Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Pile Driving Activities for the Restoration of Pier 62, Seattle Waterfront, Elliott Bay, 39709-39726 [2018-17185]

Download as PDF Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act (ESA) Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with NMFS’ ESA Interagency Cooperation Division, whenever we authorize take for endangered or threatened species. NMFS’s ESA Interagency Cooperation Division issued a Biological Opinion on August 6, 2018 to NMFS Office of Protected Resources which concluded that the USGS’s MATRIX survey is not likely to jeopardize the continued existence of the sei whale, fin whale, sperm whale, and north Atlantic right whale or adversely modify critical habitat. daltland on DSKBBV9HB2PROD with NOTICES 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. Accordingly, NMFS prepared an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the IHA to USGS. We reviewed all comments submitted in response to the Federal Register notice for the proposed IHA (83 FR 25268; May 31, 2018) prior to concluding our NEPA process and deciding whether or not to issue a Finding of No Significant Impact (FONSI). NMFS concluded that issuance of an IHA to USGS will not significantly affect the quality of the human environment and prepared and issued a FONSI in accordance with NEPA and NAO 216–6A. NMFS’s EA and FONSI for this activity are available on our website at: https:// 19:03 Aug 09, 2018 Jkt 244001 Authorization As a result of these determinations, we have issued an IHA to USGS for conducting the described seismic survey activities from August 1, 2018 through July 31, 2019 provided the previously described mitigation, monitoring, and reporting requirements are incorporated. Dated: August 7, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2018–17170 Filed 8–9–18; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XG291 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Pile Driving Activities for the Restoration of Pier 62, Seattle Waterfront, Elliott Bay National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Incidental harassment authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the Seattle Department of Transportation (DOT) to incidentally harass, by Level A and B harassment, marine mammals during pile driving and removal activities associated with the restoration of Pier 62, Seattle Waterfront, Elliott Bay in Seattle, Washington (Season 2). DATES: This Authorization is applicable from August 1, 2018 through February 28, 2019. FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-constructionactivities. In case of problems accessing these documents, please call the contact listed above. SUMMARY: National Environmental Policy Act VerDate Sep<11>2014 www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-research-and-otheractivities. PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 39709 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, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). National Environmental Policy Act In compliance with NOAA policy, the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), and the Council on Environmental Quality Regulations (40 CFR parts 1500– 1508), NMFS determined the issuance of the IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216–6A, which do not individually or cumulatively have E:\FR\FM\10AUN1.SGM 10AUN1 39710 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Summary of Request On January 27, 2018, NMFS received a request from the Seattle DOT for a second IHA to take marine mammals incidental to pile driving and removal activities for the restoration of Pier 62, Seattle Waterfront, Elliott Bay in Seattle, Washington. A revised request was submitted on May 18, 2018, which was deemed adequate and complete. Seattle DOT’s request is for take of 12 species of marine mammals, by Level B harassment and Level A harassment (three species only). Neither Seattle DOT nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. NMFS previously issued an IHA to Seattle DOT for related work for Season 1 of this activity (82 FR 47176; October 11, 2017). Seattle DOT 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 Description of Marine Mammals in the Area of Specified Activities and Estimated Take sections. This IHA will cover the second season of work for the Seattle DOT Pier 62 project and provides take authorization for these subsequent facets of the project. The second season of the larger project is expected to primarily involve the remaining pile driving for Pier 62 and Pier 63. If the Seattle DOT encounters delays due to poor weather conditions, difficult pile driving, or other unanticipated challenges, an additional in-water work season may be necessary. If so, a separate IHA may be prepared for the third season of work. Description of Specified Activities The planned project will replace Pier 62 and make limited modifications to Pier 63 on the Seattle waterfront of Elliott Bay, Seattle, Washington. The existing piers are constructed of creosote-treated timber piles and treated timber decking, which are failing. The planned project would demolish and remove the existing timber piles and decking of Pier 62, and replace them with concrete deck planks, concrete pile caps, and steel piling. The majority of the timber pile removal required by the project occurred during the 2017–2018 in-water work season (Season 1). A total of 831 piles were removed from Pier 62 and Pier 63 during Season 1 (see Table 1 below). Timber pile removal work in Season 2 (2018–2019 in-water work window) may occur for an estimated 10 days (49 remaining timber piles), if the contractor encounters deteriorated piles that pose a safety hazard or are within the area where grated decking or habitat improvements are to be installed. Pile installation will occur via vibratory and impact hammers. Seattle DOT estimates 10 days will be needed to remove the old timber piles, 53 days for vibratory installation of steel piles, and 64 days for impact installation of steel piles for a total of 127 in-water construction days for both Pier 62 and Pier 63 (see Table 1 below). Seattle DOT expects most days for vibratory and impact installation of steel piles will overlap, for a total of fewer than 127 days. The 14-inch (in) timber piles will be removed with a vibratory hammer or pulled with a clamshell bucket. The 30-in steel piles will be installed with a vibratory hammer to the extent possible. The maximum extent of pile removal and installation activities are described in Table 1. An impact hammer will be used for proofing steel piles or when encountering obstructions or difficult ground conditions. In addition, a pile template will be installed to ensure the piles are placed properly. It is anticipated that the contractor will complete the pile installation during the 2018–2019 in-water work window. Inwater work may occur within a modified or shortened work window (September through February) to reduce or minimize effect on juvenile salmonids. TABLE 1—PILE INSTALLATION AND REMOVAL PLAN Remove ....... Creosote-treated timber, 14inch 1. Steel template pile, 24-inch Steel pile, 30-inch ............... 880 831 piles removed ... Actual duration Season 1 (days) 19 Additive source sound levels (dBRMS) Vibratory ............. 2 161 dB .............. .............. 8 Vibratory ............. Vibratory ............. 4 177 6 177 dB dB .............. 7 180 dB 8 Impact ................ 9 189 dB Daily 3 ................. .............. Vibratory ............. 4 177 dB 10 189 dB .............. Remaining work Season 2 Anticipated duration Season 2 49 timber piles ......... 10 days .............. Daily 3 2 189 .................................. 2 steel sheet piles installed. .................. 1 2 ............................... 189 steel piles ......... 2 .................................. .................. 2 ............................... Steel template pile, 24-inch Single source sound levels (dBRMS) 64 days 8 ............ Pile type Install ........... Completed during Season 1 Number of piles Activity ................. 53 days .............. Hours per day 8 Hammer type daltland on DSKBBV9HB2PROD with NOTICES Notes: 1 Assumed to be 14-inch diameter. 2 Hydroacoustic monitoring during Pier 62 Season 1 showed unweighted RMS ranging from 140 dB to 169 dB; the 75th percentile of these values is 161 dB RMS and was used to calculate thresholds. 3 The two template piles will be installed and removed daily. The time associated with this activity is included in the overall 8-hour pile driving day associated with installation of the 30-inch steel piles. 4 Assumed to be no greater than vibratory installation of the 30-inch steel pile. 6 Source sound from Port Townsend Test Pile Project (WSDOT 2010). 7 For simultaneous operation of two vibratory hammers installing steel pipe piles, the 180 dB RMS value is based on identical single-source levels, adding three dB based on WSDOT rules for decibel addition (2018). 8 Approximately 20 percent of the pile driving effort is anticipated to require an impact hammer, which results in approximately 11 cumulative days of impact hammer activity. However, the impact hammer activity is sporadic, often occurring for short periods each day. A total of 64 days represents the number of days in which pile installation with an impact hammer could occur, with the anticipation that each day’s impact hammer activity would be short. 9 Source level from Colman Dock Test Pile Project (WSDOT 2016). 10 For simultaneous operation of one impact hammer and one vibratory hammer installing 30-inch piles, the original dB RMS estimates differ by more than 10 dB, so the higher value, 189 dBRMS, is used based on WSDOT rules for decibel addition (2018). RMS—root mean square: The square root of the energy divided by the impulse duration. This level is the mean square pressure level of the pulse. It has been used by NMFS to describe disturbance-related effects (i.e., harassment) to marine mammals from underwater impulse-type noises. WSDOT—Washington State Department of Transportation. The contractor may elect to operate multiple pile crews for the Seattle DOT Pier 62 Project. As a result, more than one vibratory or impact hammer may be active at the same time. For the Pier 62 Project, there is a low likelihood that VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 multiple impact hammers would operate in a manner that piles would be struck simultaneously; however, as a conservative approach we used a multiple-source decibel (dB) rule when determining the Level A and Level B PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 harassment zones for this project. Table 2 provides guidance on adding dBs to account for multiple sources (WSDOT 2015a): E:\FR\FM\10AUN1.SGM 10AUN1 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices TABLE 2—MULTIPLE SOURCE DECIBEL ADDITION When two decibel values differ by: Add the following to the higher decibel value: 0–1 dB ....................... 2–3 dB ....................... 4–9 dB ....................... 3 dB 2 dB 1 dB daltland on DSKBBV9HB2PROD with NOTICES A detailed description of Seattle DOT’s planned Pier 62 (Season 2) project is provided in the Federal Register notice for the proposed IHA (83 FR 30120; June 27, 2018). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity. Comments and Responses A notice of NMFS’ proposal to issue an IHA was published in the Federal Register on June 27, 2018 (83 FR 30120). That notice described, in detail, Seattle DOT’s activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received a comment letter from the Marine Mammal Commission (Commission). Specific comments and responses from the Commission’s comment letter are provided below. The Commission recommended that NMFS issue the IHA, subject to inclusion of the proposed mitigation, monitoring, and reporting measures. Comment 1: The Commission commented on errors regarding the Level B harassment calculations. NMFS Response: NMFS acknowledges these errors and has corrected them in this notice and in the final IHA. Comment 2: The Commission asserts that NMFS underestimated take estimates for harbor seals by Level A harassment and take estimates for longbeaked common dolphin, bottlenose dolphin, and Northern elephant seal by Level B harassment. NMFS Response: NMFS does not believe the take estimates were incorrect in the proposed IHA for these species. However, NMFS increased the take estimates as suggested, which provides more conservative coverage for some species. Comment 3: The Commission commented that NMFS should use the Smultea et al., 2017 report rather than the Jefferson et al., 2016 density VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 estimates for harbor porpoise. The Commission also commented on an error for the density estimate for minke whales. NMFS response: NMFS agrees and updated the density estimate for harbor porpoise by Smultea et al., 2017 and accordingly the estimated takes by Level A and Level B harassment of harbor porpoise decreased. NMFS also corrected the density estimate for minke whales. Comment 4: The Commission requested clarification regarding certain issues associated with NMFS’ 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. The Commission also noted that NMFS had recently begun utilizing abbreviated notices, referencing relevant documents, to solicit public input and suggested that NMFS use these notices and solicit review in lieu of the currently proposed renewal process. NMFS 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 the FR notices that consider renewals, requesting input specifically on the possible renewal itself. 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 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 39711 meets statutory requirements and maximizes efficiency. Importantly, such renewals would be limited to circumstances 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 they are for all IHAs. The option for issuing renewal IHAs has been in NMFS’s incidental take regulations since 1996. See 50 CFR 216.107(e). We will provide any additional information to the Commission and consider posting a description of the renewal process on our website before any renewal is issued utilizing this process. Description of Marine Mammals in the Area of Specified Activities The marine mammal species under NMFS’s jurisdiction that have the potential to occur in the construction area include Pacific harbor seal (Phoca vitulina), northern elephant seal (Mirounga angustirostris), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall’s porpoise (Phocoenoides dalli), longbeaked common dolphin (Delphinus capensis), common bottlenose dolphin (Tursiops truncatus), both southern resident and transient killer whales (Orcinus orca), humpback whale (Megaptera novaengliae), gray whale (Eschrichtius robustus), and minke whale (Balaenoptera acutorostrata) (Table 3). Of these, the southern resident killer whale (SRKW) and humpback whale are protected under the Endangered Species Act (ESA). Pertinent information for each of these species is presented in this document to provide the necessary background to understand their demographics and distribution in the area. E:\FR\FM\10AUN1.SGM 10AUN1 39712 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices TABLE 3—MARINE MAMMAL SPECIES POTENTIALLY PRESENT IN REGION OF ACTIVITY Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae Gray whale ............................ Eschrichtius robustus ........... Eastern North Pacific ........... -; N 20,990 (0.05; 20,125; 2011) 624 132 E; D 1,918 (0.03; 1,876; 2017) .... 11.0 ≥9.2 -; N 636 (0.72, 369, 2014) .......... 3.5 ≥1.3 Family Balaenidae Humpback whale ................... Minke whale .......................... Megaptera novaeangliae novaeangliae. Balaenoptera acutorostrata scammoni. California/Oregon/Washington. California/Oregon/Washington. Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae Killer whale ............................ Orcinus orca ......................... Eastern North Pacific Offshore. -; N 240 (0.49, 162, 2014) .......... 1.6 0 Killer whale ............................ Orcinus orca ......................... E; D 83 (na, 83, 2016) ................. 0.14 0 Long-beaked common dolphin. Bottlenose dolphin ................. Dephinus capensis ............... Eastern North Pacific Southern Resident. California .............................. -; N 101,305 (0.49; 68,432, 2014) 657 ≥35.4 California/Oregon/Washington Offshore. -; N 1,924 (0.54; 1,255, 2014) .... 11 ≥1.6 11,233 (0.37; 8,308; 2015) .. 25,750 (0.45, 17,954, 2014) 66 172 ≥7.2 0.3 296,750 (na, 153,337, 2011) 41,638 (-; 41,638; 2015) ...... 9,200 2,498 389 108 -; N 11,036 (0.15, -, 1,999) ......... Undet. 9.8 -; N 179,000 (na; 81,368, 2010) 4,882 8.8 Tursiops truncatus ................ Family Phocoenidae (porpoises) Harbor Porpoise .................... Dall’s Porpoise ...................... Phocoena phocoena ............ Phocoenoides dalli ............... Washington Inland Waters ... California/Oregon/Washington. -; N -; N Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion .................. Steller sea lion ....................... Zalophus californianus ......... Eumetopias jubatus .............. U.S. ...................................... Eastern DPS ........................ -; N -; N Family Phocidae (earless seals) Harbor seal ............................ Phoca vitulina ....................... Northern elephant seal .......... Mirounga angustirostris ........ Washington Northern Inland Waters stock. California breeding ............... 1 Endangered daltland on DSKBBV9HB2PROD with NOTICES Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases A detailed description of the species likely to be affected by the Seattle DOT Pier 62 (Season 2) project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (83 FR 30120; June 27, 2018); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS websites for generalized species accounts for whales (https:// www.fisheries.noaa.gov/whales), dolphins and porpoises (https:// VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 www.fisheries.noaa.gov/dolphinsporpoises), and pinnipeds (https:// www.fisheries.noaa.gov/seals-sea-lions). Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from the planned activities for the Seattle DOT Pier 62 (Season 2) project have the potential to result in Level B behavioral harassment of marine mammals in the vicinity of the action area. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency species, due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for mid-frequency species and most pinnipeds. The mitigation and monitoring measures (i.e., exclusion PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 zones, use of a bubble curtain, etc. as discussed in detail below in ‘‘Mitigation’’ section), are expected to minimize the severity of such taking to the extent practicable. The project would not result in permanent impacts to habitats used directly by marine mammals, such as haulout sites, but may have potential short-term impacts to food sources such as marine invertebrates and fish species. Construction will also have temporary effects on salmonids and other fish species in the project area due to disturbance, turbidity, noise, and the potential resuspension of contaminants during the Pier 62 project. The Federal Register notice for the proposed IHA (83 FR 30120 June 27, 2018) included a detailed discussion of the effects of E:\FR\FM\10AUN1.SGM 10AUN1 39713 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices anthropogenic noise on marine mammals and their habitat, and therefore, that information is not repeated here; please refer to that Federal Register notice for that information. Estimated Take This section provides an estimate of the number of incidental takes authorized through this IHA, which informed both NMFS’s consideration of whether the number of takes is ‘‘small’’ and the negligible impact determination. Based on public comment, since the Proposed Notice, a few minor changes have been made to this section, including modifications to the density and take estimates for species. These changes are reflected in the tables and narrative below. 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 primarily be by Level B harassment, as exposure to pile driving and removal activities has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency species due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for mid-frequency species and most pinnipeds. The planned mitigation and monitoring measures (i.e., shutdown 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 root mean square (rms) for continuous (e.g., vibratory pile-driving, drilling) sources and above 160 dB re 1 mPa (rms) for non-explosive impulsive (e.g., impact pile driving sources). Seattle DOT’s planned activity includes the use of continuous (vibratory pile driving and removal) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 mPa (rms) are applicable. Level A harassment for non-explosive sources—NMFS’s Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Acoustic Thresholds Mammal Hearing (NMFS, 2016a) Using the best available science, identifies dual criteria to assess auditory NMFS has developed acoustic injury (Level A harassment) to five thresholds that identify the received different marine mammal groups (based level of underwater sound above which on hearing sensitivity) as a result of exposed marine mammals would be exposure to noise from two different reasonably expected to be behaviorally types of sources (impulsive or nonharassed (equated to Level B impulsive). Seattle DOT’s planned harassment) or to incur permanent activity includes the use of continuous threshold shift (PTS) of some degree (vibratory pile driving and removal) and (equated to Level A harassment). Level B Harassment for non-explosive impulsive (impact pile driving) sources. These thresholds were developed by sources—Though significantly driven by compiling and synthesizing the best received level, the onset of behavioral available science and soliciting input disturbance from anthropogenic noise multiple times from both the public and exposure is also informed to varying peer reviewers to inform the final degrees by other factors related to the product, and are provided in Table 4 source (e.g., frequency, predictability, below. The references, analysis, and duty cycle), the environment (e.g., methodology used in the development bathymetry), and the receiving animals of the thresholds are described in NMFS (hearing, motivation, experience, 2016 Technical Guidance, which may demography, behavioral context) and can be difficult to predict (Southall et al. be accessed at: https:// 2007, Ellison et al. 2011). Based on what www.fisheries.noaa.gov/resource/ document/underwater-acousticthe available science indicates and the thresholds-onset-permanent-andpractical need to use a threshold based temporary-threshold-shiftshttps:// on a factor that is both predictable and www.nmfs.noaa.gov/pr/acoustics/ measurable for most activities, NMFS guidelines.htm. uses a generalized acoustic threshold zones, use of a bubble curtain, etc. as discussed in detail below in ‘‘Mitigation’’ section), are expected to minimize the severity of such taking to the extent practicable. Below we describe how the take is estimated. Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimates. TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset thresholds Hearing group daltland on DSKBBV9HB2PROD with NOTICES Impulsive Low-Frequency (LF) Cetaceans ...................................... Mid-Frequency (MF) Cetaceans ...................................... High-Frequency (HF) Cetaceans ..................................... Phocid Pinnipeds (PW) (Underwater) ............................. Otariid Pinnipeds (OW) (Underwater) ............................. Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,LF,24h: 183 dB .................................... LE,MF,24h: 185 dB .................................... LE,HF,24h: 155 dB .................................... LE,PW,24h: 185 dB ................................... LE,OW,24h: 203 dB ................................... LE,LF,24h: 199 dB. LE,MF,24h: 198 dB. LE,HF,24h: 173 dB. LE,PW,24h: 201 dB. LE,OW,24h: 219 dB. * 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. VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\10AUN1.SGM 10AUN1 39714 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES 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. Ensonified Area Here, we describe operational and environmental parameters of the activity that fed into identifying the area ensonified above the acoustic thresholds. Background noise is the sound level that would exist without the planned activity (pile driving and removal, in this case), while ambient sound levels are those without human activity (NOAA 2009). The marine waterway of Elliott Bay is very active, and human factors that may contribute to background noise levels include ship traffic. Natural actions that contribute to ambient noise include waves, wind, rainfall, current fluctuations, chemical composition, and biological sound sources (e.g., marine mammals, fish, and shrimp; Carr et al. 2006). Background noise levels were compared to the relevant threshold levels designed to protect marine mammals to determine the Level B Harassment Zones for noise sources. Based on hydroacoustic monitoring conducted during Season 1 of the Pier 62 Project to determine background noise in the vicinity of the project, the background level of 124 dB rms was used to calculate the attenuation for vibratory pile driving and removal in Season 2 (Greenbusch Group 2018). Although NMFS’s harassment threshold is typically 120 dB for continuous noise, recent sitespecific measurements collected by The Greenbusch Group (2018) as required by the Season 1 IHA indicate that ambient sound levels are typically higher than this sound level and ranged from 117 dB to 145 dB. Therefore, we used the 124 dB rms (also the same noise level as Season 1), as the relevant threshold for Season 2 of the Seattle DOT Pier 62 project, assuming that any noise generated by the project below 124 dB would be subsumed by the existing background noise and have little likelihood of causing additional behavioral disturbance. The source level of vibratory removal of 14-in timber piles is based on hydroacoustic monitoring measurements conducted at the Pier 62 project site during Season 1 vibratory VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 removal (Greenbusch Group 2018). The recorded source level ranged from 140 to 169 dB rms re 1 micropascal (mPa) at 10 meters (m) from the pile, with the 75th percentile at 161 dB rms. This level, 161 dB rms, was chosen as the source value for vibratory timber removal in Season 2 because it is a conservative estimate of potential noise generation; 75 percent of the timber pile removal noise generated in Season 1 was on average lower than 161 dB rms. The sound source levels for installation of the 30-in steel piles and 24-in template piles are based on surrogate data compiled by the Washington State Department of Transportation (WSDOT). This value was also used for other pile driving projects (e.g., WSDOT Seattle Multimodal Construction Project— Colman Dock (82 FR 31579; July 7, 2017)) in the same area as the Seattle Pier 62 project. In February of 2016, WSDOT conducted a test pile project at Colman Dock. The measured results from Colman Dock were used for that project and also here to provide source levels for the prediction of isopleths ensonified over thresholds for the Seattle Pier 62 project. The results showed that the sound pressure level (SPL) root-mean-square (rms) for impact pile driving of a 36-in steel pile is 189 dB re 1 mPa at 14 m from the pile (WSDOT 2016b). This value is also used for impact driving of the 30-in steel piles, which is a precautionary approach. Source level of vibratory pile driving of 36-in steel piles is based on test pile driving at Port Townsend in 2010 (Laughlin 2011). Recordings of vibratory pile driving were made at a distance of 10 m from the pile. The results show that the SPL rms for vibratory pile driving of 36-in steel pile was 177 dB re 1 mPa (WSDOT 2016a). The source sound level of 177 dB is used for vibratory steel installation of 30-in piles and 24-in template piles. The template pile activity occurs in conjunction with vibratory installation of 30-in steel piles. As such, the template pile activity is conservatively included as part of 30-in vibratory steel installation for the purposes of estimating take and monitoring the PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 project activities. Sound generated by template pile activity (removal and installation of 24-in steel piles) is expected to be quieter than sound generated during vibratory steel installation of 30-in piles, because the piles are smaller and do not need to be driven as deep as structural, permanent 30-in steel piles. The method of incidental take requested is Level B acoustical harassment of marine mammals within the 160 dB rms disturbance threshold (impact pile driving); the 120 dB rms disturbance threshold (vibratory pile driving); and the 120 dB rms disturbance threshold for vibratory removal of piles. Therefore, three different Level B Harassment/ Monitoring Zones were established and must be in place during pile driving installation or removal (Table 5). For the Level B Harassment/ Monitoring Zones, sound waves propagate in all directions when they travel through water until they dissipate to background levels or encounter barriers that absorb or reflect their energy, such as a landmass. Therefore, the area of the Level B Harassment/ Monitoring Zones was determined using land as the boundary on the north, east and south sides of the project. On the west, land was also used to establish the zone for vibratory driving. From Alki on the south and Magnolia on the north, a straight line of transmission was established out to Bainbridge Island. For impact driving (and vibratory removal), sound dissipates much quicker and the impact zone stays within Elliott Bay. Pile-related construction noise would extend throughout the nearshore and open water environments to just west of Alki Point and a limited distance into the East Waterway of the Lower Duwamish River, a highly industrialized waterway. Because landmasses block inwater construction noise, a ‘‘noise shadow’’ created by Alki Point is expected to be present immediately west of this feature (refer to Seattle DOT’s application for maps depicting the Level B Harassment/Monitoring Zones). E:\FR\FM\10AUN1.SGM 10AUN1 39715 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices TABLE 5—LEVEL B ZONE HARASSMENT/MONITORING ZONES DESCRIPTIONS AND DURATION OF ACTIVITY Level B harassment zones (km2) 2 Level B threshold (m) Days of activity Sound source Activity Construction method 1 .................... 2 .................... Removal of 14-in Timber Piles ............................................ Installation of 30-in Steel Piles and Temporary 24-in Template Steel Piles. Installation of 30-in Steel Piles ............................................ Vibratory 1 ...... Vibratory 1 ...... 2,929 54,117 10.5 91 10 53 Impact ............ 1,201 2.3 64 3 .................... Notes: 1 The Level B thresholds for vibratory installation and removal were calculated to 124 dB rms as the actual ambient noise level rather than 120 dB. 2 The Level B Harassment Zones are not based on the distances given but represent actual ensonified area given the surrounding land configuration of Elliott Bay. When NMFS Technical Guidance (NMFS 2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as vibratory and impact pile driving, NMFS’s User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths/Level A Harassment Zones are reported below. The PTS isopleths were identified for each hearing group for impact and vibratory installation and removal methods that must be used in the Pier 62 Project. The PTS isopleth distances were calculated using the NMFS acoustic threshold calculator (NMFS 2016), with inputs based on measured and surrogate noise measurements taken during the Elillott Bay Seawall Project and from WSDOT, and estimating conservative working durations (Table 6 and Table 7). TABLE 6—NMFS TECHNICAL ACOUSTIC GUIDANCE USER SPREADSHEET INPUT TO PREDICT PTS ISOPLETHS/LEVEL A HARASSMENT [User Spreadsheet Input] Sound source 1 Source Level (rms SPL) .............................................................................................................. Source Level (Single Strike/shot SEL) ........................................................................................ Weighting Factor Adjustment (kHz) ............................................................................................. (a) Number of strikes in 1 h ........................................................................................................ (a) Activity Duration (h) within 24-h period .................................................................................. Propagation (xLogR) .................................................................................................................... Distance of source level measurement (meters) + ...................................................................... Sound source 3 (A) Vibratory pile driving (removal) Spreadsheet tab used Sound source 2 (A) Vibratory pile driving (installation) (E.1) Impact pile driving (installation) a 161 dB ........................ 2.5 ........................ 8 15 10 b 180 dB ........................ 2.5 ........................ 8 15 10 ........................ c 176 dB 2 20 4 15 14 a Greenbusch Group 2018. Pier 62 Project—Draft Acoustic Monitoring Season 1 (2017/2018) Report. Prepared for City of Seattle Department of Transportation. April 9, 2018. b Source level for 30-in steel piles was from test pile driving at Port Townsend Ferry Terminal in 2010. SPL rms for vibratory pile driving was 177 dB re 1 μPa and 3 dB was added for use of two hammers. c Source information is from the Underwater Sound Level Report: Colman Dock Test Pile Project 2016. TABLE 7—NMFS TECHNICAL ACOUSTIC GUIDANCE USER SPREADSHEET OUTPUT FOR PREDICTED PTS ISOPLETHS AND LEVEL A HARASSMENT DAILY ENSONIFIED AREAS daltland on DSKBBV9HB2PROD with NOTICES [User Spreadsheet Output] Low-frequency cetaceans Sound source type Mid-frequency cetaceans High-frequency cetaceans Phocid pinnipeds Otariid pinnipeds PTS Isopleth (meters) 1—Vibratory (pile removal) .................... 2—Vibratory (installation) ....................... 3—Impact (installation) .......................... VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 27.3 504.8 88.6 PO 00000 Frm 00059 2.4 44.7 3.2 Fmt 4703 Sfmt 4703 40.4 746.4 105.6 E:\FR\FM\10AUN1.SGM 16.6 306.8 47.4 10AUN1 1.2 21.5 3.5 39716 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices TABLE 7—NMFS TECHNICAL ACOUSTIC GUIDANCE USER SPREADSHEET OUTPUT FOR PREDICTED PTS ISOPLETHS AND LEVEL A HARASSMENT DAILY ENSONIFIED AREAS—Continued [User Spreadsheet Output] Low-frequency cetaceans Sound source type Mid-frequency cetaceans High-frequency cetaceans Phocid pinnipeds Otariid pinnipeds Level A Harassment Daily ensonified area (km2) a Vibratory (pile removal) .......................... Vibratory (installation) ............................ Impact (installation) ................................ 0.00 0.400 0.01 0.0 0.00 0.0 0.00 0.875 0.018 0.00 0.148 0.00 0.0 0.00 0.0 Note: a Daily ensonified areas were divided by two to only account for the ensonified area within the water and not over land. Marine Mammal Occurrence and Take Calculation and Estimation In this section we provide the information about the presence, density, or group dynamics of marine mammals that informed the take calculation and we describe how the marine mammal occurrence information is brought together to produce a quantitative take estimate. In some cases (e.g., harbor seals and California sea lions) we used local monitoring to calculate estimated take; however, we also present take estimates (where available) using the species density data from the 2015 Pacific Navy Marine Species Density Database (U.S. Navy 2015), as a comparison for estimated take of marine mammals. For harbor porpoise, we estimated take using the density estimates provided in Smultea et al., 2017, as this is the best available density information for this species. Where species density is available, take estimates are based on average marine mammal density in the project area multiplied by the area size of ensonified zones within which received noise levels exceed certain thresholds (i.e., Level A and Level B harassment) from specific activities, then multiplied by the total number of days such activities would occur. Unless otherwise described, incidental take is estimated by the following equation: Incidental take estimate = species density * zone of influence * days of pile-related activity However, adjustments were made for nearly every marine mammal species, whenever their local abundance is known through monitoring during Season 1 activities and other monitoring efforts. In those cases, the local abundance data was used for take calculations for the authorized take instead of general animal density (see below). Harbor Seal The take estimate for harbor seals for Pier 62 is based on local seal abundance information using the maximum number of seals (13) sighted in one day during the 2016 Seattle Test Pile project multiplied by the total of 127 pile driving and removal days for the Seattle DOT Pier 62 Project Season 2 for 1,651 seals. Fifty-three of the 127 days of activity would involve installation by vibratory pile driving, which has a much larger Level A Harassment Zone (306.8 m) than the Level A Harassment Zones for vibratory removal (16.6 m) and impact pile driving (47.4 m). Harbor seals may be difficult to observe at greater distances, therefore, during vibratory pile driving, it may not be known how long a seal is present in the Level A Harassment Zone. We conservatively estimate that 53 instances of take by Level A harassment may occur during these 53 days. Fiftythree instances of potential take by Level A harassment was calculated as follows: 1 harbor seal per day × 53 days of vibratory pile driving within the 307 m Level A Harassment Zone. The instances of take by Level B harassment (1,651 seals) was adjusted to exclude those already counted for instances of take by Level A harassment, so the authorized instances of take by Level B harassment is 1,598 harbor seals. As a comparison, using U.S. Navy species density estimates (U.S. Navy 2015) for the inland waters of Puget Sound, potential take of harbor seal is shown in Table 8. Based on these calculations, instances of take by Level A harassment is estimated at 10 harbor seals from vibratory pile driving and instances of take by Level B harassment is estimated at 6,177 harbor seals from all sound sources. However, observational data from previous projects on the Seattle waterfront have documented only a fraction of what is calculated using the Navy density estimates for Puget Sound. For example, between zero and seven seals were observed daily for the EBSP and 56 harbor seals were observed over 10 days in the area with the maximum number of 13 harbor seals sighted during the 2016 Seattle Test Pile project (WSF 2016). During marine mammal monitoring for Season 1 of the Seattle DOT Pier 62 Project, 10 harbor seals were observed within the Level B Harassment/Monitoring Zone during vibratory activity. Project activities in Season 1, primarily timber vibratory removal, had a smaller Level B Harassment/Monitoring Zone than vibratory steel installation (the primary activity for Seasons 2), so it is expected that harbor seal observations and takes in Season 2 will be greater and will more closely resemble observational data from other monitoring efforts such as EBSP and Seattle Test Pile Project. daltland on DSKBBV9HB2PROD with NOTICES TABLE 8—HARBOR SEAL ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... VerDate Sep<11>2014 19:57 Aug 09, 2018 Jkt 244001 1.219 1.219 1.219 PO 00000 Frm 00060 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.00 0.148 0.00 Fmt 4703 Sfmt 4703 Estimated take Level A harassment Days of activity 10.5 91 2.3 E:\FR\FM\10AUN1.SGM 10 53 64 10AUN1 0 10 0 Estimated take Level B harassment 128 * 5,879 180 39717 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices Note: km2—square kilometers. * Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Adjusted 5,869. Northern Elephant Seal For the Northern elephant seal, the Whale Museum (as cited in WSDOT 2016a) reported one sighting in the relevant area between 2008 and 2014. In addition, based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of northern elephant seal is expected to be zero. Therefore, to be conservative. NMFS is authorizing two instances of take by Level B harassment of northern elephant seals. California Sea Lion The take estimate of California sea lions for Pier 62 is based on Season 1 marine mammal monitoring for the Seattle DOT Pier 62 Project and four seasons of local sea lion abundance information from the EBSP. Marine mammal visual monitoring during the EBSP indicates that a maximum of 15 sea lions were observed in a day during 4 years of project monitoring (Anchor QEA 2014, 2015, 2016, 2017). Based on a total of 127 pile driving and removal days for the Seattle Pier 62 project Season 2, it is estimated that up to 1,905 California sea lions (15 sea lions multiplied by 127 days) could be exposed to noise levels associated with ‘‘take.’’ Since the calculated Level A Harassment Zones of otariids are all very small (Table 7), we do not consider it likely that any sea lions would be taken by Level A harassment. Therefore, all California sea lion takes estimated here are expected to be takes by Level B harassment and NMFS is authorizing instances of take by Level B harassment of 1,905 California sea lions. As a comparison, using the U.S. Navy species density estimates (U.S. Navy 2015) for the inland waters of Washington, including Eastern Bays and Puget Sound, potential take of California sea lion is shown in Table 9. The estimated instances of take by Level B harassment is 643 California sea lions. However, the Seattle DOT believes that this estimate is unrealistically low, based on local marine mammal monitoring. TABLE 9—CALIFORNIA SEA LION ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.1266 0.1266 0.1266 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.0 0.00 0.0 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 0 0 13 611 19 Note: km2—square kilometers. Steller Sea Lion No local monitoring data of Steller sea lions is available. Therefore, the estimated take for Steller sea lions is based on U.S. Navy species density estimates (U.S. Navy 2015), and is shown in Table 10. Since the calculated Level A Harassment Zones of otariids are all very small (Table 7), we do not consider it likely that any Steller sea lions would be taken by Level A harassment. NMFS is authorizing instances of take by Level B harassment of 187 Steller sea lions. TABLE 10—STELLER SEA LION ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.0368 0.0368 0.0368 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.0 0.00 0.0 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 0 0 4 178 5 Note: km2—square kilometers. daltland on DSKBBV9HB2PROD with NOTICES Southern Resident Killer Whale The take estimate of SRKW for Pier 62 is based on local data and information from the Center for Whale Research (CWR). J-pod is the pod most likely to appear in the lower Puget Sound near Seattle with a group size of approximately 23 SRKW in 2017, 24 in 2016, and 29 in 2015. (CWR 2017). Therefore, NMFS is authorizing instances of take by Level B harassment of 23 SRKW based on a single occurrence of one pod (i.e., J Pod—23 individuals) that would be most likely VerDate Sep<11>2014 19:57 Aug 09, 2018 Jkt 244001 to be seen near Seattle. Since the Level A Harassment Zones of mid-frequency cetaceans are small (Table 7), we do not consider it likely that any SRKW would be taken by Level A harassment. The Seattle DOT must coordinate with the Orca Network and the CWR in an attempt to avoid all take of SRKW, but it may be possible that a group may enter the Level B Harassment/ Monitoring Zones before Seattle DOT could shut down due to the larger size of the Level B Harassment/Monitoring PO 00000 Frm 00061 Fmt 4703 Sfmt 4703 Zones particularly during vibratory pile driving (installation). As a comparison, using the U.S. Navy species density estimates (U.S. Navy 2015) the density for the SRKW is variable across seasons and across the range. The inland water density estimates vary from 0.000000 to 0.000090/km2 in summer, 0.001461 to 0.004760/km2 in fall, and 0.004761– 0.020240/km2 in winter. Therefore, estimated takes as shown in Table 11 are based on the highest density estimated during the winter season E:\FR\FM\10AUN1.SGM 10AUN1 39718 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices (0.020240/km2) for the SRKW population. With the variable winter density, the estimate can range from 24 to 103 SRKW, with the upper take estimate greater than the estimated population size. TABLE 11—SOUTHERN RESIDENT KILLER WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.020240 