the pile (WSDOT 2016b). This value is also used for impact driving of the 30-in steel piles, which is a precautionary approach. Source level of vibratory pile driving of 36-in steel piles is based on test pile driving at Port Townsend in 2010 (Laughlin 2011). Recordings of vibratory pile driving were made at a distance of 10 m from the pile. The results show that the SPLrms for vibratory pile driving of 36-in steel pile was 177 dB re 1 mPa (WSDOT 2016a). The method of incidental take requested is Level B acoustical harassment of any marine mammal occurring within the 160 dB rms disturbance threshold during impact pile driving of 30-in pipe piles; the 120 dB rms disturbance threshold for vibratory pile driving of 30-in pipe piles; and the 120 dB rms disturbance threshold for vibratory removal of 14-in timber piles have been established as the three different Level B ZOIs that will be in place during active pile removal or installation of the different types of piles (Table 6). However, measured ambient noise levels in the area are 124 dB; therefore, NMFS only considers take likely to occur in the area ensonified above 124 dB, as pile driving noise below 124 dB would likely be masked or their impacts diminished such that any reactions would not be considered take as a result of the high ambient noise levels. For the Level B ZOI’s, sound waves propagate in all directions when they travel through water until they dissipate to background levels or encounter barriers that absorb or reflect their energy, such as a landmass. Therefore, the area of the Level B ZOIs was determined using land as the boundary on the north, east and south sides of the project. On the west, land was also used to establish the zone for vibratory driving. From Alki on the south and Magnolia on the north, a straight line of transmission was established out to Bainbridge Island. For impact driving (and vibratory removal), sound dissipates much quicker and the impact zone stays within Elliott Bay. Pilerelated construction noise would extend throughout the nearshore and open water environments to just west of Alki Point and a limited distance into the East Waterway of the Lower Duwamish River, a highly industrialized waterway. Because landmasses block in-water construction noise, a ‘‘noise shadow’’ created by Alki Point is expected to be present immediately west of this feature (refer to Seattle DOT’s application for maps depicting the Level B ZOIs). TABLE 6—LEVEL B ZONE DESCRIPTIONS AND DURATION OF ACTIVITY Level B threshold (m) Activity Construction method 1 ............................. 2 ............................. 3 ............................. mstockstill on DSK30JT082PROD with NOTICES Sound source Removal of 14-in Timber Piles ............... Installation of 30-in Steel Piles ............... Installation of 30-in Steel Piles ............... Vibratory ....................................... Vibratory ....................................... Impact .......................................... When NMFS Technical Guidance (NMFS 2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as vibratory and impact pile driving, NMFS’s User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 1,865 54,117 1,201 Level B ZOI (km2) 4.9 91 2.3 Days of Activity 49 53 11 used in the User Spreadsheet, and the resulting isopleths are reported below. The PTS isopleths were identified for each hearing group for impact and vibratory installation and removal methods that will be used in the Pier 62 Project. The PTS isopleth distances were calculated using the NMFS acoustic threshold calculator (NMFS 2016), with inputs based on measured and surrogate noise measurements taken during the EBSP construction and from WSDOT, and estimating conservative working durations (Table 7 and Table 8). E:\FR\FM\25JYN1.SGM 25JYN1 34496 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices TABLE 7—NMFS TECHNICAL ACOUSTIC GUIDANCE USER SPREADSHEET INPUT TO PREDICT PTS ISOPLETHS User Spredsheet Input Sound source 1 Spreadsheet Tab Used ................................................... Source Level (rms SPL) .................................................. Source Level (Single Strike/shot SEL) ............................ Weighting Factor Adjustment (kHz) ................................ a) Number of strikes in 1 h ............................................. a) Activity Duration (h) within 24-h period ....................... Propagation (xLogR) ....................................................... Distance of source level measurement (meters) ............ Sound source 2 (A)Vibratory pile driving (removal). 155 dB ............................... ....................................... 2.5 ...................................... ....................................... 8 ......................................... 15 ....................................... 16 ....................................... (A)Vibratory pile driving (installation). 180 dB. ....................................... 2.5 ...................................... ....................................... 8 ......................................... 15 ....................................... 10 ....................................... Sound source 3 (E.1) Impact pile driving (installation) 176 dB. 2. 20. 4. 15. 14. TABLE 8—NMFS TECHNICAL ACOUSTIC GUIDANCE USER SPREADSHEET OUTPUT FOR PREDICTED PTS ISOPLETHS AND LEVEL A DAILY ENSONIFIED AREAS User Spreadsheet Output Low-frequency cetaceans Sound source type Mid-frequency cetaceans High-frequency cetaceans Phocid pinnipeds Otariid pinnipeds PTS Isopleth (meters) 1—Vibratory (pile removal) .............................................. 2—Vibratory (installation) ................................................. 3—Impact (installation) .................................................... 17.4 504.8 88.6 1.5 44.7 3.2 25.7 746.4 105.6 10.6 306.8 47.4 0.7 21.5 3.5 0.001037 0.875111 0.017517 0.000176 0.147853 0.003529 7.70E–13 0.000726 1.92423E–05 Daily ensonified area (km2) * Vibratory (pile removal) .................................................... Vibratory (installation) ...................................................... Impact (installation) .......................................................... 0.000476 0.400275 0.012331 0.000004 0.003139 0.000016 * Daily ensonified areas were divided by two to only account for the ensonified area within the water and not over land. mstockstill on DSK30JT082PROD with NOTICES Marine Mammal Occurrence and Take Calculation and Estimation In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculation and we describe how the marine mammal occurrence information is brought together to produce a quantitative take estimate. In all cases we demonstrated take estimates using the species density data from the 2015 Pacific Navy Marine Species Density Database (U.S. Navy 2015), to estimate take for marine mammals. Take estimates are based on average marine mammal density in the project area multiplied by the area size of ensonified zones within which received noise levels exceed certain thresholds (i.e., Level A and B harassment) from specific activities, then multiplied by the total number of days such activities would occur. Unless otherwise described, incidental take is estimated by the following equation: Incidental take estimate = species density * zone of influence * days of pile-related activity However, adjustments were made for nearly every marine mammal species, VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 whenever their local abundance is known through other monitoring efforts. In those cases, the local abundance data are used for take calculations for the proposed authorized take instead of general animal density (see below). Harbor Seal Based on U.S. Navy species density estimates (U.S. Navy 2015) for the inland waters of Puget Sound, potential take of harbor seal is requested as shown in Table 9. Based on these calculations, Level A take is estimated at 10 harbor seals from vibratory pile driving and Level B take is estimated at 6,193 harbor seals from all sound sources. However, observational data from previous projects on the Seattle waterfront have documented only a fraction of what is calculated using the Navy density estimates for Puget Sound. For example, between zero and seven seals were observed daily for the EBSP and 56 harbor seals were observed over 10 days in the area with the maximum number of 13 harbor seals sighted during the 2016 Seattle Test Pile project (WSF 2016). Therefore, NMFS proposes to authorize Level B harassment of 1,469 harbor seals that could be exposed to noise levels associated with ‘‘take.’’ The PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 harbor seal take estimate is based on local seal abundance information using the maximum number of seals (13) sighted in one day during the 2016 Seattle Test Pile project multiplied by a total of 113 pile driving days for the Seattle DOT Pier 62 Project. Fifty-three days would involve installation by vibratory pile driving, which has a much larger Level A zone (306.8 m) than the Level A zones for vibratory removal (10.6 m) and impact pile driving (47.4 m). Harbor seals may be difficult to observe at greater distances, therefore, during vibratory pile driving, it may not be known how long a seal is present in the Level A zone. We estimate that 4 harbor seals may experience Level A harassment during these 53 days. Four seals were considered to have the potential to be taken by Level A harassment based on the local observational data for harbor seals, the larger ensonified area during vibratory pile driving for installation, and our best professional judgment that an animal would remain within the injury zone for prolonged exposure of intense noise. The number of Level B takes was adjusted to exclude those already counted for Level A takes, so the proposed authorized Level B take is 1,465 harbor seals. E:\FR\FM\25JYN1.SGM 25JYN1 34497 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices TABLE 9—HARBOR SEAL ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Sound source Species density 1 .......................................... 2 .......................................... 3 .......................................... Level A ZOI (km2) 1.219 1.219 1.219 Days of activity Level B ZOI (km2) 0.000176 0.147853 0.003529 4.9 91 2.3 Estimated take Level A 49 53 11 0 10 0 Estimated take Level B 293. 5,879 (*Adjusted 5,869). 31. Note: km2—square kilometers. * Number of Level B takes was adjusted to exclude those already counted for Level A takes. Northern Elephant Seal Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of northern elephant seal is expected to be zero. However, The Whale Museum (as cited in WSDOT 2016a) reported one sighting in the relevant area between 2008 and 2014. Therefore, the Seattle DOT is requesting authorization for Level B harassment of one northern elephant seal. California Sea Lion Based on U.S. Navy species density estimates (U.S. Navy 2015) for the inland waters of Washington, including Eastern Bays and Puget Sound, potential take of California sea lion is requested as shown in Table 10. Since the calculated Level A zones of otariids are all very small (Table 8), we do not consider it likely that any sea lions would be taken by Level A harassment. All California sea lion takes estimated here are expected to be takes by Level B harassment. The estimated Level B take is 644 California sea lions. However, the Seattle DOT believes that this estimate is unrealistically low, based on local marine mammal monitoring. Therefore, NMFS proposes to authorize Level B harassment of 1,695 California sea lions. The California sea lion take estimate is based on four seasons of local sea lion abundance information from the EBSP. Marine mammal visual monitoring during the EBSP indicates that a maximum of 15 sea lions were observed in a day during four-year project monitoring (Anchor QEA 2014, 2015, 2016). Based on a total of 113 pile driving days for the Seattle Pier 62 project, it is estimated that up to 1,695 California sea lions could be exposed to noise levels associated with ‘‘take.’’ TABLE 10—CALIFORNIA SEA LION ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.1266 0.1266 0.1266 Level A ZOI (km2) Level B ZOI (km2) 7.70E–13 0.000726 1.92423E–05 Days of activity 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 0 0 30 611 3 Note: km2—square kilometers. Steller Sea Lion Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of Steller sea lion is requested as shown in Table 11. Since the calculated Level A zones of otariids are all very small (Table 8), we do not consider it likely that any Steller sea lions would be taken by Level A harassment. The Seattle DOT is requesting authorization for Level B harassment of 188 Steller sea lions. TABLE 11—STELLER SEA LION ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.0368 0.0368 0.0368 Level A ZOI (km2) Level B ZOI (km2) 7.70E–13 0.000726 1.92423E–05 Days of activity 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 0 0 9 178 1 Note: km2—square kilometers. mstockstill on DSK30JT082PROD with NOTICES Southern Resident Killer Whale Based on the U.S. Navy species density estimates (U.S. Navy 2015) the density for the SRKW is variable across seasons and across the range. The inland water density estimates vary from 0.001461 to 0.004760/km2 in fall and 0.004761–0.020240/km2 in winter. Therefore, the take request as shown in Table 12 is based on the highest density estimated during the winter season VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 (0.020240/km2) for the SRKW population. With the variable winter density, the Level B take estimate can range from 24 to 104 SRKW, with the upper take estimate greater than the estimated population size and the lower estimated take still greater than 20 percent of the population. NMFS proposes to authorize Level B harassment of 24 SRKW based on a single occurrence of PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 one pod (i.e., J Pod—24 individuals) that would be most likely to be seen near Seattle. The Seattle DOT will coordinate with The Orca Network in an attempt to avoid all take of SRKW, but it may be possible that a group may enter the Level B ZOI before Seattle DOT could shut down due to the larger size of the Level B ZOI, particularly during vibratory pile driving (installation). Since the Level A zones of E:\FR\FM\25JYN1.SGM 25JYN1 34498 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices mid-frequency cetaceans are small (Table 8), we do not consider it likely that any SRKW would be taken by Level A harassment. TABLE 12—SOUTHERN RESIDENT KILLER WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.020240 0.020240 0.020240 Days of activity Level B ZOI (km2) Level A ZOI (km2) 0.000004 0.003139 0.000016 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 0 0 5 98 1 Note: km2—square kilometers. Transient Killer Whale Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of transient killer whale is requested as shown in Table 13. As with the SRKW, the density estimate of transient killer whales is variable between seasons and regions. In fall, density estimates range from 0.001583 to 0.002373/km2 and in winter they range from 0.000575 to 0.001582/km2. The winter density estimate, when most of the work is being conducted, will be used for estimating density and take. For Level B harassment, this results in a take estimate of eight individuals. However, the Seattle DOT believes that this estimate is low based on local data of 7 transients that were reported in the area (Orca Network Archive Report 2016a). Therefore, NMFS proposes to authorize Level B harassment of 42 transient killer whales, which would cover up to two groups of up to seven transient whales entering into the project area and remaining there for three days. Since the Level A zones of mid-frequency cetaceans are small (Table 8), we do not consider it likely that any transient killer whales would be taken by Level A harassment. TABLE 13—TRANSIENT KILLER WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... Level A ZOI (km2) 0.001582 0.001582 0.001582 Level B ZOI (km2) 0.000004 0.003139 0.000016 Days of activity 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 0 0 Note: km2—square kilometers. Long-Beaked Common Dolphin Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of long-beaked common dolphin is expected to be zero. However, in 2016, the Orca Network (2016c) reported a pod of up to 20 long-beaked common dolphins. Therefore, the Seattle DOT is requesting authorization for Level B harassment of 20 long-beaked common take of harbor porpoise is requested as shown in Table 14. Take by Level A harassment is estimated at 32 harbor porpoises and take by Level B harassment is estimated at 3,512 exposures to harbor porpoises. NMFS proposes to authorize take by Level A harassment of 32 harbor porpoises and take by Level B harassment of 3,480 harbor porpoises. dolphins. Since the Level A zones of mid-frequency cetaceans are all very small (Table 8), we do not consider it likely that the long-beaked common dolphin would be taken by Level A harassment. Harbor Porpoise Based on species density estimates from Jefferson et al. (2016), potential TABLE 14—HARBOR PORPOISE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Sound source Species density 1 .......................................... 2 .......................................... 3 .......................................... Level A ZOI (km2) 0.69 0.69 0.69 Level B ZOI (km2) 0.001037 0.875111 0.017517 4.9 91 2.3 Days of activity Estimated Level A take 49 53 11 0 32 0 Estimated Level B take 166. 3,328 (* Adjusted 3,296). 18. mstockstill on DSK30JT082PROD with NOTICES Note: km2—square kilometers. * Number of Level B takes was adjusted to exclude those already counted for Level A takes. Take is instances not individuals. Dall’s Porpoise Based on U.S. Navy species density estimates (U.S. Navy 2015), potential VerDate Sep<11>2014 23:13 Jul 24, 2017 Jkt 241001 take is requested as shown in Table 15. Based on these calculations, the Seattle DOT is requesting take for Level A harassment of 2 Dall’s porpoise and take PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 for Level B harassment of 199 Dall’s porpoise. E:\FR\FM\25JYN1.SGM 25JYN1 0 8 0 34499 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices TABLE 15—DALL’S PORPOISE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Sound source 1 .......................................... 2 .......................................... 3 .......................................... Species density Level A ZOI (km2) 0.039 0.039 0.039 Days of activity Level B ZOI (km2) 0.001037 0.875111 0.017517 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 2 0 10. 190 (* Adjusted 188). 1. Note: km2—square kilometers. * Number of Level B takes was adjusted to exclude those already counted for Level A takes. Humpback Whales Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of humpback whale is requested as shown in Table 16. Although the standard take calculations would result in an estimated take of less than one humpback whale, to be conservative, the Seattle DOT is requesting authorization for Level B harassment of five humpback whales based on take during previous work in Elliott Bay where two humpback whales were observed, including one take, during the 175 days of work during the previous four years (Anchor QEA 2014, 2015, 2016, and 2017). Since the Level A zones of low-frequency cetaceans are smaller during vibratory removal (17.4 m) or impact installation (88.6 m) compared to the Level A zone for vibratory installation (504.8 m) (Table 8), we do not consider it likely that any humpbacks would be taken by Level A harassment during removal or impact installation. We also do not believe any humpbacks would be taken during vibratory installation due to the ability to see humpbacks easily during monitoring and additional coordination with The Orca Network and The Center for Whale Research, which would enable the work to be shut down before a humpback would be taken by Level A harassment. TABLE 16—HUMPBACK WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.00001 0.00001 0.00001 Level A ZOI (km2) Level B ZOI (km2) 0.000476 0.400275 0.012331 Days of activity 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 0 0 0 0 0 Note: km2—square kilometers. Gray Whale Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of gray whale is requested as shown in Table 17. The Seattle DOT is requesting authorization for Level B harassment of three gray whales. Since the Level A zones of low-frequency cetaceans are smaller during vibratory removal (17.4 m) or impact installation (88.6 m) compared to the Level A zone for vibratory installation (504.8 m) (Table 8), we do not consider it likely that any gray whales would be taken by Level A harassment during removal or impact installation. We also do not believe any gray whales would be taken during vibratory installation due to the ability to see gray whales easily during monitoring and additional coordination with The Orca Network and The Center for Whale Research, which would enable the work to be shut down before a gray whale would be taken by Level A harassment. TABLE 17—GRAY WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.00051 0.00051 0.00051 Level A ZOI (km2) Level B ZOI (km2) 0.000476 0.400275 0.012331 Days of activity 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 0 0 0 3 0 Note: km2—square kilometers. mstockstill on DSK30JT082PROD with NOTICES Minke Whale Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of minke whales is expected to be zero (Table 18). However, between 2008 and 2014, the Whale Museum (as cited in WSDOT 2016a) reported one sighting VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 in the relevant area. Although the take calculations would result in an estimated take of less than one minke whale, the Seattle DOT is requesting authorization for Level B harassment of two minke whales, based on previous sightings in the construction area by the PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 Whale Museum. Based on the low probability that a minke whale would be observed during the project and then also enter into a Level A zone, we do not consider it likely that any minke whales would be taken by Level A harassment. E:\FR\FM\25JYN1.SGM 25JYN1 34500 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices TABLE 18—MINKE WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Level B zone 1 ............................................................... 2 ............................................................... 3 ............................................................... Level A ZOI (km2) 0.00003 0.00003 0.00003 Level B ZOI (km2) 0.000476 0.400275 0.012331 Days of activity 4.9 91 2.3 Estimated Level A take 49 53 11 Estimated Level B take 0 0 0 0 <1 0 Note: km2—square kilometers. The summary of proposed authorized take by Level A and Level B Harassment is described below in Table 19. TABLE 19—SUMMARY OF REQUESTED INCIDENTAL TAKE BY LEVEL A AND LEVEL B HARASSMENT Proposed authorized Level A take Proposed authorized Level B take Proposed authorized total take % of Population 1,469 ................................... 1 .......................................... 1,695 ................................... 188 ...................................... 24 (single occurrence of one pod). 42 ........................................ 20 ........................................ 3,512 ................................... 13.31. Less than 1. Less than 1. Less than 1. 30.77. 0 0 32 1,465 a ................................. 1 b ........................................ 1,695 c ................................. 188 ...................................... 24 (single occurrence of one pod) d. 42 e ...................................... 20 f ....................................... 3,480 ................................... 20. Less than 1. 31.26. 2 0 0 0 199 ...................................... 5 g ........................................ 3 .......................................... 2 h ........................................ 201 ...................................... 5 .......................................... 3 .......................................... 2 .......................................... Less Less Less Less Species Stock size Pacific harbor seal (Phoca vitulina) .................................. Northern elephant seal (Mirounga angustirostris) ............ California sea lion (Zalophus californianus) ...................... Steller sea lion (Eumetopias jubatus) ............................... Southern resident killer whale DPS (Orcinus orca) .......... 11,036 179,000 296,750 60,131–74,448 78 4 0 0 0 0 Transient killer whale (Orcinus orca) ................................ Long-beaked common dolphin (Dephinus capensis) ....... Harbor porpoise ................................................................ (Phocoena phocoena) ....................................................... Dall’s porpoise (Phocoenoides dalli) ................................. Humpback whale (Megaptera novaengliae) ..................... Gray whale (Eschrichtius robustus) .................................. Minke whale (Balaenoptera acutorostrata) ....................... 240 101,305 11,233 25,750 1,918 20,990 636 than than than than 1. 1. 1. 1. Note: a The take estimate proposed is based on a maximum of 13 seals observed on a given day during the 2016 Seattle Test Pile project. The number of Level B takes was adjusted to exclude those already counted for Level A takes. b The take estimate proposed is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting of a Northern Elephant seal in the area between 2008 and 2014. c The take estimate proposed is based on a maximum of 15 California sea lions observed on a given day during 4 monitoring seasons of the EBSP project. d The take estimate proposed is based on a single occurrence of one pod of SRKW (i.e., J-pod of 24 SRKW) that would be most likely to be seen near Seattle. e The take estimate proposed is based on local data which is greater than the estimates produced using the Navy density estimates. Therefore, the take proposed is 20 percent of the transient killer whale stock. f The take estimate proposed is based on The Orca Network (2016c) reporting a pod of up to 20 long-beaked common dolphins. g The take estimate proposed is based on take during previous work in Elliott Bay, where two humpback whales were observed and is greater than what was calculated using 2015 Navy density estimates. h The take estimate proposed is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting in the relevant area. Although the take calculations would result in an estimated take of less than one minke whale, to be conservative the Seattle DOT is requesting take of two minke whales. mstockstill on DSK30JT082PROD with NOTICES Proposed Mitigation In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, ‘‘and other means of effecting the least practicable 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 (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and; (2) the practicability of the measures for applicant implementation, which may consider such things as cost, PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. Several measures are proposed for mitigating effects on marine mammals from the pile installation and removal activities at Pier 62 and are described below. Timing Restrictions All work would be conducted during daylight hours. Bubble Curtain A bubble curtain will be used during pile driving activities with an impact hammer to reduce sound levels. Exclusion Zones Exclusion Zones calculated from the PTS isopleths will be implemented to protect marine mammals from Level A E:\FR\FM\25JYN1.SGM 25JYN1 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices harassment (refer to Table 8). Outside of any Level A take authorized, if a marine mammal is observed at or within the Exclusion Zone, work will shut down (stop work) until the individual has been observed outside of the zone, or has not been observed for at least 15 minutes for pinnipeds and small cetaceans and 30 minutes for large whales. Additional Shutdown Measures Seattle DOT will implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities. Level B Harassment Zones Seattle DOT will implement the Level B harassment ZOIs as described in Table 6. Soft-Start for Impact Pile Driving For impact pile installation, contractors will provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a oneminute waiting period, then two subsequent three-strike sets. Each day, Seattle DOT will use the soft-start technique at the beginning of impact pile driving, or if impact pile driving has ceased for more than 30 minutes. mstockstill on DSK30JT082PROD with NOTICES Additional Coordination The project team will monitor and coordinate with local marine mammal sighting networks (i.e., Orca Network and/or the CWR) to gather information on the location of whales prior to initiating pile removal. Marine mammal monitoring will be conducted to collect information on the presence of marine mammals within the Level B Harassment Zones for this project. The project team will also coordinate with Washington State Ferries (WSF) to discuss marine mammal sightings on days when vibratory or impact removal is occurring on their nearby projects. In addition, reports will be made available to interested parties upon request. Based on our evaluation of the applicant’s proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 Proposed Monitoring and Reporting In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, ‘‘requirements pertaining to the monitoring and reporting of such taking.’’ The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density). • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas). • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors. • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks. • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat). • Mitigation and monitoring effectiveness. Marine mammal monitoring will be conducted at all times during in-water pile driving and removal in strategic locations around the area of potential effects as described below: D During pile removal or installation with a vibratory hammer, a threemonitor protocol would be used, PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 34501 positioned such that each monitor has a distinct view-shed and the monitors collectively have overlapping viewsheds. D During pile driving activities with an impact hammer, one monitor, based at or near the construction site, will conduct the monitoring. D In the case(s) where visibility becomes limited, additional land-based monitors and/or boat-based monitors may be deployed. D Monitors will record take when marine mammals enter the relevant Level B Harassment Zones based on type of construction activity. D If a marine mammal approaches an Exclusion Zone, the observation will be reported to the Construction Manager and the individual will be watched closely. If the marine mammal crosses into an Exclusion Zone, a stop-work order will be issued. In the event that a stop-work order is triggered, the observed marine mammal(s) will be closely monitored while it remains in or near the Exclusion Zone, and only when it moves well outside of the Exclusion Zone or has not been observed for at least 15 minutes for pinnipeds and 30 minutes for whales will the lead monitor allow work to recommence. Protected Species Observers Seattle DOT shall employ NMFSapproved protected species observers (PSOs) to conduct marine mammal monitoring for its Pier 62 Project. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs shall meet the following requirements: 1. Independent observers (i.e., not construction personnel) are required. 2. At least one observer must have prior experience working as an observer. 3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience. 4. Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer. 5. NMFS will require submission and approval of observer CVs. 6. PSOs will monitor marine mammals around the construction site using high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or spotting scopes. Due to the different sizes of the Level B Zones from different pile sizes, several different Level B Zones and different monitoring protocols E:\FR\FM\25JYN1.SGM 25JYN1 34502 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices corresponding to a specific pile size will be established. 7. If marine mammals are observed, the following information will be documented: (A) Date and time that monitored activity begins or ends; (B) Construction activities occurring during each observation period; (C) Weather parameters (e.g., percent cover, visibility); (D) Water conditions (e.g., sea state, tide state); (E) Species, numbers, and, if possible, sex and age class of marine mammals; (F) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; (G) Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; (H) Locations of all marine mammal observations; and (I) Other human activity in the area. Acoustic Monitoring In addition, acoustic monitoring will occur on up to six days per in-water work season to evaluate, in real time, sound production from construction activities (minimum of two days for each type of pile-related activity: Vibratory removal of timber pile, vibratory installation of 30-in steel, and impact installation of 30-in steel). Acoustic monitoring will follow NMFS’s 2012 Guidance Documents: Sound Propagation Modeling to Characterize Pile Driving Sounds Relevant to Marine Mammals and Data Collection Methods to Characterize Underwater Background Sound Relevant to Marine Mammals in Coastal Nearshore Waters and Rivers of Washington and Oregon. Background noise recordings (in the absence of pile-related work) will also be made during the study to provide a baseline background noise profile. The results and conclusions of the acoustic monitoring will be summarized and presented to NOAA/NMFS with recommendations on any modifications to this proposed plan or Exclusion Zones. Proposed Reporting Measures mstockstill on DSK30JT082PROD with NOTICES Marine Mammal Monitoring Report Seattle DOT would be required to submit a draft marine mammal monitoring report within 90 days after completion of the in-water construction work or the expiration of the IHA (if issued), whichever comes earlier. The report would include data from marine mammal sightings as described: Date, VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 time, location, species, group size, and behavior, any observed reactions to construction, distance to operating pile hammer, and construction activities occurring at time of sighting and environmental data for the period (i.e., wind speed and direction, sea state, tidal state, cloud cover, and visibility). The marine mammal monitoring report will also include total takes, takes by day, and stop-work orders for each species. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, Seattle DOT would address the comments and submit a final report to NMFS within 30 days. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury, or mortality, Seattle DOT would immediately cease the specified activities and immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS’ West Coast Stranding Coordinator. The report must include the following information: • Time, date, and location (latitude/ longitude) of the incident; • Name and type of vessel involved; • Vessel’s speed during and leading up to the incident; • Description of the incident; • Status of all sound source use in the 24 hrs preceding the incident; • Water depth; • Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); • Description of all marine mammal observations in the 24 hrs 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 would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Seattle DOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Seattle DOT may not resume their activities until notified by NMFS via letter, email, or telephone. Reporting of Injured or Dead Marine Mammals In the event that Seattle DOT discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), Seattle DOT would immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS’ West Coast Stranding Coordinator. The report must include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with Seattle DOT to determine whether modifications in the activities are appropriate. In the event that Seattle DOT discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Seattle DOT would report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS Stranding Hotline and/or by email to the NMFS’ West Coast Stranding Coordinator within 24 hrs of the discovery. Seattle DOT would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Activities may continue while NMFS reviews the circumstances of the incident. Acoustic Monitoring Report Seattle DOT will submit an Acoustic Monitoring Report that will provide details on the monitored piles, method of installation, monitoring equipment, and sound levels documented during monitoring. NMFS will review the acoustic monitoring report and suggest any changes in monitoring as needed. Negligible Impact Analysis and Determination NMFS has defined negligible impact 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’’ (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., populationlevel effects). An estimate of the number of 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 harassment, NMFS considers other factors, such as the likely nature E:\FR\FM\25JYN1.SGM 25JYN1 mstockstill on DSK30JT082PROD with NOTICES Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). No serious injury or mortality is anticipated or proposed to be authorized for the Pier 62 Project. Takes that are anticipated and proposed to be authorized are expected to be limited to short-term Level A and Level B harassment (behavioral). Marine mammals present in the vicinity of the action area and taken by Level A and Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal and the implosion noise. However, many marine mammals showed no observable changes during similar project activities for the EBSP. There are two endangered species that may occur in the project area, humpback whales and SRKW. However, few humpbacks are expected to occur in the project area and few have been observed during previous projects in Elliot Bay. SRKW have occurred in small numbers in the project area. Seattle DOT will shut down in the Level B ZOI should they meet or exceed the proposed take of one occurrence of one pod (J-pod, 24 whales). There is ESA-designated critical habitat in the vicinity of Seattle DOT’s proposed Pier 62 Project for SRKW. However, this proposed IHA is authorizing the harassment of marine mammals, not the production of sound, which is what would result in adverse effects to critical habitat for SRKW. There is one documented harbor seal haulout area near Bainbridge Island, approximately 6 miles (9.66 km) from Pier 62. The haulout, which is estimated at less than 100 animals, consists of intertidal rocks and reef areas around Blakely Rocks and is at the outer edge of potential effects at the outer extent near Bainbridge Island (Jefferies et al. 2000). The level of use of this haulout during the fall and winter is unknown, VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 but is expected to be much less than in the spring and summer, as air temperatures become colder than water temperatures resulting in seals in general hauling out less. Similarly, the nearest Steller sea lion haulout to the project area is located approximately six miles away (9.66 km) and is also on the outer edge of potential effects. This haulout is composed of net pens offshore of the south end of Bainbridge Island. The project also is not expected to have significant adverse effects on affected marine mammals’ habitat, as analyzed in detail in the ‘‘Potential Effects of Specified Activities on Marine Mammals and their Habitat’’ section. Project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals’ foraging opportunities in a limited portion of the foraging range; but, 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. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, Seattle DOT’s proposed Pier 62 Project would not adversely affect marine mammal habitat. In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: • No serious injury or mortality is anticipated or authorized. • Takes that are anticipated and proposed to be authorized are expected to be limited to short-term Level B harassment (behavioral). • The project also is not expected to have significant adverse effects on affected marine mammals’ habitat. • There are no known important feeding or pupping areas. There are two haulouts (harbor seals and Steller sea lions). However, they are at the most outer edge of the potential effects and approximately 6.6 miles from Pier 62. There are no other known important areas for marine mammals. • For eight of the eleven species, take is less than one percent of the stock abundance. Instances of take for the other three species (harbor seals, killer whales, and harbor porpoise) range from about 13–31 percent of the stock abundance. However, when the fact that a fair number of these instances are PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 34503 expected to be repeat takes of the same animals is considered, the number of individual marine mammals taken is significantly lower. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Take of eight of the eleven species is less than one percent of the stock abundance. Instances of take for the SRKW and transient killer whales, harbor seals, and harbor porpoise ranges from about 13–31 percent of the stock abundance. However, when the fact that a fair number of these instances are expected to be repeat takes of the same animals is considered, the number of individual marine mammals taken is significantly lower. Specifically, for example, Jefferson et al. 2016 conducted harbor porpoise surveys in eight regions of Puget Sound, and estimated an abundance of 147 harbor porpoise in the Seattle area (1,798 porpoise in North Puget Sound and 599 porpoise in South Puget Sound). While individuals do move between regions, we would not realistically expect that 3,000+ individuals would be exposed around the pile driving for the Seattle DOT’s Pier 62 Project. Considering these factors, as well as the general small size of the project area as compared to the range of the species affected, the numbers of marine mammals estimated to be taken are small proportions of the total populations of the affected species or stocks. Further, for SRWK we acknowledge that 30.77% of the stock is proposed to be taken by Level B harassment, but we believe that a single, E:\FR\FM\25JYN1.SGM 25JYN1 34504 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices brief incident of take of one group of any species represents take of small numbers for that species. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. mstockstill on DSK30JT082PROD with NOTICES Endangered Species Act (ESA) Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the West Coast Regional Office, whenever we propose to authorize take for endangered or threatened species. NMFS is proposing to authorize take of SRKW and humpback whales, which are listed under the ESA. The Permit and Conservation Division has requested initiation of Section 7 consultation with the West Coast Regional Office for the issuance of this IHA. NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization. Proposed Authorization As a result of these preliminary determinations, NMFS proposes to issue an IHA to Seattle DOT for conducting piledriving activities at Pier 62, Elliot Bay, Seattle, Washington from September 2017 to February 2018, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued). The proposed IHA language is provided next. VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 1. This Authorization is valid from September 1, 2017, through February 28, 2018. 2. This Authorization is valid only for activities associated with in-water construction work at the Seattle Department of Transportation’s (Seattle DOT) Pier 62 Project, Seattle, Washington. 3. General Condition. (a) The species authorized for taking, by Level A harassment and Level B harassment, and in the numbers shown in Table 19 are: Pacific harbor seal (Phoca vitulina), northern elephant seal (Mirounga angustirostris), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall’s porpoise (Phocoenoides dalli), longbeaked common dolphin (Delphinus capensis), both southern resident killer whale (SRKW) and transient killer whale (Orcinus orca), humpback whale (Megaptera novaengliae), gray whale (Eschrichtius robustus), and minke whale (Balaenoptera acutorostrata). (b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities: D Impact pile driving; D Vibratory pile driving; and D Vibratory pile removal. 4. Prohibitions. (a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 19 of this notice. The taking by serious injury or death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited unless separately authorized or exempted under the MMPA and may result in the modification, suspension, or revocation of this Authorization. (b) The taking of any marine mammal is prohibited whenever the required protected species observers (PSOs), required by condition 6(b), are not present in conformance with condition 6(b) of this Authorization. 5. Mitigation. (a) Time Restriction. In-water construction work will occur only during daylight hours. (b) Bubble Curtain. A bubble curtain will be used during pile driving activities with an impact hammer. (c) Level B Harassment Zones. Seattle DOT will implement the Level B harassment ZOIs as described in Table 6 of this notice. (d) Exclusion Zones. Outside of any Level A take authorized, Seattle DOT will shut down PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 (stop work) in the Exclusion Zones using the PTS isopleths as described in Table 8 of this notice to protect marine mammals from Level A harassment. (i) Seattle DOT will implement a minimum shutdown zone of 10 m radius around each pile for all construction methods other than pile driving for all marine mammals. (ii) If a marine mammal is observed at or within the Exclusion Zone, work will stop until the individual has been observed outside of the zone, or has not been observed for at least 15 minutes for pinnipeds and small cetaceans and 30 minutes for large whales. (e) Additional Shutdown Measures. Seattle DOT will implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities. (f) Soft-Start for Impact Pile Driving. For impact pile installation, contractors will provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a oneminute waiting period, then two subsequent three-strike sets. (g) Additional Coordination. The project team will monitor and coordinate with local marine mammal sighting networks (i.e., The Orca Network and/or The Center for Whale Research) to gather information on the location of whales prior to initiating pile removal. Marine mammal monitoring will be conducted to collect information on the presence of marine mammals within the Level B Harassment Zones for this project. The project team will also coordinate with Washington State Ferries (WSF) to discuss marine mammal sightings on days when vibratory or impact removal is occurring on their nearby projects. In addition, reports will be made available to interested parties upon request. 6. Monitoring. (a) Protected Species Observers. Seattle DOT shall employ NMFSapproved PSOs to conduct marine mammal monitoring for its construction project. NMFS-approved PSOs will meet the following qualifications. (i) Independent observers (i.e., not construction personnel) are required. (ii) At least one observer must have prior experience working as an observer. (iii) Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience. (iv) Where a team of three or more observers are required, one observer E:\FR\FM\25JYN1.SGM 25JYN1 mstockstill on DSK30JT082PROD with NOTICES Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer. (v) NMFS will require submission and approval of observer CVs. (b) Monitoring Protocols: PSOs shall be present on site at all times during pile removal and driving. Marine mammal visual monitoring will be conducted for different Level B Harassment Zones based on different sizes of piles being driven or removed. (i) A 30-minute pre-construction marine mammal monitoring will be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring will be required after the last pile driving or pile removal of the day. If the constructors take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional 30-minute pre-construction marine mammal monitoring will be required before the next start-up of pile driving or pile removal. (ii) During pile removal or installation with a vibratory hammer, a threemonitor protocol will be used, positioned such that each monitor has a distinct view-shed and the monitors collectively have overlapping viewsheds. (iii) During pile driving activities with an impact hammer, one monitor, based at or near the construction site, will conduct the monitoring. (iv) Where visibility becomes limited, additional land-based monitors and/or boat-based monitors shall be deployed. (v) Monitors will record take when marine mammals enter their relevant Level B Harassment Zones based on type of construction activity. (vi) If a marine mammal approaches an Exclusion Zone, the observation will be reported to the Construction Manager and the individual will be watched closely. If the marine mammal crosses into an Exclusion Zone, a stop-work order will be issued. In the event that a stop-work order is triggered, the observed marine mammal(s) will be closely monitored while it remains in or near the Exclusion Zone, and only when it moves well outside of the Exclusion Zone or has not been observed for at least 15 minutes for pinnipeds and small cetaceans and 30 minutes for large whales will the lead monitor allow work to recommence. (vii) PSOs will monitor marine mammals around the construction site using high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or spotting scopes. VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 (viii) If marine mammals are observed, the following information will be documented: (A) Date and time that monitored activity begins or ends; (B) Construction activities occurring during each observation period; (C) Weather parameters (e.g., percent cover, visibility); (D) Water conditions (e.g., sea state, tide state); (E) Species, numbers, and, if possible, sex and age class of marine mammals; (F) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; (G) Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; (H) Locations of all marine mammal observations; and (I) Other human activity in the area. (ix) Acoustic Monitoring—Seattle DOT will conduct acoustic monitoring up to six days per in-water work season to evaluate, in real time, sound production from construction activities (minimum of two days for each type of pile-related activity: vibratory removal of timber pile, vibratory installation of 30-in steel, and impact installation of 30-in steel). Acoustic monitoring will follow NMFS’s 2012 Guidance Documents: Sound Propagation Modeling to Characterize Pile Driving Sounds Relevant to Marine Mammals and Data Collection Methods to Characterize Underwater Background Sound Relevant to Marine Mammals in Coastal Nearshore Waters and Rivers of Washington and Oregon. Background noise recordings (in the absence of pilerelated work) will also be made during the study to provide a baseline background noise profile. 7. Reporting: (a) Marine Mammal Monitoring. (i) Seattle DOT will submit a draft marine mammal monitoring report within 90 days after completion of the in-water construction work or the expiration of the IHA (if issued), whichever comes earlier. The report will include data from marine mammal sightings as described: Date, time, location, species, group size, and behavior, any observed reactions to construction, distance to operating pile hammer, and construction activities occurring at time of sighting and environmental data for the period (i.e., wind speed and direction, sea state, tidal state, cloud cover, and visibility). The marine mammal monitoring report will also include total takes, takes by day, and stop-work orders for each species. PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 34505 (ii) If comments are received from NMFS Office of Protected Resources on the draft report, a final report will be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report. (iii) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury, or mortality, Seattle DOT will immediately cease the specified activities and immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS’ West Coast Stranding Coordinator. The report must include the following information: • Time, date, and location (latitude/ longitude) of the incident; • Name and type of vessel involved; • Vessel’s speed during and leading up to the incident; • Description of the incident; • Status of all sound source use in the 24 hrs preceding the incident; • Water depth; • Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); • Description of all marine mammal observations in the 24 hrs 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 would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Seattle DOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Seattle DOT will not resume their activities until notified by NMFS via letter, email, or telephone. (b) Reporting of Injured or Dead Marine Mammals. (i) In the event that Seattle DOT discovers an injured or dead marine mammal, and the lead PSO 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), Seattle DOT will immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS’ West Coast Stranding Coordinator. The report must include the same information identified in 7(a)(iii). Activities may continue while NMFS reviews the circumstances of the E:\FR\FM\25JYN1.SGM 25JYN1 34506 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Notices incident. NMFS will work with Seattle DOT to determine whether modifications in the activities are appropriate. (ii) In the event that Seattle DOT discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Seattle DOT will report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS Stranding Hotline and/or by email to the NMFS’ West Coast Stranding Coordinator within 24 hrs of the discovery. Seattle DOT will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Activities may continue while NMFS reviews the circumstances of the incident. (c) Acoustic Monitoring Report— Seattle DOT will submit an Acoustic Monitoring Report that will provide details on the monitored piles, method of installation, monitoring equipment, and sound levels documented during monitoring. NMFS will review the acoustic monitoring report and suggest any changes in monitoring as needed. 8. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals. 9. A copy of this Authorization must be in the possession of each contractor who performs the construction work at the Pier 62 Project. mstockstill on DSK30JT082PROD with NOTICES Request for Public Comments We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHA for the proposed pile driving activities for the Seattle Pier 62 Project. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization. Dated: July 19, 2017. Catherine Marzin, Acting Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2017–15522 Filed 7–24–17; 8:45 am] BILLING CODE 3510–22–P VerDate Sep<11>2014 19:30 Jul 24, 2017 Jkt 241001 DEPARTMENT OF COMMERCE Patent and Trademark Office Submission for OMB Review; Comment Request; ‘‘Responses to Office Action and Voluntary Amendment Forms’’ The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Agency: United States Patent and Trademark Office, Commerce. Title: Responses to Office Action and Voluntary Amendment Form. OMB Control Number: 0651–0050. Form Number(s): • PTO–1771 • PTO–1822 • PTO–1957 • PTO–1960 • PTO–1966 Type of Request: Regular. Number of Respondents: 472,301 respondents per year. Average Hours per Response: The USPTO estimates that it will take the public between 10 minutes (0.16 hours) and 45 minutes (0.75 hours), depending on the complexity of the situation, to gather the necessary information, prepare the appropriate documents, and submit the information required for this collection. Burden Hours: 266,184 hours per year. Cost Burden: $109,135,440.00. Needs and Uses: The information in this collection is a matter of public record and is used by the public for a variety of private business purposes related to establishing and enforcing trademark rights. The information is available at USPTO facilities and can also be accessed at the USPTO’s Web site. Additionally, the USPTO provides the information to other entities, including Patent and Trademark Resource Centers (PTRCs). The PTRCs maintain the information for use by the public. Frequency: On occasion. Respondent’s Obligation: Required to Obtain or Retain Benefits. OMB Desk Officer: Nicholas A. Fraser, email: Nicolas_A._Fraser@omb.eop.gov. Once submitted, the request will be publicly available in electronic format through reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB. Further information can be obtained by: PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 • Email: InformationCollection@ uspto.gov. Include ‘‘0651–0050 copy request’’ in the subject line of the message. • Mail: Marcie Lovett, Records and Information Governance Division Director, Office of the Chief Technology Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313–1450. Written comments and recommendations for the proposed information collection should be sent on or before August 24, 2017 to Nicholas A. Fraser, OMB Desk Officer, via email to Nicholas_A._Fraser@omb.eop.gov, or by fax to 202–395–5167, marked to the attention of Nicholas A. Fraser. Marcie Lovett, Records and Information Governance Division Director, OCTO, United States Patent and Trademark Office. [FR Doc. 2017–15496 Filed 7–24–17; 8:45 am] BILLING CODE P DEPARTMENT OF COMMERCE Patent and Trademark Office Patent Petitions Related to Application and Reexamination Processing Fees ACTION: Proposed collection; comment request. The United States Patent and Trademark Office (USPTO), as required by the Paperwork Reduction Act of 1995, invites comments on a proposed extension of an existing information collection. SUMMARY: Written comments must be submitted on or before September 25, 2017. DATES: You may submit comments by any of the following methods: • Email: InformationCollection@ uspto.gov. Include ‘‘0651–0059 comment’’ in the subject line of the message. • Federal Rulemaking Portal: http:// www.regulations.gov. • Mail: Marcie Lovett, Records and Information Governance Division Director, Office of the Chief Technology Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313–1450. FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313–1450; by telephone at 571–272–7728; or by email to raul.tamayo@uspto.gov with ‘‘0651– ADDRESSES: E:\FR\FM\25JYN1.SGM 25JYN1

