Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seattle Multimodal Project in Seattle, Washington, 35226-35239 [2018-15874]

Download as PDF 35226 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices institutions; state, local or tribal governments; individuals or households; federal government. Frequency: Annually and on occasion. Respondent’s Obligation: Mandatory. This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA_Submission@ omb.eop.gov or fax to (202) 395–5806. Dated: July 20, 2018. Sarah Brabson, NOAA PRA Clearance Officer. [FR Doc. 2018–15873 Filed 7–24–18; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XG219 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seattle Multimodal Project in Seattle, Washington National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to Washington State Department of Transportation (WSDOT) to take small numbers of marine mammals, by harassment, incidental to Seattle Multimodal Project at Colman Dock in Seattle, Washington. DATES: This authorization is effective from August 1, 2018, through July 31, 2019. SUMMARY: daltland on DSKBBV9HB2PROD with NOTICES FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application and supporting documents, as well as the issued IHA, may be obtained online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ incidental-take-authorizationsconstruction-activities. In case of VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 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 November 21, 2017, WSDOT submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of marine mammal species incidental to Seattle Multimodal Project at Colman Dock in Seattle, Washington, from August 1, 2018 to July 31, 2019. After receiving the revised project description and the revised IHA application, NMFS determined that the IHA application was adequate and PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 complete on April 4, 2018. NMFS is authorizing the take by Level A and Level B harassment of the following marine mammal species: Harbor seal (Phoca vitulina); northern elephant seal (Mirounga angustirostris); California sea lion (Zalophus californianus); Steller sea lion (Eumetopias jubatus); killer whale (Orcinus orca); long-beaked common dolphin (Delphinus delphis), bottlenose dolphin (Tursiops truncatus), gray whale (Eschrichtius robustus); humpback whale (Megaptera novaeangliae), minke whale (Balaenoptera acutorostrata); harbor porpoise (Phocoena phocoena); and Dall’s porpoise (Phocoenoides dalli). Neither WSDOT nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate. NMFS previously issued an IHA to WSDOT for the first year of this project (FR 21579; July 7, 2017). WSDOT complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHA and information regarding their monitoring results may be found in the Estimated Take section. Description of Specified Activity Overview The purpose of the Seattle Multimodal Project at Colman Dock is to preserve the transportation function of an aging, deteriorating and seismically deficient facility to continue providing safe and reliable service. The project will also address existing safety concerns related to conflicts between vehicles and pedestrian traffic and operational inefficiencies. Dates and Duration Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water work timing restrictions to protect Endangered Species Act (ESA)-listed salmonids, planned WSDOT in-water construction is limited each year to July 16 through February 15. Specific Geographic Region The Seattle Ferry Terminal at Colman Dock is located on the downtown Seattle waterfront, in King County, Washington. The terminal services vessels from the Bainbridge Island and Bremerton routes, and is the most heavily used terminal in the Washington State Ferry system. The Seattle terminal is located in Section 6, Township 24 North, Range 4 East, and is adjacent to Elliott Bay, tributary to Puget Sound (Figure 1–2 of the IHA application). Land use in the area is highly urban, and includes business, industrial, the Port of Seattle container E:\FR\FM\25JYN1.SGM 25JYN1 35227 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices loading facility, residential, the Pioneer Square Historic District and local parks. Detailed Description of the Seattle Multimodal Project at Colman Dock: Year 2 The project will reconfigure the Colman Dock while maintaining approximately the same vehicle holding capacity as current conditions. The construction began in August 2017. In the 2017–2018 season, the construction activities were focused on the South Trestle, Terminal Building Foundation, and the temporary and permanent Passenger Offloading Facility. In the 2018–2019 season, WSDOT plans to continue the project by constructing the North Trestle, and Slip 3 bridge seat, overhead loading, wingwall, and inner dolphin. Both impact pile driving and vibratory pile driving and pile removal will be conducted. A total of 37 days are estimated for pile driving and 77 days for pile removal. In-water construction methods include: • Installing 119 36-inch (in) permanent steel piles with a vibratory hammer, and then proofed with an impact hammer for the last 5–10 feet; • Installing six 36-in and (8) 30-in steel piles with a vibratory hammer; • Installing one 108-in steel pile with a vibratory hammer; • Removing all existing 12-in steel, 14-in timber, 14-in H, 24-in steel and 30-in steel piles with a vibratory hammer; • Installing and then removing eight 24-in Slip 3 Overhead loading temporary piles with a vibratory hammer; and • Installing and then removing 147 24-in temporary template piles with a vibratory hammer. A list of pile driving and removal activities is provided in Table 1. TABLE 1—SUMMARY OF IN-WATER PILE DRIVING AND REMOVAL ACTIVITIES Method Pile size (inch) Pile type Vibratory drive ..................... Vibratory drive ..................... Vibratory drive ..................... Vibratory drive ..................... Vibratory drive * ................... Impact drive (proof) * ........... Vibratory drive ..................... Piles/day Minutes/pile Duration (days) (temporary) ............... (Slip 3) ...................... ................................... ................................... ................................... ................................... ................................... 24 24 30 36 36 36 108 147 8 8 6 119 119 1 8 8 8 6 8 8 1 20 20 20 20 20 ** 300 120 18 1 1 1 15 15 1 ............................................. ........................ ........................ ........................ ........................ 37 ................. ................. ................. ................. ................. ................. ................. Timber ................................ Steel ................................... Steel H ............................... Steel ................................... Steel (Slip 3) ...................... Steel (temporary) ................ Steel ................................... 14 12 14 24 24 24 30 925 22 19 35 8 147 1 20 11 10 8 8 8 1 15 20 20 20 20 20 20 47 2 2 5 1 19 1 Subtotal ........................ ............................................. ........................ ........................ ........................ ........................ 77 Subtotal ........................ Vibratory Vibratory Vibratory Vibratory Vibratory Vibratory Vibratory remove remove remove remove remove remove remove Steel Steel Steel Steel Steel Steel Steel Pile number * These two activities occur on the same day. ** Strikes. Prescribed mitigation, monitoring, and reporting measures are described in detail later in this document (please see ‘‘Mitigation’’ and ‘‘Monitoring and Reporting’’). daltland on DSKBBV9HB2PROD with NOTICES Comments and Responses A notice of NMFS’ proposal to issue an IHA was published in the Federal Register on May 25, 2018 (83 FR 24279). During the 30-day public comment period, NMFS received comment letters from the Marine Mammal Commission (Commission) and the Center for Biological Diversity (CBD). Specific comments and responses are provided below. Comment 1: The Commission recommends that NMFS reduce the shut-down zone from 60 meters (m) to 15 m for harbor seals during vibratory installation/removal and/or impact installation of 24-, 30, 36, and 108-in piles and increase the number of Level VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 A harassment takes for harbor seals, if necessary. Response: NMFS reviewed WSDOT’s Seattle Year 1 draft monitoring report and worked with WSDOT on the number of harbor seals that could be potentially taken by Level A harassment and the practicability of implementing shutdown measures. Based on the assessment, NMFS learned that during the construction window between August 1, 2017, and February 15, 2018, for the Seattle Year 1 project, a total of 23 harbor seals were taken by Level A harassment while implementing a 50-m shutdown distance. For the Seattle Year 1 project, a total of 77 days had Level A harassment zones beyond the 50-m shutdown distance, with the authorized Level A harassment take of harbor seal of 364 animals. This shows that the actual Level A takes during WSDOT’s Seattle Year 1 activity were much less than authorized. PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 For the current IHA, WSDOT estimated that a total of 17 days would have Level A harassment zones beyond the newly required 60-m shutdown distance. Level A harassment distance for the 24-in vibratory pile driving and removal is less than the 60-m shutdown distance due to fewer piles being driven per day. Finally, there is no indication that the environment in the project area has changed that there are more harbor seals in the region that warrant to increase take numbers. In conclusion, based on the planned construction activity level for the Seattle Year 2 project, harbor seal abundance in the project area, harbor seal Level A harassment takes from Seattle Year 1 monitoring report, and the feasibility of WSDOT to implement a 60-m shutdown measure for harbor seals, we think that requiring WSDOT to implement a 60-m shutdown zone for harbor seal with an authorized Level A harassment take of 187 animals is feasible for WSDOT and E:\FR\FM\25JYN1.SGM 25JYN1 daltland on DSKBBV9HB2PROD with NOTICES 35228 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices beneficial to the resources. Therefore, NMFS does not agree with the Commission’s recommendation to reduce shutdown distance to 15-m while increasing harbor seal Level A harassment takes. Comment 2: The Commission recommends that NMFS more thoroughly assess the proposed shutdown zones that are to be implemented and the associated numbers of Level A harassment takes requested for each proposed incidental take authorization prior to publication in the Federal Register. Response: NMFS agrees with the Commission’s recommendation, and agrees that the proposed shutdown zones that are to be implemented and the associated numbers of Level A harassment hakes for this IHA as well as other incidental take authorizations should be thoroughly assessed at early review team meetings prior to drafting the proposed IHAs. Comment 3: The Commission commented that the method NMFS used to estimate the numbers of takes during the proposed activities, which summed fractions of takes for each species across project days, does not account for and negates the intent of NMFS’ 24-hour reset policy. The Commission also recommends that NMFS develop and share guidance on this issue. Response: NMFS has provided the guidance to the Commission as recommended. Comment 4: The Commission requested clarification of certain issues associated with NMFS’s notice that oneyear renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of section 101(a)(5)(D) of the MMPA. Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The 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. The notice describes the conditions under which such a renewal VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 request could be considered and expressly seeks public comment in the event such a renewal is sought. Additional reference to this solicitation of public comment has recently been added at the beginning of FR notices that consider renewals. NMFS appreciates the streamlining achieved by the use of abbreviated FR notices and intends to continue using them for proposed IHAs that include minor changes from previously issued IHAs, but which do not satisfy the renewal requirements. However, we believe our proposed method for issuing renewals meets statutory requirements and maximizes efficiency. 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. NMFS has, however, modified the language for future proposed IHAs to clarify that 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. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process. Comment 5: The CBD recommends that the authorization include mitigation measures on operation of the ferries that will result from construction activities. Specifically, the CBD recommends that NMFS find ways to support and accelerate transition of the Washington State ferry system to quieter designs and technologies. Response: While NMFS shares the concerns with CBD regarding the elevated underwater noise from ferry operations and general shipping activities in the Puget Sound area, the specific recommendation raised by the CBD is irrelevant in evaluating the potential impacts from ferry terminal construction on marine mammals. For the issuance of the IHA to take marine mammals incidental to WSDOT’s Seattle Multimodal Project at Colman Dock, we analyzed the impacts from construction related activities that may affect marine mammals, which are mostly from underwater noise generated PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 during in-water pile driving and pile removal. Please see Potential Effects of Specified Activities on Marine Mammals and their Habitat section below for detailed analysis. Description of Marine Mammals in the Area of Specified Activities 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; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessment-reportsregion#reports). Table 2 lists all species with expected potential for occurrence in the lower Puget Sound area 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 (2017). 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 2017 U.S. Pacific Marine Mammal SARs (Carretta et al., 2018). The 2017 SAR is available online at: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-stock-assessmentreports-region#reports. E:\FR\FM\25JYN1.SGM 25JYN1 35229 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices TABLE 2—MARINE MAMMALS WITH POTENTIAL PRESENCE WITHIN THE PROPOSED PROJECT AREA Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance 2 PBR Annual M/SI 3 Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae Gray whale ........................................ Eschrichtius robustus ........................ Eastern North Pacific ........................ -; N 20,990 624 132 E/D; Y -; N 1,918 636 11.0 3.5 >6.5 >1.3 E/D; Y -; N -; N -; N 83 243 101,305 1,924 0.14 2.4 657 11 0 0 >35.4 >1.6 -; N -; N 11,233 25,750 66 172 7.2 0.3 -; N -; N 296,750 41,638 9,200 2,498 389 108 -; N -; N 4 11,036 1,641 4,882 43 8.8 Family Balaenopteridae Humpback whale ............................... Minke whale ....................................... Megaptera novaneagliae ................... Balaenoptera acutorostrata ............... California/Oregon/Washington .......... California/Oregon/Washington .......... Family Delphinidae Killer whale ........................................ Orcinus orca ...................................... Long-beaked common dolphin .......... Bottlenose dolphin ............................. Delphinus capensis ........................... Tursiops truncatus ............................. Harbor porpoise ................................. Dall’s porpoise ................................... Phocoena phocoena ......................... P. dali ................................................ Eastern N. Pacific Southern resident West coast transient .......................... California ........................................... California/Oregon/Washington offshore. Family Phocoenidae (porpoises) Washington inland waters ................. California/Oregon/Washington .......... Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion .............................. Steller sea lion ................................... Zalophus californianus ...................... Eumetopias jubatus ........................... U.S ..................................................... Eastern U.S ....................................... Family Phocidae (earless seals) Harbor seal ........................................ Northern elephant seal ...................... Phoca vitulina .................................... Mirounga angustirostris ..................... Washington northern inland waters ... California breeding ............................ 179,000 daltland on DSKBBV9HB2PROD 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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-region#reports. 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 M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. 4 Harbor seal estimate is based on data that are greater than 8 years old, but this is the best available information for use here (Jeffries et al., 2003; Carretta et al., 2017). All species that could potentially occur in the proposed construction areas are included in Table 2. However, the temporal and/or spatial occurrence of humpback whale and Southern Resident killer whale (SRKW) and the implementation of monitoring and mitigation measures are such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. The occurrence of humpback whale in the WSDOT’s Seattle Multimodal Project area is rare, and WSDOT’s 2017 monitoring report showed no sighting of this species. Although the SRKW could occur in the vicinity of the project area, WSDOT is required to implement strict monitoring and mitigation measures with assistance from local marine mammal researchers and observers. Thus, the take of this marine mammal stock can be avoided (see details in Mitigation section). In addition, the sea otter may be found in Puget Sound area. However, this species is managed by the USFWS VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 and is not considered further in this document. 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 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (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): • Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 hertz (Hz) and 35 kilohertz (kHz); E:\FR\FM\25JYN1.SGM 25JYN1 35230 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz; • 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. • Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz; • Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 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). 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 et al., 2013). For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Eleven marine mammal species (7 cetacean and 4 pinniped (2 otariid and 2 phocid) species) have the reasonable potential to co-occur with the proposed construction activities. Please refer to Table 2. Of the cetacean species that may be present, one species is classified as lowfrequency cetaceans (i.e., gray whale), two are classified as high-frequency cetaceans (i.e., harbor porpoise and Dall’s porpoise), and the rest of them mid-frequency cetaceans. 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’’ 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, VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 the ‘‘Estimated Take’’ section, and the 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. Potential impacts to marine mammals from the Seattle Multimodal Colman Dock project are from noise generated during in-water pile driving and pile removal activities. Acoustic Effects Here, we first provide background information on marine mammal hearing before discussing the potential effects of the use of active acoustic sources on marine mammals. The WSDOT’s Seattle Multimodal 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 TS include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing TS normally decreases over time following cessation of the noise exposure. The amount of TS just after exposure is the initial TS. If the TS eventually returns to zero (i.e., the threshold returns to the preexposure value), it is a temporary threshold shift (TTS) (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 a noise-induced TS. An animal can experience 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. PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran, 2015). 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 sound pressure level (SPL) at 200.2 dB (peakto-peak) re: 1 micropascal (mPa), which corresponds to a sound exposure level of 164.5 dB re: 1 mPa2 s after integrating exposure. Because the airgun noise is a broadband impulse, one cannot directly determine the equivalent of root mean square (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 peakto-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. Therefore, based on these studies, NMFS recognizes that TTS of harbor porpoises is lower than other cetacean species empirically tested (Finneran & 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 E:\FR\FM\25JYN1.SGM 25JYN1 daltland on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices (Southall et al., 2007), so one can infer that strategies exist for coping with this condition to some degree, though likely not without cost. In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals, which 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 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, 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 SPL) in the world’s ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand, 2009). For WSDOT’s Seattle Multimodal at Colman Dock 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. Finally, marine mammals’ exposure to certain sounds could lead to behavioral VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 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 WSDOT’s Seattle Multimodal Project at Colman Ferry Terminal, both 120-dB and 160-dB levels are considered for effects analysis because WSDOT plans to use both impact pile driving and vibratory pile driving and 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. Potential Effects on Marine Mammal Habitat The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible. With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga et al., 1981) and possibly avoid predators (Wilson and Dill, 2002). Experiments have shown that fish can sense both the strength and direction of sound (Hawkins, 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level. PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 35231 The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona, 1988); however, the response threshold can depend on the time of year and the fish’s physiological condition (Engas et al., 1993). In general, fish react more strongly to pulses of sound (such as noise from impact pile driving) rather than continuous signals (such as noise from vibratory pile driving) (Blaxter et al., 1981), and a quicker alarm response is elicited when the sound signal intensity rises rapidly compared to sound rising more slowly to the same level. During the coastal construction, only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on marine mammals’ prey availability 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. Estimated Take This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS’ 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); 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 Level B harassment. As described previously, no mortality is anticipated or 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 E:\FR\FM\25JYN1.SGM 25JYN1 35232 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices 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 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 mPa (rms) for continuous (e.g. vibratory piledriving, drilling) and above 160 dB re 1 mPa (rms) for non-explosive impulsive (e.g., seismic airguns) sources. Applicant’s proposed activity includes the generation of impulse (impact pile driving) and non-impulse (vibratory pile driving and removal) sources; and, therefore, both 160- and 120-dB re 1 mPa (rms) are used. 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 nonimpulsive). Applicant’s proposed activity would generate and nonimpulsive (vibratory pile driving and pile removal) noises. 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 the table 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: https://www.fisheries.noaa. gov/national/marine-mammalprotection/marine-mammal-acoustictechnical-guidance. TABLE 3—CURRENT ACOUSTIC EXPOSURE CRITERIA FOR NON-EXPLOSIVE SOUND UNDERWATER PTS onset thresholds Behavioral thresholds Hearing group Impulsive Low-Frequency (LF) Cetaceans Mid-Frequency (MF) Cetaceans High-Frequency (HF) Cetaceans Phocid Pinnipeds (PW) (Underwater). Otariid Pinnipeds (OW) .............. (Underwater) ............................... Non-impulsive Lpk,flat: 219 dB ............................ LE,LF,24h: 183 dB ........................ Lpk,flat: 230 dB ............................ LE,MF,24h: 185 dB ........................ Lpk,flat: 202 dB ............................ LE,HF,24h: 155 dB ........................ Lpk,flat: 218 dB ............................ LE,PW,24h: 185 dB ....................... Lpk,flat: 232 dB ............................ LE,OW,24h: 203 dB ....................... Impulsive Non-impulsive LE,LF,24h: 199 dB. LE,MF,24h: 198 dB. LE,HF,24h: 173 dB ........................ Lrms,flat: 160 dB ... Lrms,flat: 120 dB LE,PW,24h: 201 dB. LE,OW,24h: 219 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 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 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. daltland on DSKBBV9HB2PROD with NOTICES Ensonified Area Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds. Source Levels The source level for vibratory pile driving and removal of the 24- and 30in steel pile is based on vibratory pile driving of the 30-in steel pile at Port VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 Townsend (WSDOT, 2010). The unweighted SPLrms source level at 10 m from the pile is 174 dB re 1 re 1 mPa. The source level for vibratory pile driving of the 36-in steel piles is based on vibratory test pile driving of 36-in steel piles 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 unweighted SPLrms for vibratory pile driving of 36-in steel pile was 177 dB re 1 mPa. PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 The source level for vibratory pile driving of the 108-in steel pile is based on measurements of 72-in steel piles vibratory driving conducted by CALTRANS. The unweighted SPLrms source level ranged between 170 and 180 dB re 1 mPa at 10 m from the pile (CALTRANS 2015). The value of 180 dB is chosen to be more conservative. The source level for impact pile driving of the 36-in steel pile is based on impact test pile driving for the 36-in steel pile at Mukilteo in November 2006 E:\FR\FM\25JYN1.SGM 25JYN1 35233 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices (WSDOT 2007). Recordings of the impact pile driving that were made at a distance of 10 m from the pile were analyzed using Matlab. The results show that the unweighted source levels are 178 dB re 1 mPa2-s for SELss and 193 dB re 1 mPa for SPLrms. The peak source level for impact pile driving of the 36in steel pile is based on measurement conducted by CALTRANS for the same type and dimension of the pile, which is 210 dBpk re 1 mPa. The source level for vibratory pile removal of 14-in timber pile is based measurements conducted at the Port Townsend Ferry Terminal during vibratory removal of a 12-in timber pile by WSDOT (Laughlin 2011). The recorded source level is 152 dBrms re 1 mPa at 16 m from the pile, with an adjusted source level of 155 dBrms re 1 mPa at 10 m. The source levels for vibratory pile removal of 12-in steel and 14-in steel H piles are based on vibratory pile driving of 12-in steel pipe pile measured by CALTRANS. The unweighted source level is 155 dBrms re 1 mPa at 10 m. A summary of source levels is presented in Table 4. TABLE 4—SUMMARY OF IN-WATER PILE DRIVING SOURCE LEVELS [at 10 m from source] Pile type/size (inch) Vibratory driving/removal ......................................................... Vibratory driving/removal ......................................................... Vibratory driving ...................................................................... Impact pile driving (proof) ....................................................... Vibratory driving ...................................................................... Vibratory removal .................................................................... Vibratory removal .................................................................... Vibratory removal .................................................................... Steel, 24-in ............................. Steel, 30-in ............................. Steel, 36-in ............................. Steel, 36-in ............................. Steel, 108-in ........................... Timber, 14-in .......................... Steel, 12-in ............................. Steel H, 14-in ......................... These source levels are used to compute the Level A harassment zones and to estimate the Level B harassment zones. For Level A harassment zones, since the peak source levels for both pile driving are below the injury thresholds, cumulative SEL were used to do the calculations using the NMFS acoustic guidance (NMFS 2016). Estimating Harassment Zones The Level B harassment ensonified areas for vibratory removal of the 14-in timber, 12-in steel, 14-in steel H, and 18-in concrete piles are based on the above source level of 155 dBrms re 1 mPa at 10 m, applying practical spreading SPLrms, dB re 1 μPa SEL, dB re 1 μPa2-s Method 174 174 177 178 180 155 155 155 loss of 15*log(R) for transmission loss calculation. The derived distance to the 120-dB Level B zone is 2,54 m. For Level B harassment ensonified areas for vibratory pile driving and removal of the 24-in, 30-in, 36-in, and 108-in steel piles, the distance is based on measurements conducted during the year 1 Seattle multimodal project at Colman. The result showed that pile driving noise of two 36-in steel piles being concurrently driven was no longer detectable at a range of 5.4 miles (8.69 km) (WSDOT 2017). Therefore, the distance of 8,690 m is selected as the Level B harassment distance for 174 174 177 193 180 155 155 155 SPLpk, dB re 1 μPa ........................ ........................ ........................ 210 ........................ ........................ ........................ ........................ vibratory pile driving and removal of the 24-in, 30-in, 36-in and 108-in steel piles. The Level B harassment ensonified area for impact pile driving of the 36in steel piles is based on the above source level of 193 dBrms re 1 mPa at 10 m, applying practical spreading loss of 15*log(R) for transmission loss calculation. The derived distance to the 160-dB Level B zone is 1,585 m. For Level A harassment, calculation is based on pile driving duration of each pile and the number of piles installed or removed per day, using NMFS optional spreadsheet. TABLE 5—MODELED DISTANCES AND AREAS TO HARASSMENT ZONES SL (10m) Level A distance (m) Level A area (km2) Level B distance (m) Level B area (km2) Pile driving activity SEL LF Cetacean MF Cetacean HF Cetacean Phocid Otariid All marine mammals 174 96.7 0.03 8.6 0.00 143.0 0.00 58.8 0.00 4.1 0.00 8,690 74.29 Vibratory removal 30″ steel pile, 1 pile/ day, 20 min/pile .................................... 174 24.2 0.00 2.1 0.00 35.7 0.00 14.7 0.00 1.0 0.00 8,960 74.29 Vibratory drive 36″ steel pile, 6 piles/day, 20 min/pile ............................................ daltland on DSKBBV9HB2PROD with NOTICES Vibratory drive/removal, 24″ & 30″ steel piles, 8 piles/day, 20 min/pile ............... 177 126.4 0.05 11.2 0.00 186.9 0.11 76.8 0.02 5.4 0.00 8,960 74.29 Vibratory drive 36″ steel pile, 8 piles/day, 20 min/pile ............................................ 177 153.3 0.07 13.6 0.00 226.6 0.16 93.2 0.03 6.5 0.00 8,960 74.29 Impact drive (proof) 36″ steel pile, 8 piles/day, 300 strikes/pile ..................... 178 830.9 2.17 29.6 0.00 989.7 3.08 444.7 0.62 32.4 0.00 1,585 7.89 Vibratory drive 108″ steel pile, 1 pile/day, 120 min/pile .......................................... 180 200.3 0.13 17.8 0.00 296.2 0.28 121.8 0.05 8.5 0.00 8,690 74.29 VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\25JYN1.SGM 25JYN1 35234 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices TABLE 5—MODELED DISTANCES AND AREAS TO HARASSMENT ZONES—Continued SL (10m) Level A distance (m) Level A area (km2) Level B distance (m) Level B area (km2) Pile driving activity SEL LF Cetacean MF Cetacean HF Cetacean Phocid Otariid All marine mammals Vibratory remove 14″ timber pile, 20 piles/day, 15 min/pile ............................ 155 8.0 0.00 0.7 0.00 11.8 0.00 4.8 0.00 0.3 0.00 2,154 14.57 Vibratory remove 12″ steel pile, 11 piles/ day, 20 min/pile .................................... 155 6.5 0.00 0.6 0.00 9.6 0.00 3.9 0.00 0.3 0.00 2,154 14.57 Vibratory remove 14″ steel H pile, 10 piles/day, 20 min/pile ............................ 155 6.1 0.00 0.5 0.00 9.0 0.00 3.7 0.00 0.3 0.00 2,154 14.57 Distances of ensonified area for different pile driving/removal activities for different marine mammal hearing groups is presented in Table 5. 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. All marine mammal density data except harbor seal, California sea lion, harbor porpoise, bottlenose dolphin, and long-beaked common dolphin are from the U.S. Navy Marine Species Density Report. For harbor seal and California sea lion, because WSDOT has local distribution data based on recent survey in the area, local animal abundance are used to calculate the take numbers. Specifically, the occurrence of these two species are based on local seal abundance information off the Seattle area from Year One (2017/18) of WSDOT’s Seattle Colman Project. For bottlenose dolphin and longbeaked common dolphin, no density estimate is available. Therefore, take numbers for these two species are based on prior anecdotal observations and strandings in the action area (Shuster et al., 2015; Huggins et al., 2016). Harbor porpoise density is based on a recent study by Smultea et al. (2017) for the Seattle area near the Colman Dock. A summary of marine mammal density, days and Level A and Level B harassment areas from different pile driving and removal activities is provided in Table 6. TABLE 6—MARINE MAMMAL DENSITY AND LOCAL OCCURRENCE IN THE WSDOT PROJECT AREA Density (#/km 2) or Animals/day Species Gray whale ............................................................................................... Minke whale .............................................................................................. Killer whale (West coast transient) ........................................................... Bottlenose dolphin .................................................................................... Long-beaked common dolphin ................................................................. Harbor porpoise ........................................................................................ Dall’s porpoise .......................................................................................... California sea lion ..................................................................................... Steller sea lion .......................................................................................... Harbor seal ............................................................................................... Northern elephant seal ............................................................................. daltland on DSKBBV9HB2PROD with NOTICES Take Calculation and Estimation Here we describe how the information provided above is brought together to produce a quantitative take estimate. In general, marine mammal takes were calculated as: Take = ensonified area × average animal abundance in the area × pile driving days. All Level A harassment takes were further adjusted by subtracting animals that would occur within the Level A harassment zone (except for harbor seal where a 60-m shutdown zone would be implemented), where pile driving activities that could cause Level A harassment for all marine mammals, except harbor seal, harbor porpoise, and Dall’s porpoise, would be suspended when an animal is observed VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 0.00051/km 2. 0.00003/km 2. 0.002/km 2. NA. NA. 0.54/km 2. 0.048/km 2. 14 animals/day. 0.04/km 2. 11 animals/day. 0.00001/km 2. to approach such a zone. Further, the number of Level B harassment takes were adjusted to exclude those already counted for Level A harassment takes. The harbor seal take estimate is based on local seal abundance information off the Seattle area from Year One (2017/18) of WSDOT’s Seattle Colman Project. During 99 days of marine mammal visual monitoring, 813 harbor seals were observed, an average of 8.212 animals/ day, with a one-day high of 43 observations on 10/24/17 (WSDOT 2018b). By adjusting the averaged observation of harbor seals to 11 animals/day as a conservative estimate to account for possible missed observation, and based on a total of 114 pile driving days for the WSDOT Seattle PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 Colman Dock project, it is estimated that up to 1,254 harbor seals could be exposed to noise levels associated with ‘‘take.’’ Since 17 days would involve vibratory/impact pile driving of 36-in steel piles (16 days) and vibratory driving of and 108-in steel pile (1 day) with Level A harassment zones beyond shutdown zones (445 m and 122 m, respectively, vs. the 60-m shutdown zone), we consider that 187 harbor seals exposed during these 17 days would experience Level A harassment. The difference between the 1,254 total takes and the 187 Level A harassment takes makes up the harbor seal Level B harassment takes, which is 1,067 animals. E:\FR\FM\25JYN1.SGM 25JYN1 35235 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices The California sea lion take estimate is also based on local sea lion abundance information from the Seattle Colman Project). During 99 days of marine mammal visual monitoring 1,047 California sea lions were observed, an average of 11 animals/day, with a one-day high of 48 observations on 1/8/2018. (WSDOT 2018b). By adjusting the averaged observation of California sea lions to 14 animals/day as a conservative estimate to account for possible missed observation, and based on a total of 114 pile driving days for the WSDOT Seattle Colman Dock project, it is estimated that up to 1,596 California sea lions could be exposed to noise levels associated with ‘‘take’’. Although the Level A harassment zones of otariids are all very small (<33 m, Table 5) and WSDOT will implement strict shutdown measures if a sea lion is observed to be moving towards the Level A zone, it is still possible that in rare occasions an animal could enter the Level A zone undetected. We therefore, estimate that one California sea lion could be taken by Level A harassment on each of the 16 days that involve vibratory/impact pile driving of 36-in steel piles when the Level A zone is 32 m. Thus a total of 16 Level A harassment of California sea lion is estimated. The difference between the 1,596 total takes and the 16 Level A takes makes up the California sea lions Level B takes, which is 1,580 animals. The same reasoning is used for estimating Steller sea lion Level A takes, which results in an estimated 16 Level A takes and 215 Level B takes. The common bottlenose dolphin estimate is based on sightings data from Cascadia Research Collective. Between September 2017 and March 2018, a group of up to five to six individuals was sighted in South Puget Sound (CRC 2017/18). It is assumed that this group is still present in the area. Given how rare common bottlenose dolphins are in the area, it is unlikely they would be present on a daily basis. Instead it is assumed that they may be present in the Level B harassment zone once a month during the in-water work window (7 months), and adjusted for potential group size of 5–10 individuals with an average of 7 animals per group. The long-beaked common dolphin estimate is based on sightings data from Cascadia Research Collective. Four to six Long-beaked Common dolphins have remained in Puget Sound since June 2016, and four animals with distinct markings have been seen multiple times and in every season of the year as of October 2017 (CRC 2017). Given how rare long-beaked common dolphins are in the area, it is unlikely they would be present on a daily basis. Instead it is assumed that they may be present in the Level B harassment zone once a month during the in-water work window (7 months), and adjusted for potential group size of 5–10 individuals with an average of 7 animals per group. For harbor porpoise, density based Level A harassment take calculation yields a total of 28 animals. However, due to the large Level A harassment distance during the 36-in pile driving (990 m) during 16 days and the 108-in pile driving (296 m) during one day, its Level A harassment take is readjusted to account for a typical animal group size of 3 multiplied by these 17 days with large Level A harassment zones. Therefore, we estimate that a total of 51 harbor porpoise could be taken by Level A harassment. For Dall’s porpoise, due to its relatively uncommon occurrence in comparison to harbor porpoise, the estimated Level A harassment take is scaled down by 1⁄3 that of harbor porpoise, yielding 17 Level A harassment takes. For calculated take number less than 15, such as northern elephant seals, transient killer whales, gray whales, and minke whales, takes numbers were adjusted to account for group encounter and the likelihood of encountering. Specifically, for northern elephant seal, take of 15 animals is estimated based on the likelihood of encountering this species during the project period. For transient killer whale, takes of 30 animals is estimated based on the group size and the likelihood of encountering in the area. For gray whale and minke whale, takes of 30 and 8 animals each are estimated, respectively, based on the likelihood of encountering. For SRKWs, WSDOT will implement strict monitoring and mitigation measures and to suspend pile driving activities when such animal is detected in the vicinity of the action area (see Mitigation section below). A summary of estimated takes based on the above analysis is listed in Table 7. TABLE 7—ESTIMATED TAKE NUMBERS Estimated level A take Species Pacific harbor seal ............................................................... Northern elephant seal ........................................................ California sea lion ................................................................ Steller sea lion ..................................................................... Killer whale, transient ........................................................... Killer whale, Southern Resident .......................................... Gray whale ........................................................................... Humpback whale ................................................................. Minke whale ......................................................................... Harbor porpoise ................................................................... Dall’s porpoise ..................................................................... Long-beaked common dolphin ............................................ Bottlenose dolphin ............................................................... Estimated level B take 187 0 16 16 0 0 0 0 0 51 17 0 0 Estimated total take 1,067 15 1,580 215 30 0 30 0 8 3,069 260 49 49 1,254 15 1,596 231 30 0 30 0 8 3,120 277 49 49 Abundance 11,036 81,368 296,750 41,638 243 83 20,990 1,918 202 11,233 25,750 101,305 1,921 Percentage 11 0 1 1 12 0 0 0 2 *28 1 0 3 daltland on DSKBBV9HB2PROD with NOTICES * The percentage of individual harbor porpoises take is estimated to be notably smaller than this, as described in the ‘‘Small Numbers’’ section. 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 VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 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). PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 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 E:\FR\FM\25JYN1.SGM 25JYN1 35236 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices 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. Mitigation for Marine Mammals and Their Habitat 1. Time Restriction. Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. 2. Establishing and Monitoring Level A, Level B Harassment Zones, and Shutdown Zones. WSDOT shall establish shutdown zones that encompass the distances within which marine mammals could be taken by Level A harassment (see Table 7 above) except for harbor seal. For Level A harassment zones that is less than 10 m from the source, a minimum of 10 m distance should be established as a shutdown zone. For harbor seal, a maximum of 60 m shutdown zone would be implemented if the actual Level A harassment zone exceeds 60 m. This is because there are a few habituated harbor seals that repeated occur within the larger Level A zone, which makes implementing a shutdown zone larger than 60 m infeasible. A summary of exclusion zones is provided in Table 8. TABLE 8—SHUTDOWN ZONES FOR VARIOUS PILE DRIVING ACTIVITIES AND MARINE MAMMAL HEARING GROUPS Shutdown zone (m) Pile type, size & pile driving method LF cetacean daltland on DSKBBV9HB2PROD with NOTICES Vibratory drive/removal, 24″ & 30″ steel piles, 8 piles/day, 20 min/pile ........................................................................ Vibratory removal 30″ steel pile, 1 pile/day, 20 min/pile ..... Vibratory drive 36″ steel pile, 8 piles/day, 20 min/pile ........ Vibratory drive 36″ steel pile, 8 piles/day, 20 min/pile ........ Impact drive (proof) 36″ steel pile, 8 piles/day, 300 strikes/ pile .................................................................................... Vibratory drive 108″ steel pile, 1 pile/day, 120 min/pile ...... Vibratory remove 14″ timber pile, 20 piles/day, 15 min/pile Vibratory remove 12″ steel pile, 11 piles/day, 20 min/pile .. Vibratory remove 14″ steel H pile, 10 piles/day, 20 min/ pile. WSDOT shall also establish a Zone of Influence (ZOI) based on the Level B harassment zones for take monitoring where received underwater SPLs are higher than 160 dBrms re 1 mPa for impulsive noise sources (impact pile driving) and 120 dBrms re 1 mPa for nonimpulsive noise sources (vibratory pile driving and pile removal). NMFS-approved protected species observers (PSO) shall conduct an initial 30-minute survey of the exclusion zones to ensure that no marine mammals are seen within the zones before pile driving and pile removal of a pile segment begins. If marine mammals are found within the exclusion zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone. VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 MF cetacean Frm 00035 Phocid Otariid 97 24 126 153 10 10 11 14 143 36 187 227 59 15 60 60 10 10 10 10 831 200 10 10 30 18 10 10 990 296 12 10 60 60 10 10 32 10 10 10 If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to commencement of pile driving, or if a shutdown occurs due to marine mammal sighting, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mammal has exited the exclusion zone or 30 minutes have elapsed since the last sighting. 3. Soft-start. A ‘‘soft-start’’ technique is intended to allow marine mammals to vacate the area before the impact pile driver reaches full power. Whenever there has been downtime of 30 minutes or more without impact pile driving, the contractor will initiate the driving with ramp-up procedures described below. Soft start for impact hammers requires contractors to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1- PO 00000 HF cetacean Fmt 4703 Sfmt 4703 minute waiting period, then two subsequent three-strike sets. Each day, WSDOT will use the soft-start technique at the beginning of impact pile driving, or if pile driving has ceased for more than 30 minutes. 4. Shutdown Measures. WSDOT shall implement shutdown measures if a marine mammal is detected within an exclusion zone or is about to enter an exclusion zone listed in Table 8. WSDOT shall also implement shutdown measures if SRKWs or humpback whales are sighted within the vicinity of the project area and are approaching the ZOI during in-water construction activities. If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a SRKW or a transient killer whale, it shall be assumed to be a SRKW and WSDOT shall implement the shutdown measure. If a SRKW, an unidentified killer whale, or a humpback whale enters the ZOI undetected, in-water pile driving or E:\FR\FM\25JYN1.SGM 25JYN1 daltland on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices pile removal shall be suspended until the whale exits the ZOI to avoid further Level B harassment. Further, WSDOT shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA or if a marine mammal observed is not authorized for take under this IHA, 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. 5. Coordination with Local Marine Mammal Research Network. Prior to the start of pile driving for the day, the Orca Network and/or Center for Whale Research will be contacted by WSDOT to find out the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 (and growing) residents, scientists, and government agency personnel in the United States and Canada. Sightings are called or emailed into the Orca Network and immediately distributed to other sighting networks including: the NMFS Northwest Fisheries Science Center, the Center for Whale Research, Cascadia Research, the Whale Museum Hotline and the British Columbia Sightings Network. Sightings information collected by the Orca Network includes detection by hydrophone. The SeaSound Remote Sensing Network is a system of interconnected hydrophones installed in the marine environment of Haro Strait (west side of San Juan Island) to study orca communication, in-water noise, bottom fish ecology and local climatic conditions. A hydrophone at the Port Townsend Marine Science Center measures average in-water sound levels and automatically detects unusual sounds. These passive acoustic devices allow researchers to hear when different marine mammals come into the region. This acoustic network, combined with the volunteer (incidental) visual sighting network allows researchers to document presence and location of various marine mammal species. With this level of coordination in the region of activity, WSDOT will be able to get real-time information on the presence or absence of whales before starting any pile driving. Based on our evaluation of the required 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. VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 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. Monitoring Measures WSDOT shall employ NMFSapproved PSOs to conduct marine mammal monitoring for the Seattle Multimodal Year 2 Project at Colman Dock. The purposes of marine mammal monitoring are to implement mitigation PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 35237 measures and learn more about impacts to marine mammals from WSDOT’s construction activities. 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; and 5. NMFS will require submission and approval of observer CVs. Monitoring of marine mammals around the construction site shall be conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). Due to the different sizes of ZOI from different pile types, three different ZOIs and different monitoring protocols corresponding to a specific pile type will be established. • For Level B harassment zones with radii less than 1,600 m, 3 PSOs will be monitoring from land. • For Level B harassment zones with radii larger than 1,600 m but smaller than 2,500 m, 4 PSOs will be monitoring from land. • For Level B harassment zones with radii larger than 2,500 m, 4 PSOs will be monitoring from land with an additional 1 PSO monitoring from a ferry. 6. PSOs shall collect the following information during marine mammal monitoring: • Date and time that monitored activity begins and ends for each day conducted (monitoring period); • Construction activities occurring during each daily observation period, including how many and what type of piles driven; • Deviation from initial proposal in pile numbers, pile types, average driving times, etc.; • Weather parameters in each monitoring period (e.g., wind speed, percent cloud cover, visibility); • Water conditions in each monitoring period (e.g., sea state, tide state); • For each marine mammal sighting: Æ Species, numbers, and, if possible, sex and age class of marine mammals; Æ Description of any observable marine mammal behavior patterns, E:\FR\FM\25JYN1.SGM 25JYN1 35238 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices including bearing and direction of travel and distance from pile driving activity; Æ Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; and Æ Estimated amount of time that the animals remained in the Level B zone; • Description of implementation of mitigation measures within each monitoring period (e.g., shutdown or delay); and • Other human activity in the area within each monitoring period. To verify the required monitoring distance, the exclusion zones and ZOIs will be determined by using a range finder or hand-held global positioning system device. WSDOT will conduct noise field measurement to determine the actual Level B distance from the source during vibratory driving of the first 36-in pile. If the actual Level B harassment distance is less than modelled, the number of PSOs will be adjusted based on the criteria listed above. daltland on DSKBBV9HB2PROD with NOTICES Reporting Measures WSDOT is required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the IHA, whichever comes earlier. In the case if WSDOT intends to renew the IHA in a subsequent year, a monitoring report should be submitted 60 days before the expiration of the current IHA (if issued). This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, WSDOT would address the comments and submit a final report to NMFS within 30 days. In addition, NMFS would require WSDOT to notify NMFS’ Office of Protected Resources and NMFS’ West Coast Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. WSDOT shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available). In the event that WSDOT finds an injured or dead marine mammal that is not in the construction area, WSDOT would report the same information as listed above to NMFS as soon as operationally feasible. VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 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 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). To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 7, given that the anticipated effects of WSDOT’s Seattle Multimodal at Colman Dock project involving pile driving and pile removal on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis by species for this activity, or else species-specific factors would be identified and analyzed. Although a few marine mammals (132 harbor seals, 12 harbor porpoises, and 1 Dall’s porpoise) are estimated to experience Level A harassment in the form of PTS if they stay within the Level A harassment zone during the entire pile driving for the day, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals. It is expected that, if hearing impairments PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 occurs, most likely the affected animal would lose a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment. Hearing impairment that occur for these individual animals would be limited to the dominant frequency of the noise sources, i.e., in the low-frequency region below 2 kHz. Therefore, the degree of PTS is not likely to affect the echolocation performance of the two porpoise species, which use frequencies mostly above 100 kHz. Nevertheless, for all marine mammal species, it is known that in general animals avoid areas where sound levels could cause hearing impairment. Therefore, it is not likely that an animal would stay in an area with intense noise that could cause severe levels of hearing damage. In addition, even if an animal receives a TTS, the TTS would be a one-time event from the exposure, making it unlikely that the TTS would evolve into PTS. Furthermore, Level A take estimates are based on the assumption that the animals are randomly distributed in the project area and would not avoid intense noise levels that could cause TTS or PTS. In reality, animals tend to avoid areas where noise levels are high (Richardson et al., 1995). Nonetheless, we evaluate the estimated take in this negligible impact analysis. For these species except harbor seal, California sea lion, Steller sea lion, harbor porpoise and Dall’s porpoise, takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral and TTS). Marine mammals present in the vicinity of the action area and taken by 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. A few marine mammals could experience TTS if they occur within the Level B TTS ZOI. However, as discussed earlier in this document, TTS is a temporary loss of hearing sensitivity when exposed to loud sound, and the hearing threshold is expected to recover completely within minutes to hours. Therefore, it is not considered an injury. There are no other important areas for marine mammals, such as important feeding, pupping, or other areas. The project also is not expected to have significant adverse effects on affected marine mammals’ habitat, as analyzed in detail in the ‘‘Anticipated Effects on Marine Mammal Habitat’’ subsection. There is no ESA designated critical area in the vicinity of the Seattle Multimodal Project at Colman Dock E:\FR\FM\25JYN1.SGM 25JYN1 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Notices area. The 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. However, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, WSDOT’s proposed construction activity at Colman Dock would not adversely affect marine mammal habitat. 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; • Injury—only five species of marine mammals would experience Level A harassment in the form of mild PTS, which is expected to be of small degree; and • Behavioral disturbance—eleven species/stocks of marine mammals would experience behavioral disturbance from the WSDOT’s Seattle Colman Dock project. However, as discussed earlier, the area to be affected is small and the duration of the project is short. No other important habitat for marine mammals exist in the vicinity of the project area. Therefore, the overall impacts are expected to be insignificant. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. daltland on DSKBBV9HB2PROD with NOTICES 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 VerDate Sep<11>2014 18:50 Jul 24, 2018 Jkt 244001 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. The estimated takes are below 13 percent of the population for all marine mammals except harbor porpoise (Table 7). For harbor porpoise, the estimate of 3,120 incidences of takes would be 28 percent of the population, if each single take were a unique individual. However, this is highly unlikely because the harbor porpoise in Washington waters shows site fidelity to small areas for periods of time that can extend between seasons (Hanson et al., 1999; Hanson 2007a, 2007b). For example, Hanson et al. (1999) tracked a female harbor porpoise for 215 days, during which it remained exclusively within the southern Strait of Georgia region. Based on studies by Jefferson et al. (2016), harbor porpoise abundance in the southern Puget Sound region, which encompasses waters off Seattle, is 550. Therefore, if the estimated incidents of take accrued to all the animals expected to occur in the entire southern Puget Sound area (550 animals), it would be 4.90 percent of the Washington inland water stock of the harbor porpoise. 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 each species or stock will be taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Determination 35239 proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment. NMFS has determined the issuance of the IHA is consistent with categories of activities identified in CE B4 (issuance of incidental harassment authorizations under section 101(a)(5)(A) and (D) of the MMPA for which no serious injury or mortality is anticipated) of NOAA’s Companion Manual for NAO 216–6A, and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual for NAO 216–6A that would preclude this categorical exclusion under NEPA. Endangered Species Act Section 7(a)(2) of the ESA 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. The California-Oregon-Washington stock of humpback whale and the Southern Resident stock of killer whale are the only marine mammal species listed under the ESA that could occur in the vicinity of WSDOT’s proposed construction projects. Two DPSs of humpback whales, the Mexico DPS and the Central America DPS, are listed as threatened and endangered under the ESA, respectively. NMFS worked with WSDOT to implement shutdown measures in the IHA that would avoid takes of both SR killer whale and humpback whales. Therefore, NMFS determined that no ESA-listed marine mammal species would be affected as a result of WSDOT’s Seattle Colman Dock construction project. Authorization 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. As a result of these determinations, NMFS has issued an IHA to the Washington State Department of Transportation for the Seattle Multimodal Project at Colman Dock in Washington State, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. National Environmental Policy Act Dated: July 20, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. 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 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 [FR Doc. 2018–15874 Filed 7–24–18; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\25JYN1.SGM 25JYN1

