Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Annapolis Passenger Ferry Dock Project, Washington, 32082-32093 [2018-14753]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 133 (Wednesday, July 11, 2018)]
[Notices]
[Pages 32082-32093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14753]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG204


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Annapolis Passenger Ferry Dock 
Project, Washington

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

ACTION: Notice; issuance of incidental harassment authorization.

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

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Kitsap Transit, to incidentally take, by Level A and B harassment, 
marine mammals during construction activities associated with the 
Annapolis Passenger Ferry Dock Project in Puget Sound, Washington.

DATES: This Authorization is applicable from October 1, 2018 through 
September 31, 2019.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application, 
IHA, and supporting documents, as well as a list of the references 
cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/node/23111. 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 (as delegated to NMFS) 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, 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).

Summary of Request

    On March 5, 2018, NMFS received a request from Kitsap Transit for 
an IHA to take marine mammals incidental to pile driving and removal 
associated with upgrades to the Annapolis Ferry Terminal, Puget Sound, 
Washington. Kitsap Transit submitted a revised application on May 3, 
2018 which NMFS deemed adequate and complete. Pile driving and removal 
will take a maximum of 17 days. No serious injury or mortality is 
expected to occur or is authorized from this activity and, therefore, 
an IHA is appropriate.
    On May 16, 2018, NMFS published its proposed IHA in the Federal 
Register for public comment (83 FR 22624). NMFS has issued an IHA to 
Kitsap Transit for the take, by Level A and B harassment, of harbor 
seal (Phoca vitulina richardii), Steller sea lion (Eumetopias jubatus 
monteriensis), California sea lion (Zalophus californianus), and harbor 
porpoise (Phocoena phocoena vomerina).

Description of Proposed Activity

Overview

    Kitsap Transit is proposing to upgrade the existing dock at its 
Annapolis Ferry Terminal to accommodate larger vessels by extending the 
dock into deeper water and bring the terminal into compliance with 
American Disability Act (ADA) accessibility standards. The project 
includes removing 10 existing concrete and steel piles that support the 
existing pier and float and installing 12 new steel piles to support 
updated structures. Piles will be removed using a vibratory hammer and 
new piles will be installed using a vibratory and, if necessary, an 
impact hammer. The project is anticipated to take 8 weeks to complete; 
however, Kitsap Transit anticipates it will take a maximum of 17 days 
to complete in-water pile driving activities.

Dates and Duration

    The project would occur for eight weeks between October 1, 2018 and 
September 30, 2019 with the exception of March 3, 2019 through July 1, 
2019 to protect salmonids and surf smelt. Pile removal has been 
conservatively estimated to occur at a rate of 2 piles removed per day, 
which would require 5 days to remove 10 piles. Pile installation was 
conservatively estimated to occur at a rate of 1 pile per day, which 
would require 12 days to install 12 piles. In total, there would be

[[Page 32083]]

17 days (maximum) of pile driving. No in-water pile driving will be 
conducted between

Specific Geographic Region

    The Annapolis Ferry Terminal is located in Sinclair Inlet across 
from Naval Base Kitsap (NBK) Bremerton and southwest of Bainbridge 
Island. Potential areas ensonified during pile driving include Sinclair 
Inlet and portions of Port Washington Narrows, Port Orchard Passage and 
Rich Passage. These waterbodies range up to 130 feet in depth and 
substrates include silt/mud, sand, gravel, cobbles and rock outcrops. 
The terminal itself and parking area contains a hardened shoreline 
comprised of sheet piles.

Detailed Description of Specific Activity

    A detailed description of the specified activity is provided in our 
notice of proposed IHA (83 FR 22624; May 16, 2018). Please refer to 
that document for full detail. We provide a summary here.
    The Annapolis Ferry Terminal was designed to have a useful life of 
40 years and is now 34 years old. Kitsap Transit has determined 
upgrades are necessary to meet ADA requirements and accommodate larger 
ferry vessels. To make the upgrades, Kitsap Transit is removing a 
portion of the existing pier, installing a longer gangway, removing the 
existing float and installing a larger float in deeper water. This work 
requires removing 10 existing piles and installing 12 new piles.
    Piles would be removed with a vibratory hammer. Piles would be 
installed using a vibratory hammer to refusal and then ``proofed'' with 
an impact hammer, if necessary. The maximum amount of time spent 
removing 10 piles would be 5 days while the maximum amount of time 
installing 12 piles would be 12 days for a total of 17 days. The types 
of piles included in the project and schedule, are included in Table 1.