Agencies

[Federal Register Volume 82, Number 141 (Tuesday, July 25, 2017)]
[Notices]
[Pages 34486-34506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15522]



[[Page 34486]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF444


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Pile Driving Activities for the 
Restoration of Pier 62, Seattle Waterfront, Elliot Bay

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

ACTION: Proposed incidental harassment authorization; request for 
comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a request from the Seattle Department of 
Transportation (Seattle DOT) for authorization to take marine mammals 
incidental to pile driving activities for the restoration of Pier 62, 
Seattle Waterfront, Elliot Bay in Seattle, Washington. Pursuant to the 
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an incidental harassment authorization (IHA) to 
incidentally take marine mammals during the specified activities.

DATES: Comments and information must be received no later than August 
24, 2017.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to ITP.egger@noaa.gov.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal 
identifying information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the applications 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal.
    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).

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action with respect to environmental 
consequences on the human environment. This action is consistent with 
categories of activities identified in CE B4 of the Companion Manual 
for NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has preliminarily determined that the 
issuance of the proposed IHA qualifies to be categorically excluded 
from further NEPA review.

Summary of Request

    On January 27, 2017, NMFS received a request from the Seattle DOT 
for an IHA to take marine mammals incidental to pile driving activities 
for the restoration of Pier 62, Seattle Waterfront, Elliot Bay in 
Seattle, Washington. Seattle DOT's request is for take of 11 species of 
marine mammals, by Level A and Level B harassment. Neither Seattle DOT 
nor NMFS expect mortality to result from this activity and, therefore, 
an IHA is appropriate.
    This proposed IHA would cover one year of a larger project for 
which Seattle DOT intends to request take authorization for subsequent 
facets of the project. The 2-year project involves pile driving the 
remainder of piles for Pier 62 and Pier 63.

Description of Specified Activities

Overview

    The proposed project will replace Pier 62 and make limited 
modifications to Pier 63 on the Seattle waterfront of Elliot Bay, 
Seattle, Washington. The existing piers are constructed of creosote-
treated timber piles and treated timber decking, which are failing. The 
proposed project would demolish and remove the existing timber piles 
and decking of Pier 62, and replace them with concrete deck planks, 
concrete pile caps, and steel piling.
    The footprint of Pier 62 will remain as it currently is, with a 
small amount of additional over-water coverage (approximately 3,200 
square feet) created by a new float system added to the south side of 
Pier 62. This float system is intended for moorage of transient, small-
boat traffic, and will not be designed to accommodate mooring or 
berthing for larger vessels. This includes removing 815 timber piles, 
and will require installation of 180 steel piles for

[[Page 34487]]

Pier 62. To offset the additional over-water coverage associated with 
the new float system, approximately 3,700 square feet of Pier 63 will 
be removed. This includes removing 65 timber piles, and will require 
installation of nine steel piles to provide structural support for the 
remaining portion of Pier 63. In addition, approximately 5,900 square 
feet of grated decking will be installed to replace solid timber 
decking in the nearshore environment of both piers.
    In-water noise from pile driving activities will result in the 
take, by Level A and Level B harassment only, of 11 species of marine 
mammals. Pile driving activities for this project will occur from 
September 2017 through February 2018.

Dates and Duration

    In-water construction for this application is proposed from 
September 1, 2017 to February 28, 2018. It is assumed that a second 
season of in-water pile driving will be required to finish the pile 
installation. The specific scope of the second season of work will 
depend on work accomplished during the first season. A separate IHA 
application will be prepared for the second season of work. In-water 
work will occur within a modified or shortened work window (September 
through February) to reduce or minimize effect on juvenile salmonids.
    Seattle DOT estimates 49 days will be needed to remove the old 
timber piles and 64 days for installation of steel piles for a total of 
113 in-water construction days for both Pier 62 and Pier 63. It is 
likely some of these installation days for Pier 62 will be carried over 
into a second season of work (which will have a separate IHA 
application). Pile driving (removal and installation activities) will 
occur approximately eight hours a day during daylight hours only.

Specified Geographic Region

    Pier 62 and Pier 63 are located on the downtown Seattle waterfront 
on Elliot Bay in King County, Washington just north of the Seattle 
Aquarium (see Figure 1 from the Seattle DOT application). The project 
will occur between Pike Street and Lenora Street, an urban embayment in 
central Puget Sound. This is an important industrial region and home to 
the Port of Seattle, which ranked 8th in the top 10 metropolitan port 
complexes in the U.S. in 2015. The region of the specified activity is 
the area in which elevated sound levels from pile-related activities 
could result in the take of marine mammals. This area includes the 
proposed construction zone, Elliott Bay, and a portion of Puget Sound.