0.020240 0.020240 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.0 0.00 0.0 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 0 0 2 98 3 Note: km2—square kilometers. Transient Killer Whale The take estimate of transient killer whales for Pier 62 is based on local data. Seven transients were reported in the project area (Orca Network Archive Report 2016a). Therefore, NMFS is authorizing instances of take by Level B harassment of 42 transient killer whales, which would cover up to 2 groups of up to 7 transient whales entering into the project area and remaining there for three days. Since the Level A Harassment Zones of mid-frequency cetaceans are small (Table 7), we do not consider it likely that any transient killer whales would be taken by Level A harassment. As a comparison, based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of transient killer whale is shown in Table 12. As with the SRKW, the density estimate of transient killer whales is variable between seasons and regions. Density estimates range from 0.000575 to 0.001582/km2 in summer, from 0.001583 to 0.002373/ km2 in fall, and from 0.000575 to 0.001582/km2 in winter. Work could occur throughout summer, fall and winter, so the highest estimate, fall density, was used to conservatively estimate take. For instances of take by Level B harassment, this results in a take estimate of twelve transient killer whales. However, the Seattle DOT believes that this estimate is low based on local data of seven transients that were reported in the area (Orca Network Archive Report 2016a). TABLE 12—TRANSIENT KILLER WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.002373 0.002373 0.002373 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.0 0.00 0.0 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 0 0 0 12 0 Note: km2—square kilometers. daltland on DSKBBV9HB2PROD with NOTICES Long-Beaked Common Dolphin The take estimate of long-beaked common dolphin for Pier 62 is based on local monitoring data. The earliest documented sighting of long-beaked common dolphins in Puget Sound was July 2003. In June 2011, two longbeaked common dolphins were sighted in South Puget Sound. Sightings continued in 2012, and in 2016–17. Four to twelve sightings were reported regularly, with confirmed sightings of up to 30 individuals. Four to six 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 2017b). In 2016, the Orca Network (2016c) reported a pod of up to 20 longbeaked common dolphins. Therefore, NMFS is authorizing instances of take by Level B harassment of 7 long-beaked common dolphins per month for a total of 49 dolphins. Since the Level A VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 Harassment Zones of mid-frequency cetaceans are all very small (Table 7), we do not consider it likely that the long-beaked common dolphin would be taken by Level A harassment. Based on U.S. Navy species density estimates (U.S. Navy 2015), potential instances of take of long-beaked common dolphin is expected to be zero; therefore, we believe it more appropriate to use local monitoring data. Bottlenose Dolphin The take estimate of bottlenose dolphin for Pier 62 is based on local monitoring data. In 2017 the Orca Network (2017) reported sightings of a bottlenose dolphin in Puget Sound and in Elliott Bay, and WSDOT observed two bottlenose dolphins in one week during monitoring for the Colman Dock Multimodal Project (WSDOT 2017). In addition, a group of seven dolphins were observed in 2017 and were positively identified as part of the CA coastal stock (Cascadia Research PO 00000 Frm 00062 Fmt 4703 Sfmt 4703 Collective, 2017). Bottlenose dolphins typically travel in groups of 2 to 15 in coastal waters (NOAA 2017). Therefore, NMFS is authorizing instances of takes by Level B harassment of 7 bottlenose dolphins per month for a total of 49 dolphins. Since the Level A Harassment Zones of mid-frequency cetaceans are all very small (Table 7), we do not consider it likely that the common bottlenose dolphin would be taken by Level A harassment. Based on U.S. Navy species density estimates (U.S. Navy 2015), instances of potential take by Level B harassment of bottlenose dolphin is expected to be zero; therefore, we believe it more appropriate to use local monitoring data. Harbor Porpoise Species density estimates from Smultea et al. (2017), is the best density data available for the potential take of harbor porpoise and is shown in Table 13. Instances of take by Level A E:\FR\FM\10AUN1.SGM 10AUN1 39719 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices harassment is estimated at 25 harbor porpoises and instances of take by Level B harassment is estimated at 2,716 harbor porpoises. Therefore, NMFS is authorizing instances of take by Level A harassment of 25 harbor porpoises and instances of take by Level B harassment of 2,716 harbor porpoises. TABLE 13—HARBOR PORPOISE ESTIMATED TAKE BASED ON SMULTEA et al., 2017 Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.54 0.54 0.54 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.00 0.875 0.018 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 25 0 57 * 2,604 80 Note: km2—square kilometers. * Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Take is instances not individuals. Adjusted 2,579. Dall’s Porpoise No local monitoring data of Dall’s porpoise is available. Therefore, the estimated instances of take for Dall’s porpoise is based on U.S. Navy species density estimates (U.S. Navy 2015), as shown in Table 14. Based on these calculations, NMFS is authorizing instances of take by Level A harassment of two Dall’s porpoise and instances of take by Level B harassment of 196 Dall’s porpoise. TABLE 14—DALL’S PORPOISE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.039 0.039 0.039 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.00 0.875 0.018 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 2 0 4 * 188 6 Note: km2—square kilometers. * Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Adjusted 186. Humpback Whale Based on U.S. Navy species density estimates (U.S. Navy 2015), potential take of humpback whale is shown in Table 15. Although the standard take calculations would result in an estimated take of less than one humpback whale, to be conservative, NMFS is authorizing instances of take by Level B harassment of five humpback whales based on take during previous work in Elliott Bay where two humpback whales were observed, including one take, during the 175 days of work during the previous four years (Anchor QEA 2014, 2015, 2016, and 2017). Since the Level A Harassment Zones of low-frequency cetaceans are smaller during vibratory removal (27.3 m) or impact installation (88.6 m) compared to the Level A Harassment Zone for vibratory installation (504.8 m) (Table 7), we do not consider it likely that any humpbacks would be taken by Level A harassment during removal or impact installation. We also do not believe any humpbacks would be taken during vibratory installation due to the ability to see humpbacks easily during monitoring and additional coordination with the Orca Network and the CWR which would enable the work to be shut down before a humpback would be taken by Level A harassment. TABLE 15—HUMPBACK WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON Species density Sound source 1 ............................................................... 2 ............................................................... 3 ............................................................... 0.00001 0.00001 0.00001 Level A harassment ZOI (km2) Level B harassment ZOI (km2) 0.00 0.400 0.01 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 0 0 daltland on DSKBBV9HB2PROD with NOTICES Note: km2—square kilometers. Gray Whale No local monitoring data of gray whales is available. Therefore, the instances of estimated take for gray whales is based on U.S. Navy species VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 density estimates (U.S. Navy 2015), as shown in Table 16. Therefore, NMFS is authorizing instances of take by Level B harassment of four gray whales. Since the Level A Harassment Zones of low- PO 00000 Frm 00063 Fmt 4703 Sfmt 4703 frequency cetaceans are smaller during vibratory removal (27.3 m) or impact installation (88.6 m) compared to the Level A Harassment Zone for vibratory installation (504.8 m) (Table 7), we do E:\FR\FM\10AUN1.SGM 10AUN1 0 0 0 39720 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices not consider it likely that any gray whales would be taken by Level A harassment during removal or impact installation. We also do not believe any gray whales would be taken by Level A harassment during vibratory installation due to the ability to see gray whales easily during monitoring and additional coordination with the Orca Network and the CWR, which would enable the work to be shut down before a gray whale would be taken by Level A harassment. TABLE 16—GRAY WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON 1 ............................................................... 2 ............................................................... 3 ............................................................... Level B harassment ZOI (km2) Level A harassment ZOI (km2) Species density Sound source 0.00051 0.00051 0.00051 0.00 0.400 0.01 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 0 0 0 3 1 Note: km2—square kilometers. Minke Whale Between 2008 and 2014, the Whale Museum (as cited in WSDOT 2016a) reported one sighting of a minke whale in the relevant area. As a comparison, based on U.S. Navy species density estimates (U.S. Navy 2015), the instance of potential take of minke whales is expected to be ten (Table 17). To be conservative NMFS is authorizing the take of 10 minkes by Level B harassment. Based on the low probability that a minke whale would be observed during the project and then also enter into a Level A zone, we do not consider it likely that any minke whales would be taken by Level A harassment. TABLE 17—MINKE WHALE ESTIMATED TAKE BASED ON NMSDD PRESENTED FOR COMPARISON 1 ............................................................... 2 ............................................................... 3 ............................................................... Level B harassment ZOI (km2) Level A harassment ZOI (km2) Species density Level B zone 0.002 0.002 0.002 0.00 0.400 0.01 Estimated Level A harassment take Days of activity 10.5 91 2.3 10 53 64 Estimated Level B harassment take 0 0 0 0 10 0 Note: km2—square kilometers. The summary of the authorized take by Level A and Level B Harassment is described below in Table 18. TABLE 18—SUMMARY OF AUTHORIZED INCIDENTAL TAKE BY LEVEL A AND LEVEL B HARASSMENT Species Stock size Authorized Level A harassment take 11,036 179,000 296,750 41,638 83 53 0 0 0 0 Transient killer whale (Orcinus orca) .................................. Long-beaked common dolphin (Dephinus capensis) ......... Bottlenose dolphin (Tursiops truncatus) ............................. Harbor porpoise (Phocoena phocoena) ............................. Dall’s porpoise (Phocoenoides dalli) ................................... Humpback whale (Megaptera novaengliae) ....................... Gray whale (Eschrichtius robustus) .................................... Minke whale (Balaenoptera acutorostrata) ......................... daltland on DSKBBV9HB2PROD with NOTICES Pacific harbor seal (Phoca vitulina) .................................... Northern elephant seal (Mirounga angustirostris) .............. California sea lion (Zalophus californianus) ........................ Steller sea lion (Eumetopias jubatus) ................................. Southern resident killer whale DPS (Orcinus orca) ............ 240 101,305 1,924 11,233 25,750 1,918 20,990 636 0 0 0 25 2 0 0 0 Authorized Level B harassment take Authorized total take % of Population 1,598 a .................................. 2 b ......................................... 1,905 c .................................. 187 ....................................... 23 (single occurrence of one pod) d. 42 e ....................................... 49 f ........................................ 49 g ....................................... 2,716 .................................... 196 ....................................... 5 h ......................................... 4 ........................................... 10 ......................................... 1,651 .................................... 2 ........................................... 1,905 .................................... 187 ....................................... 23 (single occurrence of one pod). 42 ......................................... 49 ......................................... 49 ......................................... 2,741 .................................... 198 ....................................... 5 ........................................... 4 ........................................... 10 ......................................... 14.96. Less than 1. Less than 1. Less than 1. 27.71. 17.5. Less than Less than 24.4. Less than Less than Less than Less than 1. 1. 1. 1. 1. 1. Note: a The take estimate is based on a maximum of 13 seals observed on a given day during the 2016 Seattle Test Pile project. The number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. b The take estimate is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting of a northern elephant seal in the area between 2008 and 2014, but conservatively NMFS estimated two takes. c The take estimate is based on a maximum of 15 California sea lions observed on a given day during 4 monitoring seasons of the EBSP project. d The take estimate is based on a single occurrence of one pod of SRKW (i.e., J-pod of 23 SRKW) that would be most likely to be seen near Seattle. e The take estimate is based on local data which is greater than the estimates produced using the Navy density estimates. f The take estimate is based on the local data from several sources including Cascadia Research Collective and the Orca Network for long-beaked common dolphins. g The take estimate is based on local data. A group of seven dolphins were observed in Puget Sound in 2017 and were positively identified as part of the CA coastal stock (Cascadia Research Collective, 2017). h The take estimate is based on take during previous work in Elliott Bay, where two humpback whales were observed and is greater than what was calculated using 2015 Navy density estimates. VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4703 E:\FR\FM\10AUN1.SGM 10AUN1 39721 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices Mitigation In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) and the likelihood of effective implementation (probability implemented as planned), and; (2) the practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations. Several measures for mitigating effects on marine mammals and their habitat from the pile installation and removal activities at Pier 62 are described below. Timing Restrictions All work must be conducted during daylight hours. Pre-Construction Briefing Seattle DOT must conduct briefings for construction supervisors and crews, the monitoring team, and Seattle DOT staff prior to the start of all pile driving and removal activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures. Bubble Curtain A bubble curtain must be used during pile driving activities with an impact hammer to reduce sound levels. Seattle DOT has stated as part of their specified activity that they have agreed to employ a bubble curtain during impact pile driving of steel piles and must implement the following bubble curtain performance standards: (i) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. (ii) The lowest bubble curtain ring must be deployed on or as close to the mudline for the full circumference of the ring as possible, without causing turbidity. (iii) Seattle DOT must require that construction contractors train personnel in the proper balancing of air flow to the bubblers, and must require that construction contractors submit an inspection/performance report for approval by Seattle DOT within 72 hours following the performance test. Corrections to the attenuation device to meet the performance standards must occur prior to impact driving. Shutdown Zones Shutdown Zones must be implemented to protect marine mammals from Level A harassment (Table 19 below). The PTS isopleths described in Table 7 were used as a starting point for calculating the shutdown zones; however, Seattle DOT must implement a minimum shutdown zone of a 10 m radius around each pile for all construction methods for all marine mammals. Therefore, in some cases the shutdown zone must be slightly larger than was calculated for the PTS isopleths as described in Table 7 (i.e., for mid-frequency cetaceans and otariid pinnipeds). Outside of any Level A harassment take authorized, if a marine mammal is observed at or within the Shutdown Zone, work must shut down (stop work) until the individual has been observed outside of the zone, or has not been observed for at least 15 minutes for all marine mammals. A determination that the Shutdown Zone is clear must be made during a period of good visibility (i.e., the entire Shutdown Zone and surrounding waters must be visible to the naked eye). If a marine mammal approaches or enters the Shutdown Zone during activities or pre-activity monitoring, all pile driving and removal activities at that location must be halted or delayed, respectively. If pile driving or removal is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or 15 minutes have passed without redetection of the animal. Pile driving and removal activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes. TABLE 19—SHUTDOWN ZONES FOR VARIOUS PILE DRIVING AND REMOVAL ACTIVITIES FOR MARINE MAMMAL HEARING GROUPS Low-frequency cetaceans Sound source type Mid-frequency cetaceans High-frequency cetaceans Phocid pinnipeds Otariid pinnipeds daltland on DSKBBV9HB2PROD with NOTICES Shutdown Zones (meters) 1—Vibratory (pile removal) .................... 2—Vibratory (installation) ....................... 3—Impact (installation) .......................... Additional Shutdown Measures For in-water heavy machinery activities other than pile driving, if a marine mammal comes within 10 m, VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 28 505 89 10 45 10 41 747 106 operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions. PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 17 307 48 Seattle DOT must implement shutdown measures if the cumulative total number of individuals observed within the Level B Harassment/ E:\FR\FM\10AUN1.SGM 10AUN1 10 22 10 39722 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices Monitoring Zones (below in Table 20) for any particular species reaches the number authorized under the IHA and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B Harassment/Monitoring Zone during inwater construction activities. Level B Harassment/Monitoring Zones Seattle DOT must monitor the Level B Harassment/Monitoring Zones as described in Table 20. TABLE 20—LEVEL B HARASSMENT/MONITORING ZONES FOR VARIOUS PILE DRIVING AND REMOVAL ACTIVITIES Level B threshold (m) Activity Construction method Removal of 14-in Timber Piles .................................................................. Installation of 30-in Steel Piles .................................................................. Installation of 30-in Steel Piles .................................................................. Vibratory .......................................... Vibratory .......................................... Impact .............................................. Soft-Start for Impact Pile Driving Each day at the beginning of impact pile driving or any time there has been cessation or downtime of 30 minutes or more without impact pile driving, Seattle DOT must use the soft-start technique by providing an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 30second waiting period, then two subsequent three-strike sets. Soft start must be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer. daltland on DSKBBV9HB2PROD with NOTICES Additional Coordination The project team must monitor and coordinate with local marine mammal networks on a daily basis (i.e., Orca Network and/or the CWR) for sightings data and acoustic detection data to gather information on the location of whales prior to pile removal or pile driving activities. The project team must also coordinate with Washington State Ferries to discuss marine mammal sightings on days when pile driving and removal activities are occurring on their nearby projects. Marine mammal monitoring must be conducted to collect information on the presence of marine mammals within the Level B Harassment/Monitoring Zones for this project. In addition, reports must be made available to interested parties upon request. With this level of coordination in the region of activity, Seattle DOT must get real-time information on the presence or absence of whales before starting any pile driving or removal activities. During Season 1, Seattle DOT carried out additional voluntary mitigation measures during pile driving and removal activities to minimize impacts from noise on the Seattle Aquarium’s captive marine mammals as well as for air and water quality concerns. These measures were successfully coordinated and implemented, and Seattle DOT will VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 implement the same measures during Season 2 work, as follows: 1. If aquarium animals are determined by the Aquarium veterinarian to be distressed, Seattle DOT will coordinate with Aquarium staff to determine appropriate next steps, which may include suspending pile driving work for 30 minutes, provided that suspension does not pose a safety issue for the Pier 62 project construction crews. 2. Seattle DOT will make reasonable efforts to take at least one regularly scheduled 20-minute break in pile driving each day. 3. Seattle DOT will regularly communicate with the Aquarium staff when pile driving is occurring. 4. Seattle DOT will further coordinate with the Aquarium to determine appropriate methods to avoid and minimize impacts to water quality. 5. Seattle DOT does not anticipate the project resulting in impacts associated with airborne dust. If, during construction, odors associated with the project are an issue, Seattle DOT will coordinate with its contractor to determine appropriate mitigation measures. Based on our evaluation of the applicant’s mitigation measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. 