Agencies

[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Notices]
[Pages 35226-35239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15874]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG219

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Seattle Multimodal Project in
Seattle, Washington

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that we have issued an incidental harassment authorization (IHA) to
Washington State Department of Transportation (WSDOT) to take small
numbers of marine mammals, by harassment, incidental to Seattle
Multimodal Project at Colman Dock in Seattle, Washington.

DATES: This authorization is effective from August 1, 2018, through
July 31, 2019.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as the issued IHA, may be obtained
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. 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 November 21, 2017, WSDOT submitted a request to NMFS requesting
an IHA for the possible harassment of small numbers of marine mammal
species incidental to Seattle Multimodal Project at Colman Dock in
Seattle, Washington, from August 1, 2018 to July 31, 2019. After
receiving the revised project description and the revised IHA
application, NMFS determined that the IHA application was adequate and
complete on April 4, 2018. NMFS is authorizing the take by Level A and
Level B harassment of the following marine mammal species: Harbor seal
(Phoca vitulina); northern elephant seal (Mirounga angustirostris);
California sea lion (Zalophus californianus); Steller sea lion
(Eumetopias jubatus); killer whale (Orcinus orca); long-beaked common
dolphin (Delphinus delphis), bottlenose dolphin (Tursiops truncatus),
gray whale (Eschrichtius robustus); humpback whale (Megaptera
novaeangliae), minke whale (Balaenoptera acutorostrata); harbor
porpoise (Phocoena phocoena); and Dall's porpoise (Phocoenoides dalli).
Neither WSDOT nor NMFS expect mortality to result from this activity
and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to WSDOT for the first year of this
project (FR 21579; July 7, 2017). WSDOT complied with all the
requirements (e.g., mitigation, monitoring, and reporting) of the
previous IHA and information regarding their monitoring results may be
found in the Estimated Take section.

Description of Specified Activity

Overview

The purpose of the Seattle Multimodal Project at Colman Dock is to
preserve the transportation function of an aging, deteriorating and
seismically deficient facility to continue providing safe and reliable
service. The project will also address existing safety concerns related
to conflicts between vehicles and pedestrian traffic and operational
inefficiencies.

Dates and Duration

Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water
work timing restrictions to protect Endangered Species Act (ESA)-listed
salmonids, planned WSDOT in-water construction is limited each year to
July 16 through February 15.

Specific Geographic Region

The Seattle Ferry Terminal at Colman Dock is located on the
downtown Seattle waterfront, in King County, Washington. The terminal
services vessels from the Bainbridge Island and Bremerton routes, and
is the most heavily used terminal in the Washington State Ferry system.
The Seattle terminal is located in Section 6, Township 24 North, Range
4 East, and is adjacent to Elliott Bay, tributary to Puget Sound
(Figure 1-2 of the IHA application). Land use in the area is highly
urban, and includes business, industrial, the Port of Seattle container

[[Page 35227]]

loading facility, residential, the Pioneer Square Historic District and
local parks.

Detailed Description of the Seattle Multimodal Project at Colman Dock:
Year 2

The project will reconfigure the Colman Dock while maintaining
approximately the same vehicle holding capacity as current conditions.
The construction began in August 2017. In the 2017-2018 season, the
construction activities were focused on the South Trestle, Terminal
Building Foundation, and the temporary and permanent Passenger
Offloading Facility.
In the 2018-2019 season, WSDOT plans to continue the project by
constructing the North Trestle, and Slip 3 bridge seat, overhead
loading, wingwall, and inner dolphin. Both impact pile driving and
vibratory pile driving and pile removal will be conducted. A total of
37 days are estimated for pile driving and 77 days for pile removal.
In-water construction methods include:
Installing 119 36-inch (in) permanent steel piles with a
vibratory hammer, and then proofed with an impact hammer for the last
5-10 feet;
Installing six 36-in and (8) 30-in steel piles with a
vibratory hammer;
Installing one 108-in steel pile with a vibratory hammer;
Removing all existing 12-in steel, 14-in timber, 14-in H,
24-in steel and 30-in steel piles with a vibratory hammer;
Installing and then removing eight 24-in Slip 3 Overhead
loading temporary piles with a vibratory hammer; and
Installing and then removing 147 24-in temporary template
piles with a vibratory hammer.
A list of pile driving and removal activities is provided in Table
1.

Table 1--Summary of In-Water Pile Driving and Removal Activities
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Pile size Duration
Method Pile type (inch) Pile number Piles/day Minutes/pile (days)
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Vibratory drive........................ Steel (temporary).............. 24 147 8 20 18
Vibratory drive........................ Steel (Slip 3)................. 24 8 8 20 1
Vibratory drive........................ Steel.......................... 30 8 8 20 1
Vibratory drive........................ Steel.......................... 36 6 6 20 1
Vibratory drive *...................... Steel.......................... 36 119 8 20 15
Impact drive (proof) *................. Steel.......................... 36 119 8 ** 300 15
Vibratory drive........................ Steel.......................... 108 1 1 120 1
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Subtotal........................... ............................... .............. .............. .............. .............. 37
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Vibratory remove....................... Timber......................... 14 925 20 15 47
Vibratory remove....................... Steel.......................... 12 22 11 20 2
Vibratory remove....................... Steel H........................ 14 19 10 20 2
Vibratory remove....................... Steel.......................... 24 35 8 20 5
Vibratory remove....................... Steel (Slip 3)................. 24 8 8 20 1
Vibratory remove....................... Steel (temporary).............. 24 147 8 20 19
Vibratory remove....................... Steel.......................... 30 1 1 20 1
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Subtotal........................... ............................... .............. .............. .............. .............. 77
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* These two activities occur on the same day.
** Strikes.

Prescribed 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 25, 2018 (83 FR 24279). During the 30-day
public comment period, NMFS received comment letters from the Marine
Mammal Commission (Commission) and the Center for Biological Diversity
(CBD). Specific comments and responses are provided below.
Comment 1: The Commission recommends that NMFS reduce the shut-down
zone from 60 meters (m) to 15 m for harbor seals during vibratory
installation/removal and/or impact installation of 24-, 30, 36, and
108-in piles and increase the number of Level A harassment takes for
harbor seals, if necessary.
Response: NMFS reviewed WSDOT's Seattle Year 1 draft monitoring
report and worked with WSDOT on the number of harbor seals that could
be potentially taken by Level A harassment and the practicability of
implementing shutdown measures. Based on the assessment, NMFS learned
that during the construction window between August 1, 2017, and
February 15, 2018, for the Seattle Year 1 project, a total of 23 harbor
seals were taken by Level A harassment while implementing a 50-m
shutdown distance. For the Seattle Year 1 project, a total of 77 days
had Level A harassment zones beyond the 50-m shutdown distance, with
the authorized Level A harassment take of harbor seal of 364 animals.
This shows that the actual Level A takes during WSDOT's Seattle Year 1
activity were much less than authorized.
For the current IHA, WSDOT estimated that a total of 17 days would
have Level A harassment zones beyond the newly required 60-m shutdown
distance. Level A harassment distance for the 24-in vibratory pile
driving and removal is less than the 60-m shutdown distance due to
fewer piles being driven per day. Finally, there is no indication that
the environment in the project area has changed that there are more
harbor seals in the region that warrant to increase take numbers.
In conclusion, based on the planned construction activity level for
the Seattle Year 2 project, harbor seal abundance in the project area,
harbor seal Level A harassment takes from Seattle Year 1 monitoring
report, and the feasibility of WSDOT to implement a 60-m shutdown
measure for harbor seals, we think that requiring WSDOT to implement a
60-m shutdown zone for harbor seal with an authorized Level A
harassment take of 187 animals is feasible for WSDOT and

[[Page 35228]]

beneficial to the resources. Therefore, NMFS does not agree with the
Commission's recommendation to reduce shutdown distance to 15-m while
increasing harbor seal Level A harassment takes.
Comment 2: The Commission recommends that NMFS more thoroughly
assess the proposed shutdown zones that are to be implemented and the
associated numbers of Level A harassment takes requested for each
proposed incidental take authorization prior to publication in the
Federal Register.
Response: NMFS agrees with the Commission's recommendation, and
agrees that the proposed shutdown zones that are to be implemented and
the associated numbers of Level A harassment hakes for this IHA as well
as other incidental take authorizations should be thoroughly assessed
at early review team meetings prior to drafting the proposed IHAs.
Comment 3: The Commission commented that the method NMFS used to
estimate the numbers of takes during the proposed activities, which
summed fractions of takes for each species across project days, does
not account for and negates the intent of NMFS' 24-hour reset policy.
The Commission also recommends that NMFS develop and share guidance on
this issue.
Response: NMFS has provided the guidance to the Commission as
recommended.
Comment 4: The Commission requested clarification of certain issues
associated with NMFS's notice that one-year renewals could be issued in
certain limited circumstances and expressed concern that the process
would bypass the public notice and comment requirements. The Commission
also suggested that NMFS should discuss the possibility of renewals
through a more general route, such as a rulemaking, instead of notice
in a specific authorization. The Commission further recommended that if
NMFS did not pursue a more general route, that the agency provide the
Commission and the public with a legal analysis supporting our
conclusion that this process is consistent with the requirements of
section 101(a)(5)(D) of the MMPA.
Response: The process of issuing a renewal IHA does not bypass the
public notice and comment requirements of the MMPA. The 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. The notice 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. Additional reference to this
solicitation of public comment has recently been added at the beginning
of FR notices that consider renewals. NMFS appreciates the streamlining
achieved by the use of abbreviated FR notices and intends to continue
using them for proposed IHAs that include minor changes from previously
issued IHAs, but which do not satisfy the renewal requirements.
However, we believe our proposed method for issuing renewals meets
statutory requirements and maximizes efficiency. 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. NMFS has, however, modified the language for future proposed IHAs
to clarify that 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. In addition, notice of issuance or denial of a
renewal IHA would be published in the Federal Register, as are all
IHAs. Last, NMFS will publish on our website a description of the
renewal process before any renewal is issued utilizing the new process.
Comment 5: The CBD recommends that the authorization include
mitigation measures on operation of the ferries that will result from
construction activities. Specifically, the CBD recommends that NMFS
find ways to support and accelerate transition of the Washington State
ferry system to quieter designs and technologies.
Response: While NMFS shares the concerns with CBD regarding the
elevated underwater noise from ferry operations and general shipping
activities in the Puget Sound area, the specific recommendation raised
by the CBD is irrelevant in evaluating the potential impacts from ferry
terminal construction on marine mammals. For the issuance of the IHA to
take marine mammals incidental to WSDOT's Seattle Multimodal Project at
Colman Dock, we analyzed the impacts from construction related
activities that may affect marine mammals, which are mostly from
underwater noise generated during in-water pile driving and pile
removal. Please see Potential Effects of Specified Activities on Marine
Mammals and their Habitat section below for detailed analysis.

Description of Marine Mammals in the Area of Specified Activities

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; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports).
Table 2 lists all species with expected potential for occurrence in
the lower Puget Sound area 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 (2017). 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 2017 U.S. Pacific Marine Mammal SARs (Carretta et al., 2018).
The 2017 SAR is available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports.

[[Page 35229]]

Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
----------------------------------------------------------------------------------------------------------------
ESA/MMPA
status; Stock Annual M/
Common name Scientific name Stock strategic abundance PBR SI \3\
(Y/N) \1\ \2\
----------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
Family Eschrichtiidae
----------------------------------------------------------------------------------------------------------------
Gray whale.................... Eschrichtius Eastern North -; N 20,990 624 132
robustus. Pacific.
----------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
----------------------------------------------------------------------------------------------------------------
Humpback whale................ Megaptera California/ E/D; Y 1,918 11.0 >6.5
novaneagliae. Oregon/
Washington.
Minke whale................... Balaenoptera California/ -; N 636 3.5 >1.3
acutorostrata. Oregon/
Washington.
----------------------------------------------------------------------------------------------------------------
Family Delphinidae
----------------------------------------------------------------------------------------------------------------
Killer whale.................. Orcinus orca.... Eastern N. E/D; Y 83 0.14 0
Pacific
Southern
resident.
West coast -; N 243 2.4 0
transient.
Long-beaked common dolphin.... Delphinus California...... -; N 101,305 657 >35.4
capensis.
Bottlenose dolphin............ Tursiops California/ -; N 1,924 11 >1.6
truncatus. Oregon/
Washington
offshore.
----------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises)
----------------------------------------------------------------------------------------------------------------
Harbor porpoise............... Phocoena Washington -; N 11,233 66 7.2
phocoena. inland waters.
Dall's porpoise............... P. dali......... California/ -; N 25,750 172 0.3
Oregon/
Washington.
----------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
Family Otariidae (eared seals and sea lions)
----------------------------------------------------------------------------------------------------------------
California sea lion........... Zalophus U.S............. -; N 296,750 9,200 389
californianus.
Steller sea lion.............. Eumetopias Eastern U.S..... -; N 41,638 2,498 108
jubatus.
----------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
----------------------------------------------------------------------------------------------------------------
Harbor seal................... Phoca vitulina.. Washington -; N \4\ 1,641 43
northern inland 11,036
waters.
Northern elephant seal........ Mirounga California -; N 179,000 4,882 8.8
angustirostris. breeding.
----------------------------------------------------------------------------------------------------------------
\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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports.
\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 M/SI often cannot be determined
precisely and is in some cases presented as a minimum value or range.
\4\ Harbor seal estimate is based on data that are greater than 8 years old, but this is the best available
information for use here (Jeffries et al., 2003; Carretta et al., 2017).