Detailed Description of Specific Activities

    The 14-inch (in) timber piles will be removed with a vibratory 
hammer or pulled with a clamshell bucket. The 30-in steel piles will be 
installed with a vibratory hammer to the extent possible. An impact 
hammer will be used for proofing steel piles or when encountering 
obstructions or difficult ground conditions. Vibratory hammers are 
commonly used for pile removal and installation where sediments allow. 
The pile is placed into position using a choker and crane, and then 
vibrated between 1,200 and 2,400 vibrations per minute (Washington 
State Ferries (WSF) 2016). The vibrations liquefy the sediment 
surrounding the pile, allowing it to penetrate to the required seating 
depth, or to be removed (WSF 2016).
    Impact hammers are typically used to install plastic/steel core, 
wood, concrete, or steel piles. An impact hammer is a steel device that 
works like a piston (WSF 2016). To drive the pile, the pile is first 
moved into position and set in the proper location using a choker cable 
or vibratory hammer. Once the pile is set in place, installation can 
take less than 15 minutes under good conditions, to over an hour under 
poor conditions, such as glacial till and bedrock, or exceptionally 
loose material in which the pile repeatedly moves out of position (WSF 
2016).
    The project includes vibratory removal of 14-in timber piles and 
vibratory and impact pile driving of 30-in steel piles. The maximum 
extent of pile removal and installation activities are described in 
Table 1.

         Table 1--In-Water Pile Removal and Installation Totals
------------------------------------------------------------------------
             Structure                      Pile type and number
------------------------------------------------------------------------
Pier 62...........................  815 Timber Piles (14-in) Removed.
                                    Up to 180 Steel Piles (30-in)
                                     Installed.
Pier 63...........................  65 Timber Piles (14-in) Removed.
                                    Up to 9 Steel Piles (30-in)
                                     Installed.
------------------------------------------------------------------------

    The contractor may elect to operate multiple pile crews for the 
Pier 62 Project. As a result, more than one vibratory or impact hammer 
may be active at the same time. Operating multiple noise sources at the 
same time results in a louder noise than one source alone, so the 
noises are added together to provide a more realistic source level of 
the sound for calculating the potential effects on marine mammals. 
Decibels cannot be added by standard addition because they are measured 
on a logarithmic scale. Washington State Department of Transportation 
(WSDOT) provides guidance for adding decibel values from multiple noise 
sources (WSDOT 2015a). For example, based on guidance used by WSDOT 
(2015a), when more than one impact or vibratory hammer is being used 
close enough to another hammer to create overlapping noise fields, the 
physical area of potential effects on marine mammals is larger, and 
must be accounted for through a multiple-source ``decibel addition'' 
rule. The increased noise generated by multiple impact hammers would 
potentially create a larger zone of influence (ZOI). For the Pier 62 
Project, there is a low likelihood that multiple impact hammers would 
operate in a manner that piles would be struck simultaneously; however, 
as a conservative approach we used multiple-source decibel rule when 
determining the Level A and B harassment zones for this project. Table 
2 provides guidance on adding decibels to account for multiple sources 
(WSDOT 2015a):

                Table 2--Multiple Source Decibel Addition
------------------------------------------------------------------------
                                                       Add the following
                                                         to the higher
          When two decibel values differ by:             decibel value:
                                                             (dBA)
------------------------------------------------------------------------
0 or 1 dBA...........................................                 3.
2 or 3 dBA...........................................                 2.
4 to 9 dBA...........................................                 1.
10 dBA or more.......................................                 0.
------------------------------------------------------------------------

    It is not possible to know in advance the location of the crews and 
hammers on a given day, nor how many crews will be working each day. 
The multiple-source decibel addition method does not result in 
significant increases in the noise source when an impact hammer and 
vibratory hammer are working at the same time, because the difference 
in noise sources is greater than 10 dBA. For periods when two vibratory 
hammers are operating simultaneously, an increase in noise level could 
be generated, and this will be accounted for when determining PTS 
isopleths and Level B Harassment Zones for all marine mammal hearing 
groups (Table 3).

[[Page 34488]]



                   Table 3--Summary of the Proposed In-Water Pile Installation and Removal Plan and the Associated Sound Source Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Anticipated    Maximum
  Construction phase           Type            Number of piles      duration    hours  per      Installation/     Single source sound   Additive  source
                                                                     (days)        day         removal  method           levels           sound levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
Removal..............  Creosote-treated      880................           49            8  Vibratory...........  152 dBrms \2\ (at    155 dBrms. \3\
                        Timber 14-in \1\.                                                                          16 m).
Installation.........  Steel Pile            189................           53            8  Vibratory...........  177 dBrms. \2\ (at   180 dBrms. \4\
                        30[dash]in.                                                                                10 m).
                                             ...................       \5\ 11            4  Impact..............  189 dBrms \2\ (at    189 dBrms. \6\
                                                                                                                   14 m).
                                            -----------------------------------------------
    Totals...........  ....................  189 Installed......          113
                                             880 Removed........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Assumed to be 14-in diameter.
\2\ Source sound level obtained from Washington State Ferries Request for an Incidental Harassment Authorization under the Marine Mammal Protection Act--
  Seattle Multimodal Project at Colman Dock (WSDOT 2016b).
\3\ Up to two vibratory hammers removing timber piles, operating simultaneously. Value based on identical single source level dBrms, adding 3 dB, based
  on WSDOT Additive noise model.
\4\ For simultaneous operation of two vibratory hammers installing steel pipe piles, the 180 dBrms value is based on identical single source levels,
  adding 3 dB, based on WSDOT rules for decibel addition (2016a).
\5\ Approximately 20 percent of the pile driving effort is anticipated to require an impact hammer.
\6\ For simultaneous operation of one impact hammer and one vibratory hammer installing 30-in piles, the original dBrms estimates differ by more than 10
  dB, so the higher value, 189 dBrms, is used, based on WSDOT rules for decibel addition.
dB--decibels.
rms--root mean square: the square root of the energy divided by the impulse duration. This level is the mean square pressure level of the pulse.

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Proposed 
Mitigation'' and ``Proposed Monitoring and Reporting'').

Description of Marine Mammals in the Area of Specified Activities

    The marine mammal species under NMFS's jurisdiction that have the 
potential to occur in the proposed construction area include Pacific 
harbor seal (Phoca vitulina), northern elephant seal (Mirounga 
angustirostris), California sea lion (Zalophus californianus), Steller 
sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), 
Dall's porpoise (Phocoenoides dalli), long-beaked common dolphin 
(Delphinus capensis), both southern resident and transient killer 
whales (Orcinus orca), humpback whale (Megaptera novaengliae), gray 
whale (Eschrichtius robustus), and minke whale (Balaenoptera 
acutorostrata) (Table 4). Of these, the southern resident killer whale 
(SRKW) and humpback whale are protected under the Endangered Species 
Act (ESA). Pertinent information for each of these species is presented 
in this document to provide the necessary background to understand 
their demographics and distribution in the area.

                                        Table 4--Marine Mammal Species Potentially Present in Region of Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Stock abundance  (CV,
            Common name                  Scientific name              Stock            ESA/MMPA  status;       Nmin, most recent       PBR     Annual  M/
                                                                                      strategic  (Y/N) \1\   abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Family Eschrichtiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale.........................  Eschrichtius robustus.  Eastern North Pacific.  -; N                   20,990 (0.05; 20,125;         624        132
                                                                                                             2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Family Balaenidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale.....................  Megaptera novaeangliae  California/Oregon/      E; D                   1,918 (0.03; 1,855;          11.0      >=5.5
                                      novaeangliae.           Washington.                                    2011).
Minke whale........................  Balaenoptera            California/Oregon/      -; N                   636 (0.72, 369, 2014).        3.5      >=1.3
                                      acutorostrata           Washington.
                                      scammoni.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale.......................  Orcinus orca..........  Eastern North Pacific   -; N                   240 (0.49, 162, 2008).        1.6          0
                                                              Offshore.
Killer whale.......................  Orcinus orca..........  Eastern North Pacific   E; D                   78 (na, 78, 2014).....       0.14          0
                                                              Southern Resident.
Long-beaked common dolphin.........  Dephinus capensis.....  California............  -; N                   101,305 (0.49; 68,432,        657     >=35.4
                                                                                                             2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocoenidae (porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Porpoise....................  Phocoena phocoena.....  Washington Inland       -; N                   11,233 (0.37; 8,308;           66      >=7.2
                                                              Waters.                                        2015).

[[Page 34489]]

 
Dall's Porpoise....................  Phocoenoides dalli....  California/Oregon/      -; N                   25,750 (0.45, 17,954,         172      >=0.4
                                                              Washington.                                    2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion................  Zalophus californianus  U.S...................  -; N                   296,750 (na, 153,337,       9,200        389
                                                                                                             2011).
Steller sea lion...................  Eumetopias jubatus....  Eastern DPS...........  -; N                   60,131-74,448 (-;           1,645     Insig.
                                                                                                             36,551; 2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal........................  Phoca vitulina........  Washington Northern     -; N                   11,036 (0.15, -, 1999)     Undet.        9.8
                                                              Inland Waters stock.
Northern elephant seal.............  Mirounga                California breeding...  -; N                   179,000 (na; 81,368,        4,882        8.8
                                      angustirostris.                                                        2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/) and more general information about these species (e.g., physical 
and behavioral descriptions) may be found on NMFS's Web site 
(www.nmfs.noaa.gov/pr/species/mammals/).
    Table 4 lists all species with expected potential for occurrence in 
Elliot Bay and summarizes information related to the population or 
stock, including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. For taxonomy, we follow 
Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS's 
SARs). While no mortality is anticipated or authorized here, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. 2015 SARs (Carretta et al. 2016). All values presented in 
Table 4 are the most recent available at the time of publication and 
are available in the 2015 SARs (Carretta et al. 2016). Additional 
information may be found in the 2015 Pacific Navy Marine Species 
Density Database (U.S. Department of the Navy (U.S. Navy) 2015) and can 
also be accessed online at: http://nwtteis.com/Portals/NWTT/files/supporting_technical/REVISED_NWTT_FINAL_NMSDD_Technical_Report_04_MAY_2015.pdf.
    All species that could potentially occur in the proposed survey 
areas are included in Table 4. As described below, all 11 species 
temporally and spatially co-occur with the activity to the degree that 
take is reasonably likely to occur, and we have proposed authorizing 
it.

Harbor Seal

    Individual harbor seals occur along the Elliott Bay shoreline. 
There is one documented harbor seal haulout area near Bainbridge 
Island, approximately 6 miles (9.66 km) from Pier 62. The haulout, 
which is estimated at less than 100 animals, consists of intertidal 
rocks and reef areas around Blakely Rocks and is within the area of 
potential effects but at the outer extent near Bainbridge Island 
(Jefferies et al. 2000), though harbor seals also make use of docks, 
buoys and beaches in the area. The level of use of this haulout during 
the fall and winter is unknown, but is expected to be much less than 
during the spring and summer, as air temperatures become colder than 
water temperatures, resulting in seals in general hauling out less. 
Harbor seals are perhaps the most commonly observed marine mammal in 
the area of potential effects.
    Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 
and 3 of the Elliot Bay Seawall Project (EBSP), during which 267 harbor 
seals were documented as takes in the Pier 62 Project area (Anchor QEA 
2014, 2015, and 2016). Additional marine mammal monitoring results in 
the vicinity of the projects, are as follows:
    [ssquf] 2012 Seattle Slip 2 Batter Pile Project: Six harbor seals 
were observed during this one-day project in the area

[[Page 34490]]

that corresponds to the upcoming project ZOIs (WSF 2012).
    [ssquf] 2016 Seattle Test Pile Project: 56 harbor seals were 
observed over 10 days in the area that corresponds to the upcoming 
project ZOIs. The maximum number sighted during one day was 13 (WSF 
2016).
    [ssquf] 2012 Seattle Aquarium Pier 60 Project: 281 harbor seals 
were observed over 29 days in the area that corresponds to the upcoming 
project ZOIs (HiKARI 2012).

Northern Elephant Seal

    Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 
and 3 of the EBSP, during which no elephant seals were observed in the 
project area (Anchor QEA 2014, 2015, and 2016). Similarly, no elephant 
seals were observed during monitoring for the 2012 Seattle Slip 2 
Batter Pile Project, the 2016 Seattle Test Pile Project, or the 2012 
Seattle Aquarium Pier 60 Project (WSF 2016).

California Sea Lion

    California sea lions are often observed in the area of potential 
effects. The nearest documented California sea lion haulout sites are 3 
km (2 miles) southwest of Pier 62, although sea lions also make use of 
docks and buoys in the area. Marine mammal monitoring occurred on 158 
days during Seasons 1, 2, 3, and 4 of the EBSP, during which 937 
California sea lions were documented as takes in the project area 
(Anchor QEA 2014, 2015, 2016, and unpublished data). California sea 
lions were frequently (average seven per day and a maximum of 15 over a 
day) observed hauled out on two navigational buoys within the project 
area (near Alki Point) and swimming along the shoreline. Additional 
marine mammal monitoring results in the vicinity of the projects, are 
as follows:
    [ssquf] During the 2012 Seattle Slip 2 Batter Pile project, 15 
California sea lions were observed during this one-day project in the 
area that corresponds to the upcoming project ZOIs (WSF 2012).
    [ssquf] During the 2016 Seattle Test Pile project, 12 California 
sea lions were observed over 10 days in the area that corresponds to 
the upcoming project ZOIs. The maximum number sighted during one day 
was four (WSF 2016).
    [ssquf] During the 2012 Seattle Aquarium Pier 60 project, 382 
California sea lions were observed over 29 days in the area that 
corresponds to the upcoming project ZOIs. The maximum number sighted 
during one day was 37; however seals, may have been double counted 
during these observations (HiKARI 2012).

Steller Sea Lion

    Steller sea lions are a rare visitor to the Pier 62 area of 
potential effects. Steller sea lions use haulout locations in Puget 
Sound. The nearest haulout to the project area is located approximately 
six miles away (9.66 km). This haulout is composed of net pens offshore 
of the south end of Bainbridge Island. The population of Steller sea 
lions at this haulout has been estimated at less than 100 individuals 
(Jeffries et al. 2000).
    Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 
and 3 of the EBSP, during which three Steller sea lions were observed 
and documented as takes in the project area (Anchor QEA 2014, 2015, and 
2016).
    No Steller sea lions were observed during monitoring for the 2012 
Seattle Slip 2 Batter Pile Project or the 2016 Seattle Test Pile 
Project (WSF 2016).

Killer Whale

    The Eastern North Pacific Southern Resident (SRKW) and West Coast 
Transient (transient) stocks of killer whale may be found near the 
project site. The SRKW live in three family groups known as the J, K 
and L pods. Transient killer whales generally occur in smaller (less 
than 10 individuals), less structured pods (NMFS 2013). According to 
the Center for Whale Research (CWR) (2015), they tend to travel in 
small groups of one to five individuals, staying close to shorelines, 
often near seal rookeries when pups are being weaned. The transient 
killer whale sightings have become more common since mid-2000. Unlike 
the SRKW pods, transients may be present in an area for hours or days 
as they hunt pinnipeds.
    A long-term database maintained by the Whale Museum contains 
sightings and geospatial locations of SRKWs, among other marine 
mammals, in inland waters of Washington State (Osborne 2008). Data are 
largely based on opportunistic sightings from a variety of sources 
(i.e., public reports, commercial whale watching, Soundwatch, Lime Kiln 
State Park land-based observations, and independent research reports), 
but the database is regarded as a robust but difficult to quantify 
inventory of occurrences. The data provide the most comprehensive 
assemblage of broad-scale habitat use by the SRKW in inland waters.
    Based on reports from 1990 to 2008, the greatest number of unique 
killer whale sighting-days near or in the area of potential effects 
occurred from November through January, although observations were made 
during all months except May (Osborne 2008). Most observations were of 
SRKWs passing west of Alki Point (82 percent of all observations), 
which lies on the edge or outside the area of potential effects; this 
pattern is potentially due to the high level of human disturbance or 
highly degraded habitat features currently found within Elliott Bay. J 
Pod, with an estimated 24 members, is the pod most likely to appear 
year-round near the San Juan Islands, in the lower Puget Sound near 
Seattle, and in Georgia Strait at the mouth of the Fraser River. J Pod 
tends to frequent the west side of San Juan Island in mid to late 
spring (CWR 2011).
    An analysis of sightings in 2011 described an estimated 93 
sightings of SRKWs near the area of potential effects (Whale Museum 
2011). During this same analysis period, 12 transient killer whales 
were also observed near the area of potential effects. The majority of 
all sightings in this area are of groups of killer whales moving 
through the main channel between Bainbridge Island and Elliott Bay and 
outside the area of potential effects (Whale Museum 2011). The purely 
descriptive format of these observations makes it impossible to discern 
what proportion of the killer whales observed entered the area of 
potential effects; however, it is assumed that individuals do enter 
this area on occasion.
    Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 
and 3 (2014, 2015, and 2016) of the EBSP, during which two killer 
whales were documented as takes in the project area (unknown if SRKW or 
transient), and one pod of six whales was also observed in Elliott Bay 
more than 30 minutes before or after pile driving activity (no take 
documented; Anchor QEA 2014, 2015, and 2016).
    During the 2016 Seattle Test Pile project, 0 SRKW were observed 
over 10 days in the area that corresponds to the upcoming project ZOIs 
(WSF 2016). During the 2012 Seattle Slip 2 Batter Pile project, 0 SRKW 
were observed during this one day project in the area that corresponds 
to the upcoming project ZOIs (WSF 2012). On February 5, 2016, a pod of 
up to 7 transients were reported in the area (Orca Network Archive 
Report 2016a).