        Table 1--Description of Piles To Be Installed and Removed During the Annapolis Ferry Dock Project
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of    Number of days
                   Pile size                                 Method                    piles         (maximum)
----------------------------------------------------------------------------------------------------------------
                                                  Pile Removal
----------------------------------------------------------------------------------------------------------------
16.5-in concrete..............................  Vibratory.......................               4               5
18'' steel....................................  Vibratory.......................               6  ..............
----------------------------------------------------------------------------------------------------------------
                                                Pile Installation
----------------------------------------------------------------------------------------------------------------
12-in steel...................................  Vibratory.......................               4              12
                                                Impact..........................  ..............  ..............
24-in steel...................................  Vibratory.......................               8  ..............
                                                Impact..........................  ..............  ..............
----------------------------------------------------------------------------------------------------------------

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

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on May 16, 2018 (83 FR 22624). During the 30-day 
public comment period, the Marine Mammal Commission (Commission) 
submitted a letter, providing comments as described below.
    Comment 1: The Commission made a general comment recommending NMFS 
more thoroughly review applications before deeming one adequate and 
complete and better evaluate Level A harassment zones and take numbers 
prior to publishing a proposed authorization.
    NMFS Response: MMPA implementing regulations provide a list of 14 
informational elements that must be included in an IHA application 
before NMFS can determine it is adequate and complete. For the subject 
IHA, the application contained all the required information. With 
respect to Level A harassment distances and take numbers, the public 
review process provides the Commission opportunity to comment on the 
application and our proposal and we consider all public comments prior 
to issuance of the IHA. The Level A harassment zones for this project 
are relatively small; however, as described in the Estimated Take 
section below, we have included authorization of a small number of 
takes by Level A harassment, as recommended by the Commission, in case 
animals are undetected before Kitsap Transit can shut down.
    Comment 2: The Commission recommends that NMFS require Kitsap 
Transit to abide by mitigation measures previously used by other 
applicants regarding contacting the Orca Network and/or Center for 
Whale Research for both marine mammal sightings and acoustic detection 
data.
    NMFS Response: Both the application and proposed IHA Federal 
Register notice included a condition that Kitsap Transit access the 
Orca Network each day of pile driving. NMFS has added that this 
specifically applies to both visual and acoustic monitoring data.
    Comment 3: The Commission recommends that NMFS require Kitsap 
Transit and any other action proponent using a bubble curtain to 
implement what they refer to as ``NMFS's bubble curtain performance 
standards'' in all relevant authorizations. The Commission provided the 
following performance standards it deems is neither unreasonable or 
cost-prohibitive: (1) The bubble curtain must distribute air bubbles 
around 100 percent of the piling perimeter for the full depth of the 
water column, (2) the lowest bubble ring should be in contact with the 
mudline for the full circumference of the ring, and the weights 
attached to the bottom ring should ensure 100 percent mudline contact 
(no parts of the ring or other objects shall prevent full mudline 
contact), and (3) the action proponent requires construction 
contractors to train personnel in the proper balancing of air flow to 
the bubblers and to submit an inspection/performance report for 
approval by the action proponent within 72 hours following the 
performance test--corrections to the attenuation device to meet the 
performance standards are to occur prior to impact driving.
    NMFS Response: The Commission mischaracterized the referenced 
performance measures as NMFS' ``standards.'' These measures were 
developed by the U.S. Navy, in consultation with NMFS, as a direct

[[Page 32084]]