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 PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 2,929 54,117 1,201 Level B ZOI (km2) 10.5 91 2.3 that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density). • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas). • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors. • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks. • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat). • Mitigation and monitoring effectiveness. Marine mammal monitoring must be conducted at all times during in-water pile driving and pile removal activities E:\FR\FM\10AUN1.SGM 10AUN1 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices in strategic locations around the area of potential effects as described below: D During pile removal or installation with a vibratory hammer, three to four monitors would be used, positioned such that each monitor has a distinct view-shed and the monitors collectively have overlapping view-sheds (refer to Appendix A, Figures 1–3 of the Seattle DOT’s application). D During pile driving activities with an impact hammer, one monitor must be based at or near the construction site, and in addition, two to three additional monitors would be used, positioned such that each monitor has a distinct view-shed and the monitors collectively have overlapping view-sheds (refer to Appendix A, Figures 1–3 of the Seattle DOT’s application). D In the case(s) where visibility becomes limited, additional land-based monitors and/or boat-based monitors may be deployed. D Monitors must record take when marine mammals enter the relevant Level B Harassment/Monitoring Zones based on type of construction activity. If a marine mammal approaches or enters the Shutdown Zone during activities or pre-activity monitoring, all pile driving or removal activities at that location must be halted or delayed, respectively. If pile driving or removal is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the Shutdown Zone or 15 minutes have passed without re-detection of the animal. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes. daltland on DSKBBV9HB2PROD with NOTICES Protected Species Observers Seattle DOT must employ NMFSapproved protected species observers (PSOs) to conduct marine mammal monitoring for its Pier 62 Project. The PSOs must 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 must meet the following requirements: 1. Independent PSOs (i.e., not construction personnel) are required. 2. At least one PSO must have prior experience working as a marine mammal observer during construction activities. 3. Other PSOs may substitute education (degree in biological science VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 or related field) or training for experience. 4. Where a team of three or more PSOs are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as a marine mammal observer during construction. 5. NMFS must require submission and approval of observer CVs. Seattle DOT must ensure that observers have the following additional qualifications: 1. Ability to conduct field observations and collect data according to assigned protocols. 2. Experience or training in the field identification of marine mammals, including the identification of behaviors. 3. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations. 4. Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior. 5. Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary. PSOs must monitor marine mammals around the construction site using highquality binoculars (e.g., Zeiss, 10 x 42 power) and/or spotting scopes. Due to the different sizes of the Level B Harassment/Monitoring Zones from different pile sizes, several different Level B Harassment/Monitoring Zones and different monitoring protocols corresponding to a specific pile size must be established. If marine mammals are observed, the following information must be documented: 1. Date and time that monitored activity begins or ends for each day conducted (monitoring period); 2. Construction activities occurring during each observation period, including how many and what type of piles driven; 3. Deviation from initial proposal in pile numbers, pile types, average driving times, etc. 4. Weather parameters in each monitoring period (e.g., wind speed, percent cover, visibility); 5. Water conditions in each monitoring period (e.g., sea state, tide state); PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 39723 6. For each marine mammal sighting: a. Species, numbers, and, if possible, sex and age class of marine mammals; b. Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving or removal activity; c. Location and distance from pile driving or removal activities to marine mammals and distance from the marine mammals to the observation point; and d. Estimated amount of time that the animals remained in the Level B Harassment Zone. 7. Description of implementation of mitigation measures within each monitoring period (e.g., shutdown or delay); 8. Other human activity in the area within each monitoring period 9. A summary of the following: a. Total number of individuals of each species detected within the Level B Harassment/Monitoring Zone, and estimated as taken if correction factor appropriate. b. Total number of individuals of each species detected within the Shutdown Zone and the average amount of time that they remained in that zone. c. Daily average number of individuals of each species (differentiated by month as appropriate) detected within the Level B Harassment/Monitoring Zone, and estimated as taken, if appropriate. Acoustic Monitoring In addition, acoustic monitoring must occur on up to six days per in-water work season to evaluate, in real time, sound production from construction activities and must capture all hammering scenarios that may occur under the planned project. The results and conclusions of the acoustic monitoring must be summarized and presented to NMFS with recommendations on any modifications to this plan or Shutdown Zones. Reporting Measures Marine Mammal Monitoring Report Seattle DOT must submit a draft marine mammal monitoring report within 90 days after completion of the in-water construction work, the expiration of the IHA, or 60 days prior to the requested date of issuance of any subsequent IHA, whichever is earliest. The report would include data from marine mammal sightings as described: Date, time, location, species, group size, and behavior, any observed reactions to construction, distance to operating pile hammer, and construction activities E:\FR\FM\10AUN1.SGM 10AUN1 daltland on DSKBBV9HB2PROD with NOTICES 39724 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices occurring at time of sighting and environmental data for the period (i.e., wind speed and direction, sea state, tidal state, cloud cover, and visibility). The marine mammal monitoring report must also include total takes, takes by day, and stop-work orders for each species. NMFS must have an opportunity to provide comments on the report, and if NMFS has comments, Seattle DOT must address the comments and submit a final report to NMFS within 30 days. If no comments are received from NMFS within 30 days, the draft report must be considered final. Any comments received during that time must be addressed in full prior to finalization of the report. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as an injury (Level A harassment), serious injury, or mortality, Seattle DOT would immediately cease the specified activities and immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS’ West Coast Stranding Coordinator. The report must include the following information: • Time, date, and location (latitude/ longitude) of the incident; • Name and type of vessel involved; • Vessel’s speed during and leading up to the incident; • Description of the incident; • Status of all sound source use in the 24 hrs preceding the incident; • Water depth; • Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); • Description of all marine mammal observations in the 24 hrs preceding the incident; • Species identification or description of the animal(s) involved; • Fate of the animal(s); and • Photographs or video footage of the animal(s) (if equipment is available). Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with Seattle DOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Seattle DOT may not resume their activities until notified by NMFS via letter, email, or telephone. Reporting of Injured or Dead Marine Mammals In the event that Seattle DOT discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), Seattle DOT must immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS’ West Coast Stranding Coordinator. The report must include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with Seattle DOT to determine whether modifications in the activities are appropriate. In the event that Seattle DOT discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Seattle DOT must report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS Stranding Hotline and/or by email to the NMFS’ West Coast Stranding Coordinator within 24 hrs of the discovery. Seattle DOT would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Activities may continue while NMFS reviews the circumstances of the incident. Acoustic Monitoring Report Seattle DOT must submit an Acoustic Monitoring Report within 90 days after completion of the in-water construction work or the expiration of the IHA, whichever comes earlier. The report must provide details on the monitored piles, method of installation, monitoring equipment, and sound levels documented during both the sound source measurements and the background monitoring. NMFS must have an opportunity to provide comments on the report or changes in monitoring for a third season (if needed), and if NMFS has comments, Seattle DOT must address the comments and submit a final report to NMFS within 30 days. If no comments are received from NMFS within 30 days, the draft report must be considered final. Any comments received during that time must be addressed in full prior to finalization of the report. Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 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). No serious injury or mortality is anticipated or authorized for the Pier 62 Project (Season 2). Takes that are anticipated and authorized are expected to be limited to short-term Level A and Level B (behavioral) harassment. Marine mammals present in the vicinity of the action area and taken by Level A and Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal. However, many marine mammals showed no observable changes during Season 1 of the Pier 62 project and similar project activities for the EBSP. A fair number of instances of takes are expected to be repeat takes of the same animals. This is particularly true for harbor porpoise, because they generally use sub-regions of Puget Sound, and the abundance of the Seattle sub-region from the Puget Sound Study was estimated to be 147 animals, which is much lower than the calculated take. Very few harbor porpoises have been observed during past projects in Elliott Bay (ranging from one to five harbor porpoises). There are two endangered species that may occur in the project area, E:\FR\FM\10AUN1.SGM 10AUN1 daltland on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices humpback whales and SRKW. However, few humpbacks are expected to occur in the project area and few have been observed during previous projects in Elliott Bay. SRKW have occurred in small numbers in the project area. Seattle DOT must shut down in the Level B Harassment/Monitoring Zones should they meet or exceed the take of one occurrence of one pod (J-pod, 23 whales). There is ESA-designated critical habitat in the vicinity of Seattle DOT’s Pier 62 Project for SRKW. However, this IHA is authorizing the harassment of marine mammals, not the production of sound, which is what would result in adverse effects to critical habitat for SRKW. There is one documented harbor seal haulout area near Bainbridge Island, approximately 6 miles (9.66 km) from Pier 62. The haulout, which is estimated at less than 100 animals, consists of intertidal rocks and reef areas around Blakely Rocks and is at the outer edge of potential effects at the outer extent near Bainbridge Island (Jefferies et al. 2000). The recent level of use of this haulout is unknown. Harbor seals also make use of docks, buoys, and beaches in the project area, as noted in marine mammal monitoring reports for Season 1 of the Pier 62 Project and for the EBSP (Anchor QEA 2014, 2015, 2016, and 2017). Similarly, the nearest Steller sea lion haulout to the project area is located approximately 6 miles away (9.66 km) and is also on the outer edge of potential effects. This haulout is composed of net pens offshore of the south end of Bainbridge Island. There are four documented California sea lion haulout areas near Bainbridge Island as well, approximately six miles from Pier 62, and two documented haulout areas between Bainbridge Island and Magnolia (Jefferies et al. 2000). The haulouts consist of buoys and floats, and some are within the area of potential effects, but at the outer extent, and some are just outside the area of potential effects (Jefferies et al. 2000). California sea lions were also frequently observed during marine mammal monitoring for Season 1 of the Pier 62 project (average of eight sea lions) at the Alki monitoring site and were frequently observed resting on two buoys in the southwest area of Elliott Bay. California sea lions were also frequently observed during the EBSP (average seven per day in 2014 and 2015, and three per day in 2016 and 2017; Anchor QEA 2014, 2015, 2016, and 2017), resting on two navigational buoys within the project area (near Alki Point) and swimming along the shoreline near the project. VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 The project also is not expected to have significant adverse effects on affected marine mammal habitat, as analyzed in the ‘‘Potential Effects of Specified Activities on Marine Mammals and their Habitat’’ section. Project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals’ foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, Seattle DOT’s Pier 62 Project 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 stocks through effects on annual rates of recruitment or survival: • No serious injury or mortality is anticipated or authorized. • Takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral) and a small number of takes of Level A harassment for three species. • The project also is not expected to have significant adverse effects on affected marine mammals’ habitat. • There are no known important feeding or pupping areas. There are haulouts for California sea lions, harbor seals and Steller sea lions. However, they are at the most outer edge of the potential effects and approximately 6.6 miles from Pier 62. There are no other known important areas for marine mammals. • For nine of the twelve species, take is less than one percent of the stock abundance. Instances of take for the other three species (harbor seals, killer whales, and harbor porpoise) range from about 15–28 percent of the stock abundance. One occurrence of J-pod of SRKW would account for 28 percent of the stock abundance. However, when the fact that a fair number of these instances are expected to be repeat takes of the same animals is considered, particularly for harbor porpoise, the number of individual marine mammals taken is significantly lower. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 39725 and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Take of nine of the twelve species is less than one percent of the stock abundance. Instances of take for the SRKW and transient killer whales, harbor seals, and harbor porpoise ranges from about 15–28 percent of the stock abundance, all of which NMFS has determined comprise small numbers of these stocks. Additionally, when the fact that a fair number of these instances are expected to be repeat takes of the same animals is considered, the number of individual marine mammals taken is significantly lower. Specifically, Smultea et al. 2017 conducted harbor porpoise surveys in eight regions of Puget Sound, and estimated an abundance of 168 harbor porpoise in the Seattle area (100 in Bainbridge (just west of Seattle) and 265 in Southern Puget Sound). While individuals do move between regions, we would not realistically expect that 2,500+ harbor porpoise individuals would be exposed around the pile driving and removal activities for the Seattle DOT’s Pier 62 Project. Considering these factors, as well as the general small size of the project area as compared to the range of the species affected, the numbers of marine mammals estimated to be taken are small proportions of the total populations of the affected species or stocks. Further, for SRKW, 27.71 percent of the stock is authorized to be taken by Level B harassment, but we also believe that a single, brief incident of take of one group of any species represents take of small numbers for that species. Based on the analysis contained herein of the planned activity E:\FR\FM\10AUN1.SGM 10AUN1 39726 Federal Register / Vol. 83, No. 155 / Friday, August 10, 2018 / Notices (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act (ESA) Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the West Coast Regional Office (WCRO), whenever we propose to authorize take for endangered or threatened species. The Permit and Conservation Division consulted under section 7 of the ESA with the WCRO for the issuance of this IHA. The WCRO concluded that the take of marine mammals authorized here is not likely to jeopardize the continued existence of SRKW and humpback whales and will not result in the destruction or adverse modification of designated critical habitat. daltland on DSKBBV9HB2PROD with NOTICES Authorization NMFS has issued an IHA to the Seattle DOT for the harassment of small numbers of marine mammals incidental to pile driving and removal activities for the Pier 62 Project (Season 2) within Elliott Bay, Seattle, Washington from August 1, 2018 to February 28, 2019, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: August 7, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2018–17185 Filed 8–9–18; 8:45 am] BILLING CODE 3510–22–P VerDate Sep<11>2014 19:03 Aug 09, 2018 Jkt 244001 DEPARTMENT OF DEFENSE Department of the Army Advisory Committee on Arlington National Cemetery; Notice of Federal Advisory Committee Meeting Department of the Army, DoD. Notice of Federal Advisory Committee meeting. AGENCY: ACTION: The Department of Defense is publishing this notice to announce that the following Federal Advisory Committee meeting of the Advisory Committee on Arlington National Cemetery will take place. DATES: The Committee will meet on Friday, September 7, 2018 from 10:30 a.m. to 2:00 p.m. ADDRESSES: The Committee will meet in the Welcome Center Conference Room, Arlington National Cemetery, Arlington, VA 22211. FOR FURTHER INFORMATION CONTACT: Mr. Timothy Keating, Alternate Designated Federal Officer for the Committee, 1– 877–907–8585 (Voice), (703) 607–8551 (Facsimile), timothy.p.keating.civ@ mail.mil (Email). Mailing address is Arlington National Cemetery, Arlington, VA 22211. Website: https:// www.arlingtoncemetery.mil/About/ Advisory-Committee-on-ArlingtonNational-Cemetery/Charter. The most up-to-date changes to the meeting agenda can be found on the website. SUPPLEMENTARY INFORMATION: This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.140 and 102–3.150. Purpose of the Meeting: The Advisory Committee on Arlington National Cemetery is an independent federal advisory committee chartered to provide the Secretary of the Army independent advice and recommendations on Arlington National Cemetery, including, but not limited to, cemetery administration, the erection of memorials at the cemetery, and master planning for the cemetery. The Secretary of the Army may act on the Committee’s advice and recommendations. Agenda: The Committee will receive a report by the Remember and Explore Subcommittee regarding a proposal to erect a commemorative monument within ANC and may deliberate a recommendation to the sponsor. Additionally, the Committee will receive a report from the Honor Subcommittee regarding fact-finding to SUMMARY: PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 develop possible courses of action regarding the future of ANC to present in a roundtable forum with representatives of Veteran and Military Service Organizations. The subcommittee will also report any proposed recommendations as a result of that roundtable discussion. The Committee will study and deliberate any recommendations and may formally report recommendations to the sponsor for keeping ANC open well in to the future. Meeting Accessibility: Pursuant to 5 U.S.C. 552b and 41 CFR 102–3.140 through 102–3.165, and the availability of space, this meeting is open to the public. Seating is on a first-come basis. The Arlington National Cemetery conference room is readily accessible to and usable by persons with disabilities. For additional information about public access procedures, contact Mr. Timothy Keating, the Alternate Designated Federal Officer, at the email address or telephone number listed in the FOR FURTHER INFORMATION CONTACT section. Written Statements: Pursuant to 41 CFR 102–3.105(j) and 102–3.140 and section 10(a)(3) of the Federal Advisory Committee Act, the public or interested organizations may submit written comments or statements to the Committee, in response to the stated agenda of the open meeting or in regard to the Committee’s mission in general. Written comments or statements should be submitted to Mr. Timothy Keating, the Alternate Designated Federal Officer, via electronic mail, the preferred mode of submission, at the address listed in the FOR FURTHER INFORMATION CONTACT section. Each page of the comment or statement must include the author’s name, title or affiliation, address, and daytime phone number. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the Designated Federal Officer at least seven business days prior to the meeting to be considered by the Committee. The Designated Federal Officer will review all timely submitted written comments or statements with the Committee Chairperson, and ensure the comments are provided to all members of the Committee before the meeting. Written comments or statements received after this date may not be provided to the Committee until its next meeting. Pursuant to 41 CFR 102–3.140d, the Committee is not obligated to allow a member of the public to speak or otherwise address the Committee during the meeting. Members of the public will be permitted to make verbal comments during the Committee meeting only at E:\FR\FM\10AUN1.SGM 10AUN1