Long-Beaked Common Dolphin

    Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 
and 3 (2014, 2015, and 2016) of the EBSP, during which no long-beaked 
common dolphins were observed in the project area (Anchor QEA 2014, 
2015, and 2016).
    No long-beaked common dolphins were observed during monitoring for 
the

[[Page 34491]]

2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile 
Project, or the 2012 Seattle Aquarium Pier 60 project. However, there 
were reported sightings in the Puget Sound in the summer of 2016. 
Beginning on June 16, long-beaked common dolphins were observed near 
Victoria, British Columbia. Over the following weeks, a pod of 15 to 20 
(including a calf) was observed in central and southern Puget Sound. 
They were positively identified as long-beaked common dolphins (Orca 
Network 2016a). This is the first confirmed observation of a pod of 
long-beaked common dolphins in Washington waters--NMFS states that as 
of 2012, long-beaked common dolphins had not been observed during 
surveys in Washington waters (Carretta et al. 2016). Two individual 
long-beaked common dolphins were observed in 2011, one in August and 
one in September (Whale Museum 2015).

Gray Whale

    Gray whale sightings are typically reported in February through May 
and include an observation of a gray whale off the ferry terminal at 
Pier 52 heading toward the East Waterway in March 2010 (CWR 2011). 
Three gray whales were observed near the project area during 2011 
(Whale Museum 2011), but the narrative format of the observations make 
it difficult to discern whether these individuals entered the area of 
potential effects. It is assumed that gray whales might rarely occur in 
the area of potential effects.
    No gray whales were observed during monitoring for the EBSP, the 
2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile 
Project, or the 2012 Seattle Aquarium Pier 60 Project (Anchor QEA 2014, 
2015, 2016; WSF 2016a).

Humpback Whale

    Humpbacks are only rare visitors to Puget Sound. There is evidence 
of increasing numbers in recent years (Falcone et al. 2005). A rare 
encounter with one and possibly two humpbacks occurred in Hood Canal 
(well away from the area of potential effects) as recently as February 
2012 (Whale Museum 2012). Humpbacks do not visit Puget Sound every year 
and are considered rare in the area of potential effects (Whale Museum 
2011); however, they have the potential to occur at least during the 
Pier 62 Project construction period.
    Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 
and 3 (2014, 2015, and 2016) of the EBSP, during which two humpback 
whales were observed in the project area (Anchor QEA 2014, 2015, and 
2016).
    No humpback whales were observed during monitoring for the 2012 
Seattle Slip 2 Batter Pile Project, the 2016 Seattle Test Pile Project, 
or the 2012 Seattle Aquarium Pier 60 Project (WSF 2016a).

Minke Whale

    Minke whales are relatively common in the San Juan Islands and 
Strait of Juan de Fuca (especially around several of the banks in both 
the central and eastern Strait), but are relatively rare in Puget Sound 
(WSF 2016a). No minke whales were observed during monitoring for the 
EBSP, the 2012 Seattle Slip 2 Batter Pile Project, the 2016 Seattle 
Test Pile Project, or the 2012 Seattle Aquarium Pier 60 Project (Anchor 
QEA 2014, 2015, 2016; WSF 2016).

Harbor Porpoise and Dall's Porpoise

    Marine mammal monitoring occurred on 158 days during Seasons 1, 2, 
and 3 (2014, 2015, and 2016) of the EBSP, during which one harbor 
porpoise was observed and documented as a take in the project area; no 
Dall's porpoises were observed (Anchor QEA 2014, 2015, and 2016).
    During the 2012 Seattle Aquarium Pier 60 Project, five harbor 
porpoises and one Dall's porpoise were observed over 29 days in the 
area that corresponds to the upcoming project ZOIs, with a maximum of 
three observed in one day (HiKARI 2012). Neither harbor porpoise nor 
Dall's porpoise were observed during monitoring for the 2012 Seattle 
Slip 2 Batter Pile Project or the 2016 Seattle Test Pile Project (WSF 
2016).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, 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 directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016a) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. The functional groups and the associated 
frequencies are indicated below (note that these frequency ranges 
correspond to the range for the composite group, with the entire range 
not necessarily reflecting the capabilities of every species within 
that group):
    [ssquf] Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 hertz (Hz) and 35 
kilohertz (kHz), with best hearing estimated to be from 100 Hz to 8 
kHz;
    [ssquf] Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz, with best hearing from 10 to 
less than 100 kHz;
    [ssquf] High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz.
    [ssquf] Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz, 
with best hearing between 1-50 kHz;
    [ssquf] Pinnipeds in water; Otariidae (eared seals and sea lions): 
Generalized hearing is estimated to occur between 60 Hz and 39 kHz, 
with best hearing between 2-48 kHz.
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al. 2006; Kastelein et al. 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2016a) for a review of available information. 
Eleven marine mammal species (7 cetacean and 4 pinniped (2 otariid and 
2 phocid)

[[Page 34492]]

species) have the reasonable potential to co-occur with the proposed 
survey activities. Please refer to Table 4. Of the cetacean species 
that may be present, three are classified as low-frequency cetaceans 
(i.e., all mysticete species), two are classified as mid-frequency 
cetaceans (i.e., all delphinid and ziphiid species), and two are 
classified as high-frequency cetaceans (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take by Incidental Harassment'' section 
later in this document will include a quantitative analysis of the 
number of individuals that are expected to be taken by this activity. 
The ``Negligible Impact Analysis and Determination'' section will 
consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, and the ``Proposed Mitigation'' 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks.
    The Seattle DOT's Pier 62 Project using in-water pile driving and 
pile removal could adversely affect marine mammal species and stocks by 
exposing them to elevated noise levels in the vicinity of the activity 
area.
    Exposure to high intensity sound for a sufficient duration may 
result in auditory effects such as a noise-induced threshold shift 
(TS)--an increase in the auditory threshold after exposure to noise 
(Finneran et al. 2005). Factors that influence the amount of threshold 
shift include the amplitude, duration, frequency content, temporal 
pattern, and energy distribution of noise exposure. The magnitude of 
hearing threshold shift normally decreases over time following 
cessation of the noise exposure. The amount of threshold shift just 
after exposure is the initial threshold shift. If the threshold shift 
eventually returns to zero (i.e., the threshold returns to the pre-
exposure value), it is a temporary threshold shift (Southall et al. 
2007).
    Threshold Shift (noise-induced loss of hearing)--When animals 
exhibit reduced hearing sensitivity (i.e., sounds must be louder for an 
animal to detect them) following exposure to an intense sound or sound 
for long duration, it is referred to as TS. An animal can experience 
temporary threshold shift (TTS) or permanent threshold shift (PTS). TTS 
can last from minutes or hours to days (i.e., there is complete 
recovery), can occur in specific frequency ranges (i.e., an animal 
might only have a temporary loss of hearing sensitivity between the 
frequencies of 1 and 10 kHz), and can be of varying amounts (for 
example, an animal's hearing sensitivity might be reduced initially by 
only 6 dB or reduced by 30 dB). PTS is permanent, but some recovery is 
possible. PTS can also occur in a specific frequency range and amount 
as mentioned above for TTS.
    For marine mammals, published data are limited to the captive 
bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless 
porpoise (Finneran et al. 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; 
Finneran and Schlundt, 2010; Lucke et al. 2009; Mooney et al. 2009a, 
2009b; Popov et al. 2011a, 2011b; Kastelein et al. 2012a; Schlundt et 
al. 2000; Nachtigall et al. 2003, 2004). For pinnipeds in water, data 
are limited to measurements of TTS in harbor seals, an elephant seal, 
and California sea lions (Kastak et al. 1999, 2005; Kastelein et al. 
2012b).
    Lucke et al. (2009) found a TS of a harbor porpoise after exposing 
it to airgun noise with a received SPL at 200.2 dB (peak-to-peak) re: 1 
[mu]Pa, which corresponds to a sound exposure level (SEL) of 164.5 dB 
re: 1 [mu]Pa\2\ s after integrating exposure. NMFS currently uses the 
rms of received SPL at 180 dB and 190 dB re: 1 [mu]Pa as the threshold 
above which PTS could occur for cetaceans and pinnipeds, respectively. 
Because the airgun noise is a broadband impulse, one cannot directly 
determine the equivalent of rms SPL from the reported peak-to-peak 
SPLs. However, applying a conservative conversion factor of 16 dB for 
broadband signals from seismic surveys (McCauley et al. 2000) to 
correct for the difference between peak-to-peak levels reported in 
Lucke et al. (2009) and rms SPLs, the rms SPL for TTS would be 
approximately 184 dB re: 1 [mu]Pa, and the received levels associated 
with PTS (Level A harassment) would be higher. However, NMFS recognizes 
that TTS of harbor porpoises is lower than other cetacean species 
empirically tested (Finneran and Schlundt 2010; Finneran et al. 2002; 
Kastelein and Jennings 2012).
    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 
(similar to those discussed in auditory masking, below). 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. Also, depending on the degree and frequency range, the effects 
of PTS on an animal could range in severity, although it is considered 
generally more serious because it is a permanent condition. Of note, 
reduced hearing sensitivity as a simple function of aging has been 
observed in marine mammals, as well as humans and other taxa (Southall 
et al. 2007), so one can infer that strategies exist for coping with 
this condition to some degree, though likely not without cost.
    Masking--In addition, chronic exposure to excessive, though not 
high-intensity, noise could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions (Clark 
et al. 2009). Acoustic masking is when other noises such as from human 
sources interfere with animal 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.
    Masking occurs at the frequency band that the animals utilize. 
Therefore, since noise generated from vibratory pile driving activity 
is mostly concentrated at low frequency ranges, it may have less effect 
on high frequency echolocation sounds by odontocetes (toothed whales). 
However, lower frequency man-made noises are more likely to affect 
detection of communication calls and other potentially important 
natural sounds such as surf and prey noise. It may also affect 
communication signals when they occur near the noise band and thus 
reduce the communication space of animals (e.g., Clark et al. 2009) and 
cause increased stress levels (e.g., Foote et al. 2004; Holt et al. 
2009).
    Unlike TS, masking, which can occur over large temporal and spatial 
scales,

[[Page 34493]]

can potentially affect the species at population, community, or even 
ecosystem levels, as well as individual levels. Masking affects both 
senders and receivers of the signals and could have long-term chronic 
effects on marine mammal species and populations. Recent science 
suggests that low frequency ambient sound levels have increased by as 
much as 20 dB (more than three times in terms of sound pressure level) 
in the world's ocean from pre-industrial periods, and most of these 
increases are from distant shipping (Hildebrand 2009). For Seattle 
DOT's Pier 62 Project, noises from vibratory pile driving and pile 
removal contribute to the elevated ambient noise levels in the project 
area, thus increasing potential for or severity of masking. Baseline 
ambient noise levels in the vicinity of project area are high due to 
ongoing shipping, construction and other activities in the Puget Sound.
    Behavioral disturbance--Finally, marine mammals' exposure to 
certain sounds could lead to behavioral disturbance (Richardson et al. 
1995), such as: Changing durations of surfacing and dives, number of 
blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral 
activities (such as socializing or feeding); visible startle response 
or aggressive behavior (such as tail/fluke slapping or jaw clapping); 
avoidance of areas where noise sources are located; and/or flight 
responses (e.g., pinnipeds flushing into water from haulouts or 
rookeries).
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al. 2007). Currently NMFS uses a received level of 160 dB re 1 [mu]Pa 
(rms) to predict the onset of behavioral harassment from impulse noises 
(such as impact pile driving), and 120 dB re 1 [mu]Pa (rms) for 
continuous noises (such as vibratory pile driving). For the Seattle 
DOT's Pier 62 Project, both of these noise levels are considered for 
effects analysis because Seattle DOT plans to use both impact and 
vibratory pile driving, as well as vibratory pile removal.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be biologically significant if the change affects 
growth, survival, and/or reproduction, which depends on the severity, 
duration, and context of the effects.
    Habitat--The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by pile driving and 
removal associated with marine mammal prey species. However, other 
potential impacts to the surrounding habitat from physical disturbance 
are also possible. Prey species for the various marine mammals include 
marine invertebrates and fish species. Short-term effects would occur 
to marine invertebrates during removal of existing piles. This effect 
is expected to be minor and short-term on the overall population of 
marine invertebrates in Elliott Bay. Construction will also have 
temporary effects on salmonids and other fish species in the project 
area due to disturbance, turbidity, noise, and the potential 
resuspension of contaminants. All in-water work will occur during the 
designated in-water work window, to minimize effects on juvenile 
salmonids with the exception of some Chinook salmon that may be found 
along the seawall into October. Additionally, marine resident fish 
species are only present in limited numbers along the seawall during 
the in-water work season and primarily occur during the summer months, 
when work would not be occurring (Anchor QEA 2012).
    SPLs from impact pile driving has the potential to injure or kill 
fish in the immediate area. These few isolated fish mortality events 
are not anticipated to have a substantial effect on prey species 
population or their availability as a food resource for marine mammals.
    Studies also suggest that larger fish are generally less 
susceptible to death or injury than small fish. Moreover, elongated 
forms that are round in cross section are less at risk than deep-bodied 
forms. Orientation of fish relative to the shock wave may also affect 
the extent of injury. Open water pelagic fish (e.g., mackerel) seem to 
be less affected than reef fishes. The results of most studies are 
dependent upon specific biological, environmental, explosive, and data 
recording factors.
    The huge variation in fish populations, including numbers, species, 
sizes, and orientation and range from the detonation point, makes it 
very difficult to accurately predict mortalities at any specific site 
of detonation. Most fish species experience a large number of natural 
mortalities, especially during early life-stages, and any small level 
of mortality caused by the Seattle DOT's impact pile driving will 
likely be insignificant to the population as a whole.
    For non-impulsive sound such as that of vibratory pile driving, 
experiments have shown that fish can sense both the strength and 
direction of sound (Hawkins 1981). Primary factors determining whether 
a fish can sense a sound signal, and potentially react to it, are the 
frequency of the signal and the strength of the signal in relation to 
the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al. 1993).
    During construction activity of the Pier 62 Project, only a small 
fraction of the available habitat would be ensonified at any given 
time. Disturbance to fish species would be short-term and fish would 
return to their pre-disturbance behavior once the pile driving activity 
ceases. Thus, the proposed construction would have little, if any, 
impact on the abilities of marine mammals to feed in the area where 
construction work is planned.
    Finally, the time of the proposed construction activity would avoid 
the spawning season of the ESA-listed salmonid species between March 
and July.
    Short-term turbidity is a water quality effect of most in-water 
work, including pile driving. Cetaceans are not expected to be close 
enough to the Pier 62 Project to experience 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.
    For these reasons, any adverse effects to marine mammal habitat in 
the area from the Seattle DOT's proposed Pier 62 would not be 
significant.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS's consideration of whether the number of takes is ``small'' and 
the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. 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);

[[Page 34494]]

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).
    Authorized takes would primarily be by Level B harassment, as 
exposure to pile driving activities has the potential to result in 
disruption of behavioral patterns for individual marine mammals. There 
is also some potential for auditory injury (Level A harassment) to 
result, primarily for high frequency species due to larger predicted 
auditory injury zones. Auditory injury is unlikely to occur for mid-
frequency species and most pinnipeds. The proposed mitigation and 
monitoring measures (i.e., exclusion zones, use of a bubble curtain, 
etc. as discussed in detail below in ``Proposed Mitigation'' section), 
are expected to minimize the severity of such taking to the extent 
practicable. Below we describe how the take is estimated.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be behaviorally harassed or incur 
some degree of permanent hearing impairment; (2) the area or volume of 
water that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) and the number of days of activities. Below, we describe these 
components in more detail and present the proposed take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al. 2007, Ellison 
et al. 2011). Based on what the available science indicates and the 
practical need to use a threshold based on a factor that is both 
predictable and measurable for most activities, NMFS uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS predicts that marine mammals are likely to 
be behaviorally harassed in a manner we consider Level B harassment 
when exposed to underwater anthropogenic noise above received levels of 
120 dB re 1 [mu]Pa (rms) for continuous (e.g., vibratory pile-driving, 
drilling) sources and above 160 dB re 1 [mu]Pa (rms) for non-explosive 
impulsive (e.g., seismic airguns) or intermittent (e.g., scientific 
sonar) sources. Seattle DOT's proposed activity includes the use of 
continuous (vibratory pile driving and removal) and impulsive (impact 
pile driving) sources, and therefore the 120 and 160 dB re 1 [mu]Pa 
(rms) are applicable.
    Level A harassment for non-explosive sources--NMFS's Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (NMFS, 2016a) identifies dual criteria to assess 
auditory injury (Level A harassment) to five different marine mammal 
groups (based on hearing sensitivity) as a result of exposure to noise 
from two different types of sources (impulsive or non-impulsive). 
Seattle DOT's proposed activity includes the use of continuous 
(vibratory pile driving and removal) and impulsive (impact pile 
driving) sources.
    These thresholds were developed by compiling and synthesizing the 
best available science and soliciting input multiple times from both 
the public and peer reviewers to inform the final product, and are 
provided in Table 5 below. The references, analysis, and methodology 
used in the development of the thresholds are described in NMFS 2016 
Technical Guidance, which may be accessed at: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