result of documented issues with bubble curtain performance. These 
issues were problematic because NMFS considered a reduction in impact 
pile driving source level based on effective bubble curtain use. The 
same case does not apply here and NMFS disagrees with the Commission's 
contention that consideration of any source level reduction has no 
bearing on whether an applicant should be implementing performance 
measures. NMFS will consider the appropriateness of including some or 
all of the proposed bubble curtain performance measures on a case-by-
case basis.
    NMFS also disagrees with the Commission's comment that the 
performance measures should be implemented because they are neither 
unreasonable nor cost-prohibitive. Mitigation requirements in an IHA 
must be carefully assessed with respect to NMFS' authority under the 
MMPA. For the subject IHA, Kitsap Transit did not request, nor did NMFS 
propose a reduction in impact pile driving source levels due to use of 
the bubble curtain. That is, the use of a bubble curtain did not 
influence our effects analysis or take numbers. Moreover, use of the 
bubble curtain was not critical to NMFS making a negligible impact 
determination required to issue the IHA. In addition to negligible 
impact and small numbers findings, mitigation measures are designed to 
provide the least practicable adverse impact to marine mammals. Use of 
the bubble curtain was part of the proposed action due to requirements 
separate and apart from Kitsap Transit's request for an IHA. However, 
to dictate how the applicant operates the bubble curtain, trains 
operators, reports inspection results on performance testing, and makes 
any corrections is not appropriate for this short project involving 
small (12-in and 24-in) piles for which we did not consider use of the 
bubble curtain quantitatively in our effects analysis.
    Finally, it is unclear how the Commission determined the 
implementation of the performance measures would not be unreasonable 
nor cost-prohibitive which are their reasons for us to include these 
measures. For example, the Fish and Wildlife Service may require 
certain operational criteria through consultation under section 7 of 
the Endangered Species Act. The Commission does not provide evidence 
they have considered these or any other potential operational 
protocols. Further, the applicant did not provide a bubble curtain 
performance testing plan so it is unclear how the Commission determined 
requiring one would not be cost-prohibitive for this small, short 
project.
    Comment 4: The Commission recommends that it should be a priority 
for NMFS to consult with both internal and external scientists and 
acousticians to determine the appropriate Level A harassment 
accumulation time that action proponents should use to determine the 
extent of the Level A harassment zones based on the associated 
SELcum thresholds for the various types of sound sources. 
Until such time that this issue is resolved, the Commission postulated 
that NMFS is relegated to using the outputs of its user spreadsheet, 
while also rounding up the outputs of the user spreadsheet to the 
nearest 5, 10, 25 or 100 m, when more sophisticated modeling is not 
available.
    NMFS Response: As described in NMFS 2018 Revision to Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing, NMFS is committed to re-examining the default 24-hour 
accumulation period and convening a working group to investigate 
alternative means of identifying appropriate accumulation periods. 
However, NMFS already considers factors other than the outputs of the 
User Spreadsheet in developing appropriate Level A harassment zones 
and/or shutdown zones. For example, in the Federal Register notice of 
the proposed IHA, NMFS identified the Level A harassment distances 
generated by the User Spreadsheet represented a long duration but 
produced very small harassment zones (e.g., six hours of vibratory pile 
removal per day separated in time to re-set piles resulted in an 11.8 m 
Level A harassment distance for harbor seals). Per the Commission, NMFS 
should round this up to a 15 meter Level A harassment zone. However, 
NMFS believes this results is an unwarranted shut down zone as 
sophisticated modeling is not necessary to justify that a harbor seal 
would not remain 11.8 meters from piles being removed over the course 
of several hours. In addition, NMFS is implementing a minimum 10 m shut 
down for all in-water equipment, including pile driving. However, NMFS 
does agree integrated shut-down zones (e.g., 5 to 10 meter increments) 
are more practicable for observers; therefore, the new shut down zone 
in the example provided is 10 m. For larger distances (e.g., 393.8 
meters), we have rounded to 395 meters despite the long duration in 
consideration of the unpredictable movement and lower profile of harbor 
seals.
    Comment 5: The Commission recommends NMFS provide its criteria for 
rounding take estimates.
    NMFS Response: On June 27, 2018, NMFS provided the Commission with 
internal guidance on rounding and the consideration of additional 
factors in take estimation.
    Comment 6: The Commission recommends that NMFS refrain from 
implementing its proposed renewal process and instead use abbreviated 
Federal Register notices and reference existing documents to streamline 
the incidental harassment authorization process; NMFS provide the 
Commission with a legal analysis supporting the conclusion the renewal 
process is consistent with the requirements under section 101(a)(5)(D) 
of the MMPA; and should NMFS issue a renewal IHA, NMFS should publish 
notice in the Federal Register whenever such a renewal has been issued.
    NMFS Response: Until an applicant requests renewal of an IHA for 
which public comment was received on the proposal to potentially renew 
the initial IHA, NMFS will continue to make abbreviated notices 
available to the public when proposing IHA renewals. When an applicant 
requests renewal of an IHA for which public comment was received on the 
proposed IHA (when first issued), NMFS will utilize the renewal process 
because the original notice of the proposed IHA expressly notifies the 
public that under certain, limited conditions an applicant could seek a 
renewal IHA for an additional year. Therefore the public comment period 
is not bypassed. To make this clearer to the public, NMFS added 
language to the SUMMARY of all proposed IHAs requesting the public 
comment on the potential renewal. In addition, all proposed IHA notices 
describes the conditions under which such a renewal request could be 
considered and expressly seeks public comment in the event such a 
renewal is sought. Importantly, such renewals would be limited to where 
the activities are identical or nearly identical to those analyzed in 
the proposed IHA, monitoring does not indicate impacts that were not 
previously analyzed and authorized, and the mitigation and monitoring 
requirements remain the same, all of which allow the public to comment 
on the appropriateness and effects of a renewal at the same time the 
public provides comments on the initial IHA. All IHAs, including 
renewal IHAs, are valid for no more than one year and that the agency 
would consider only one renewal for a project at this time. NMFS will 
publish a description of the renewal process on our website before

[[Page 32085]]

any renewal is issued utilizing the new process. Finally, NMFS has 
previously notified the Commission that a notice of issuance or denial 
of a renewal IHA would be published in the Federal Register.

Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by 
Kitsap Transit's activity, including brief introductions to the species 
and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, are provided in Kitsap Transit's application and the 
Federal Register notice for the proposed IHA (83 FR 22624; May 16, 
2018). We are not aware of any changes in the status of these species 
and stocks. To avoid repetition, detailed descriptions are not provided 
here. Please refer to additional species information available in the 
NMFS stock assessment reports for the Pacific and Alaska at https://www.nmfs.noaa.gov/pr/sars/region.htm.