Agencies

[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Notices]
[Pages 39709-39726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17185]

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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG291

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

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

ACTION: Incidental harassment authorization.

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

SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
the Seattle Department of Transportation (DOT) to incidentally harass,
by Level A and B harassment, marine mammals during pile driving and
removal activities associated with the restoration of Pier 62, Seattle
Waterfront, Elliott Bay in Seattle, Washington (Season 2).

DATES: This Authorization is applicable from August 1, 2018 through
February 28, 2019.

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: https://www.fisheries.noaa.gov/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, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).

National Environmental Policy Act

In compliance with NOAA policy, the National Environmental Policy
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), and the Council on
Environmental Quality Regulations (40 CFR parts 1500-1508), NMFS
determined the issuance of the IHA qualifies to be categorically
excluded from further NEPA review. This action is consistent with
categories of activities identified in CE B4 of the Companion Manual
for NOAA Administrative Order 216-6A, which do not individually or
cumulatively have

[[Page 39710]]

the potential for significant impacts on the quality of the human
environment and for which we have not identified any extraordinary
circumstances that would preclude this categorical exclusion.

Summary of Request

On January 27, 2018, NMFS received a request from the Seattle DOT
for a second IHA to take marine mammals incidental to pile driving and
removal activities for the restoration of Pier 62, Seattle Waterfront,
Elliott Bay in Seattle, Washington. A revised request was submitted on
May 18, 2018, which was deemed adequate and complete. Seattle DOT's
request is for take of 12 species of marine mammals, by Level B
harassment and Level A harassment (three species only). Neither Seattle
DOT nor NMFS expects serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to Seattle DOT for related work for
Season 1 of this activity (82 FR 47176; October 11, 2017). Seattle DOT
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 Description of Marine Mammals in
the Area of Specified Activities and Estimated Take sections.
This IHA will cover the second season of work for the Seattle DOT
Pier 62 project and provides take authorization for these subsequent
facets of the project. The second season of the larger project is
expected to primarily involve the remaining pile driving for Pier 62
and Pier 63. If the Seattle DOT encounters delays due to poor weather
conditions, difficult pile driving, or other unanticipated challenges,
an additional in-water work season may be necessary. If so, a separate
IHA may be prepared for the third season of work.

Description of Specified Activities

The planned project will replace Pier 62 and make limited
modifications to Pier 63 on the Seattle waterfront of Elliott Bay,
Seattle, Washington. The existing piers are constructed of creosote-
treated timber piles and treated timber decking, which are failing. The
planned project would demolish and remove the existing timber piles and
decking of Pier 62, and replace them with concrete deck planks,
concrete pile caps, and steel piling. The majority of the timber pile
removal required by the project occurred during the 2017-2018 in-water
work season (Season 1).
A total of 831 piles were removed from Pier 62 and Pier 63 during
Season 1 (see Table 1 below). Timber pile removal work in Season 2
(2018-2019 in-water work window) may occur for an estimated 10 days (49
remaining timber piles), if the contractor encounters deteriorated
piles that pose a safety hazard or are within the area where grated
decking or habitat improvements are to be installed. Pile installation
will occur via vibratory and impact hammers. Seattle DOT estimates 10
days will be needed to remove the old timber piles, 53 days for
vibratory installation of steel piles, and 64 days for impact
installation of steel piles for a total of 127 in-water construction
days for both Pier 62 and Pier 63 (see Table 1 below). Seattle DOT
expects most days for vibratory and impact installation of steel piles
will overlap, for a total of fewer than 127 days. The 14-inch (in)
timber piles will be removed with a vibratory hammer or pulled with a
clamshell bucket. The 30-in steel piles will be installed with a
vibratory hammer to the extent possible. The maximum extent of pile
removal and installation activities are described in Table 1. An impact
hammer will be used for proofing steel piles or when encountering
obstructions or difficult ground conditions. In addition, a pile
template will be installed to ensure the piles are placed properly. It
is anticipated that the contractor will complete the pile installation
during the 2018-2019 in-water work window. In-water work may occur
within a modified or shortened work window (September through February)
to reduce or minimize effect on juvenile salmonids.

Table 1--Pile Installation and Removal Plan
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Actual Additive
Number of Completed during duration Remaining work Anticipated Hours per Single source source sound
Activity Pile type piles Season 1 Season 1 Season 2 duration Season 2 day Hammer type sound levels levels (dBRMS)
(days) (dBRMS)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Remove......... Creosote-treated 880........... 831 piles removed. 19........... 49 timber piles... 10 days........... 8.......... Vibratory......... \2\ 161 dB.... ..............
timber, 14-inch
\1\.
Steel template 2............. .................. ............. 2................. Daily \3\......... ........... Vibratory......... \4\ 177 dB.... ..............
pile, 24-inch.
Install........ Steel pile, 30-inch 189........... 2 steel sheet 1............ 189 steel piles... 53 days........... 8.......... Vibratory......... \6\ 177 dB.... \7\ 180 dB
piles installed.
64 days \8\....... 8.......... Impact............ \9\ 189 dB.... \10\ 189 dB
Steel template 2............. .................. ............. 2................. Daily \3\......... ........... Vibratory......... \4\ 177 dB.... ..............
pile, 24-inch.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Assumed to be 14-inch diameter.
\2\ Hydroacoustic monitoring during Pier 62 Season 1 showed unweighted RMS ranging from 140 dB to 169 dB; the 75th percentile of these values is 161 dBRMS and was used to calculate thresholds.
\3\ The two template piles will be installed and removed daily. The time associated with this activity is included in the overall 8-hour pile driving day associated with installation of the 30-
inch steel piles.
\4\ Assumed to be no greater than vibratory installation of the 30-inch steel pile.
\6\ Source sound from Port Townsend Test Pile Project (WSDOT 2010).
\7\ For simultaneous operation of two vibratory hammers installing steel pipe piles, the 180 dBRMS value is based on identical single-source levels, adding three dB based on WSDOT rules for
decibel addition (2018).
\8\ Approximately 20 percent of the pile driving effort is anticipated to require an impact hammer, which results in approximately 11 cumulative days of impact hammer activity. However, the
impact hammer activity is sporadic, often occurring for short periods each day. A total of 64 days represents the number of days in which pile installation with an impact hammer could occur,
with the anticipation that each day's impact hammer activity would be short.
\9\ Source level from Colman Dock Test Pile Project (WSDOT 2016).
\10\ For simultaneous operation of one impact hammer and one vibratory hammer installing 30-inch piles, the original dBRMS estimates differ by more than 10 dB, so the higher value, 189 dBRMS,
is used based on WSDOT rules for decibel addition (2018).
RMS--root mean square: The square root of the energy divided by the impulse duration. This level is the mean square pressure level of the pulse. It has been used by NMFS to describe
disturbance-related effects (i.e., harassment) to marine mammals from underwater impulse-type noises.
WSDOT--Washington State Department of Transportation.

The contractor may elect to operate multiple pile crews for the
Seattle DOT Pier 62 Project. As a result, more than one vibratory or
impact hammer may be active at the same time. For the Pier 62 Project,
there is a low likelihood that multiple impact hammers would operate in
a manner that piles would be struck simultaneously; however, as a
conservative approach we used a multiple-source decibel (dB) rule when
determining the Level A and Level B harassment zones for this project.
Table 2 provides guidance on adding dBs to account for multiple sources
(WSDOT 2015a):

[[Page 39711]]

Table 2--Multiple Source Decibel Addition
------------------------------------------------------------------------
Add the following to the
When two decibel values differ by: higher decibel value:
------------------------------------------------------------------------
0-1 dB.................................... 3 dB
2-3 dB.................................... 2 dB
4-9 dB.................................... 1 dB
------------------------------------------------------------------------

A detailed description of Seattle DOT's planned Pier 62 (Season 2)
project is provided in the Federal Register notice for the proposed IHA
(83 FR 30120; June 27, 2018). Since that time, no changes have been
made to the planned activities. Therefore, a detailed description is
not provided here. Please refer to that Federal Register notice for the
description of the specific activity.

Comments and Responses

A notice of NMFS' proposal to issue an IHA was published in the
Federal Register on June 27, 2018 (83 FR 30120). That notice described,
in detail, Seattle DOT's activity, the marine mammal species that may
be affected by the activity, and the anticipated effects on marine
mammals. During the 30-day public comment period, NMFS received a
comment letter from the Marine Mammal Commission (Commission). Specific
comments and responses from the Commission's comment letter are
provided below. The Commission recommended that NMFS issue the IHA,
subject to inclusion of the proposed mitigation, monitoring, and
reporting measures.
Comment 1: The Commission commented on errors regarding the Level B
harassment calculations.
NMFS Response: NMFS acknowledges these errors and has corrected
them in this notice and in the final IHA.
Comment 2: The Commission asserts that NMFS underestimated take
estimates for harbor seals by Level A harassment and take estimates for
long-beaked common dolphin, bottlenose dolphin, and Northern elephant
seal by Level B harassment.
NMFS Response: NMFS does not believe the take estimates were
incorrect in the proposed IHA for these species. However, NMFS
increased the take estimates as suggested, which provides more
conservative coverage for some species.
Comment 3: The Commission commented that NMFS should use the
Smultea et al., 2017 report rather than the Jefferson et al., 2016
density estimates for harbor porpoise. The Commission also commented on
an error for the density estimate for minke whales.
NMFS response: NMFS agrees and updated the density estimate for
harbor porpoise by Smultea et al., 2017 and accordingly the estimated
takes by Level A and Level B harassment of harbor porpoise decreased.
NMFS also corrected the density estimate for minke whales.
Comment 4: The Commission requested clarification regarding certain
issues associated with NMFS' 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. The Commission also noted that NMFS
had recently begun utilizing abbreviated notices, referencing relevant
documents, to solicit public input and suggested that NMFS use these
notices and solicit review in lieu of the currently proposed renewal
process.
NMFS 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 the FR notices that consider renewals, requesting input specifically
on the possible renewal itself. 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 circumstances 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 they are for all IHAs. The
option for issuing renewal IHAs has been in NMFS's incidental take
regulations since 1996. See 50 CFR 216.107(e). We will provide any
additional information to the Commission and consider posting a
description of the renewal process on our website before any renewal is
issued utilizing this process.

Description of Marine Mammals in the Area of Specified Activities

The marine mammal species under NMFS's jurisdiction that have the
potential to occur in the construction area include Pacific harbor seal
(Phoca vitulina), northern elephant seal (Mirounga angustirostris),
California sea lion (Zalophus californianus), Steller sea lion
(Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's
porpoise (Phocoenoides dalli), long-beaked common dolphin (Delphinus
capensis), common bottlenose dolphin (Tursiops truncatus), both
southern resident and transient killer whales (Orcinus orca), humpback
whale (Megaptera novaengliae), gray whale (Eschrichtius robustus), and
minke whale (Balaenoptera acutorostrata) (Table 3). Of these, the
southern resident killer whale (SRKW) and humpback whale are protected
under the Endangered Species Act (ESA). Pertinent information for each
of these species is presented in this document to provide the necessary
background to understand their demographics and distribution in the
area.

[[Page 39712]]

Table 3--Marine Mammal Species Potentially Present in Region of Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/SI
\1\ abundance survey) \2\ \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
Family Eschrichtiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale......................... Eschrichtius robustus. Eastern North Pacific. -; N 20,990 (0.05; 20,125; 624 132
2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale..................... Megaptera novaeangliae California/Oregon/ E; D 1,918 (0.03; 1,876; 11.0 >=9.2
novaeangliae. Washington. 2017).
Minke whale........................ Balaenoptera California/Oregon/ -; N 636 (0.72, 369, 2014). 3.5 >=1.3
acutorostrata Washington.
scammoni.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale....................... Orcinus orca.......... Eastern North Pacific -; N 240 (0.49, 162, 2014). 1.6 0
Offshore.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale....................... Orcinus orca.......... Eastern North Pacific E; D 83 (na, 83, 2016)..... 0.14 0
Southern Resident.
Long-beaked common dolphin......... Dephinus capensis..... California............ -; N 101,305 (0.49; 68,432, 657 >=35.4
2014).
Bottlenose dolphin................. Tursiops truncatus.... California/Oregon/ -; N 1,924 (0.54; 1,255, 11 >=1.6
Washington Offshore. 2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Porpoise.................... Phocoena phocoena..... Washington Inland -; N 11,233 (0.37; 8,308; 66 >=7.2
Waters. 2015).
Dall's Porpoise.................... Phocoenoides dalli.... California/Oregon/ -; N 25,750 (0.45, 17,954, 172 0.3
Washington. 2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion................ Zalophus californianus U.S................... -; N 296,750 (na, 153,337, 9,200 389
2011).
Steller sea lion................... Eumetopias jubatus.... Eastern DPS........... -; N 41,638 (-; 41,638; 2,498 108
2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal........................ Phoca vitulina........ Washington Northern -; N 11,036 (0.15, -, Undet. 9.8
Inland Waters stock. 1,999).
Northern elephant seal............. Mirounga California breeding... -; N 179,000 (na; 81,368, 4,882 8.8
angustirostris. 2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases

A detailed description of the species likely to be affected by the
Seattle DOT Pier 62 (Season 2) project, including brief introductions
to the species and relevant stocks as well as available information
regarding population trends and threats, and information regarding
local occurrence, were provided in the Federal Register notice for the
proposed IHA (83 FR 30120; June 27, 2018); since that time, we are not
aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS websites for generalized species accounts for whales (https://www.fisheries.noaa.gov/whales), dolphins and porpoises (https://www.fisheries.noaa.gov/dolphins-porpoises), and pinnipeds (https://www.fisheries.noaa.gov/seals-sea-lions).

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

The effects of underwater noise from the planned activities for the
Seattle DOT Pier 62 (Season 2) project have the potential to result in
Level B behavioral harassment of marine mammals in the vicinity of the
action area. There is also some potential for auditory injury (Level A
harassment) to result, primarily for high frequency species, due to
larger predicted auditory injury zones. Auditory injury is unlikely to
occur for mid-frequency species and most pinnipeds. The mitigation and
monitoring measures (i.e., exclusion zones, use of a bubble curtain,
etc. as discussed in detail below in ``Mitigation'' section), are
expected to minimize the severity of such taking to the extent
practicable.
The project would not result in permanent impacts to habitats used
directly by marine mammals, such as haulout sites, but may have
potential short-term impacts to food sources such as marine
invertebrates and fish species. Construction will also have temporary
effects on salmonids and other fish species in the project area due to
disturbance, turbidity, noise, and the potential resuspension of
contaminants during the Pier 62 project. The Federal Register notice
for the proposed IHA (83 FR 30120 June 27, 2018) included a detailed
discussion of the effects of

[[Page 39713]]

anthropogenic noise on marine mammals and their habitat, and therefore,
that information is not repeated here; please refer to that Federal
Register notice for that information.

Estimated Take

This section provides an estimate of the number of incidental takes
authorized through this IHA, which informed both NMFS's consideration
of whether the number of takes is ``small'' and the negligible impact
determination. Based on public comment, since the Proposed Notice, a
few minor changes have been made to this section, including
modifications to the density and take estimates for species. These
changes are reflected in the tables and narrative below.
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 primarily be by Level B harassment, as
exposure to pile driving and removal activities has the potential to
result in disruption of behavioral patterns for individual marine
mammals. There is also some potential for auditory injury (Level A
harassment) to result, primarily for high frequency species due to
larger predicted auditory injury zones. Auditory injury is unlikely to
occur for mid-frequency species and most pinnipeds. The planned
mitigation and monitoring measures (i.e., shutdown zones, use of a
bubble curtain, etc. as discussed in detail below in ``Mitigation''
section), are expected to minimize the severity of such taking to the
extent practicable. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and (4) and
the number of days of activities. Below, we describe these components
in more detail and present the take estimates.