                     Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                                    PTS onset thresholds
              Hearing group               ----------------------------------------------------------------------
                                                     Impulsive                        Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.............  Lpk,flat: 219 dB; LE,LF,24h:  LE,LF,24h: 199 dB.
                                            183 dB.
Mid-Frequency (MF) Cetaceans.............  Lpk,flat: 230 dB; LE,MF,24h:  LE,MF,24h: 198 dB.
                                            185 dB.
High-Frequency (HF) Cetaceans............  Lpk,flat: 202 dB; LE,HF,24h:  LE,HF,24h: 173 dB.
                                            155 dB.
Phocid Pinnipeds (PW) (Underwater).......  Lpk,flat: 218 dB; LE,PW,24h:  LE,PW,24h: 201 dB.
                                            185 dB.
Otariid Pinnipeds (OW) (Underwater)......  Lpk,flat: 232 dB; LE,OW,24h:  LE,OW,24h: 219 dB.
                                            203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1 [mu]Pa2s. 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.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
    Background noise is the sound level that would exist without the 
proposed activity (pile driving and removal, in this case), while 
ambient sound levels are those without human activity (NOAA 2009). The 
marine waterway of Elliott Bay is very active, and human factors that 
may contribute to background noise levels include ship traffic and 
fishing-boat depth sounders. Natural actions that contribute to ambient 
noise include waves, wind,

[[Page 34495]]

rainfall, current fluctuations, chemical composition, and biological 
sound sources (e.g., marine mammals, fish, and shrimp; Carr et al. 
2006). Background noise levels will be compared to the NOAA/NMFS 
threshold levels designed to protect marine mammals to determine the 
Level B Harassment Zones for noise sources. Based on work completed by 
WSDOT for Washington State Ferries (WSF) to determine background noise 
in the vicinity of Elliott Bay, specifically at the Seattle Ferry 
terminal, the background level of 124 dB rms was used to calculate the 
attenuation for vibratory pile driving and removal (WSDOT 2015b). 
Although NMFS's harassment threshold is typically 120 dB for continuous 
noise, based on multiple measurements, the data collected by WSDOT 
(2015b) indicate that ambient sound levels are typically higher than 
this sound level and ranged from 124 dB to 141 dB; therefore, we 
accepted the 124 dB rms as a proxy for the relevant threshold for the 
Seattle DOT Pier 62 project.
    The sound source levels for installation of the 30-in steel piles 
are based on surrogate data compiled by WSDOT. The source level of 
vibratory removal of 14-in timber piles were based on measurements 
conducted at the Port Townsend Ferry Terminal during vibratory removal 
of 12-in timber piles by WSDOT (Laughlin 2011). The recorded source 
level is 152 decibels (dB) re 1 micropascal ([mu]Pa) at 16 meters (m) 
from the pile. This value was also used for other pile driving projects 
(WSDOT Seattle Multimodal Construction Project--Colman Dock IHA RIN 
0648-XF250) in the same area as the proposed Seattle Pier 62 project. 
In February of 2016, WSDOT conducted a test pile project at Colman Dock 
and the measured results from that project were used for that project 
and here to provide source levels for the prediction of isopleths 
ensonified over thresholds for the Seattle Pier 62 project. The results 
showed that the sound pressure level (SPL) root-mean-square (rms) for 
impact pile driving of 36-in steel pile is 189 dB re 1 [micro]Pa at 14 
m from the pile (WSDOT 2016b). This value is also used for impact 
driving of the 30-in steel piles, which is a precautionary approach. 
Source level of vibratory pile driving of 36-in steel piles is based on 
test pile driving at Port Townsend in 2010 (Laughlin 2011). Recordings 
of vibratory pile driving were made at a distance of 10 m from the 
pile. The results show that the SPLrms for vibratory pile driving of 
36-in steel pile was 177 dB re 1 [micro]Pa (WSDOT 2016a).
    The method of incidental take requested is Level B acoustical 
harassment of any marine mammal occurring within the 160 dB rms 
disturbance threshold during impact pile driving of 30-in pipe piles; 
the 120 dB rms disturbance threshold for vibratory pile driving of 30-
in pipe piles; and the 120 dB rms disturbance threshold for vibratory 
removal of 14-in timber piles have been established as the three 
different Level B ZOIs that will be in place during active pile removal 
or installation of the different types of piles (Table 6). However, 
measured ambient noise levels in the area are 124 dB; therefore, NMFS 
only considers take likely to occur in the area ensonified above 124 
dB, as pile driving noise below 124 dB would likely be masked or their 
impacts diminished such that any reactions would not be considered take 
as a result of the high ambient noise levels.
    For the Level B ZOI's, sound waves propagate in all directions when 
they travel through water until they dissipate to background levels or 
encounter barriers that absorb or reflect their energy, such as a 
landmass. Therefore, the area of the Level B ZOIs was determined using 
land as the boundary on the north, east and south sides of the project. 
On the west, land was also used to establish the zone for vibratory 
driving. From Alki on the south and Magnolia on the north, a straight 
line of transmission was established out to Bainbridge Island. For 
impact driving (and vibratory removal), sound dissipates much quicker 
and the impact zone stays within Elliott Bay. Pile-related construction 
noise would extend throughout the nearshore and open water environments 
to just west of Alki Point and a limited distance into the East 
Waterway of the Lower Duwamish River, a highly industrialized waterway. 
Because landmasses block in-water construction noise, a ``noise 
shadow'' created by Alki Point is expected to be present immediately 
west of this feature (refer to Seattle DOT's application for maps 
depicting the Level B ZOIs).

                           Table 6--Level B Zone Descriptions and Duration of Activity
----------------------------------------------------------------------------------------------------------------
                                                                             Level B
          Sound source                 Activity          Construction       threshold    Level B ZOI    Days of
                                                            method             (m)         (km\2\)     Activity
----------------------------------------------------------------------------------------------------------------
1...............................  Removal of 14-in    Vibratory.........         1,865           4.9          49
                                   Timber Piles.
2...............................  Installation of     Vibratory.........        54,117            91          53
                                   30[dash]in Steel
                                   Piles.
3...............................  Installation of     Impact............         1,201           2.3          11
                                   30[dash]in Steel
                                   Piles.
----------------------------------------------------------------------------------------------------------------

    When NMFS Technical Guidance (NMFS 2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which will result in some degree of 
overestimate of Level A take. However, these tools offer the best way 
to predict appropriate isopleths when more sophisticated 3D modeling 
methods are not available, and NMFS continues to develop ways to 
quantitatively refine these tools, and will qualitatively address the 
output where appropriate. For stationary sources such as vibratory and 
impact pile driving, NMFS's User Spreadsheet predicts the closest 
distance at which, if a marine mammal remained at that distance the 
whole duration of the activity, it would not incur PTS. Inputs used in 
the User Spreadsheet, and the resulting isopleths are reported below.
    The PTS isopleths were identified for each hearing group for impact 
and vibratory installation and removal methods that will be used in the 
Pier 62 Project. The PTS isopleth distances were calculated using the 
NMFS acoustic threshold calculator (NMFS 2016), with inputs based on 
measured and surrogate noise measurements taken during the EBSP 
construction and from WSDOT, and estimating conservative working 
durations (Table 7 and Table 8).

[[Page 34496]]



            Table 7--NMFS Technical Acoustic Guidance User Spreadsheet Input To Predict PTS Isopleths
----------------------------------------------------------------------------------------------------------------
                                              User Spredsheet Input
-----------------------------------------------------------------------------------------------------------------
                                            Sound source 1           Sound source 2           Sound source 3
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used.................  (A)Vibratory pile        (A)Vibratory pile        (E.1) Impact pile
                                        driving (removal).       driving (installation).  driving (installation)
Source Level (rms SPL)...............  155 dB.................  180 dB.                  .......................
Source Level (Single Strike/shot SEL)  .......................  .......................  176 dB.
Weighting Factor Adjustment (kHz)....  2.5....................  2.5....................  2.
a) Number of strikes in 1 h..........  .......................  .......................  20.
a) Activity Duration (h) within 24-h   8......................  8......................  4.
 period.
Propagation (xLogR)..................  15.....................  15.....................  15.
Distance of source level measurement   16.....................  10.....................  14.
 (meters).
----------------------------------------------------------------------------------------------------------------


 Table 8--NMFS Technical Acoustic Guidance User Spreadsheet Output for Predicted PTS Isopleths and Level A Daily
                                                Ensonified Areas
----------------------------------------------------------------------------------------------------------------
                                             User Spreadsheet Output
-----------------------------------------------------------------------------------------------------------------
                                 Low-frequency   Mid-frequency   High-frequency       Phocid          Otariid
       Sound source type           cetaceans       cetaceans        cetaceans        pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
                                              PTS Isopleth (meters)
----------------------------------------------------------------------------------------------------------------
1--Vibratory (pile removal)...            17.4             1.5              25.7            10.6             0.7
2--Vibratory (installation)...           504.8            44.7             746.4           306.8            21.5
3--Impact (installation)......            88.6             3.2             105.6            47.4             3.5
----------------------------------------------------------------------------------------------------------------
                                         Daily ensonified area (km\2\) *
----------------------------------------------------------------------------------------------------------------
Vibratory (pile removal)......        0.000476        0.000004          0.001037        0.000176        7.70E-13
Vibratory (installation)......        0.400275        0.003139          0.875111        0.147853        0.000726
Impact (installation).........        0.012331        0.000016          0.017517        0.003529     1.92423E-05
----------------------------------------------------------------------------------------------------------------
* Daily ensonified areas were divided by two to only account for the ensonified area within the water and not
  over land.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculation and we describe how the marine mammal occurrence 
information is brought together to produce a quantitative take 
estimate. In all cases we demonstrated take estimates using the species 
density data from the 2015 Pacific Navy Marine Species Density Database 
(U.S. Navy 2015), to estimate take for marine mammals.
    Take estimates are based on average marine mammal density in the 
project area multiplied by the area size of ensonified zones within 
which received noise levels exceed certain thresholds (i.e., Level A 
and B harassment) from specific activities, then multiplied by the 
total number of days such activities would occur.
    Unless otherwise described, incidental take is estimated by the 
following equation:
Incidental take estimate = species density * zone of influence * days 
of pile-related activity

    However, adjustments were made for nearly every marine mammal 
species, whenever their local abundance is known through other 
monitoring efforts. In those cases, the local abundance data are used 
for take calculations for the proposed authorized take instead of 
general animal density (see below).
Harbor Seal
    Based on U.S. Navy species density estimates (U.S. Navy 2015) for 
the inland waters of Puget Sound, potential take of harbor seal is 
requested as shown in Table 9. Based on these calculations, Level A 
take is estimated at 10 harbor seals from vibratory pile driving and 
Level B take is estimated at 6,193 harbor seals from all sound sources. 
However, observational data from previous projects on the Seattle 
waterfront have documented only a fraction of what is calculated using 
the Navy density estimates for Puget Sound. For example, between zero 
and seven seals were observed daily for the EBSP and 56 harbor seals 
were observed over 10 days in the area with the maximum number of 13 
harbor seals sighted during the 2016 Seattle Test Pile project (WSF 
2016).
    Therefore, NMFS proposes to authorize Level B harassment of 1,469 
harbor seals that could be exposed to noise levels associated with 
``take.'' The harbor seal take estimate is based on local seal 
abundance information using the maximum number of seals (13) sighted in 
one day during the 2016 Seattle Test Pile project multiplied by a total 
of 113 pile driving days for the Seattle DOT Pier 62 Project. Fifty-
three days would involve installation by vibratory pile driving, which 
has a much larger Level A zone (306.8 m) than the Level A zones for 
vibratory removal (10.6 m) and impact pile driving (47.4 m). Harbor 
seals may be difficult to observe at greater distances, therefore, 
during vibratory pile driving, it may not be known how long a seal is 
present in the Level A zone. We estimate that 4 harbor seals may 
experience Level A harassment during these 53 days. Four seals were 
considered to have the potential to be taken by Level A harassment 
based on the local observational data for harbor seals, the larger 
ensonified area during vibratory pile driving for installation, and our 
best professional judgment that an animal would remain within the 
injury zone for prolonged exposure of intense noise. The number of 
Level B takes was adjusted to exclude those already counted for Level A 
takes, so the proposed authorized Level B take is 1,465 harbor seals.

[[Page 34497]]



                                       Table 9--Harbor Seal Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Species       Level A ZOI     Level B ZOI       Days of     Estimated take
           Sound source                density         (km\2\)         (km\2\)        activity         Level A             Estimated take Level B
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................................           1.219        0.000176             4.9              49               0  293.
2................................           1.219        0.147853              91              53              10  5,879 (*Adjusted 5,869).
3................................           1.219        0.003529             2.3              11               0  31.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B takes was adjusted to exclude those already counted for Level A takes.

Northern Elephant Seal
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of northern elephant seal is expected to be zero. 
However, The Whale Museum (as cited in WSDOT 2016a) reported one 
sighting in the relevant area between 2008 and 2014. Therefore, the 
Seattle DOT is requesting authorization for Level B harassment of one 
northern elephant seal.
California Sea Lion
    Based on U.S. Navy species density estimates (U.S. Navy 2015) for 
the inland waters of Washington, including Eastern Bays and Puget 
Sound, potential take of California sea lion is requested as shown in 
Table 10. Since the calculated Level A zones of otariids are all very 
small (Table 8), we do not consider it likely that any sea lions would 
be taken by Level A harassment. All California sea lion takes estimated 
here are expected to be takes by Level B harassment. The estimated 
Level B take is 644 California sea lions. However, the Seattle DOT 
believes that this estimate is unrealistically low, based on local 
marine mammal monitoring. Therefore, NMFS proposes to authorize Level B 
harassment of 1,695 California sea lions. The California sea lion take 
estimate is based on four seasons of local sea lion abundance 
information from the EBSP. Marine mammal visual monitoring during the 
EBSP indicates that a maximum of 15 sea lions were observed in a day 
during four-year project monitoring (Anchor QEA 2014, 2015, 2016). 
Based on a total of 113 pile driving days for the Seattle Pier 62 
project, it is estimated that up to 1,695 California sea lions could be 
exposed to noise levels associated with ``take.''

                                  Table 10--California Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species       Level A ZOI     Level B ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................          0.1266        7.70E-13             4.9              49               0              30
2.......................................................          0.1266        0.000726              91              53               0             611
3.......................................................          0.1266     1.92423E-05             2.3              11               0               3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Steller Sea Lion
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of Steller sea lion is requested as shown in Table 11. 
Since the calculated Level A zones of otariids are all very small 
(Table 8), we do not consider it likely that any Steller sea lions 
would be taken by Level A harassment. The Seattle DOT is requesting 
authorization for Level B harassment of 188 Steller sea lions.

                                    Table 11--Steller Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species       Level A ZOI     Level B ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................          0.0368        7.70E-13             4.9              49               0               9
2.......................................................          0.0368        0.000726              91              53               0             178
3.......................................................          0.0368     1.92423E-05             2.3              11               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Southern Resident Killer Whale
    Based on the U.S. Navy species density estimates (U.S. Navy 2015) 
the density for the SRKW is variable across seasons and across the 
range. The inland water density estimates vary from 0.001461 to 
0.004760/km\2\ in fall and 0.004761-0.020240/km\2\ in winter. 
Therefore, the take request as shown in Table 12 is based on the 
highest density estimated during the winter season (0.020240/km\2\) for 
the SRKW population.
    With the variable winter density, the Level B take estimate can 
range from 24 to 104 SRKW, with the upper take estimate greater than 
the estimated population size and the lower estimated take still 
greater than 20 percent of the population. NMFS proposes to authorize 
Level B harassment of 24 SRKW based on a single occurrence of one pod 
(i.e., J Pod--24 individuals) that would be most likely to be seen near 
Seattle. The Seattle DOT will coordinate with The Orca Network in an 
attempt to avoid all take of SRKW, but it may be possible that a group 
may enter the Level B ZOI before Seattle DOT could shut down due to the 
larger size of the Level B ZOI, particularly during vibratory pile 
driving (installation). Since the Level A zones of

[[Page 34498]]

mid-frequency cetaceans are small (Table 8), we do not consider it 
likely that any SRKW would be taken by Level A harassment.