All species that could potentially occur in the proposed
construction areas are included in Table 2. However, the temporal and/
or spatial occurrence of humpback whale and Southern Resident killer
whale (SRKW) and the implementation of monitoring and mitigation
measures are such that take is not expected to occur, and they are not
discussed further beyond the explanation provided here. The occurrence
of humpback whale in the WSDOT's Seattle Multimodal Project area is
rare, and WSDOT's 2017 monitoring report showed no sighting of this
species. Although the SRKW could occur in the vicinity of the project
area, WSDOT is required to implement strict monitoring and mitigation
measures with assistance from local marine mammal researchers and
observers. Thus, the take of this marine mammal stock can be avoided
(see details in Mitigation section).
In addition, the sea otter may be found in Puget Sound area.
However, this species is managed by the USFWS and is not considered
further in this document.

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 (2016) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (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):
Low-frequency cetaceans (mysticetes): Generalized hearing
is estimated to occur between approximately 7 hertz (Hz) and 35
kilohertz (kHz);

[[Page 35230]]

Mid-frequency cetaceans (larger toothed whales, beaked
whales, and most delphinids): Generalized hearing is estimated to occur
between approximately 150 Hz and 160 kHz;
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.
Pinnipeds in water; Phocidae (true seals): Generalized
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
Pinnipeds in water; Otariidae (eared seals): Generalized
hearing is estimated to occur between 60 Hz and 39 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).
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 et al.,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2016) for a review of available information.
Eleven marine mammal species (7 cetacean and 4 pinniped (2 otariid and
2 phocid) species) have the reasonable potential to co-occur with the
proposed construction activities. Please refer to Table 2. Of the
cetacean species that may be present, one species is classified as low-
frequency cetaceans (i.e., gray whale), two are classified as high-
frequency cetaceans (i.e., harbor porpoise and Dall's porpoise), and
the rest of them mid-frequency cetaceans.

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'' 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'' section, and the 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.
Potential impacts to marine mammals from the Seattle Multimodal
Colman Dock project are from noise generated during in-water pile
driving and pile removal activities.

Acoustic Effects

Here, we first provide background information on marine mammal
hearing before discussing the potential effects of the use of active
acoustic sources on marine mammals.
The WSDOT's Seattle Multimodal 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 TS
include the amplitude, duration, frequency content, temporal pattern,
and energy distribution of noise exposure. The magnitude of hearing TS
normally decreases over time following cessation of the noise exposure.
The amount of TS just after exposure is the initial TS. If the TS
eventually returns to zero (i.e., the threshold returns to the pre-
exposure value), it is a temporary threshold shift (TTS) (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 a noise-induced TS. An animal
can experience 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, 2015). 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 sound pressure level (SPL) at 200.2
dB (peak-to-peak) re: 1 micropascal ([mu]Pa), which corresponds to a
sound exposure level of 164.5 dB re: 1 [mu]Pa\2\ s after integrating
exposure. Because the airgun noise is a broadband impulse, one cannot
directly determine the equivalent of root mean square (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.
Therefore, based on these studies, NMFS recognizes that TTS of harbor
porpoises is lower than other cetacean species empirically tested
(Finneran & 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

[[Page 35231]]

(Southall et al., 2007), so one can infer that strategies exist for
coping with this condition to some degree, though likely not without
cost.
In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for
marine mammals, which 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 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, 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 SPL) in the
world's ocean from pre-industrial periods, and most of these increases
are from distant shipping (Hildebrand, 2009). For WSDOT's Seattle
Multimodal at Colman Dock 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.
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 WSDOT's
Seattle Multimodal Project at Colman Ferry Terminal, both 120-dB and
160-dB levels are considered for effects analysis because WSDOT plans
to use both impact pile driving and vibratory pile driving and 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.

Potential Effects on Marine Mammal Habitat

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

Estimated Take

This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' 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);
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 Level B harassment.
As described previously, no mortality is anticipated or 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

[[Page 35232]]

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 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) sources.
Applicant's proposed activity includes the generation of impulse
(impact pile driving) and non-impulse (vibratory pile driving and
removal) sources; and, therefore, both 160- and 120-dB re 1 [mu]Pa
(rms) are used.
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).
Applicant's proposed activity would generate and non-impulsive
(vibratory pile driving and pile removal) noises. 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 the table 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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds Behavioral thresholds
Hearing group ----------------------------------------------------------------------------------
Impulsive Non-impulsive Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans. Lpk,flat: 219 dB LE,LF,24h: 199
LE,LF,24h: 183 dB.
dB.
Mid-Frequency (MF) Cetaceans. Lpk,flat: 230 dB LE,MF,24h: 198
LE,MF,24h: 185 dB.
dB.
High-Frequency (HF) Cetaceans Lpk,flat: 202 dB LE,HF,24h: 173 Lrms,flat: 160 dB..... Lrms,flat: 120 dB
LE,HF,24h: 155 dB.
dB.
Phocid Pinnipeds (PW) Lpk,flat: 218 dB LE,PW,24h: 201
(Underwater). LE,PW,24h: 185 dB.
dB.
Otariid Pinnipeds (OW)....... Lpk,flat: 232 dB LE,OW,24h: 219
(Underwater)................. LE,OW,24h: 203 dB.
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.
Source Levels
The source level for vibratory pile driving and removal of the 24-
and 30-in steel pile is based on vibratory pile driving of the 30-in
steel pile at Port Townsend (WSDOT, 2010). The unweighted
SPLrms source level at 10 m from the pile is 174 dB re 1 re
1 [mu]Pa.
The source level for vibratory pile driving of the 36-in steel
piles is based on vibratory test pile driving of 36-in steel piles 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 unweighted SPLrms for vibratory pile driving of 36-
in steel pile was 177 dB re 1 [mu]Pa.
The source level for vibratory pile driving of the 108-in steel
pile is based on measurements of 72-in steel piles vibratory driving
conducted by CALTRANS. The unweighted SPLrms source level
ranged between 170 and 180 dB re 1 [micro]Pa at 10 m from the pile
(CALTRANS 2015). The value of 180 dB is chosen to be more conservative.
The source level for impact pile driving of the 36-in steel pile is
based on impact test pile driving for the 36-in steel pile at Mukilteo
in November 2006

[[Page 35233]]

(WSDOT 2007). Recordings of the impact pile driving that were made at a
distance of 10 m from the pile were analyzed using Matlab. The results
show that the unweighted source levels are 178 dB re 1 [micro]Pa\2\-s
for SELss and 193 dB re 1 [micro]Pa for SPLrms.
The peak source level for impact pile driving of the 36-in steel pile
is based on measurement conducted by CALTRANS for the same type and
dimension of the pile, which is 210 dBpk re 1 [micro]Pa.
The source level for vibratory pile removal of 14-in timber pile is
based measurements conducted at the Port Townsend Ferry Terminal during
vibratory removal of a 12-in timber pile by WSDOT (Laughlin 2011). The
recorded source level is 152 dBrms re 1 [micro]Pa at 16 m
from the pile, with an adjusted source level of 155 dBrms re
1 [micro]Pa at 10 m.
The source levels for vibratory pile removal of 12-in steel and 14-
in steel H piles are based on vibratory pile driving of 12-in steel
pipe pile measured by CALTRANS. The unweighted source level is 155
dBrms re 1 [micro]Pa at 10 m.
A summary of source levels is presented in Table 4.

Table 4--Summary of In-Water Pile Driving Source Levels
[at 10 m from source]
----------------------------------------------------------------------------------------------------------------
SEL, dB re 1 SPLrms, dB re SPLpk, dB re 1
Method Pile type/size (inch) [micro]Pa\2\-s 1 [micro]Pa [micro]Pa
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal............. Steel, 24-in............ 174 174 ..............
Vibratory driving/removal............. Steel, 30-in............ 174 174 ..............
Vibratory driving..................... Steel, 36-in............ 177 177 ..............
Impact pile driving (proof)........... Steel, 36-in............ 178 193 210
Vibratory driving..................... Steel, 108-in........... 180 180 ..............
Vibratory removal..................... Timber, 14-in........... 155 155 ..............
Vibratory removal..................... Steel, 12-in............ 155 155 ..............
Vibratory removal..................... Steel H, 14-in.......... 155 155 ..............
----------------------------------------------------------------------------------------------------------------

These source levels are used to compute the Level A harassment
zones and to estimate the Level B harassment zones. For Level A
harassment zones, since the peak source levels for both pile driving
are below the injury thresholds, cumulative SEL were used to do the
calculations using the NMFS acoustic guidance (NMFS 2016).

Estimating Harassment Zones

The Level B harassment ensonified areas for vibratory removal of
the 14-in timber, 12-in steel, 14-in steel H, and 18-in concrete piles
are based on the above source level of 155 dBrms re 1
[micro]Pa at 10 m, applying practical spreading loss of 15*log(R) for
transmission loss calculation. The derived distance to the 120-dB Level
B zone is 2,54 m.
For Level B harassment ensonified areas for vibratory pile driving
and removal of the 24-in, 30-in, 36-in, and 108-in steel piles, the
distance is based on measurements conducted during the year 1 Seattle
multimodal project at Colman. The result showed that pile driving noise
of two 36-in steel piles being concurrently driven was no longer
detectable at a range of 5.4 miles (8.69 km) (WSDOT 2017). Therefore,
the distance of 8,690 m is selected as the Level B harassment distance
for vibratory pile driving and removal of the 24-in, 30-in, 36-in and
108-in steel piles.
The Level B harassment ensonified area for impact pile driving of
the 36-in steel piles is based on the above source level of 193
dBrms re 1 [micro]Pa at 10 m, applying practical spreading
loss of 15*log(R) for transmission loss calculation. The derived
distance to the 160-dB Level B zone is 1,585 m.
For Level A harassment, calculation is based on pile driving
duration of each pile and the number of piles installed or removed per
day, using NMFS optional spreadsheet.

Table 5--Modeled Distances and Areas to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
SL (10m) Level A distance (m) Level A area (km\2\) Level B
------------------------------------------------------------------------------ distance
(m) Level B
area
Pile driving activity (km\2\)
SEL LF Cetacean MF Cetacean HF Cetacean Phocid Otariid ------------
All marine
mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory drive/removal, 24'' & 30'' steel piles, 8 piles/ 174 96.7 8.6 143.0 58.8 4.1 8,690
day, 20 min/pile............................................ 0.03 0.00 0.00 0.00 0.00 74.29
Vibratory removal 30'' steel pile, 1 pile/day, 20 min/pile... 174 24.2 2.1 35.7 14.7 1.0 8,960
0.00 0.00 0.00 0.00 0.00 74.29
Vibratory drive 36'' steel pile, 6 piles/day, 20 min/pile.... 177 126.4 11.2 186.9 76.8 5.4 8,960
0.05 0.00 0.11 0.02 0.00 74.29
Vibratory drive 36'' steel pile, 8 piles/day, 20 min/pile.... 177 153.3 13.6 226.6 93.2 6.5 8,960
0.07 0.00 0.16 0.03 0.00 74.29
Impact drive (proof) 36'' steel pile, 8 piles/day, 300 178 830.9 29.6 989.7 444.7 32.4 1,585
strikes/pile................................................ 2.17 0.00 3.08 0.62 0.00 7.89
Vibratory drive 108'' steel pile, 1 pile/day, 120 min/pile... 180 200.3 17.8 296.2 121.8 8.5 8,690
0.13 0.00 0.28 0.05 0.00 74.29

[[Page 35234]]

Vibratory remove 14'' timber pile, 20 piles/day, 15 min/pile. 155 8.0 0.7 11.8 4.8 0.3 2,154
0.00 0.00 0.00 0.00 0.00 14.57
Vibratory remove 12'' steel pile, 11 piles/day, 20 min/pile.. 155 6.5 0.6 9.6 3.9 0.3 2,154
0.00 0.00 0.00 0.00 0.00 14.57
Vibratory remove 14'' steel H pile, 10 piles/day, 20 min/pile 155 6.1 0.5 9.0 3.7 0.3 2,154
0.00 0.00 0.00 0.00 0.00 14.57
--------------------------------------------------------------------------------------------------------------------------------------------------------

Distances of ensonified area for different pile driving/removal
activities for different marine mammal hearing groups is presented in
Table 5.