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
permanent threshold shift (PTS) of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al. 2007, Ellison
et al. 2011). Based on what the available science indicates and the
practical need to use a threshold based on a factor that is both
predictable and measurable for most activities, NMFS uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS predicts that marine mammals are likely to
be behaviorally harassed in a manner we consider Level B harassment
when exposed to underwater anthropogenic noise above received levels of
120 dB re 1 [mu]Pa root mean square (rms) for continuous (e.g.,
vibratory pile-driving, drilling) sources and above 160 dB re 1 [mu]Pa
(rms) for non-explosive impulsive (e.g., impact pile driving sources).
Seattle DOT's planned activity includes the use of continuous
(vibratory pile driving and removal) and impulsive (impact pile
driving) sources, and therefore the 120 and 160 dB re 1 [mu]Pa (rms)
are applicable.
Level A harassment for non-explosive sources--NMFS's Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (NMFS, 2016a) identifies dual criteria to assess
auditory injury (Level A harassment) to five different marine mammal
groups (based on hearing sensitivity) as a result of exposure to noise
from two different types of sources (impulsive or non-impulsive).
Seattle DOT's planned activity includes the use of continuous
(vibratory pile driving and removal) and impulsive (impact pile
driving) sources.
These thresholds were developed by compiling and synthesizing the
best available science and soliciting input multiple times from both
the public and peer reviewers to inform the final product, and are
provided in Table 4 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/resource/document/underwater-acoustic-thresholds-onset-permanent-and-temporary-threshold-shiftshttps://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Lpk,flat: 219 dB; LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Lpk,flat: 230 dB; LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Lpk,flat: 202 dB; LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Lpk,flat: 218 dB; LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Lpk,flat: 232 dB; LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.

[[Page 39714]]

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 fed into identifying the area ensonified above the
acoustic thresholds.
Background noise is the sound level that would exist without the
planned activity (pile driving and removal, in this case), while
ambient sound levels are those without human activity (NOAA 2009). The
marine waterway of Elliott Bay is very active, and human factors that
may contribute to background noise levels include ship traffic. Natural
actions that contribute to ambient noise include waves, wind, rainfall,
current fluctuations, chemical composition, and biological sound
sources (e.g., marine mammals, fish, and shrimp; Carr et al. 2006).
Background noise levels were compared to the relevant threshold levels
designed to protect marine mammals to determine the Level B Harassment
Zones for noise sources. Based on hydroacoustic monitoring conducted
during Season 1 of the Pier 62 Project to determine background noise in
the vicinity of the project, the background level of 124 dB rms was
used to calculate the attenuation for vibratory pile driving and
removal in Season 2 (Greenbusch Group 2018). Although NMFS's harassment
threshold is typically 120 dB for continuous noise, recent site-
specific measurements collected by The Greenbusch Group (2018) as
required by the Season 1 IHA indicate that ambient sound levels are
typically higher than this sound level and ranged from 117 dB to 145
dB. Therefore, we used the 124 dB rms (also the same noise level as
Season 1), as the relevant threshold for Season 2 of the Seattle DOT
Pier 62 project, assuming that any noise generated by the project below
124 dB would be subsumed by the existing background noise and have
little likelihood of causing additional behavioral disturbance.
The source level of vibratory removal of 14-in timber piles is
based on hydroacoustic monitoring measurements conducted at the Pier 62
project site during Season 1 vibratory removal (Greenbusch Group 2018).
The recorded source level ranged from 140 to 169 dB rms re 1
micropascal ([mu]Pa) at 10 meters (m) from the pile, with the 75th
percentile at 161 dB rms. This level, 161 dB rms, was chosen as the
source value for vibratory timber removal in Season 2 because it is a
conservative estimate of potential noise generation; 75 percent of the
timber pile removal noise generated in Season 1 was on average lower
than 161 dB rms. The sound source levels for installation of the 30-in
steel piles and 24-in template piles are based on surrogate data
compiled by the Washington State Department of Transportation (WSDOT).
This value was also used for other pile driving projects (e.g., WSDOT
Seattle Multimodal Construction Project--Colman Dock (82 FR 31579; July
7, 2017)) in the same area as the Seattle Pier 62 project. In February
of 2016, WSDOT conducted a test pile project at Colman Dock. The
measured results from Colman Dock were used for that project and also
here to provide source levels for the prediction of isopleths
ensonified over thresholds for the Seattle Pier 62 project. The results
showed that the sound pressure level (SPL) root-mean-square (rms) for
impact pile driving of a 36-in steel pile is 189 dB re 1 [micro]Pa at
14 m from the pile (WSDOT 2016b). This value is also used for impact
driving of the 30-in steel piles, which is a precautionary approach.
Source level of vibratory pile driving of 36-in steel piles is based on
test pile driving at Port Townsend in 2010 (Laughlin 2011). Recordings
of vibratory pile driving were made at a distance of 10 m from the
pile. The results show that the SPL rms for vibratory pile driving of
36-in steel pile was 177 dB re 1 [micro]Pa (WSDOT 2016a). The source
sound level of 177 dB is used for vibratory steel installation of 30-in
piles and 24-in template piles. The template pile activity occurs in
conjunction with vibratory installation of 30-in steel piles. As such,
the template pile activity is conservatively included as part of 30-in
vibratory steel installation for the purposes of estimating take and
monitoring the project activities. Sound generated by template pile
activity (removal and installation of 24-in steel piles) is expected to
be quieter than sound generated during vibratory steel installation of
30-in piles, because the piles are smaller and do not need to be driven
as deep as structural, permanent 30-in steel piles.
The method of incidental take requested is Level B acoustical
harassment of marine mammals within the 160 dB rms disturbance
threshold (impact pile driving); the 120 dB rms disturbance threshold
(vibratory pile driving); and the 120 dB rms disturbance threshold for
vibratory removal of piles. Therefore, three different Level B
Harassment/Monitoring Zones were established and must be in place
during pile driving installation or removal (Table 5).
For the Level B Harassment/Monitoring Zones, sound waves propagate
in all directions when they travel through water until they dissipate
to background levels or encounter barriers that absorb or reflect their
energy, such as a landmass. Therefore, the area of the Level B
Harassment/Monitoring Zones was determined using land as the boundary
on the north, east and south sides of the project. On the west, land
was also used to establish the zone for vibratory driving. From Alki on
the south and Magnolia on the north, a straight line of transmission
was established out to Bainbridge Island. For impact driving (and
vibratory removal), sound dissipates much quicker and the impact zone
stays within Elliott Bay. Pile-related construction noise would extend
throughout the nearshore and open water environments to just west of
Alki Point and a limited distance into the East Waterway of the Lower
Duwamish River, a highly industrialized waterway. Because landmasses
block in-water construction noise, a ``noise shadow'' created by Alki
Point is expected to be present immediately west of this feature (refer
to Seattle DOT's application for maps depicting the Level B Harassment/
Monitoring Zones).

[[Page 39715]]

Table 5--Level B Zone Harassment/Monitoring Zones Descriptions and Duration of Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level B
Level B harassment Days of
Sound source Activity Construction method threshold (m) zones (km\2\) activity
\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................... Removal of 14-in Timber Piles.. Vibratory \1\................ 2,929 10.5 10
2....................................... Installation of 30[dash]in Vibratory \1\................ 54,117 91 53
Steel Piles and Temporary 24-
in Template Steel Piles.
3....................................... Installation of 30[dash]in Impact....................... 1,201 2.3 64
Steel Piles.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ The Level B thresholds for vibratory installation and removal were calculated to 124 dB rms as the actual ambient noise level rather than 120 dB.
\2\ The Level B Harassment Zones are not based on the distances given but represent actual ensonified area given the surrounding land configuration of
Elliott Bay.

When NMFS Technical Guidance (NMFS 2016) was published, in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, we developed a User Spreadsheet that includes tools
to help predict a simple isopleth that can be used in conjunction with
marine mammal density or occurrence to help predict takes. We note that
because of some of the assumptions included in the methods used for
these tools, we anticipate that isopleths produced are typically going
to be overestimates of some degree, which will result in some degree of
overestimate of Level A harassment take. However, these tools offer the
best way to predict appropriate isopleths when more sophisticated 3D
modeling methods are not available, and NMFS continues to develop ways
to quantitatively refine these tools, and will qualitatively address
the output where appropriate. For stationary sources such as vibratory
and impact pile driving, NMFS's User Spreadsheet predicts the closest
distance at which, if a marine mammal remained at that distance the
whole duration of the activity, it would not incur PTS. Inputs used in
the User Spreadsheet, and the resulting isopleths/Level A Harassment
Zones are reported below.
The PTS isopleths were identified for each hearing group for impact
and vibratory installation and removal methods that must be used in the
Pier 62 Project. The PTS isopleth distances were calculated using the
NMFS acoustic threshold calculator (NMFS 2016), with inputs based on
measured and surrogate noise measurements taken during the Elillott Bay
Seawall Project and from WSDOT, and estimating conservative working
durations (Table 6 and Table 7).

Table 6--NMFS Technical Acoustic Guidance User Spreadsheet Input To Predict PTS Isopleths/Level A Harassment
[User Spreadsheet Input]
----------------------------------------------------------------------------------------------------------------
Sound source 1 Sound source 2 Sound source 3
-----------------------------------------------
Spreadsheet tab used (A) Vibratory (A) Vibratory (E.1) Impact
pile driving pile driving pile driving
(removal) (installation) (installation)
----------------------------------------------------------------------------------------------------------------
Source Level (rms SPL).......................................... a 161 dB b 180 dB ..............
Source Level (Single Strike/shot SEL)........................... .............. .............. c 176 dB
Weighting Factor Adjustment (kHz)............................... 2.5 2.5 2
(a) Number of strikes in 1 h.................................... .............. .............. 20
(a) Activity Duration (h) within 24-h period.................... 8 8 4
Propagation (xLogR)............................................. 15 15 15
Distance of source level measurement (meters) +................. 10 10 14
----------------------------------------------------------------------------------------------------------------
a Greenbusch Group 2018. Pier 62 Project--Draft Acoustic Monitoring Season 1 (2017/2018) Report. Prepared for
City of Seattle Department of Transportation. April 9, 2018.
b Source level for 30-in steel piles was from test pile driving at Port Townsend Ferry Terminal in 2010. SPLrms
for vibratory pile driving was 177 dB re 1 [mu]Pa and 3 dB was added for use of two hammers.
c Source information is from the Underwater Sound Level Report: Colman Dock Test Pile Project 2016.

Table 7--NMFS Technical Acoustic Guidance User Spreadsheet Output for Predicted PTS Isopleths and Level A Harassment Daily Ensonified Areas
[User Spreadsheet Output]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency Mid-frequency High-frequency
Sound source type cetaceans cetaceans cetaceans Phocid pinnipeds Otariid pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
PTS Isopleth (meters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Vibratory (pile removal).............................. 27.3 2.4 40.4 16.6 1.2
2--Vibratory (installation).............................. 504.8 44.7 746.4 306.8 21.5
3--Impact (installation)................................. 88.6 3.2 105.6 47.4 3.5
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 39716]]

Level A Harassment Daily ensonified area (km\2\) a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory (pile removal)................................. 0.00 0.0 0.00 0.00 0.0
Vibratory (installation)................................. 0.400 0.00 0.875 0.148 0.00
Impact (installation).................................... 0.01 0.0 0.018 0.00 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
a Daily ensonified areas were divided by two to only account for the ensonified area within the water and not over land.

Marine Mammal Occurrence and Take Calculation and Estimation

In this section we provide the information about the presence,
density, or group dynamics of marine mammals that informed the take
calculation and we describe how the marine mammal occurrence
information is brought together to produce a quantitative take
estimate. In some cases (e.g., harbor seals and California sea lions)
we used local monitoring to calculate estimated take; however, we also
present take estimates (where available) using the species density data
from the 2015 Pacific Navy Marine Species Density Database (U.S. Navy
2015), as a comparison for estimated take of marine mammals. For harbor
porpoise, we estimated take using the density estimates provided in
Smultea et al., 2017, as this is the best available density information
for this species.
Where species density is available, take estimates are based on
average marine mammal density in the project area multiplied by the
area size of ensonified zones within which received noise levels exceed
certain thresholds (i.e., Level A and Level B harassment) from specific
activities, then multiplied by the total number of days such activities
would occur.
Unless otherwise described, incidental take is estimated by the
following equation:

Incidental take estimate = species density * zone of influence * days
of pile-related activity

However, adjustments were made for nearly every marine mammal
species, whenever their local abundance is known through monitoring
during Season 1 activities and other monitoring efforts. In those
cases, the local abundance data was used for take calculations for the
authorized take instead of general animal density (see below).
Harbor Seal
The take estimate for harbor seals for Pier 62 is based on local
seal abundance information using the maximum number of seals (13)
sighted in one day during the 2016 Seattle Test Pile project multiplied
by the total of 127 pile driving and removal days for the Seattle DOT
Pier 62 Project Season 2 for 1,651 seals. Fifty-three of the 127 days
of activity would involve installation by vibratory pile driving, which
has a much larger Level A Harassment Zone (306.8 m) than the Level A
Harassment Zones for vibratory removal (16.6 m) and impact pile driving
(47.4 m). Harbor seals may be difficult to observe at greater
distances, therefore, during vibratory pile driving, it may not be
known how long a seal is present in the Level A Harassment Zone. We
conservatively estimate that 53 instances of take by Level A harassment
may occur during these 53 days. Fifty-three instances of potential take
by Level A harassment was calculated as follows: 1 harbor seal per day
x 53 days of vibratory pile driving within the 307 m Level A Harassment
Zone. The instances of take by Level B harassment (1,651 seals) was
adjusted to exclude those already counted for instances of take by
Level A harassment, so the authorized instances of take by Level B
harassment is 1,598 harbor seals.
As a comparison, using U.S. Navy species density estimates (U.S.
Navy 2015) for the inland waters of Puget Sound, potential take of
harbor seal is shown in Table 8. Based on these calculations, instances
of take by Level A harassment is estimated at 10 harbor seals from
vibratory pile driving and instances of take by Level B harassment is
estimated at 6,177 harbor seals from all sound sources. However,
observational data from previous projects on the Seattle waterfront
have documented only a fraction of what is calculated using the Navy
density estimates for Puget Sound. For example, between zero and seven
seals were observed daily for the EBSP and 56 harbor seals were
observed over 10 days in the area with the maximum number of 13 harbor
seals sighted during the 2016 Seattle Test Pile project (WSF 2016).
During marine mammal monitoring for Season 1 of the Seattle DOT Pier 62
Project, 10 harbor seals were observed within the Level B Harassment/
Monitoring Zone during vibratory activity. Project activities in Season
1, primarily timber vibratory removal, had a smaller Level B
Harassment/Monitoring Zone than vibratory steel installation (the
primary activity for Seasons 2), so it is expected that harbor seal
observations and takes in Season 2 will be greater and will more
closely resemble observational data from other monitoring efforts such
as EBSP and Seattle Test Pile Project.

Table 8--Harbor Seal Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A Level B Estimated take Estimated take
Sound source Species harassment ZOI harassment ZOI Days of Level A Level B
density (km\2\) (km\2\) activity harassment harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 1.219 0.00 10.5 10 0 128
2....................................................... 1.219 0.148 91 53 10 * 5,879
3....................................................... 1.219 0.00 2.3 64 0 180

[[Page 39717]]

--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Adjusted 5,869.

Northern Elephant Seal
For the Northern elephant seal, the Whale Museum (as cited in WSDOT
2016a) reported one sighting in the relevant area between 2008 and
2014. In addition, based on U.S. Navy species density estimates (U.S.
Navy 2015), potential take of northern elephant seal is expected to be
zero. Therefore, to be conservative. NMFS is authorizing two instances
of take by Level B harassment of northern elephant seals.
California Sea Lion
The take estimate of California sea lions for Pier 62 is based on
Season 1 marine mammal monitoring for the Seattle DOT Pier 62 Project
and four seasons of local sea lion abundance information from the EBSP.
Marine mammal visual monitoring during the EBSP indicates that a
maximum of 15 sea lions were observed in a day during 4 years of
project monitoring (Anchor QEA 2014, 2015, 2016, 2017). Based on a
total of 127 pile driving and removal days for the Seattle Pier 62
project Season 2, it is estimated that up to 1,905 California sea lions
(15 sea lions multiplied by 127 days) could be exposed to noise levels
associated with ``take.'' Since the calculated Level A Harassment Zones
of otariids are all very small (Table 7), we do not consider it likely
that any sea lions would be taken by Level A harassment. Therefore, all
California sea lion takes estimated here are expected to be takes by
Level B harassment and NMFS is authorizing instances of take by Level B
harassment of 1,905 California sea lions.
As a comparison, using the U.S. Navy species density estimates
(U.S. Navy 2015) for the inland waters of Washington, including Eastern
Bays and Puget Sound, potential take of California sea lion is shown in
Table 9. The estimated instances of take by Level B harassment is 643
California sea lions. However, the Seattle DOT believes that this
estimate is unrealistically low, based on local marine mammal
monitoring.

Table 9--California Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.1266 0.0 10.5 10 0 13
2....................................................... 0.1266 0.00 91 53 0 611
3....................................................... 0.1266 0.0 2.3 64 0 19
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Steller Sea Lion
No local monitoring data of Steller sea lions is available.
Therefore, the estimated take for Steller sea lions is based on U.S.
Navy species density estimates (U.S. Navy 2015), and is shown in Table
10. Since the calculated Level A Harassment Zones of otariids are all
very small (Table 7), we do not consider it likely that any Steller sea
lions would be taken by Level A harassment. NMFS is authorizing
instances of take by Level B harassment of 187 Steller sea lions.