                     Table 2--Marine Mammal Potentially Present in the Vicinity of the Annapolis Ferry Terminal During Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \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 Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae   California/Oregon/       E/D; Y              1,918 (0.03; 1,876;        \7\ 11      >=9.2
                                       kuzira.                  Washington (CA/OR/WA).                       2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale....................  Orcinus orca \4\.......  West Coast Transient     -; N                243 (n/a; 2009).......        2.4          0
                                                                \5\.
                                                               Eastern North Pacific    E/D; Y              83 (n/a; 2016)........       0.14          0
                                                                Southern Resident.
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena        Washington Inland        -; N                11,233 (0.37; 8,308;           66      >=7.2
                                       vomerina.                Waters.                                      2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  United States..........  -; N                296,750 (n/a; 153,337;      9,200        389
                                                                                                             2011).
    Steller sea lion................  Eumetopias jubatus       Eastern U.S............  D; Y                41,638 (n/a; 2015)....      2,498        108
                                       monteriensis.
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina           Southern Puget Sound     -; N                1,568 (0.15; 1,025;        Undet.        3.4
                                       richardii.               \6\.                                         1999).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is
  coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For two stocks of killer whales, the
  abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated
  CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction
  factor derived from knowledge of the species' (or similar species') life history to arrive at a best abundance estimate; therefore, there is no
  associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
  M/SI values are as presented in the draft 2017 SARs.
\4\ Transient and resident killer whales are considered unnamed subspecies (Committee on Taxonomy, 2017).
\5\ The abundance estimate for this stock includes only animals from the ``inner coast'' population occurring in inside waters of southeastern Alaska,
  British Columbia, and Washington--excluding animals from the ``outer coast'' subpopulation, including animals from California--and therefore should be
  considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now
  considered outdated, was 354.
\6\ Abundance estimates for the Southern Puget Sound harbor seal stock is not considered current. PBR is therefore considered undetermined for these
  stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as
  these represent the best available information for use in this document.
\7\ This stock is known to spend a portion of time outside the U.S. EEZ. Therefore, the PBR presented here is the allocation for U.S. waters only and is
  a portion of the total. The total PBR for humpback whales is 22 (one half allocation for U.S. waters). Annual M/SI presented for these species is for
  U.S. waters only.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    We provided a detailed description of the anticipated effects of 
the specified activity on marine mammals in our Federal Register notice 
announcing the proposed authorization (83 FR 22624; May 16, 2018). 
Please refer to that document for our detailed analysis; we provide 
only summary information here.
    The introduction of anthropogenic noise into the aquatic 
environment from pile driving and removal is the primary means by which 
marine mammals may be harassed from Kitsap Transit's specified 
activity. The effects of pile driving noise on marine mammals are 
dependent on several factors, including, but not limited to, sound type 
(e.g., impulsive vs. non-impulsive), the species, age and sex class 
(e.g., adult male vs. mom with calf), duration of

[[Page 32086]]

exposure, the distance between the pile and the animal, received 
levels, behavior at time of exposure, and previous history with 
exposure (Southall et al., 2007, Wartzok et al. 2004). Animals exposed 
to natural or anthropogenic sound may experience physical and 
behavioral effects, ranging in magnitude from none to severe (Southall 
et al. 2007). In general, exposure to pile driving noise has the 
potential to result in auditory threshold shifts (permanent threshold 
shift (PTS) and temporary threshold shift (TTS)) and behavioral 
reactions (e.g., avoidance, temporary cessation of foraging and 
vocalizing, changes in dive behavior).
    Similar pile driving and removal activities have been conducted in 
Sinclair Inlet and, more broadly, Puget Sound. Marine mammal monitoring 
conducted under several IHAs indicate there are no permanent or 
significant impacts to marine mammals from exposure to pile driving 
noise.
    Construction activities at the Annapolis Ferry Terminal could have 
localized, temporary impacts on marine mammal habitat and their prey by 
increasing in-water sound pressure levels and slightly decreasing water 
quality. Any impacts are anticipated to be localized, short-term, and 
minimal.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' 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); 
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 be by Level A and B harassment. Level A 
harassment is authorized for those cases where animals are undetected 
before exposure to noise levels that may induce auditory injury. As 
described previously, no mortality is anticipated or proposed to be 
authorized for this activity. 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 authorized 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., 2012). 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) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources. For in-air sounds, NMFS predicts that 
phocids and otariids exposed above received levels of 90 dB and 100 dB 
re 20 [mu]Pa (rms), respectively, may be behaviorally harassed.
    Kitsap Transit's project includes the use of continuous (vibratory 
pile driving) 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' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Technical Guidance, 2016) 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). 
Kitsap Transit's activity includes the use of impulsive (impact pile 
driving) and non-impulsive (vibratory pile driving) sources.
    These thresholds are provided in Table 3. The references, analysis, 
and methodology used in the development of the thresholds are described 
in NMFS 2016 Technical Guidance, which may be accessed at: https://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.
BILLING CODE 3510-22-P

[[Page 32087]]

[GRAPHIC] [TIFF OMITTED] TN11JY18.000

BILLING CODE 3510-22-C

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
    Sound Propagation--Transmission loss (TL) is the decrease in 
acoustic intensity as an acoustic pressure wave propagates out from a 
source. TL parameters vary with frequency, temperature, sea conditions, 
current, source and receiver depth, water depth, water chemistry, and 
bottom composition and topography. The general formula for underwater 
TL is:

TL = B * log10(R1/R2),

Where

B = transmission loss coefficient (assumed to be 15)
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20 * log(range)). Cylindrical spreading 
occurs in an environment in which sound propagation is bounded by the 
water surface and sea bottom, resulting in a reduction of 3 dB in sound 
level for each doubling of distance from the source (10 * log(range)). 
As is common practice in coastal waters, here we assume practical 
spreading loss (4.5 dB reduction in sound level for each doubling of 
distance). Practical spreading is a compromise that is often used under 
conditions where water depth increases as the receiver moves away from 
the shoreline, resulting in an expected propagation environment that 
would lie between spherical and cylindrical spreading loss conditions.