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.
All marine mammal density data except harbor seal, California sea
lion, harbor porpoise, bottlenose dolphin, and long-beaked common
dolphin are from the U.S. Navy Marine Species Density Report. For
harbor seal and California sea lion, because WSDOT has local
distribution data based on recent survey in the area, local animal
abundance are used to calculate the take numbers. Specifically, the
occurrence of these two species are based on local seal abundance
information off the Seattle area from Year One (2017/18) of WSDOT's
Seattle Colman Project.
For bottlenose dolphin and long-beaked common dolphin, no density
estimate is available. Therefore, take numbers for these two species
are based on prior anecdotal observations and strandings in the action
area (Shuster et al., 2015; Huggins et al., 2016).
Harbor porpoise density is based on a recent study by Smultea et
al. (2017) for the Seattle area near the Colman Dock.
A summary of marine mammal density, days and Level A and Level B
harassment areas from different pile driving and removal activities is
provided in Table 6.

Table 6--Marine Mammal Density and Local Occurrence in the WSDOT Project
Area
------------------------------------------------------------------------
Density (#/km \2\) or Animals/
Species day
------------------------------------------------------------------------
Gray whale............................. 0.00051/km \2\.
Minke whale............................ 0.00003/km \2\.
Killer whale (West coast transient).... 0.002/km \2\.
Bottlenose dolphin..................... NA.
Long-beaked common dolphin............. NA.
Harbor porpoise........................ 0.54/km \2\.
Dall's porpoise........................ 0.048/km \2\.
California sea lion.................... 14 animals/day.
Steller sea lion....................... 0.04/km \2\.
Harbor seal............................ 11 animals/day.
Northern elephant seal................. 0.00001/km \2\.
------------------------------------------------------------------------

Take Calculation and Estimation

Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
In general, marine mammal takes were calculated as: Take =
ensonified area x average animal abundance in the area x pile driving
days. All Level A harassment takes were further adjusted by subtracting
animals that would occur within the Level A harassment zone (except for
harbor seal where a 60-m shutdown zone would be implemented), where
pile driving activities that could cause Level A harassment for all
marine mammals, except harbor seal, harbor porpoise, and Dall's
porpoise, would be suspended when an animal is observed to approach
such a zone. Further, the number of Level B harassment takes were
adjusted to exclude those already counted for Level A harassment takes.
The harbor seal take estimate is based on local seal abundance
information off the Seattle area from Year One (2017/18) of WSDOT's
Seattle Colman Project. During 99 days of marine mammal visual
monitoring, 813 harbor seals were observed, an average of 8.212
animals/day, with a one-day high of 43 observations on 10/24/17 (WSDOT
2018b). By adjusting the averaged observation of harbor seals to 11
animals/day as a conservative estimate to account for possible missed
observation, and based on a total of 114 pile driving days for the
WSDOT Seattle Colman Dock project, it is estimated that up to 1,254
harbor seals could be exposed to noise levels associated with ``take.''
Since 17 days would involve vibratory/impact pile driving of 36-in
steel piles (16 days) and vibratory driving of and 108-in steel pile (1
day) with Level A harassment zones beyond shutdown zones (445 m and 122
m, respectively, vs. the 60-m shutdown zone), we consider that 187
harbor seals exposed during these 17 days would experience Level A
harassment. The difference between the 1,254 total takes and the 187
Level A harassment takes makes up the harbor seal Level B harassment
takes, which is 1,067 animals.

[[Page 35235]]

The California sea lion take estimate is also based on local sea
lion abundance information from the Seattle Colman Project). During 99
days of marine mammal visual monitoring 1,047 California sea lions were
observed, an average of 11 animals/day, with a one-day high of 48
observations on 1/8/2018. (WSDOT 2018b). By adjusting the averaged
observation of California sea lions to 14 animals/day as a conservative
estimate to account for possible missed observation, and based on a
total of 114 pile driving days for the WSDOT Seattle Colman Dock
project, it is estimated that up to 1,596 California sea lions could be
exposed to noise levels associated with ``take''. Although the Level A
harassment zones of otariids are all very small (<33 m, Table 5) and
WSDOT will implement strict shutdown measures if a sea lion is observed
to be moving towards the Level A zone, it is still possible that in
rare occasions an animal could enter the Level A zone undetected. We
therefore, estimate that one California sea lion could be taken by
Level A harassment on each of the 16 days that involve vibratory/impact
pile driving of 36-in steel piles when the Level A zone is 32 m. Thus a
total of 16 Level A harassment of California sea lion is estimated. The
difference between the 1,596 total takes and the 16 Level A takes makes
up the California sea lions Level B takes, which is 1,580 animals. The
same reasoning is used for estimating Steller sea lion Level A takes,
which results in an estimated 16 Level A takes and 215 Level B takes.
The common bottlenose dolphin estimate is based on sightings data
from Cascadia Research Collective. Between September 2017 and March
2018, a group of up to five to six individuals was sighted in South
Puget Sound (CRC 2017/18). It is assumed that this group is still
present in the area.
Given how rare common bottlenose dolphins are in the area, it is
unlikely they would be present on a daily basis. Instead it is assumed
that they may be present in the Level B harassment zone once a month
during the in-water work window (7 months), and adjusted for potential
group size of 5-10 individuals with an average of 7 animals per group.
The long-beaked common dolphin estimate is based on sightings data
from Cascadia Research Collective. Four to six Long-beaked Common
dolphins have remained in Puget Sound since June 2016, and four animals
with distinct markings have been seen multiple times and in every
season of the year as of October 2017 (CRC 2017).
Given how rare long-beaked common dolphins are in the area, it is
unlikely they would be present on a daily basis. Instead it is assumed
that they may be present in the Level B harassment zone once a month
during the in-water work window (7 months), and adjusted for potential
group size of 5-10 individuals with an average of 7 animals per group.
For harbor porpoise, density based Level A harassment take
calculation yields a total of 28 animals. However, due to the large
Level A harassment distance during the 36-in pile driving (990 m)
during 16 days and the 108-in pile driving (296 m) during one day, its
Level A harassment take is readjusted to account for a typical animal
group size of 3 multiplied by these 17 days with large Level A
harassment zones. Therefore, we estimate that a total of 51 harbor
porpoise could be taken by Level A harassment.
For Dall's porpoise, due to its relatively uncommon occurrence in
comparison to harbor porpoise, the estimated Level A harassment take is
scaled down by \1/3\ that of harbor porpoise, yielding 17 Level A
harassment takes.
For calculated take number less than 15, such as northern elephant
seals, transient killer whales, gray whales, and minke whales, takes
numbers were adjusted to account for group encounter and the likelihood
of encountering. Specifically, for northern elephant seal, take of 15
animals is estimated based on the likelihood of encountering this
species during the project period. For transient killer whale, takes of
30 animals is estimated based on the group size and the likelihood of
encountering in the area. For gray whale and minke whale, takes of 30
and 8 animals each are estimated, respectively, based on the likelihood
of encountering.
For SRKWs, WSDOT will implement strict monitoring and mitigation
measures and to suspend pile driving activities when such animal is
detected in the vicinity of the action area (see Mitigation section
below).
A summary of estimated takes based on the above analysis is listed
in Table 7.

Table 7--Estimated Take Numbers
----------------------------------------------------------------------------------------------------------------
Estimated Estimated Estimated
Species level A take level B take total take Abundance Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal............. 187 1,067 1,254 11,036 11
Northern elephant seal.......... 0 15 15 81,368 0
California sea lion............. 16 1,580 1,596 296,750 1
Steller sea lion................ 16 215 231 41,638 1
Killer whale, transient......... 0 30 30 243 12
Killer whale, Southern Resident. 0 0 0 83 0
Gray whale...................... 0 30 30 20,990 0
Humpback whale.................. 0 0 0 1,918 0
Minke whale..................... 0 8 8 202 2
Harbor porpoise................. 51 3,069 3,120 11,233 *28
Dall's porpoise................. 17 260 277 25,750 1
Long-beaked common dolphin...... 0 49 49 101,305 0
Bottlenose dolphin.............. 0 49 49 1,921 3
----------------------------------------------------------------------------------------------------------------
* The percentage of individual harbor porpoises take is estimated to be notably smaller than this, as described
in the ``Small Numbers'' section.

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

[[Page 35236]]

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.

Mitigation for Marine Mammals and Their Habitat

1. Time Restriction.
Work would occur only during daylight hours, when visual monitoring
of marine mammals can be conducted.
2. Establishing and Monitoring Level A, Level B Harassment Zones,
and Shutdown Zones.
WSDOT shall establish shutdown zones that encompass the distances
within which marine mammals could be taken by Level A harassment (see
Table 7 above) except for harbor seal. For Level A harassment zones
that is less than 10 m from the source, a minimum of 10 m distance
should be established as a shutdown zone. For harbor seal, a maximum of
60 m shutdown zone would be implemented if the actual Level A
harassment zone exceeds 60 m. This is because there are a few
habituated harbor seals that repeated occur within the larger Level A
zone, which makes implementing a shutdown zone larger than 60 m
infeasible.
A summary of exclusion zones is provided in Table 8.

Table 8--Shutdown Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
Shutdown zone (m)
Pile type, size & pile driving -------------------------------------------------------------------------------
method LF cetacean MF cetacean HF cetacean Phocid Otariid
----------------------------------------------------------------------------------------------------------------
Vibratory drive/removal, 24'' & 97 10 143 59 10
30'' steel piles, 8 piles/day,
20 min/pile....................
Vibratory removal 30'' steel 24 10 36 15 10
pile, 1 pile/day, 20 min/pile..
Vibratory drive 36'' steel pile, 126 11 187 60 10
8 piles/day, 20 min/pile.......
Vibratory drive 36'' steel pile, 153 14 227 60 10
8 piles/day, 20 min/pile.......
Impact drive (proof) 36'' steel 831 30 990 60 32
pile, 8 piles/day, 300 strikes/
pile...........................
Vibratory drive 108'' steel 200 18 296 60 10
pile, 1 pile/day, 120 min/pile.
Vibratory remove 14'' timber 10 10 12 10 10
pile, 20 piles/day, 15 min/pile
Vibratory remove 12'' steel 10 10 10 10 10
pile, 11 piles/day, 20 min/pile
Vibratory remove 14'' steel H
pile, 10 piles/day, 20 min/pile
----------------------------------------------------------------------------------------------------------------

WSDOT shall also establish a Zone of Influence (ZOI) based on the
Level B harassment zones for take monitoring where received underwater
SPLs are higher than 160 dBrms re 1 [micro]Pa for impulsive
noise sources (impact pile driving) and 120 dBrms re 1
[micro]Pa for non-impulsive noise sources (vibratory pile driving and
pile removal).
NMFS-approved protected species observers (PSO) shall conduct an
initial 30-minute survey of the exclusion zones to ensure that no
marine mammals are seen within the zones before pile driving and pile
removal of a pile segment begins. If marine mammals are found within
the exclusion zone, pile driving of the segment would be delayed until
they move out of the area. If a marine mammal is seen above water and
then dives below, the contractor would wait 15 minutes. If no marine
mammals are seen by the observer in that time it can be assumed that
the animal has moved beyond the exclusion zone.
If pile driving of a segment ceases for 30 minutes or more and a
marine mammal is sighted within the designated exclusion zone prior to
commencement of pile driving, or if a shutdown occurs due to marine
mammal sighting, the observer(s) must notify the pile driving operator
(or other authorized individual) immediately and continue to monitor
the exclusion zone. Operations may not resume until the marine mammal
has exited the exclusion zone or 30 minutes have elapsed since the last
sighting.
3. Soft-start.
A ``soft-start'' technique is intended to allow marine mammals to
vacate the area before the impact pile driver reaches full power.
Whenever there has been downtime of 30 minutes or more without impact
pile driving, the contractor will initiate the driving with ramp-up
procedures described below.
Soft start for impact hammers requires contractors to provide an
initial set of three strikes from the impact hammer at 40 percent
energy, followed by a 1-minute waiting period, then two subsequent
three-strike sets. Each day, WSDOT will use the soft-start technique at
the beginning of impact pile driving, or if pile driving has ceased for
more than 30 minutes.
4. Shutdown Measures.
WSDOT shall implement shutdown measures if a marine mammal is
detected within an exclusion zone or is about to enter an exclusion
zone listed in Table 8.
WSDOT shall also implement shutdown measures if SRKWs or humpback
whales are sighted within the vicinity of the project area and are
approaching the ZOI during in-water construction activities.
If a killer whale approaches the ZOI during pile driving or
removal, and it is unknown whether it is a SRKW or a transient killer
whale, it shall be assumed to be a SRKW and WSDOT shall implement the
shutdown measure.
If a SRKW, an unidentified killer whale, or a humpback whale enters
the ZOI undetected, in-water pile driving or