Table 10--Steller Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.0368 0.0 10.5 10 0 4
2....................................................... 0.0368 0.00 91 53 0 178
3....................................................... 0.0368 0.0 2.3 64 0 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Southern Resident Killer Whale
The take estimate of SRKW for Pier 62 is based on local data and
information from the Center for Whale Research (CWR). J-pod is the pod
most likely to appear in the lower Puget Sound near Seattle with a
group size of approximately 23 SRKW in 2017, 24 in 2016, and 29 in
2015. (CWR 2017). Therefore, NMFS is authorizing instances of take by
Level B harassment of 23 SRKW based on a single occurrence of one pod
(i.e., J Pod--23 individuals) that would be most likely to be seen near
Seattle. Since the Level A Harassment Zones of mid-frequency cetaceans
are small (Table 7), we do not consider it likely that any SRKW would
be taken by Level A harassment.
The Seattle DOT must coordinate with the Orca Network and the CWR
in an attempt to avoid all take of SRKW, but it may be possible that a
group may enter the Level B Harassment/Monitoring Zones before Seattle
DOT could shut down due to the larger size of the Level B Harassment/
Monitoring Zones particularly during vibratory pile driving
(installation).
As a comparison, using the U.S. Navy species density estimates
(U.S. Navy 2015) the density for the SRKW is variable across seasons
and across the range. The inland water density estimates vary from
0.000000 to 0.000090/km\2\ in summer, 0.001461 to 0.004760/km\2\ in
fall, and 0.004761-0.020240/km\2\ in winter. Therefore, estimated takes
as shown in Table 11 are based on the highest density estimated during
the winter season

[[Page 39718]]

(0.020240/km\2\) for the SRKW population. With the variable winter
density, the estimate can range from 24 to 103 SRKW, with the upper
take estimate greater than the estimated population size.

Table 11--Southern Resident Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.020240 0.0 10.5 10 0 2
2....................................................... 0.020240 0.00 91 53 0 98
3....................................................... 0.020240 0.0 2.3 64 0 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Transient Killer Whale
The take estimate of transient killer whales for Pier 62 is based
on local data. Seven transients were reported in the project area (Orca
Network Archive Report 2016a). Therefore, NMFS is authorizing instances
of take by Level B harassment of 42 transient killer whales, which
would cover up to 2 groups of up to 7 transient whales entering into
the project area and remaining there for three days. Since the Level A
Harassment Zones of mid-frequency cetaceans are small (Table 7), we do
not consider it likely that any transient killer whales would be taken
by Level A harassment.
As a comparison, based on U.S. Navy species density estimates (U.S.
Navy 2015), potential take of transient killer whale is shown in Table
12. As with the SRKW, the density estimate of transient killer whales
is variable between seasons and regions. Density estimates range from
0.000575 to 0.001582/km\2\ in summer, from 0.001583 to 0.002373/km\2\
in fall, and from 0.000575 to 0.001582/km\2\ in winter. Work could
occur throughout summer, fall and winter, so the highest estimate, fall
density, was used to conservatively estimate take. For instances of
take by Level B harassment, this results in a take estimate of twelve
transient killer whales. However, the Seattle DOT believes that this
estimate is low based on local data of seven transients that were
reported in the area (Orca Network Archive Report 2016a).

Table 12--Transient Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.002373 0.0 10.5 10 0 0
2....................................................... 0.002373 0.00 91 53 0 12
3....................................................... 0.002373 0.0 2.3 64 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Long-Beaked Common Dolphin
The take estimate of long-beaked common dolphin for Pier 62 is
based on local monitoring data. The earliest documented sighting of
long-beaked common dolphins in Puget Sound was July 2003. In June 2011,
two long-beaked common dolphins were sighted in South Puget Sound.
Sightings continued in 2012, and in 2016-17. Four to twelve sightings
were reported regularly, with confirmed sightings of up to 30
individuals. Four to six 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
2017b). In 2016, the Orca Network (2016c) reported a pod of up to 20
long-beaked common dolphins. Therefore, NMFS is authorizing instances
of take by Level B harassment of 7 long-beaked common dolphins per
month for a total of 49 dolphins. Since the Level A Harassment Zones of
mid-frequency cetaceans are all very small (Table 7), we do not
consider it likely that the long-beaked common dolphin would be taken
by Level A harassment. Based on U.S. Navy species density estimates
(U.S. Navy 2015), potential instances of take of long-beaked common
dolphin is expected to be zero; therefore, we believe it more
appropriate to use local monitoring data.
Bottlenose Dolphin
The take estimate of bottlenose dolphin for Pier 62 is based on
local monitoring data. In 2017 the Orca Network (2017) reported
sightings of a bottlenose dolphin in Puget Sound and in Elliott Bay,
and WSDOT observed two bottlenose dolphins in one week during
monitoring for the Colman Dock Multimodal Project (WSDOT 2017). In
addition, a group of seven dolphins were observed in 2017 and were
positively identified as part of the CA coastal stock (Cascadia
Research Collective, 2017). Bottlenose dolphins typically travel in
groups of 2 to 15 in coastal waters (NOAA 2017). Therefore, NMFS is
authorizing instances of takes by Level B harassment of 7 bottlenose
dolphins per month for a total of 49 dolphins. Since the Level A
Harassment Zones of mid-frequency cetaceans are all very small (Table
7), we do not consider it likely that the common bottlenose dolphin
would be taken by Level A harassment. Based on U.S. Navy species
density estimates (U.S. Navy 2015), instances of potential take by
Level B harassment of bottlenose dolphin is expected to be zero;
therefore, we believe it more appropriate to use local monitoring data.
Harbor Porpoise
Species density estimates from Smultea et al. (2017), is the best
density data available for the potential take of harbor porpoise and is
shown in Table 13. Instances of take by Level A

[[Page 39719]]

harassment is estimated at 25 harbor porpoises and instances of take by
Level B harassment is estimated at 2,716 harbor porpoises. Therefore,
NMFS is authorizing instances of take by Level A harassment of 25
harbor porpoises and instances of take by Level B harassment of 2,716
harbor porpoises.

Table 13--Harbor Porpoise Estimated Take Based on Smultea et al., 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.54 0.00 10.5 10 0 57
2....................................................... 0.54 0.875 91 53 25 * 2,604
3....................................................... 0.54 0.018 2.3 64 0 80
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Take is instances not individuals.
Adjusted 2,579.

Dall's Porpoise
No local monitoring data of Dall's porpoise is available.
Therefore, the estimated instances of take for Dall's porpoise is based
on U.S. Navy species density estimates (U.S. Navy 2015), as shown in
Table 14. Based on these calculations, NMFS is authorizing instances of
take by Level A harassment of two Dall's porpoise and instances of take
by Level B harassment of 196 Dall's porpoise.

Table 14--Dall's Porpoise Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.039 0.00 10.5 10 0 4
2....................................................... 0.039 0.875 91 53 2 * 188
3....................................................... 0.039 0.018 2.3 64 0 6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Adjusted 186.

Humpback Whale
Based on U.S. Navy species density estimates (U.S. Navy 2015),
potential take of humpback whale is shown in Table 15. Although the
standard take calculations would result in an estimated take of less
than one humpback whale, to be conservative, NMFS is authorizing
instances of take by Level B harassment of five humpback whales based
on take during previous work in Elliott Bay where two humpback whales
were observed, including one take, during the 175 days of work during
the previous four years (Anchor QEA 2014, 2015, 2016, and 2017). Since
the Level A Harassment Zones of low-frequency cetaceans are smaller
during vibratory removal (27.3 m) or impact installation (88.6 m)
compared to the Level A Harassment Zone for vibratory installation
(504.8 m) (Table 7), we do not consider it likely that any humpbacks
would be taken by Level A harassment during removal or impact
installation. We also do not believe any humpbacks would be taken
during vibratory installation due to the ability to see humpbacks
easily during monitoring and additional coordination with the Orca
Network and the CWR which would enable the work to be shut down before
a humpback would be taken by Level A harassment.

Table 15--Humpback Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.00001 0.00 10.5 10 0 0
2....................................................... 0.00001 0.400 91 53 0 0
3....................................................... 0.00001 0.01 2.3 64 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Gray Whale
No local monitoring data of gray whales is available. Therefore,
the instances of estimated take for gray whales is based on U.S. Navy
species density estimates (U.S. Navy 2015), as shown in Table 16.
Therefore, NMFS is authorizing instances of take by Level B harassment
of four gray whales. Since the Level A Harassment Zones of low-
frequency cetaceans are smaller during vibratory removal (27.3 m) or
impact installation (88.6 m) compared to the Level A Harassment Zone
for vibratory installation (504.8 m) (Table 7), we do

[[Page 39720]]

not consider it likely that any gray whales would be taken by Level A
harassment during removal or impact installation. We also do not
believe any gray whales would be taken by Level A harassment during
vibratory installation due to the ability to see gray whales easily
during monitoring and additional coordination with the Orca Network and
the CWR, which would enable the work to be shut down before a gray
whale would be taken by Level A harassment.

Table 16--Gray Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Sound source density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.00051 0.00 10.5 10 0 0
2....................................................... 0.00051 0.400 91 53 0 3
3....................................................... 0.00051 0.01 2.3 64 0 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Minke Whale
Between 2008 and 2014, the Whale Museum (as cited in WSDOT 2016a)
reported one sighting of a minke whale in the relevant area. As a
comparison, based on U.S. Navy species density estimates (U.S. Navy
2015), the instance of potential take of minke whales is expected to be
ten (Table 17). To be conservative NMFS is authorizing the take of 10
minkes by Level B harassment. Based on the low probability that a minke
whale would be observed during the project and then also enter into a
Level A zone, we do not consider it likely that any minke whales would
be taken by Level A harassment.

Table 17--Minke Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated
Species Level A Level B Days of Level A Level B
Level B zone density harassment ZOI harassment ZOI activity harassment harassment
(km\2\) (km\2\) take take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0.002 0.00 10.5 10 0 0
2....................................................... 0.002 0.400 91 53 0 10
3....................................................... 0.002 0.01 2.3 64 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

The summary of the authorized take by Level A and Level B
Harassment is described below in Table 18.

Table 18--Summary of Authorized Incidental Take by Level A and Level B Harassment
----------------------------------------------------------------------------------------------------------------
Authorized
Level A Authorized Level Authorized total
Species Stock size harassment B harassment take take % of Population
take
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal (Phoca 11,036 53 1,598 \a\........ 1,651............ 14.96.
vitulina).
Northern elephant seal 179,000 0 2 \b\............ 2................ Less than 1.
(Mirounga angustirostris).
California sea lion (Zalophus 296,750 0 1,905 \c\........ 1,905............ Less than 1.
californianus).
Steller sea lion (Eumetopias 41,638 0 187.............. 187.............. Less than 1.
jubatus).
Southern resident killer whale 83 0 23 (single 23 (single 27.71.
DPS (Orcinus orca). occurrence of occurrence of
one pod) \d\. one pod).
Transient killer whale (Orcinus 240 0 42 \e\........... 42............... 17.5.
orca).
Long-beaked common dolphin 101,305 0 49 \f\........... 49............... Less than 1.
(Dephinus capensis).
Bottlenose dolphin (Tursiops 1,924 0 49 \g\........... 49............... Less than 1.
truncatus).
Harbor porpoise (Phocoena 11,233 25 2,716............ 2,741............ 24.4.
phocoena).
Dall's porpoise (Phocoenoides 25,750 2 196.............. 198.............. Less than 1.
dalli).
Humpback whale (Megaptera 1,918 0 5 \h\............ 5................ Less than 1.
novaengliae).
Gray whale (Eschrichtius 20,990 0 4................ 4................ Less than 1.
robustus).
Minke whale (Balaenoptera 636 0 10............... 10............... Less than 1.
acutorostrata).
----------------------------------------------------------------------------------------------------------------
Note:
\a\ The take estimate is based on a maximum of 13 seals observed on a given day during the 2016 Seattle Test
Pile project. The number of Level B harassment takes was adjusted to exclude those already counted for Level A
harassment takes.
\b\ The take estimate is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting of a
northern elephant seal in the area between 2008 and 2014, but conservatively NMFS estimated two takes.
\c\ The take estimate is based on a maximum of 15 California sea lions observed on a given day during 4
monitoring seasons of the EBSP project.
\d\ The take estimate is based on a single occurrence of one pod of SRKW (i.e., J-pod of 23 SRKW) that would be
most likely to be seen near Seattle.
\e\ The take estimate is based on local data which is greater than the estimates produced using the Navy density
estimates.
\f\ The take estimate is based on the local data from several sources including Cascadia Research Collective and
the Orca Network for long-beaked common dolphins.
\g\ The take estimate is based on local data. A group of seven dolphins were observed in Puget Sound in 2017 and
were positively identified as part of the CA coastal stock (Cascadia Research Collective, 2017).
\h\ The take estimate is based on take during previous work in Elliott Bay, where two humpback whales were
observed and is greater than what was calculated using 2015 Navy density estimates.

[[Page 39721]]

Mitigation

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

Timing Restrictions

All work must be conducted during daylight hours.

Pre-Construction Briefing

Seattle DOT must conduct briefings for construction supervisors and
crews, the monitoring team, and Seattle DOT staff prior to the start of
all pile driving and removal activity, and when new personnel join the
work, in order to explain responsibilities, communication procedures,
the marine mammal monitoring protocol, and operational procedures.

Bubble Curtain

A bubble curtain must be used during pile driving activities with
an impact hammer to reduce sound levels. Seattle DOT has stated as part
of their specified activity that they have agreed to employ a bubble
curtain during impact pile driving of steel piles and must implement
the following bubble curtain performance standards:
(i) The bubble curtain must distribute air bubbles around 100
percent of the piling perimeter for the full depth of the water column.
(ii) The lowest bubble curtain ring must be deployed on or as close
to the mudline for the full circumference of the ring as possible,
without causing turbidity.
(iii) Seattle DOT must require that construction contractors train
personnel in the proper balancing of air flow to the bubblers, and must
require that construction contractors submit an inspection/performance
report for approval by Seattle DOT within 72 hours following the
performance test. Corrections to the attenuation device to meet the
performance standards must occur prior to impact driving.

Shutdown Zones

Shutdown Zones must be implemented to protect marine mammals from
Level A harassment (Table 19 below). The PTS isopleths described in
Table 7 were used as a starting point for calculating the shutdown
zones; however, Seattle DOT must implement a minimum shutdown zone of a
10 m radius around each pile for all construction methods for all
marine mammals. Therefore, in some cases the shutdown zone must be
slightly larger than was calculated for the PTS isopleths as described
in Table 7 (i.e., for mid-frequency cetaceans and otariid pinnipeds).
Outside of any Level A harassment take authorized, if a marine mammal
is observed at or within the Shutdown Zone, work must shut down (stop
work) until the individual has been observed outside of the zone, or
has not been observed for at least 15 minutes for all marine mammals. A
determination that the Shutdown Zone is clear must be made during a
period of good visibility (i.e., the entire Shutdown Zone and
surrounding waters must be visible to the naked eye). If a marine
mammal approaches or enters the Shutdown Zone during activities or pre-
activity monitoring, all pile driving and removal activities at that
location must be halted or delayed, respectively. If pile driving or
removal is halted or delayed due to the presence of a marine mammal,
the activity may not resume or commence until either the animal has
voluntarily left and been visually confirmed beyond the shutdown zone
or 15 minutes have passed without re-detection of the animal. Pile
driving and removal activities include the time to install or remove a
single pile or series of piles, as long as the time elapsed between
uses of the pile driving equipment is no more than thirty minutes.

Table 19--Shutdown Zones for Various Pile Driving and Removal Activities for Marine Mammal Hearing Groups
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-frequency Mid-frequency High-frequency
Sound source type cetaceans cetaceans cetaceans Phocid pinnipeds Otariid pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shutdown Zones (meters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Vibratory (pile removal).............................. 28 10 41 17 10
2--Vibratory (installation).............................. 505 45 747 307 22
3--Impact (installation)................................. 89 10 106 48 10
--------------------------------------------------------------------------------------------------------------------------------------------------------

Additional Shutdown Measures

For in-water heavy machinery activities other than pile driving, if
a marine mammal comes within 10 m, operations must cease and vessels
must reduce speed to the minimum level required to maintain steerage
and safe working conditions.
Seattle DOT must implement shutdown measures if the cumulative
total number of individuals observed within the Level B Harassment/

[[Page 39722]]

Monitoring Zones (below in Table 20) for any particular species reaches
the number authorized under the IHA and if such marine mammals are
sighted within the vicinity of the project area and are approaching the
Level B Harassment/Monitoring Zone during in-water construction
activities.

Level B Harassment/Monitoring Zones

Seattle DOT must monitor the Level B Harassment/Monitoring Zones as
described in Table 20.

Table 20--Level B Harassment/Monitoring Zones for Various Pile Driving and Removal Activities
----------------------------------------------------------------------------------------------------------------
Level B Level B ZOI
Activity Construction method threshold (m) (km\2\)
----------------------------------------------------------------------------------------------------------------
Removal of 14-in Timber Piles................. Vibratory....................... 2,929 10.5
Installation of 30[dash]in Steel Piles........ Vibratory....................... 54,117 91
Installation of 30[dash]in Steel Piles........ Impact.......................... 1,201 2.3
----------------------------------------------------------------------------------------------------------------

Soft-Start for Impact Pile Driving

Each day at the beginning of impact pile driving or any time there
has been cessation or downtime of 30 minutes or more without impact
pile driving, Seattle DOT must use the soft-start technique by
providing an initial set of three strikes from the impact hammer at 40
percent energy, followed by a 30-second waiting period, then two
subsequent three-strike sets. Soft start must be implemented at the
start of each day's impact pile driving and at any time following
cessation of impact pile driving for a period of thirty minutes or
longer.