[[Page 32088]]

    Sound Source Levels--The intensity of pile driving sounds is 
greatly influenced by factors such as the type of piles, hammers, and 
the physical environment in which the activity takes place. There are 
source level measurements available for certain pile types and sizes 
from the specific environment of several of nearby projects (i.e., NBK 
Bangor and NBK Bremerton), but not from all. Numerous studies have 
examined sound pressure levels (SPLs) recorded from underwater pile 
driving projects in California (e.g., Caltrans, 2015) and elsewhere in 
Washington. In order to determine reasonable SPLs and their associated 
effects on marine mammals that are likely to result from pile driving 
at the six installations, studies with similar properties to the 
specified activity were evaluated.
    No direct pile driving measurements at the Annapolis Ferry Dock are 
available. Therefore, Kitsap Transit reviewed available values from 
multiple nearshore marine projects obtained from the California 
Department of Transportation (Caltrans) using similar type of piles 
(e.g., size and material) and water depth (Caltrans, 2015). NMFS also 
evaluated the proposed source levels with respect to pile driving 
measurements made by the Washington Department of Transportation 
(WSDOT) at other ferry terminals in Puget Sound as well as measurements 
collected by the Navy in Puget Sound. A full description of source 
level analysis is contained within the notice of proposed IHA (83 FR 
22624, May 16, 2018).

                                  Table 4--Estimated Pile Driving Source Levels
----------------------------------------------------------------------------------------------------------------
                                                                        Sound pressure (dB re: 1 [micro]Pa)
                     Method                          Pile size   -----------------------------------------------
                                                     (inches)     SPL \1\ (peak)   SPL (rms) \1\      SEL \1\
----------------------------------------------------------------------------------------------------------------
Impact..........................................              12             192             177         \2\ 167
                                                              24             207             194             178
Vibratory.......................................              12             171             155             155
                                                              24         \3\ 178         \3\ 165         \3\ 165
Vibratory Removal...............................         16.5-18             175             160             160
----------------------------------------------------------------------------------------------------------------
\1\ Source levels presented at standard distance of 10 m from the driven pile. Peak source levels are not
  typically evaluated for vibratory pile driving, as vibratory driving does not present rapid rise times. SEL
  source levels for vibratory driving are equivalent to SPL (rms) source levels.
\2\ SEL value assumes a 10 dB reduction from SPL.
\3\ SLs provided for 24 in. vibratory driving consider measurements from Caltrans (2015) for driving 24 in.
  sheet piles 36 in. pipe piles, Navy measurements in inland Washington (as described in NMFS proposed rule (83
  FR 9366; March 5, 2018)), and analysis contained with the Biological Opinion prepared for this project.

    When NMFS Technical Guidance (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 take by Level A harassment. 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 
pile driving, NMFS 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. A description of inputs used 
in the User Spreadsheet, and the resulting isopleths are reported 
below.
    Kitsap Transit estimates it will take a maximum of six hours, per 
day, to install or remove piles using a vibratory hammer (up to four 
piles per day). For steel piles that are ``proofed,'' Kitsap Transit 
estimated approximately 1,000 hammer strikes per pile would be required 
with two piles installed per day. If piles can be installed completely 
with the vibratory hammer, Kitsap Transit would not use an impact 
hammer; however, it is included here as a possibility. A practical 
spreading model (15logR) was used for all calculation. NMFS considered 
these inputs when using the NMFS user spreadsheet (Table 5).

                  Table 5--NMFS User Spreadsheet Inputs
------------------------------------------------------------------------
                                    Vibratory pile        Impact pile
         Input parameter                driving             driving
------------------------------------------------------------------------
Weighting Factor Adjustment \1\.  2.5 kHz...........  2 kHz.
Source Level (SL)...............  See Table 4 (rms    See Table 4 (SEL
                                   values).            values).
Duration........................  6 hours...........  n/a.
Strikes per pile................  n/a...............  1,000.
Piles per day...................  n/a...............  2.
Transmission loss coefficient...  15................  15.
Distance from SL measurement....  10 m..............  10 m.
------------------------------------------------------------------------
\1\ For those applicants who cannot fully apply auditory weighting
  functions associated with the SELcum metric, NMFS has recommended the
  default, single frequency weighting factor adjustments (WFAs) provided
  here. As described in Appendix D of NMFS' Technical Guidance (NMFS,
  2016), the intent of the WFA is to broadly account for auditory
  weighting functions below the 95 frequency contour percentile. Use of
  single frequency WFA is likely to over-predict Level A harassment
  distances.


[[Page 32089]]

    As described above, the Level B harassment threshold for impulsive 
noise (e.g., impact pile driving) is 160 dB rms. The Level B harassment 
threshold for continuous noise (e.g., vibratory pile driving) is 120 dB 
rms.
    Distances corresponding to received levels reaching NMFS harassment 
thresholds are provided in Table 6. These distances represent the 
distance at which an animal would have to remain for the entire 
duration considered (i.e., 6 hours of vibratory pile driving, 2,000 
hammer strikes) for the potential onset of PTS to occur. These results 
do not consider the time it takes to re-set between piles; therefore, 
it is highly unlikely any species would remain at these distances for 
the entire duration of pile driving within a day. As a result, these 
distances represent the calculated outputs of the User Spreadsheet but, 
in reality, do not reflect a likely scenario for the potential onset of 
Level A harassment. Regardless, Kitsap Transit has identified it is 
practicable to implement shut-down zones mirroring these calculated 
outputs to avoid Level A harassment. However, for practical purposes, 
we have modified them slightly for ease of monitoring and implementing 
mitigation (see Table 9). Table 6 also includes distances to the Level 
B harassment isopleths considering land truncation.