[[Page 35237]]

pile removal shall be suspended until the whale exits the ZOI to avoid
further Level B harassment.
Further, WSDOT shall implement shutdown measures if the number of
authorized takes for any particular species reaches the limit under the
IHA or if a marine mammal observed is not authorized for take under
this IHA, 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.
5. Coordination with Local Marine Mammal Research Network.
Prior to the start of pile driving for the day, the Orca Network
and/or Center for Whale Research will be contacted by WSDOT to find out
the location of the nearest marine mammal sightings. The Orca Sightings
Network consists of a list of over 600 (and growing) residents,
scientists, and government agency personnel in the United States and
Canada. Sightings are called or emailed into the Orca Network and
immediately distributed to other sighting networks including: the NMFS
Northwest Fisheries Science Center, the Center for Whale Research,
Cascadia Research, the Whale Museum Hotline and the British Columbia
Sightings Network.
Sightings information collected by the Orca Network includes
detection by hydrophone. The SeaSound Remote Sensing Network is a
system of interconnected hydrophones installed in the marine
environment of Haro Strait (west side of San Juan Island) to study orca
communication, in-water noise, bottom fish ecology and local climatic
conditions. A hydrophone at the Port Townsend Marine Science Center
measures average in-water sound levels and automatically detects
unusual sounds. These passive acoustic devices allow researchers to
hear when different marine mammals come into the region. This acoustic
network, combined with the volunteer (incidental) visual sighting
network allows researchers to document presence and location of various
marine mammal species.
With this level of coordination in the region of activity, WSDOT
will be able to get real-time information on the presence or absence of
whales before starting any pile driving.
Based on our evaluation of the required 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.

Monitoring Measures

WSDOT shall employ NMFS-approved PSOs to conduct marine mammal
monitoring for the Seattle Multimodal Year 2 Project at Colman Dock.
The purposes of marine mammal monitoring are to implement mitigation
measures and learn more about impacts to marine mammals from WSDOT's
construction activities. 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; and
5. NMFS will require submission and approval of observer CVs.
Monitoring of marine mammals around the construction site shall be
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
Due to the different sizes of ZOI from different pile types, three
different ZOIs and different monitoring protocols corresponding to a
specific pile type will be established.
For Level B harassment zones with radii less than 1,600 m,
3 PSOs will be monitoring from land.
For Level B harassment zones with radii larger than 1,600
m but smaller than 2,500 m, 4 PSOs will be monitoring from land.
For Level B harassment zones with radii larger than 2,500
m, 4 PSOs will be monitoring from land with an additional 1 PSO
monitoring from a ferry.
6. PSOs shall collect the following information during marine
mammal monitoring:
Date and time that monitored activity begins and ends for
each day conducted (monitoring period);
Construction activities occurring during each daily
observation period, including how many and what type of piles driven;
Deviation from initial proposal in pile numbers, pile
types, average driving times, etc.;
Weather parameters in each monitoring period (e.g., wind
speed, percent cloud cover, visibility);
Water conditions in each monitoring period (e.g., sea
state, tide state);
For each marine mammal sighting:
[cir] Species, numbers, and, if possible, sex and age class of
marine mammals;
[cir] Description of any observable marine mammal behavior
patterns,

[[Page 35238]]

including bearing and direction of travel and distance from pile
driving activity;
[cir] Location and distance from pile driving activities to marine
mammals and distance from the marine mammals to the observation point;
and
[cir] Estimated amount of time that the animals remained in the
Level B zone;
Description of implementation of mitigation measures
within each monitoring period (e.g., shutdown or delay); and
Other human activity in the area within each monitoring
period.
To verify the required monitoring distance, the exclusion zones and
ZOIs will be determined by using a range finder or hand-held global
positioning system device.
WSDOT will conduct noise field measurement to determine the actual
Level B distance from the source during vibratory driving of the first
36-in pile. If the actual Level B harassment distance is less than
modelled, the number of PSOs will be adjusted based on the criteria
listed above.

Reporting Measures

WSDOT is required to submit a draft monitoring report within 90
days after completion of the construction work or the expiration of the
IHA, whichever comes earlier. In the case if WSDOT intends to renew the
IHA in a subsequent year, a monitoring report should be submitted 60
days before the expiration of the current IHA (if issued). This report
would detail the monitoring protocol, summarize the data recorded
during monitoring, and estimate the number of marine mammals that may
have been harassed. NMFS would have an opportunity to provide comments
on the report, and if NMFS has comments, WSDOT would address the
comments and submit a final report to NMFS within 30 days.
In addition, NMFS would require WSDOT to notify NMFS' Office of
Protected Resources and NMFS' West Coast Stranding Coordinator within
48 hours of sighting an injured or dead marine mammal in the
construction site. WSDOT shall provide NMFS and the Stranding Network
with the species or description of the animal(s), the condition of the
animal(s) (including carcass condition, if the animal is dead),
location, time of first discovery, observed behaviors (if alive), and
photo or video (if available).
In the event that WSDOT finds an injured or dead marine mammal that
is not in the construction area, WSDOT would report the same
information as listed above to NMFS as soon as operationally feasible.

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).
To avoid repetition, this introductory discussion of our analyses
applies to all the species listed in Table 7, given that the
anticipated effects of WSDOT's Seattle Multimodal at Colman Dock
project involving pile driving and pile removal on marine mammals are
expected to be relatively similar in nature. There is no information
about the nature or severity of the impacts, or the size, status, or
structure of any species or stock that would lead to a different
analysis by species for this activity, or else species-specific factors
would be identified and analyzed.
Although a few marine mammals (132 harbor seals, 12 harbor
porpoises, and 1 Dall's porpoise) are estimated to experience Level A
harassment in the form of PTS if they stay within the Level A
harassment zone during the entire pile driving for the day, the degree
of injury is expected to be mild and is not likely to affect the
reproduction or survival of the individual animals. It is expected
that, if hearing impairments occurs, most likely the affected animal
would lose a few dB in its hearing sensitivity, which in most cases is
not likely to affect its survival and recruitment. Hearing impairment
that occur for these individual animals would be limited to the
dominant frequency of the noise sources, i.e., in the low-frequency
region below 2 kHz. Therefore, the degree of PTS is not likely to
affect the echolocation performance of the two porpoise species, which
use frequencies mostly above 100 kHz. Nevertheless, for all marine
mammal species, it is known that in general animals avoid areas where
sound levels could cause hearing impairment. Therefore, it is not
likely that an animal would stay in an area with intense noise that
could cause severe levels of hearing damage. In addition, even if an
animal receives a TTS, the TTS would be a one-time event from the
exposure, making it unlikely that the TTS would evolve into PTS.
Furthermore, Level A take estimates are based on the assumption that
the animals are randomly distributed in the project area and would not
avoid intense noise levels that could cause TTS or PTS. In reality,
animals tend to avoid areas where noise levels are high (Richardson et
al., 1995). Nonetheless, we evaluate the estimated take in this
negligible impact analysis.
For these species except harbor seal, California sea lion, Steller
sea lion, harbor porpoise and Dall's porpoise, takes that are
anticipated and authorized are expected to be limited to short-term
Level B harassment (behavioral and TTS). Marine mammals present in the
vicinity of the action area and taken by 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. A few marine mammals could experience
TTS if they occur within the Level B TTS ZOI. However, as discussed
earlier in this document, TTS is a temporary loss of hearing
sensitivity when exposed to loud sound, and the hearing threshold is
expected to recover completely within minutes to hours. Therefore, it
is not considered an injury.
There are no other important areas for marine mammals, such as
important feeding, pupping, or other areas.
The project also is not expected to have significant adverse
effects on affected marine mammals' habitat, as analyzed in detail in
the ``Anticipated Effects on Marine Mammal Habitat'' subsection. There
is no ESA designated critical area in the vicinity of the Seattle
Multimodal Project at Colman Dock

[[Page 35239]]

area. The 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. However, because of the short duration of the activities and the
relatively small area of the habitat that may be affected, the impacts
to marine mammal habitat are not expected to cause significant or long-
term negative consequences. Therefore, given the consideration of
potential impacts to marine mammal prey species and their physical
environment, WSDOT's proposed construction activity at Colman Dock
would not adversely affect marine mammal habitat.
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;
Injury--only five species of marine mammals would
experience Level A harassment in the form of mild PTS, which is
expected to be of small degree; and
Behavioral disturbance--eleven species/stocks of marine
mammals would experience behavioral disturbance from the WSDOT's
Seattle Colman Dock project. However, as discussed earlier, the area to
be affected is small and the duration of the project is short. No other
important habitat for marine mammals exist in the vicinity of the
project area. Therefore, the overall impacts are expected to be
insignificant.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total 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.
The estimated takes are below 13 percent of the population for all
marine mammals except harbor porpoise (Table 7). For harbor porpoise,
the estimate of 3,120 incidences of takes would be 28 percent of the
population, if each single take were a unique individual. However, this
is highly unlikely because the harbor porpoise in Washington waters
shows site fidelity to small areas for periods of time that can extend
between seasons (Hanson et al., 1999; Hanson 2007a, 2007b). For
example, Hanson et al. (1999) tracked a female harbor porpoise for 215
days, during which it remained exclusively within the southern Strait
of Georgia region. Based on studies by Jefferson et al. (2016), harbor
porpoise abundance in the southern Puget Sound region, which
encompasses waters off Seattle, is 550. Therefore, if the estimated
incidents of take accrued to all the animals expected to occur in the
entire southern Puget Sound area (550 animals), it would be 4.90
percent of the Washington inland water stock of the harbor porpoise.
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
each species or stock will be taken relative to the population size of
the affected species or stocks.

Unmitigable Adverse Impact 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.

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.
NMFS has determined the issuance of the IHA is consistent with
categories of activities identified in CE B4 (issuance of incidental
harassment authorizations under section 101(a)(5)(A) and (D) of the
MMPA for which no serious injury or mortality is anticipated) of NOAA's
Companion Manual for NAO 216-6A, and we have not identified any
extraordinary circumstances listed in Chapter 4 of the Companion Manual
for NAO 216-6A that would preclude this categorical exclusion under
NEPA.

Endangered Species Act

Section 7(a)(2) of the ESA 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.
The California-Oregon-Washington stock of humpback whale and the
Southern Resident stock of killer whale are the only marine mammal
species listed under the ESA that could occur in the vicinity of
WSDOT's proposed construction projects. Two DPSs of humpback whales,
the Mexico DPS and the Central America DPS, are listed as threatened
and endangered under the ESA, respectively. NMFS worked with WSDOT to
implement shutdown measures in the IHA that would avoid takes of both
SR killer whale and humpback whales. Therefore, NMFS determined that no
ESA-listed marine mammal species would be affected as a result of
WSDOT's Seattle Colman Dock construction project.

Authorization

As a result of these determinations, NMFS has issued an IHA to the
Washington State Department of Transportation for the Seattle
Multimodal Project at Colman Dock in Washington State, provided the
previously described mitigation, monitoring, and reporting requirements
are incorporated.

Dated: July 20, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2018-15874 Filed 7-24-18; 8:45 am]
BILLING CODE 3510-22-P

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