Additional Coordination

The project team must monitor and coordinate with local marine
mammal networks on a daily basis (i.e., Orca Network and/or the CWR)
for sightings data and acoustic detection data to gather information on
the location of whales prior to pile removal or pile driving
activities. The project team must also coordinate with Washington State
Ferries to discuss marine mammal sightings on days when pile driving
and removal activities are occurring on their nearby projects. Marine
mammal monitoring must be conducted to collect information on the
presence of marine mammals within the Level B Harassment/Monitoring
Zones for this project. In addition, reports must be made available to
interested parties upon request. With this level of coordination in the
region of activity, Seattle DOT must get real-time information on the
presence or absence of whales before starting any pile driving or
removal activities.
During Season 1, Seattle DOT carried out additional voluntary
mitigation measures during pile driving and removal activities to
minimize impacts from noise on the Seattle Aquarium's captive marine
mammals as well as for air and water quality concerns. These measures
were successfully coordinated and implemented, and Seattle DOT will
implement the same measures during Season 2 work, as follows:
1. If aquarium animals are determined by the Aquarium veterinarian
to be distressed, Seattle DOT will coordinate with Aquarium staff to
determine appropriate next steps, which may include suspending pile
driving work for 30 minutes, provided that suspension does not pose a
safety issue for the Pier 62 project construction crews.
2. Seattle DOT will make reasonable efforts to take at least one
regularly scheduled 20-minute break in pile driving each day.
3. Seattle DOT will regularly communicate with the Aquarium staff
when pile driving is occurring.
4. Seattle DOT will further coordinate with the Aquarium to
determine appropriate methods to avoid and minimize impacts to water
quality.
5. Seattle DOT does not anticipate the project resulting in impacts
associated with airborne dust. If, during construction, odors
associated with the project are an issue, Seattle DOT will coordinate
with its contractor to determine appropriate mitigation measures.
Based on our evaluation of the applicant's mitigation measures, as
well as other measures considered by NMFS, NMFS has determined that the
mitigation measures provide the means of effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.

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
action area. Effective reporting is critical both to compliance as well
as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density).
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas).
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat).
Mitigation and monitoring effectiveness.
Marine mammal monitoring must be conducted at all times during in-
water pile driving and pile removal activities

[[Page 39723]]

in strategic locations around the area of potential effects as
described below:
[ssquf] During pile removal or installation with a vibratory
hammer, three to four monitors would be used, positioned such that each
monitor has a distinct view-shed and the monitors collectively have
overlapping view-sheds (refer to Appendix A, Figures 1-3 of the Seattle
DOT's application).
[ssquf] During pile driving activities with an impact hammer, one
monitor must be based at or near the construction site, and in
addition, two to three additional monitors would be used, positioned
such that each monitor has a distinct view-shed and the monitors
collectively have overlapping view-sheds (refer to Appendix A, Figures
1-3 of the Seattle DOT's application).
[ssquf] In the case(s) where visibility becomes limited, additional
land-based monitors and/or boat-based monitors may be deployed.
[ssquf] Monitors must record take when marine mammals enter the
relevant Level B Harassment/Monitoring Zones based on type of
construction activity.
If a marine mammal approaches or enters the Shutdown Zone during
activities or pre-activity monitoring, all pile driving or removal
activities at that location must be halted or delayed, respectively. If
pile driving or removal is halted or delayed due to the presence of a
marine mammal, the activity may not resume or commence until either the
animal has voluntarily left and been visually confirmed beyond the
Shutdown Zone or 15 minutes have passed without re-detection of the
animal. Pile driving activities include the time to install or remove a
single pile or series of piles, as long as the time elapsed between
uses of the pile driving equipment is no more than thirty minutes.

Protected Species Observers

Seattle DOT must employ NMFS-approved protected species observers
(PSOs) to conduct marine mammal monitoring for its Pier 62 Project. The
PSOs must 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 must
meet the following requirements:
1. Independent PSOs (i.e., not construction personnel) are
required.
2. At least one PSO must have prior experience working as a marine
mammal observer during construction activities.
3. Other PSOs may substitute education (degree in biological
science or related field) or training for experience.
4. Where a team of three or more PSOs are required, one observer
should be designated as lead observer or monitoring coordinator. The
lead observer must have prior experience working as a marine mammal
observer during construction.
5. NMFS must require submission and approval of observer CVs.
Seattle DOT must ensure that observers have the following
additional qualifications:
1. Ability to conduct field observations and collect data according
to assigned protocols.
2. Experience or training in the field identification of marine
mammals, including the identification of behaviors.
3. Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations.
4. Writing skills sufficient to prepare a report of observations
including but not limited to the number and species of marine mammals
observed; dates and times when in-water construction activities were
conducted; dates, times, and reason for implementation of mitigation
(or why mitigation was not implemented when required); and marine
mammal behavior.
5. Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
PSOs must monitor marine mammals around the construction site using
high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or spotting
scopes. Due to the different sizes of the Level B Harassment/Monitoring
Zones from different pile sizes, several different Level B Harassment/
Monitoring Zones and different monitoring protocols corresponding to a
specific pile size must be established. If marine mammals are observed,
the following information must be documented:
1. Date and time that monitored activity begins or ends for each
day conducted (monitoring period);
2. Construction activities occurring during each observation
period, including how many and what type of piles driven;
3. Deviation from initial proposal in pile numbers, pile types,
average driving times, etc.
4. Weather parameters in each monitoring period (e.g., wind speed,
percent cover, visibility);
5. Water conditions in each monitoring period (e.g., sea state,
tide state);
6. For each marine mammal sighting:
a. Species, numbers, and, if possible, sex and age class of marine
mammals;
b. Description of any observable marine mammal behavior patterns,
including bearing and direction of travel and distance from pile
driving or removal activity;
c. Location and distance from pile driving or removal activities to
marine mammals and distance from the marine mammals to the observation
point; and
d. Estimated amount of time that the animals remained in the Level
B Harassment Zone.
7. Description of implementation of mitigation measures within each
monitoring period (e.g., shutdown or delay);
8. Other human activity in the area within each monitoring period
9. A summary of the following:
a. Total number of individuals of each species detected within the
Level B Harassment/Monitoring Zone, and estimated as taken if
correction factor appropriate.
b. Total number of individuals of each species detected within the
Shutdown Zone and the average amount of time that they remained in that
zone.
c. Daily average number of individuals of each species
(differentiated by month as appropriate) detected within the Level B
Harassment/Monitoring Zone, and estimated as taken, if appropriate.

Acoustic Monitoring

In addition, acoustic monitoring must occur on up to six days per
in-water work season to evaluate, in real time, sound production from
construction activities and must capture all hammering scenarios that
may occur under the planned project.
The results and conclusions of the acoustic monitoring must be
summarized and presented to NMFS with recommendations on any
modifications to this plan or Shutdown Zones.

Reporting Measures

Marine Mammal Monitoring Report
Seattle DOT must submit a draft marine mammal monitoring report
within 90 days after completion of the in-water construction work, the
expiration of the IHA, or 60 days prior to the requested date of
issuance of any subsequent IHA, whichever is earliest. The report would
include data from marine mammal sightings as described: Date, time,
location, species, group size, and behavior, any observed reactions to
construction, distance to operating pile hammer, and construction
activities

[[Page 39724]]

occurring at time of sighting and environmental data for the period
(i.e., wind speed and direction, sea state, tidal state, cloud cover,
and visibility). The marine mammal monitoring report must also include
total takes, takes by day, and stop-work orders for each species. NMFS
must have an opportunity to provide comments on the report, and if NMFS
has comments, Seattle DOT must address the comments and submit a final
report to NMFS within 30 days. If no comments are received from NMFS
within 30 days, the draft report must be considered final. Any comments
received during that time must be addressed in full prior to
finalization of the report.
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA,
such as an injury (Level A harassment), serious injury, or mortality,
Seattle DOT would immediately cease the specified activities and
immediately report the incident to the Permits and Conservation
Division, Office of Protected Resources, NMFS and the NMFS' West Coast
Stranding Coordinator. The report must include the following
information:
Time, date, and location (latitude/longitude) of the
incident;
Name and type of vessel involved;
Vessel's speed during and leading up to the incident;
Description of the incident;
Status of all sound source use in the 24 hrs preceding the
incident;
Water depth;
Environmental conditions (e.g., wind speed and direction,
sea state, cloud cover, and visibility);
Description of all marine mammal observations in the 24
hrs preceding the incident;
Species identification or description of the animal(s)
involved;
Fate of the animal(s); and
Photographs or video footage of the animal(s) (if
equipment is available).
Activities would not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with Seattle DOT
to determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. Seattle DOT may not resume
their activities until notified by NMFS via letter, email, or
telephone.
Reporting of Injured or Dead Marine Mammals
In the event that Seattle DOT discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (i.e., in less than
a moderate state of decomposition as described in the next paragraph),
Seattle DOT must immediately report the incident to the Permits and
Conservation Division, Office of Protected Resources, NMFS and the
NMFS' West Coast Stranding Coordinator. The report must include the
same information identified in the paragraph above. Activities may
continue while NMFS reviews the circumstances of the incident. NMFS
would work with Seattle DOT to determine whether modifications in the
activities are appropriate.
In the event that Seattle DOT discovers an injured or dead marine
mammal, and the lead PSO determines that the injury or death is not
associated with or related to the activities authorized in the IHA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), Seattle DOT must report the
incident to the Permits and Conservation Division, Office of Protected
Resources, NMFS and the NMFS Stranding Hotline and/or by email to the
NMFS' West Coast Stranding Coordinator within 24 hrs of the discovery.
Seattle DOT would provide photographs or video footage (if available)
or other documentation of the stranded animal sighting to NMFS.
Activities may continue while NMFS reviews the circumstances of the
incident.
Acoustic Monitoring Report
Seattle DOT must submit an Acoustic Monitoring Report within 90
days after completion of the in-water construction work or the
expiration of the IHA, whichever comes earlier. The report must provide
details on the monitored piles, method of installation, monitoring
equipment, and sound levels documented during both the sound source
measurements and the background monitoring. NMFS must have an
opportunity to provide comments on the report or changes in monitoring
for a third season (if needed), and if NMFS has comments, Seattle DOT
must address the comments and submit a final report to NMFS within 30
days. If no comments are received from NMFS within 30 days, the draft
report must be considered final. Any comments received during that time
must be addressed in full prior to finalization of the report.

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).
No serious injury or mortality is anticipated or authorized for the
Pier 62 Project (Season 2). Takes that are anticipated and authorized
are expected to be limited to short-term Level A and Level B
(behavioral) harassment. Marine mammals present in the vicinity of the
action area and taken by Level A and Level B harassment would most
likely show overt brief disturbance (startle reaction) and avoidance of
the area from elevated noise levels during pile driving and pile
removal. However, many marine mammals showed no observable changes
during Season 1 of the Pier 62 project and similar project activities
for the EBSP.
A fair number of instances of takes are expected to be repeat takes
of the same animals. This is particularly true for harbor porpoise,
because they generally use sub-regions of Puget Sound, and the
abundance of the Seattle sub-region from the Puget Sound Study was
estimated to be 147 animals, which is much lower than the calculated
take. Very few harbor porpoises have been observed during past projects
in Elliott Bay (ranging from one to five harbor porpoises).
There are two endangered species that may occur in the project
area,

[[Page 39725]]

humpback whales and SRKW. However, few humpbacks are expected to occur
in the project area and few have been observed during previous projects
in Elliott Bay. SRKW have occurred in small numbers in the project
area. Seattle DOT must shut down in the Level B Harassment/Monitoring
Zones should they meet or exceed the take of one occurrence of one pod
(J-pod, 23 whales).
There is ESA-designated critical habitat in the vicinity of Seattle
DOT's Pier 62 Project for SRKW. However, this IHA is authorizing the
harassment of marine mammals, not the production of sound, which is
what would result in adverse effects to critical habitat for SRKW.
There is one documented harbor seal haulout area near Bainbridge
Island, approximately 6 miles (9.66 km) from Pier 62. The haulout,
which is estimated at less than 100 animals, consists of intertidal
rocks and reef areas around Blakely Rocks and is at the outer edge of
potential effects at the outer extent near Bainbridge Island (Jefferies
et al. 2000). The recent level of use of this haulout is unknown.
Harbor seals also make use of docks, buoys, and beaches in the project
area, as noted in marine mammal monitoring reports for Season 1 of the
Pier 62 Project and for the EBSP (Anchor QEA 2014, 2015, 2016, and
2017). Similarly, the nearest Steller sea lion haulout to the project
area is located approximately 6 miles away (9.66 km) and is also on the
outer edge of potential effects. This haulout is composed of net pens
offshore of the south end of Bainbridge Island. There are four
documented California sea lion haulout areas near Bainbridge Island as
well, approximately six miles from Pier 62, and two documented haulout
areas between Bainbridge Island and Magnolia (Jefferies et al. 2000).
The haulouts consist of buoys and floats, and some are within the area
of potential effects, but at the outer extent, and some are just
outside the area of potential effects (Jefferies et al. 2000).
California sea lions were also frequently observed during marine mammal
monitoring for Season 1 of the Pier 62 project (average of eight sea
lions) at the Alki monitoring site and were frequently observed resting
on two buoys in the southwest area of Elliott Bay. California sea lions
were also frequently observed during the EBSP (average seven per day in
2014 and 2015, and three per day in 2016 and 2017; Anchor QEA 2014,
2015, 2016, and 2017), resting on two navigational buoys within the
project area (near Alki Point) and swimming along the shoreline near
the project.
The project also is not expected to have significant adverse
effects on affected marine mammal habitat, as analyzed in the
``Potential Effects of Specified Activities on Marine Mammals and their
Habitat'' section. Project activities would not permanently modify
existing marine mammal habitat. The activities may kill some fish and
cause other fish to leave the area temporarily, thus impacting marine
mammals' foraging opportunities in a limited portion of the foraging
range; but, because of the short duration of the activities and the
relatively small area of the habitat that may be affected, the impacts
to marine mammal habitat are not expected to cause significant or long-
term negative consequences. Therefore, given the consideration of
potential impacts to marine mammal prey species and their physical
environment, Seattle DOT's Pier 62 Project 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 stocks through
effects on annual rates of recruitment or survival:
No serious injury or mortality is anticipated or
authorized.
Takes that are anticipated and authorized are expected to
be limited to short-term Level B harassment (behavioral) and a small
number of takes of Level A harassment for three species.
The project also is not expected to have significant
adverse effects on affected marine mammals' habitat.
There are no known important feeding or pupping areas.
There are haulouts for California sea lions, harbor seals and Steller
sea lions. However, they are at the most outer edge of the potential
effects and approximately 6.6 miles from Pier 62. There are no other
known important areas for marine mammals.
For nine of the twelve species, take is less than one
percent of the stock abundance. Instances of take for the other three
species (harbor seals, killer whales, and harbor porpoise) range from
about 15-28 percent of the stock abundance. One occurrence of J-pod of
SRKW would account for 28 percent of the stock abundance. However, when
the fact that a fair number of these instances are expected to be
repeat takes of the same animals is considered, particularly for harbor
porpoise, the number of individual marine mammals taken is
significantly lower.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
activity will have a negligible impact on all affected marine mammal
species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(D) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, where estimated numbers are
available, NMFS compares the number of individuals taken to the most
appropriate estimation of abundance of the relevant species or stock in
our determination of whether an authorization is limited to small
numbers of marine mammals. Additionally, other factors may be
considered in the analysis, such as the temporal or spatial scale of
the activities.
Take of nine of the twelve species is less than one percent of the
stock abundance. Instances of take for the SRKW and transient killer
whales, harbor seals, and harbor porpoise ranges from about 15-28
percent of the stock abundance, all of which NMFS has determined
comprise small numbers of these stocks. Additionally, when the fact
that a fair number of these instances are expected to be repeat takes
of the same animals is considered, the number of individual marine
mammals taken is significantly lower. Specifically, Smultea et al. 2017
conducted harbor porpoise surveys in eight regions of Puget Sound, and
estimated an abundance of 168 harbor porpoise in the Seattle area (100
in Bainbridge (just west of Seattle) and 265 in Southern Puget Sound).
While individuals do move between regions, we would not realistically
expect that 2,500+ harbor porpoise individuals would be exposed around
the pile driving and removal activities for the Seattle DOT's Pier 62
Project. Considering these factors, as well as the general small size
of the project area as compared to the range of the species affected,
the numbers of marine mammals estimated to be taken are small
proportions of the total populations of the affected species or stocks.
Further, for SRKW, 27.71 percent of the stock is authorized to be taken
by Level B harassment, but we also believe that a single, brief
incident of take of one group of any species represents take of small
numbers for that species. Based on the analysis contained herein of the
planned activity

[[Page 39726]]

(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population sizes of the affected species
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act (ESA)

Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of IHAs, NMFS consults
internally, in this case with the West Coast Regional Office (WCRO),
whenever we propose to authorize take for endangered or threatened
species.
The Permit and Conservation Division consulted under section 7 of
the ESA with the WCRO for the issuance of this IHA. The WCRO concluded
that the take of marine mammals authorized here is not likely to
jeopardize the continued existence of SRKW and humpback whales and will
not result in the destruction or adverse modification of designated
critical habitat.

Authorization

NMFS has issued an IHA to the Seattle DOT for the harassment of
small numbers of marine mammals incidental to pile driving and removal
activities for the Pier 62 Project (Season 2) within Elliott Bay,
Seattle, Washington from August 1, 2018 to February 28, 2019, provided
the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated.

Dated: August 7, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2018-17185 Filed 8-9-18; 8:45 am]
BILLING CODE 3510-22-P

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