                                      Table 6--Distances to Level A and B Harassment Thresholds and Area Ensonified
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Distance to Level A (meters)
                                                   Pile size  -----------------------------------------------------------------   Level B      Level B
                     Method                         (inches)        LF           MF           HF                                  (meters)       area
                                                                cetaceans    cetaceans    cetaceans     Phocids      Otariids                  (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact (install)................................           12          136          4.8        162.0         72.8          5.3          136          0.1
                                                           24        735.8         26.2        876.4        393.8         28.7        1,848          5.5
Vibratory (install).............................           12          9.0          0.8         13.3          5.5          0.4        2,154          6.5
                                                           24         41.7          3.7         61.6         25.3          1.8       10,000         19.2
Vibratory (removal).............................      16.5-18         19.3          1.7         28.6         11.8          0.8        4,612         14.3
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Available information regarding marine mammal occurrence in the 
vicinity of the Annapolis Ferry Terminal includes density information 
aggregated in the Navy's Marine Mammal Species Density Database (NMSDD; 
Navy, 2015) or site-specific survey information from particular 
installations (e.g., local pinniped counts). More recent density 
estimates for harbor porpoise are available in Jefferson et al. (2016).
    Specifically, a density-based analysis is used for the harbor 
porpoise and Steller sea lion, while data from site-specific abundance 
surveys is used for the California sea lion and harbor seal (Table 7).

           Table 7--Density or Pinniped Count Data, by Species
------------------------------------------------------------------------
                                              Density
                 Species                     (animals/     Average daily
                                              km\2\)      pinniped count
------------------------------------------------------------------------
Harbor seal.............................            1.22             n/a
Steller sea lion........................           0.036             n/a
California sea lion.....................             n/a              69
Harbor Porpoise.........................            0.53             n/a
------------------------------------------------------------------------

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    The proposed IHA did not include authorization of take by Level A 
harassment for marine mammals due to the extended durations animals 
would have to be exposed within a relatively short distance. However, 
we have authorized Level A harassment in the final IHA in the chance a 
marine mammal enters the conservative Level A harassment zone before 
pile driving could shut down. We do not believe there is a likely 
potential for Level A harassment for any species. Further, no take 
(either Level A or Level B harassment) of humpback whales, gray whales, 
and killer whales was requested or proposed for authorization due to 
the short duration of the project (17 days), the small amount of piles 
installed (12) and removed (5), and the incorporation of the prescribed 
mitigation and monitoring measures (see Mitigation and Monitoring and 
Reporting sections).
    The take calculation for harbor seal, Steller sea lion, and harbor 
porpoise is derived using the following equation: take estimate = 
species density (see Table 7) x ensonified area (based on pile size) x 
number of pile driving days. Because there would be 5 days of pile 
removal, four 12 in. piles installed over four days (maximum), and 
eight 24 in. piles installed over eight days (maximum), we summed each 
product together to produce a total take estimate. When impact and 
vibratory hammer use would occur on the same day, the larger Level B 
harassment ensonifed zone for that day was used. For example, harbor 
seal takes due to 12 inch pile driving are calculated as 1.22 animals/
km\2\ x 6.5 km\2\ x 4 days = 32. Harbor seal takes due to installing 24 
in. piles is 1.22 animals/km\2\ x 19.2 km\2\ x 8 days = 187. Finally, 
harbor seal takes due to pile removal is 1.22 animals/km\2\ x 14.3 
km\2\ x 5 days = 87. Therefore, take by Level B harassment is estimated 
at 306 harbor seals. We anticipate this amount of take does not 
represent number of individuals taken but some lesser amount of 
individuals taken multiple times. The take estimation process was 
repeated for Steller sea lions and harbor porpoise using their 
respective densities (see Table 7).
    The calculation for California sea lion exposures is estimated by 
the following equation: Level B Exposure estimate = N (estimated 
animals/day) x number of pile driving days. Because density is not used 
for this species, we simply

[[Page 32090]]

assumed 69 sea lions could be taken on any given day of pile driving. 
Therefore, 69 California sea lion/day x 17 days = 1,173 California sea 
lion takes.
    Finally, we included a small amount of take by Level A harassment 
for harbor seals and harbor porpoise in case animals go undetected 
before Kitsap Transit can shut down pile driving. For both species, we 
assumed up to three animals could come closer than the Level A 
harassment distance generated by the user spreadsheet each day of pile 
driving (total of 12 days). We authorized 36 Level A harassment takes 
of harbor seals and harbor porpoise assuming three animals of each 
species could enter the Level A harassment zone during pile driving 
based on previous monitoring and sightability; however, the likelihood 
of those animals actually experiencing PTS is very low because the 
distances represent long exposure durations. The amount of authorized 
take, by harassment type, incidental to 17 days of pile driving is 
provided in Table 8.