                             Table 12--Southern Resident Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species       Level A ZOI     Level B ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        0.020240        0.000004             4.9              49               0               5
2.......................................................        0.020240        0.003139              91              53               0              98
3.......................................................        0.020240        0.000016             2.3              11               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Transient Killer Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of transient killer whale is requested as shown in Table 
13. As with the SRKW, the density estimate of transient killer whales 
is variable between seasons and regions. In fall, density estimates 
range from 0.001583 to 0.002373/km\2\ and in winter they range from 
0.000575 to 0.001582/km\2\. The winter density estimate, when most of 
the work is being conducted, will be used for estimating density and 
take. For Level B harassment, this results in a take estimate of eight 
individuals. However, the Seattle DOT believes that this estimate is 
low based on local data of 7 transients that were reported in the area 
(Orca Network Archive Report 2016a). Therefore, NMFS proposes to 
authorize Level B harassment of 42 transient killer whales, which would 
cover up to two groups of up to seven transient whales entering into 
the project area and remaining there for three days. Since the Level A 
zones of mid-frequency cetaceans are small (Table 8), we do not 
consider it likely that any transient killer whales would be taken by 
Level A harassment.

                                 Table 13--Transient Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species       Level A ZOI     Level B ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        0.001582        0.000004             4.9              49               0               0
2.......................................................        0.001582        0.003139              91              53               0               8
3.......................................................        0.001582        0.000016             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Long-Beaked Common Dolphin
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of long-beaked common dolphin is expected to be zero. 
However, in 2016, the Orca Network (2016c) reported a pod of up to 20 
long-beaked common dolphins. Therefore, the Seattle DOT is requesting 
authorization for Level B harassment of 20 long-beaked common dolphins. 
Since the Level A zones of mid-frequency cetaceans are all very small 
(Table 8), we do not consider it likely that the long-beaked common 
dolphin would be taken by Level A harassment.
Harbor Porpoise
    Based on species density estimates from Jefferson et al. (2016), 
potential take of harbor porpoise is requested as shown in Table 14. 
Take by Level A harassment is estimated at 32 harbor porpoises and take 
by Level B harassment is estimated at 3,512 exposures to harbor 
porpoises. NMFS proposes to authorize take by Level A harassment of 32 
harbor porpoises and take by Level B harassment of 3,480 harbor 
porpoises.

                                    Table 14--Harbor Porpoise Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Species       Level A ZOI     Level B ZOI       Days of        Estimated
           Sound source                density         (km\2\)         (km\2\)        activity      Level A take           Estimated Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................................            0.69        0.001037             4.9              49               0  166.
2................................            0.69        0.875111              91              53              32  3,328 (* Adjusted 3,296).
3................................            0.69        0.017517             2.3              11               0  18.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B takes was adjusted to exclude those already counted for Level A takes. Take is instances not individuals.

Dall's Porpoise
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take is requested as shown in Table 15. Based on these 
calculations, the Seattle DOT is requesting take for Level A harassment 
of 2 Dall's porpoise and take for Level B harassment of 199 Dall's 
porpoise.

[[Page 34499]]



                                    Table 15--Dall's Porpoise Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Species       Level A ZOI     Level B ZOI       Days of        Estimated
           Sound source                density         (km\2\)         (km\2\)        activity      Level A take           Estimated Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................................           0.039        0.001037             4.9              49               0  10.
2................................           0.039        0.875111              91              53               2  190 (* Adjusted 188).
3................................           0.039        0.017517             2.3              11               0  1.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B takes was adjusted to exclude those already counted for Level A takes.

Humpback Whales
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of humpback whale is requested as shown in Table 16. 
Although the standard take calculations would result in an estimated 
take of less than one humpback whale, to be conservative, the Seattle 
DOT is requesting authorization for Level B harassment of five humpback 
whales based on take during previous work in Elliott Bay where two 
humpback whales were observed, including one take, during the 175 days 
of work during the previous four years (Anchor QEA 2014, 2015, 2016, 
and 2017). Since the Level A zones of low-frequency cetaceans are 
smaller during vibratory removal (17.4 m) or impact installation (88.6 
m) compared to the Level A zone for vibratory installation (504.8 m) 
(Table 8), we do not consider it likely that any humpbacks would be 
taken by Level A harassment during removal or impact installation. We 
also do not believe any humpbacks would be taken during vibratory 
installation due to the ability to see humpbacks easily during 
monitoring and additional coordination with The Orca Network and The 
Center for Whale Research, which would enable the work to be shut down 
before a humpback would be taken by Level A harassment.

                                     Table 16--Humpback Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species       Level A ZOI     Level B ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00001        0.000476             4.9              49               0               0
2.......................................................         0.00001        0.400275              91              53               0               0
3.......................................................         0.00001        0.012331             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Gray Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of gray whale is requested as shown in Table 17. The 
Seattle DOT is requesting authorization for Level B harassment of three 
gray whales. Since the Level A zones of low-frequency cetaceans are 
smaller during vibratory removal (17.4 m) or impact installation (88.6 
m) compared to the Level A zone for vibratory installation (504.8 m) 
(Table 8), we do not consider it likely that any gray whales would be 
taken by Level A harassment during removal or impact installation. We 
also do not believe any gray whales would be taken during vibratory 
installation due to the ability to see gray whales easily during 
monitoring and additional coordination with The Orca Network and The 
Center for Whale Research, which would enable the work to be shut down 
before a gray whale would be taken by Level A harassment.

                                       Table 17--Gray Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species       Level A ZOI     Level B ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00051        0.000476             4.9              49               0               0
2.......................................................         0.00051        0.400275              91              53               0               3
3.......................................................         0.00051        0.012331             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Minke Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of minke whales is expected to be zero (Table 18). 
However, between 2008 and 2014, the Whale Museum (as cited in WSDOT 
2016a) reported one sighting in the relevant area. Although the take 
calculations would result in an estimated take of less than one minke 
whale, the Seattle DOT is requesting authorization for Level B 
harassment of two minke whales, based on previous sightings in the 
construction area by the Whale Museum. Based on the low probability 
that a minke whale would be observed during the project and then also 
enter into a Level A zone, we do not consider it likely that any minke 
whales would be taken by Level A harassment.

[[Page 34500]]



                                      Table 18--Minke Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species       Level A ZOI     Level B ZOI       Days of        Estimated       Estimated
                      Level B zone                            density         (km\2\)         (km\2\)        activity      Level A take    Level B take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00003        0.000476             4.9              49               0               0
2.......................................................         0.00003        0.400275              91              53               0              <1
3.......................................................         0.00003        0.012331             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

    The summary of proposed authorized take by Level A and Level B 
Harassment is described below in Table 19.

                Table 19--Summary of Requested Incidental Take by Level A and Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                  Proposed
                                                 authorized       Proposed          Proposed           % of
            Species               Stock size      Level A    authorized  Level     authorized       Population
                                                    take           B take          total take
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal (Phoca              11,036            4  1,465 \a\........  1,469...........  13.31.
 vitulina).
Northern elephant seal                 179,000            0  1 \b\............  1...............  Less than 1.
 (Mirounga angustirostris).
California sea lion (Zalophus          296,750            0  1,695 \c\........  1,695...........  Less than 1.
 californianus).
Steller sea lion (Eumetopias     60,131-74,448            0  188..............  188.............  Less than 1.
 jubatus).
Southern resident killer whale              78            0  24 (single         24 (single        30.77.
 DPS (Orcinus orca).                                          occurrence of      occurrence of
                                                              one pod) \d\.      one pod).
Transient killer whale                     240            0  42 \e\...........  42..............  20.
 (Orcinus orca).
Long-beaked common dolphin             101,305            0  20 \f\...........  20..............  Less than 1.
 (Dephinus capensis).
Harbor porpoise...............          11,233           32  3,480............  3,512...........  31.26.
(Phocoena phocoena)...........
Dall's porpoise (Phocoenoides           25,750            2  199..............  201.............  Less than 1.
 dalli).
Humpback whale (Megaptera                1,918            0  5 \g\............  5...............  Less than 1.
 novaengliae).
Gray whale (Eschrichtius                20,990            0  3................  3...............  Less than 1.
 robustus).
Minke whale (Balaenoptera                  636            0  2 \h\............  2...............  Less than 1.
 acutorostrata).
----------------------------------------------------------------------------------------------------------------
Note:
\a\ The take estimate proposed is based on a maximum of 13 seals observed on a given day during the 2016 Seattle
  Test Pile project. The number of Level B takes was adjusted to exclude those already counted for Level A
  takes.
\b\ The take estimate proposed is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting of
  a Northern Elephant seal in the area between 2008 and 2014.
\c\ The take estimate proposed is based on a maximum of 15 California sea lions observed on a given day during 4
  monitoring seasons of the EBSP project.
\d\ The take estimate proposed is based on a single occurrence of one pod of SRKW (i.e., J-pod of 24 SRKW) that
  would be most likely to be seen near Seattle.
\e\ The take estimate proposed is based on local data which is greater than the estimates produced using the
  Navy density estimates. Therefore, the take proposed is 20 percent of the transient killer whale stock.
\f\ The take estimate proposed is based on The Orca Network (2016c) reporting a pod of up to 20 long-beaked
  common dolphins.
\g\ The take estimate proposed is based on take during previous work in Elliott Bay, where two humpback whales
  were observed and is greater than what was calculated using 2015 Navy density estimates.
\h\ The take estimate proposed is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting in
  the relevant area. Although the take calculations would result in an estimated take of less than one minke
  whale, to be conservative the Seattle DOT is requesting take of two minke whales.

Proposed Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, ``and other means of effecting the least practicable 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 (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    Several measures are proposed for mitigating effects on marine 
mammals from the pile installation and removal activities at Pier 62 
and are described below.

Timing Restrictions

    All work would be conducted during daylight hours.

Bubble Curtain

    A bubble curtain will be used during pile driving activities with 
an impact hammer to reduce sound levels.

Exclusion Zones

    Exclusion Zones calculated from the PTS isopleths will be 
implemented to protect marine mammals from Level A

[[Page 34501]]

harassment (refer to Table 8). Outside of any Level A take authorized, 
if a marine mammal is observed at or within the Exclusion Zone, work 
will shut down (stop work) until the individual has been observed 
outside of the zone, or has not been observed for at least 15 minutes 
for pinnipeds and small cetaceans and 30 minutes for large whales.

Additional Shutdown Measures

    Seattle DOT will implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA and if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone during in-
water construction activities.

Level B Harassment Zones

    Seattle DOT will implement the Level B harassment ZOIs as described 
in Table 6.

Soft-Start for Impact Pile Driving

    For impact pile installation, contractors will provide an initial 
set of three strikes from the impact hammer at 40 percent energy, 
followed by a one-minute waiting period, then two subsequent three-
strike sets. Each day, Seattle DOT will use the soft-start technique at 
the beginning of impact pile driving, or if impact pile driving has 
ceased for more than 30 minutes.

Additional Coordination

    The project team will monitor and coordinate with local marine 
mammal sighting networks (i.e., Orca Network and/or the CWR) to gather 
information on the location of whales prior to initiating pile removal. 
Marine mammal monitoring will be conducted to collect information on 
the presence of marine mammals within the Level B Harassment Zones for 
this project. The project team will also coordinate with Washington 
State Ferries (WSF) to discuss marine mammal sightings on days when 
vibratory or impact removal is occurring on their nearby projects. In 
addition, reports will be made available to interested parties upon 
request.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.
    Marine mammal monitoring will be conducted at all times during in-
water pile driving and removal in strategic locations around the area 
of potential effects as described below:
    [ssquf] During pile removal or installation with a vibratory 
hammer, a three-monitor protocol would be used, positioned such that 
each monitor has a distinct view-shed and the monitors collectively 
have overlapping view-sheds.
    [ssquf] During pile driving activities with an impact hammer, one 
monitor, based at or near the construction site, will conduct the 
monitoring.
    [ssquf] In the case(s) where visibility becomes limited, additional 
land-based monitors and/or boat-based monitors may be deployed.
    [ssquf] Monitors will record take when marine mammals enter the 
relevant Level B Harassment Zones based on type of construction 
activity.
    [ssquf] If a marine mammal approaches an Exclusion Zone, the 
observation will be reported to the Construction Manager and the 
individual will be watched closely. If the marine mammal crosses into 
an Exclusion Zone, a stop-work order will be issued. In the event that 
a stop-work order is triggered, the observed marine mammal(s) will be 
closely monitored while it remains in or near the Exclusion Zone, and 
only when it moves well outside of the Exclusion Zone or has not been 
observed for at least 15 minutes for pinnipeds and 30 minutes for 
whales will the lead monitor allow work to recommence.

Protected Species Observers

    Seattle DOT shall employ NMFS-approved protected species observers 
(PSOs) to conduct marine mammal monitoring for its Pier 62 Project. The 
PSOs will observe and collect data on marine mammals in and around the 
project area for 30 minutes before, during, and for 30 minutes after 
all pile removal and pile installation work. NMFS-approved PSOs shall 
meet the following requirements:
    1. Independent observers (i.e., not construction personnel) are 
required.
    2. At least one observer must have prior experience working as an 
observer.
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience.
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer.
    5. NMFS will require submission and approval of observer CVs.
    6. PSOs will monitor marine mammals around the construction site 
using high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or 
spotting scopes. Due to the different sizes of the Level B Zones from 
different pile sizes, several different Level B Zones and different 
monitoring protocols

[[Page 34502]]

corresponding to a specific pile size will be established.
    7. If marine mammals are observed, the following information will 
be documented:
    (A) Date and time that monitored activity begins or ends;
    (B) Construction activities occurring during each observation 
period;
    (C) Weather parameters (e.g., percent cover, visibility);
    (D) Water conditions (e.g., sea state, tide state);
    (E) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (F) Description of any observable marine mammal behavior patterns, 
including bearing and direction of travel and distance from pile 
driving activity;
    (G) Distance from pile driving activities to marine mammals and 
distance from the marine mammals to the observation point;
    (H) Locations of all marine mammal observations; and
    (I) Other human activity in the area.

Acoustic Monitoring

    In addition, acoustic monitoring will occur on up to six days per 
in-water work season to evaluate, in real time, sound production from 
construction activities (minimum of two days for each type of pile-
related activity: Vibratory removal of timber pile, vibratory 
installation of 30-in steel, and impact installation of 30-in steel). 
Acoustic monitoring will follow NMFS's 2012 Guidance Documents: Sound 
Propagation Modeling to Characterize Pile Driving Sounds Relevant to 
Marine Mammals and Data Collection Methods to Characterize Underwater 
Background Sound Relevant to Marine Mammals in Coastal Nearshore Waters 
and Rivers of Washington and Oregon.
    Background noise recordings (in the absence of pile-related work) 
will also be made during the study to provide a baseline background 
noise profile. The results and conclusions of the acoustic monitoring 
will be summarized and presented to NOAA/NMFS with recommendations on 
any modifications to this proposed plan or Exclusion Zones.