                        Table 8--Authorized Take, by Species, Incidental to Pile Driving
----------------------------------------------------------------------------------------------------------------
                                                                                                    Percent of
                     Species                          Level A         Level B       Total take         stock
----------------------------------------------------------------------------------------------------------------
Harbor seal.....................................          \1\ 36             306             342              22
Steller sea lion................................               0              10              10            0.01
California sea lion.............................               0           1,173           1,173             0.4
Harbor porpoise.................................          \1\ 36             126             162             1.4
----------------------------------------------------------------------------------------------------------------
\1\ Assuming three harbor seals or harbor porpoise could enter the Level A harassment zone during 12 days of
  pile driving.

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, and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    Kitsap Transit is required to implement a number of mitigation 
measures designed to minimize the impacts of the project on marine 
mammals and their habitat. Below is a description of these measures.
    For in-water heavy machinery work (e.g., barges, tug boats), a 
minimum 10 m shutdown zone shall be implemented. If a marine mammal 
comes within 10 m of such operations, operations shall cease and 
vessels shall reduce speed to the minimum level required to maintain 
steerage and safe working conditions.
    Kitsap Transit shall shut down pile driving if marine mammals are 
observed within or approaching the shut down zones identified in Table 
9.

       Table 9--Shutdown Zones To Avoid Heavy Equipment Injury, Level A Harassment, or Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                                Shutdown Zones (m)
                                 -------------------------------------------------------------------------------
             Species                                                                                 Vibratory
                                    Impact 12''     Impact 24''   Vibratory 12''  Vibratory 24''      removal
----------------------------------------------------------------------------------------------------------------
Humpback whale..................             140           1,850           2,160          10,000           4,620
Gray whale......................  ..............  ..............  ..............  ..............  ..............
Killer whale....................  ..............  ..............  ..............  ..............  ..............
Harbor porpoise.................             160             875              15              60              30
Harbor seal.....................              70             395  ..............              25              10
Steller sea lion................          \1\ 10              30          \1\ 10          \1\ 10          \1\ 10
California sea lion.............  ..............  ..............  ..............  ..............  ..............
----------------------------------------------------------------------------------------------------------------
\1\ A minimum 10 m shutdown zone is required to avoid potential injury from equipment.

    Pre-activity monitoring shall take place from 30 minutes prior to 
initiation of pile driving activity and post-activity monitoring shall 
continue through 30 minutes post-completion of pile driving activity. 
Pile driving may commence at the end of the 30-minute pre-activity 
monitoring period, provided observers have determined that the shutdown 
zone (see Table 6) is clear of marine mammals, which includes delaying 
start of pile driving activities if a marine mammal is sighted in the 
shutdown zone. A determination that the shutdown zone is clear must be 
made during a period of good visibility (i.e., the entire shutdown zone 
and

[[Page 32091]]

surrounding waters must be visible to the naked eye).
    If a marine mammal approaches or enters the shutdown zone during 
activities or pre-activity monitoring, all pile driving activities at 
that location shall be halted or delayed, respectively. If pile driving 
is halted or delayed due to the presence of a marine mammal, the 
activity may not resume or commence until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
or 15 minutes have passed without re-detection of the animal. Pile 
driving activities include the time to install or remove a single pile 
or series of piles, as long as the time elapsed between uses of the 
pile driving equipment is no more than thirty minutes.
    Kitsap Transit shall use soft start techniques when impact pile 
driving. Soft start requires contractors to provide an initial set of 
strikes at reduced energy, followed by a thirty-second waiting period, 
then two subsequent reduced energy strike sets. Soft start shall be 
implemented at the start of each day's impact pile driving and at any 
time following cessation of impact pile driving for a period of thirty 
minutes or longer.
    If a species for which authorization has not been granted 
(including humpback whales, gray whales, and killer whales), or a 
species for which authorization has been granted but the authorized 
takes are met, is observed approaching or within the Level B harassment 
isopleth (Table 6 and 9), pile driving and removal activities must shut 
down immediately using delay and shut-down procedures. Activities must 
not resume until the animal has been confirmed to have left the area or 
the observation time period has elapsed.
    Kitsap Transit shall use a bubble curtain during impact pile 
driving. Kitsap Transit has indicated they would operate the bubble 
curtain such that it will distribute bubbles for the full depth of the 
water column and the full circumference of the pile during impact pile 
driving, and the lowest bubble ring will be weighted to ensure contact 
with the substrate for the full circumference of the ring (pers. comm., 
S. Mahugh to J. Daly, June 11, 2018). We note the estimated source 
levels used to calculate harassment zones did not consider any 
reduction in noise from use of this bubble curtain (i.e., source levels 
are unattenuated estimates).
    Kitsap Transit shall access the Orca Network website each morning 
prior to in-water construction activities and if pile removal or 
installation ceases for more than two hours. If marine mammals for 
which take is not authorized (e.g., killer whales, humpback whales, 
gray whales) are observed and on a path towards the Level B harassment 
zone, pile driving shall be delayed until animals are confirmed outside 
of and on a path away from the Level B harassment zone or if one hour 
passes with no subsequent sightings.
    Kitsap Transit shall implement the use of best management practices 
(e.g., erosion and sediment control, spill prevention and control) to 
minimize impacts to marine mammal habitat.
    Based on our evaluation of the applicant's planned measures, NMFS 
has determined that the prescribed mitigation measures provide the 
means 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.

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); and
     Mitigation and monitoring effectiveness.
    For all pile driving activities, at least two protected species 
observers (PSOs) shall be on duty. One PSO shall be stationed at the 
on-shore vantage point at the outer portion of the pier to monitor and 
implement shutdown or delay procedures, when applicable, through 
communication with the equipment operator. The other PSO shall be 
stationed at the Waterman Point Dock. If conditions exceed a Beaufort 
level 3, a third boat-based observer shall be employed during pile 
driving.
    Monitoring of pile driving shall be conducted by qualified PSOs 
(see below), who shall have no other assigned tasks during monitoring 
periods. Kitsap Transit shall adhere to the following conditions when 
selecting observers:
     Independent, dedicated PSOs shall be used (i.e., not 
construction personnel);
     At least one PSO must have prior experience working as a 
marine mammal observer during construction activities;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     The Kitsap Transit shall submit PSO CVs for approval by 
NMFS.
    Kitsap Transit shall ensure that observers have the following 
additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols.
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of

[[Page 32092]]

mitigation (or why mitigation was not implemented when required); and 
marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    Kitsap Transit is also required to submit an annual report 
summarizing their monitoring efforts, number of animals taken, any 
implementation of mitigation measures (e.g., shut downs) and abide by 
reporting requirements contained within the IHA.

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 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).
    Pile driving activities associated with the Annapolis Ferry 
Terminal Project, as described previously, have the potential to 
disturb or displace marine mammals. Specifically, the specified 
activities may result in take of four species of marine mammals, in the 
form of Level B harassment (behavioral disturbance) from underwater 
sounds generated from pile driving. Although unlikely, we have also 
authorized a small amount of Level A harassment for harbor seals and 
harbor porpoise and considered it in our analysis. The degree of 
harassment is expected to be minimized through implementation of the 
required mitigation measures--use of the bubble curtain for impact 
driving steel piles, soft start (for impact driving), and shutdown 
zones. Typically, given sufficient notice through use of soft start, 
marine mammals are expected to move away from a sound source that is 
annoying prior to its becoming potentially injurious or resulting in 
more severe behavioral reactions. Environmental conditions in inland 
waters are expected to generally be good, with calm sea states, and we 
expect conditions would allow a high marine mammal detection 
capability, enabling a high rate of success. No serious injury or 
mortality is authorized.
    We anticipate individuals exposed to pile driving noise generated 
at the Annapolis Ferry Terminal will, predominately, simply move away 
from the sound source and be temporarily displaced from the areas of 
pile driving, and that a small number of harbor seals and harbor 
porpoise may incur a small degree of PTS. The pile driving activities 
analyzed here are similar to, or less impactful than, numerous other 
construction activities conducted in the Puget Sound region, which have 
taken place with no known long-term adverse consequences. No pupping or 
breeding areas are present within the action area. Further, animals are 
likely somewhat habituated to noise-generating human activity given the 
proximity to Seattle-Bremerton and Port Orchard ferry lanes, recent 
construction at NBK Bremerton and the Manette Bridge (both of which 
involved pile driving), and general recreational, commercial and 
military vessel traffic. Monitoring reports from the Manette Bridge and 
NBK Bremerton demonstrate no discernable individual or population level 
impacts from similar pile driving activities.
    In summary and as described above, the following factors primarily 
support our 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 mortality is anticipated or authorized;
     The anticipated incidents of Level B harassment consist 
of, at worst, temporary modifications in behavior;
     Any injury incurred would consist of small degree of PTS;
     There is no significant habitat within the industrialized 
project areas, including known areas or features of special 
significance for foraging or reproduction; and
     The required mitigation measures reduce the effects of the 
specified activity to the level of least practicable adverse impact.
    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 planned monitoring and 
mitigation measures, NMFS 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 qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    We propose to authorize incidental take of four marine mammal 
stocks. The total amount of taking proposed for authorization is less 
than 1.5 percent of the stock of Steller sea lions, California sea 
lions, and harbor porpoise and 22 percent of the harbor seal stock (see 
Table 8). We note that harbor seals takes likely represent multiple 
exposures of a fewer number of individuals; therefore, the percentage 
of the stock taken under this authorization is likely less than 22 
percent. The amount of take authorized is considered relatively small 
percentages and we find are small numbers of marine mammals relative to 
the estimated overall population abundances for those stocks.
    Based on the analysis contained herein of the proposed activity 
(including the prescribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size 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

[[Page 32093]]

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 Endangered Species Act of 1973 (ESA: 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 Region (WCR) 
Protected Resources Division Office, whenever we propose to authorize 
take for endangered or threatened species.
    No incidental take of ESA-listed species is expected or authorized 
from this activity. On April 5, 2018, NMFS WCR issued a Biological 
Opinion to the Federal Transit Administration concluding the project is 
not likely to adversely affect Southern Resident killer whales and the 
Western North Pacific and Central American humpback whale distinct 
population segments (DPSs). Therefore, NMFS determined that formal 
consultation under section 7 of the ESA is not required for this 
action.

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 (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
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 determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
Kitsap Transit for the harassment of small numbers of marine mammals 
incidental to construction activities related to the Annapolis Ferry 
Dock Project, Puget Sound, Washington, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: July 5, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-14753 Filed 7-10-18; 8:45 am]
 BILLING CODE 3510-22-P