Proposed Reporting Measures

Marine Mammal Monitoring Report
    Seattle DOT would be required to submit a draft marine mammal 
monitoring report within 90 days after completion of the in-water 
construction work or the expiration of the IHA (if issued), whichever 
comes earlier. The report would include data from marine mammal 
sightings as described: Date, time, location, species, group size, and 
behavior, any observed reactions to construction, distance to operating 
pile hammer, and construction activities occurring at time of sighting 
and environmental data for the period (i.e., wind speed and direction, 
sea state, tidal state, cloud cover, and visibility). The marine mammal 
monitoring report will also include total takes, takes by day, and 
stop-work orders for each species. NMFS would have an opportunity to 
provide comments on the report, and if NMFS has comments, Seattle DOT 
would address the comments and submit a final report to NMFS within 30 
days.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury (Level A harassment), serious injury, or 
mortality, Seattle DOT would immediately cease the specified activities 
and immediately report the incident to the Permits and Conservation 
Division, Office of Protected Resources, NMFS and the NMFS' West Coast 
Stranding Coordinator. The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hrs preceding the 
incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hrs 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 would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Seattle DOT 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Seattle DOT may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
Reporting of Injured or Dead Marine Mammals
    In the event that Seattle DOT discovers an injured or dead marine 
mammal, and the lead PSO 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), 
Seattle DOT would immediately report the incident to the Permits and 
Conservation Division, Office of Protected Resources, NMFS and the 
NMFS' West Coast Stranding Coordinator. The report must include the 
same information identified in the paragraph above. Activities may 
continue while NMFS reviews the circumstances of the incident. NMFS 
would work with Seattle DOT to determine whether modifications in the 
activities are appropriate.
    In the event that Seattle DOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Seattle DOT would report the 
incident to the Permits and Conservation Division, Office of Protected 
Resources, NMFS and the NMFS Stranding Hotline and/or by email to the 
NMFS' West Coast Stranding Coordinator within 24 hrs of the discovery. 
Seattle DOT would provide photographs or video footage (if available) 
or other documentation of the stranded animal sighting to NMFS. 
Activities may continue while NMFS reviews the circumstances of the 
incident.
Acoustic Monitoring Report
    Seattle DOT will submit an Acoustic Monitoring Report that will 
provide details on the monitored piles, method of installation, 
monitoring equipment, and sound levels documented during monitoring. 
NMFS will review the acoustic monitoring report and suggest any changes 
in monitoring as needed.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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'' (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 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 harassment, NMFS considers other factors, such as the 
likely nature

[[Page 34503]]

of any responses (e.g., intensity, duration), the context of any 
responses (e.g., critical reproductive time or location, migration), as 
well as effects on habitat, and the likely effectiveness of the 
mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    No serious injury or mortality is anticipated or proposed to be 
authorized for the Pier 62 Project. Takes that are anticipated and 
proposed to be authorized are expected to be limited to short-term 
Level A and Level B harassment (behavioral). Marine mammals present in 
the vicinity of the action area and taken by Level A and Level B 
harassment would most likely show overt brief disturbance (startle 
reaction) and avoidance of the area from elevated noise levels during 
pile driving and pile removal and the implosion noise. However, many 
marine mammals showed no observable changes during similar project 
activities for the EBSP.
    There are two endangered species that may occur in the project 
area, humpback whales and SRKW. However, few humpbacks are expected to 
occur in the project area and few have been observed during previous 
projects in Elliot Bay. SRKW have occurred in small numbers in the 
project area. Seattle DOT will shut down in the Level B ZOI should they 
meet or exceed the proposed take of one occurrence of one pod (J-pod, 
24 whales).
    There is ESA-designated critical habitat in the vicinity of Seattle 
DOT's proposed Pier 62 Project for SRKW. However, this proposed IHA is 
authorizing the harassment of marine mammals, not the production of 
sound, which is what would result in adverse effects to critical 
habitat for SRKW. There is one documented harbor seal haulout area near 
Bainbridge Island, approximately 6 miles (9.66 km) from Pier 62. The 
haulout, which is estimated at less than 100 animals, consists of 
intertidal rocks and reef areas around Blakely Rocks and is at the 
outer edge of potential effects at the outer extent near Bainbridge 
Island (Jefferies et al. 2000). The level of use of this haulout during 
the fall and winter is unknown, but is expected to be much less than in 
the spring and summer, as air temperatures become colder than water 
temperatures resulting in seals in general hauling out less. Similarly, 
the nearest Steller sea lion haulout to the project area is located 
approximately six miles away (9.66 km) and is also on the outer edge of 
potential effects. This haulout is composed of net pens offshore of the 
south end of Bainbridge Island.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Potential Effects of Specified Activities on Marine Mammals and 
their Habitat'' section. Project activities would not permanently 
modify existing marine mammal habitat. The activities may kill some 
fish and cause other fish to leave the area temporarily, thus impacting 
marine mammals' foraging opportunities in a limited portion of the 
foraging range; but, 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. Therefore, given the consideration 
of potential impacts to marine mammal prey species and their physical 
environment, Seattle DOT's proposed Pier 62 Project would not adversely 
affect marine mammal habitat.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized.
     Takes that are anticipated and proposed to be authorized 
are expected to be limited to short-term Level B harassment 
(behavioral).
     The project also is not expected to have significant 
adverse effects on affected marine mammals' habitat.
     There are no known important feeding or pupping areas. 
There are two haulouts (harbor seals and Steller sea lions). However, 
they are at the most outer edge of the potential effects and 
approximately 6.6 miles from Pier 62. There are no other known 
important areas for marine mammals.
     For eight of the eleven species, take is less than one 
percent of the stock abundance. Instances of take for the other three 
species (harbor seals, killer whales, and harbor porpoise) range from 
about 13-31 percent of the stock abundance. However, when the fact that 
a fair number of these instances are expected to be repeat takes of the 
same animals is considered, the number of individual marine mammals 
taken is significantly lower.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other factors may be 
considered in the analysis, such as the temporal or spatial scale of 
the activities.
    Take of eight of the eleven species is less than one percent of the 
stock abundance. Instances of take for the SRKW and transient killer 
whales, harbor seals, and harbor porpoise ranges from about 13-31 
percent of the stock abundance. However, when the fact that a fair 
number of these instances are expected to be repeat takes of the same 
animals is considered, the number of individual marine mammals taken is 
significantly lower. Specifically, for example, Jefferson et al. 2016 
conducted harbor porpoise surveys in eight regions of Puget Sound, and 
estimated an abundance of 147 harbor porpoise in the Seattle area 
(1,798 porpoise in North Puget Sound and 599 porpoise in South Puget 
Sound). While individuals do move between regions, we would not 
realistically expect that 3,000+ individuals would be exposed around 
the pile driving for the Seattle DOT's Pier 62 Project. Considering 
these factors, as well as the general small size of the project area as 
compared to the range of the species affected, the numbers of marine 
mammals estimated to be taken are small proportions of the total 
populations of the affected species or stocks. Further, for SRWK we 
acknowledge that 30.77% of the stock is proposed to be taken by Level B 
harassment, but we believe that a single,

[[Page 34504]]

brief incident of take of one group of any species represents take of 
small numbers for that species. Based on the analysis contained herein 
of the proposed activity (including the proposed mitigation and 
monitoring measures) and the anticipated take of marine mammals, NMFS 
preliminarily finds that small numbers of marine mammals will be taken 
relative to the population sizes of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of IHAs, NMFS consults 
internally, in this case with the West Coast Regional Office, whenever 
we propose to authorize take for endangered or threatened species.
    NMFS is proposing to authorize take of SRKW and humpback whales, 
which are listed under the ESA.
    The Permit and Conservation Division has requested initiation of 
Section 7 consultation with the West Coast Regional Office for the 
issuance of this IHA. NMFS will conclude the ESA consultation prior to 
reaching a determination regarding the proposed issuance of the 
authorization.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Seattle DOT for conducting piledriving activities at 
Pier 62, Elliot Bay, Seattle, Washington from September 2017 to 
February 2018, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. This section 
contains a draft of the IHA itself. The wording contained in this 
section is proposed for inclusion in the IHA (if issued).
    The proposed IHA language is provided next.
    1. This Authorization is valid from September 1, 2017, through 
February 28, 2018.
    2. This Authorization is valid only for activities associated with 
in-water construction work at the Seattle Department of 
Transportation's (Seattle DOT) Pier 62 Project, Seattle, Washington.
    3. General Condition.
    (a) The species authorized for taking, by Level A harassment and 
Level B harassment, and in the numbers shown in Table 19 are: Pacific 
harbor seal (Phoca vitulina), northern elephant seal (Mirounga 
angustirostris), California sea lion (Zalophus californianus), Steller 
sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), 
Dall's porpoise (Phocoenoides dalli), long-beaked common dolphin 
(Delphinus capensis), both southern resident killer whale (SRKW) and 
transient killer whale (Orcinus orca), humpback whale (Megaptera 
novaengliae), gray whale (Eschrichtius robustus), and minke whale 
(Balaenoptera acutorostrata).
    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
    [ssquf] Impact pile driving;
    [ssquf] Vibratory pile driving; and
    [ssquf] Vibratory pile removal.
    4. Prohibitions.
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 19 of this notice. The taking by serious injury or death of these 
species or the taking by harassment, injury or death of any other 
species of marine mammal is prohibited unless separately authorized or 
exempted under the MMPA and may result in the modification, suspension, 
or revocation of this Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
6(b), are not present in conformance with condition 6(b) of this 
Authorization.
    5. Mitigation.
    (a) Time Restriction.
    In-water construction work will occur only during daylight hours.
    (b) Bubble Curtain.
    A bubble curtain will be used during pile driving activities with 
an impact hammer.
    (c) Level B Harassment Zones.
    Seattle DOT will implement the Level B harassment ZOIs as described 
in Table 6 of this notice.
    (d) Exclusion Zones.
    Outside of any Level A take authorized, Seattle DOT will shut down 
(stop work) in the Exclusion Zones using the PTS isopleths as described 
in Table 8 of this notice to protect marine mammals from Level A 
harassment.
    (i) Seattle DOT will implement a minimum shutdown zone of 10 m 
radius around each pile for all construction methods other than pile 
driving for all marine mammals.
    (ii) If a marine mammal is observed at or within the Exclusion 
Zone, work will stop until the individual has been observed outside of 
the zone, or has not been observed for at least 15 minutes for 
pinnipeds and small cetaceans and 30 minutes for large whales.
    (e) Additional Shutdown Measures.
    Seattle DOT will implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA and if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone during in-
water construction activities.
    (f) Soft-Start for Impact Pile Driving.
    For impact pile installation, contractors will provide an initial 
set of three strikes from the impact hammer at 40 percent energy, 
followed by a one-minute waiting period, then two subsequent three-
strike sets.
    (g) Additional Coordination.
    The project team will monitor and coordinate with local marine 
mammal sighting networks (i.e., The Orca Network and/or The Center for 
Whale Research) to gather information on the location of whales prior 
to initiating pile removal. Marine mammal monitoring will be conducted 
to collect information on the presence of marine mammals within the 
Level B Harassment Zones for this project. The project team will also 
coordinate with Washington State Ferries (WSF) to discuss marine mammal 
sightings on days when vibratory or impact removal is occurring on 
their nearby projects. In addition, reports will be made available to 
interested parties upon request.
    6. Monitoring.
    (a) Protected Species Observers.
    Seattle DOT shall employ NMFS-approved PSOs to conduct marine 
mammal monitoring for its construction project. NMFS-approved PSOs will 
meet the following qualifications.
    (i) Independent observers (i.e., not construction personnel) are 
required.
    (ii) At least one observer must have prior experience working as an 
observer.
    (iii) Other observers may substitute education (undergraduate 
degree in biological science or related field) or training for 
experience.
    (iv) Where a team of three or more observers are required, one 
observer

[[Page 34505]]

should be designated as lead observer or monitoring coordinator. The 
lead observer must have prior experience working as an observer.
    (v) NMFS will require submission and approval of observer CVs.
    (b) Monitoring Protocols: PSOs shall be present on site at all 
times during pile removal and driving. Marine mammal visual monitoring 
will be conducted for different Level B Harassment Zones based on 
different sizes of piles being driven or removed.
    (i) A 30-minute pre-construction marine mammal monitoring will be 
required before the first pile driving or pile removal of the day. A 
30-minute post-construction marine mammal monitoring will be required 
after the last pile driving or pile removal of the day. If the 
constructors take a break between subsequent pile driving or pile 
removal for more than 30 minutes, then additional 30-minute pre-
construction marine mammal monitoring will be required before the next 
start-up of pile driving or pile removal.
    (ii) During pile removal or installation with a vibratory hammer, a 
three-monitor protocol will be used, positioned such that each monitor 
has a distinct view-shed and the monitors collectively have overlapping 
view-sheds.
    (iii) During pile driving activities with an impact hammer, one 
monitor, based at or near the construction site, will conduct the 
monitoring.
    (iv) Where visibility becomes limited, additional land-based 
monitors and/or boat-based monitors shall be deployed.
    (v) Monitors will record take when marine mammals enter their 
relevant Level B Harassment Zones based on type of construction 
activity.
    (vi) If a marine mammal approaches an Exclusion Zone, the 
observation will be reported to the Construction Manager and the 
individual will be watched closely. If the marine mammal crosses into 
an Exclusion Zone, a stop-work order will be issued. In the event that 
a stop-work order is triggered, the observed marine mammal(s) will be 
closely monitored while it remains in or near the Exclusion Zone, and 
only when it moves well outside of the Exclusion Zone or has not been 
observed for at least 15 minutes for pinnipeds and small cetaceans and 
30 minutes for large whales will the lead monitor allow work to 
recommence.
    (vii) PSOs will monitor marine mammals around the construction site 
using high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or 
spotting scopes.
    (viii) If marine mammals are observed, the following information 
will be documented:
    (A) Date and time that monitored activity begins or ends;
    (B) Construction activities occurring during each observation 
period;
    (C) Weather parameters (e.g., percent cover, visibility);
    (D) Water conditions (e.g., sea state, tide state);
    (E) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (F) Description of any observable marine mammal behavior patterns, 
including bearing and direction of travel and distance from pile 
driving activity;
    (G) Distance from pile driving activities to marine mammals and 
distance from the marine mammals to the observation point;
    (H) Locations of all marine mammal observations; and
    (I) Other human activity in the area.
    (ix) Acoustic Monitoring--Seattle DOT will conduct acoustic 
monitoring up to six days per in-water work season to evaluate, in real 
time, sound production from construction activities (minimum of two 
days for each type of pile-related activity: vibratory removal of 
timber pile, vibratory installation of 30-in steel, and impact 
installation of 30-in steel). Acoustic monitoring will follow NMFS's 
2012 Guidance Documents: Sound Propagation Modeling to Characterize 
Pile Driving Sounds Relevant to Marine Mammals and Data Collection 
Methods to Characterize Underwater Background Sound Relevant to Marine 
Mammals in Coastal Nearshore Waters and Rivers of Washington and 
Oregon. Background noise recordings (in the absence of pile-related 
work) will also be made during the study to provide a baseline 
background noise profile.
    7. Reporting:
    (a) Marine Mammal Monitoring.
    (i) Seattle DOT will submit a draft marine mammal monitoring report 
within 90 days after completion of the in-water construction work or 
the expiration of the IHA (if issued), whichever comes earlier. The 
report will include data from marine mammal sightings as described: 
Date, time, location, species, group size, and behavior, any observed 
reactions to construction, distance to operating pile hammer, and 
construction activities occurring at time of sighting and environmental 
data for the period (i.e., wind speed and direction, sea state, tidal 
state, cloud cover, and visibility). The marine mammal monitoring 
report will also include total takes, takes by day, and stop-work 
orders for each species.
    (ii) If comments are received from NMFS Office of Protected 
Resources on the draft report, a final report will be submitted to NMFS 
within 30 days thereafter. If no comments are received from NMFS, the 
draft report will be considered to be the final report.
    (iii) In the unanticipated event that the specified activity 
clearly causes the take of a marine mammal in a manner prohibited by 
the IHA (if issued), such as an injury (Level A harassment), serious 
injury, or mortality, Seattle DOT will immediately cease the specified 
activities and immediately report the incident to the Permits and 
Conservation Division, Office of Protected Resources, NMFS and the 
NMFS' West Coast Stranding Coordinator. The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hrs preceding the 
incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hrs 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 would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Seattle DOT 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Seattle DOT will not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    (b) Reporting of Injured or Dead Marine Mammals.
    (i) In the event that Seattle DOT discovers an injured or dead 
marine mammal, and the lead PSO 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), Seattle DOT will immediately report the incident to the 
Permits and Conservation Division, Office of Protected Resources, NMFS 
and the NMFS' West Coast Stranding Coordinator. The report must include 
the same information identified in 7(a)(iii). Activities may continue 
while NMFS reviews the circumstances of the

[[Page 34506]]

incident. NMFS will work with Seattle DOT to determine whether 
modifications in the activities are appropriate.
    (ii) In the event that Seattle DOT discovers an injured or dead 
marine mammal, and the lead PSO determines that the injury or death is 
not associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Seattle DOT will report the 
incident to the Permits and Conservation Division, Office of Protected 
Resources, NMFS and the NMFS Stranding Hotline and/or by email to the 
NMFS' West Coast Stranding Coordinator within 24 hrs of the discovery. 
Seattle DOT will provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to NMFS. Activities 
may continue while NMFS reviews the circumstances of the incident.
    (c) Acoustic Monitoring Report--Seattle DOT will submit an Acoustic 
Monitoring Report that will provide details on the monitored piles, 
method of installation, monitoring equipment, and sound levels 
documented during monitoring. NMFS will review the acoustic monitoring 
report and suggest any changes in monitoring as needed.
    8. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if 
NMFS determines the authorized taking is having more than a negligible 
impact on the species or stock of affected marine mammals.
    9. A copy of this Authorization must be in the possession of each 
contractor who performs the construction work at the Pier 62 Project.

Request for Public Comments

    We request comment on our analyses, the draft authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed pile 
driving activities for the Seattle Pier 62 Project. Please include with 
your comments any supporting data or literature citations to help 
inform our final decision on the request for MMPA authorization.

    Dated: July 19, 2017.
Catherine Marzin,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2017-15522 Filed 7-24-17; 8:45 am]
 BILLING CODE 3510-22-P