Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Mukilteo Multimodal Project-Season 3, 43849-43855 [2018-18609]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 167 (Tuesday, August 28, 2018)]
[Notices]
[Pages 43849-43855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18609]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG205


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Mukilteo Multimodal Project--
Season 3

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

ACTION: Notice; issuance of incidental harassment authorization.

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[[Page 43850]]

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 Washington Department of Transportation (WSDOT) Ferries Division 
(WSF) to incidentally take, by Level A and B harassment, marine mammals 
during construction activities associated with the Mukilteo Multimodal 
Project, Puget Sound, Washington.

DATES: This Authorization is effective from October 1, 2018, through 
September 30, 2019.

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

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

    On April 7, 2016, WSDOT submitted a request to NMFS requesting an 
IHA for the possible harassment of small numbers of marine mammals 
incidental to construction associated with Phase 2 of the Mukilteo 
Multimodal Project in Mukilteo, Washington, between August 1, 2017, and 
July 31, 2018. NMFS issued the requested IHA on August 3, 2017, which 
covered Phase 2 of the project in its entirety; the IHA expired on July 
31, 2018 (82 FR 44164; September 21, 2017). On January 9, 2018, we 
received a request from WSDOT for a subsequent authorization to take 
marine mammals incidental to the project because all of the Phase 2 
work would not be able to be completed under the existing IHA. A final 
version of the application, which we deemed adequate and complete, was 
submitted on March 1, 2018.
    On June 28, 2018, NMFS published its proposed IHA in the Federal 
Register for public comment (83 FR 30421). NMFS has issued an IHA to 
WSDOT for the take, by Level A and B harassment, of 12 species of 
marine mammals incidental to pile driving and removal associated with 
the Mukilteo Multimodal Project.

Description of the Specified Activity and Anticipated Impacts

    WSDOT operates and maintains 19 ferry terminals and one maintenance 
facility, all of which are located in Puget Sound or the San Juan 
Islands (Georgia Basin) (Figure 1-1 in WSDOT's application). The 
Mukilteo Multimodal Project is a multi-year construction project 
designed to improve the operations and facilities serving the mainland 
terminus of the Mukilteo-Clinton ferry route in Washington State. The 
2017 IHA covered the installation of 661 piles of various sizes over an 
estimated 175 days of pile driving and removal (Table 1). WSDOT did not 
complete all the work; therefore the issued IHA covers take incidental 
to the installation of the remaining piles (Table 1). The 2017 IHA 
authorized Level A and B harassment of two species of marine mammals 
and Level B harassment of seven species of marine mammals. NMFS has 
issued an IHA to harass these same species and an additional three 
species based on recent marine mammal monitoring near the project area 
(Table 2).
    We refer to the notice of proposed IHA (83 FR 30421, June 28, 2018) 
and documents related to the previously issued 2017 IHA and discuss any 
new or changed information here. Previous documents include the Federal 
Register notice of the proposed 2017 IHA (82 FR 29713; May 10, 2017), 
Federal Register notice of issuance of the 2017 IHA (82 FR 44164, 
September 21, 2017), and all associated references and documents. We 
also refer the reader to WSDOT's previous and current applications and 
monitoring reports. All of these documents may be found at https://www.fisheries.noaa.gov/node/23111.
    Detailed Description of the Action--A detailed description of the 
vibratory and impact pile driving and removal activities at the 
Mukilteo Terminal is found in the aforementioned documents. The 
location, timing, and nature of the pile driving operations, including 
the type and size of piles and the methods of pile driving, are 
identical to those described in the previous notices, except that only 
a subset of the type and number of piles are to be driven because some 
of the work was completed under the 2017 IHA. Under the issued IHA 
(2018-2019), 116 piles would be installed with a vibratory hammer. Of 
those, sixty-five 24-inch (in) piles would also be proofed with an 
impact hammer and then removed.
    WSDOT anticipates piles equal to or less than 36-in would be 
installed at a rate of 3 per day for a total of 38 days. Removing the 
65 24-in temporary piles may also occur at a rate of 3 pile per day for 
a total of 22 days. An additional two days is needed to install the 78-
in piles and 120-in pile. In total, up to 62 days of pile driving and 
removal may occur. WSDOT anticipates pile driving and removal could 
occur over a seven month in-water work window (July 15-February 15).

[[Page 43851]]



                Table 1--Description of Work Planned, Analyzed, and Completed Under the 2017 IHA and Remaining Work Planned for 2018-2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Season 2                    Season 3
             Method                  Pile size (in)        planned      Season 2       planned      Number of                    Comment
                                                         (2017 IHA)     completed    (2018 IHA)       days
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Vibratory Driving...............  12..................           139           134             0             0  Fewer needed, complete.
                                  24..................            69             4        \1\ 65            22  Up to 69 temporary.
                                  24..................            48             0            26             9  Fewer needed, permanent.
                                  30..................            40            25            16             5  Permanent.
                                  36..................             6             0             6             2  Permanent.
                                  78..................             2             0             2             1  Permanent.
                                  120.................             1             0             1             1  Permanent.
                                  sheet...............            90             0             0             0  Design change, not needed.
Vibratory Removal...............  24..................            69             4        \1\ 65            22  Temporary.
                                  30..................             9             0             0             0  Delayed.
                                  sheet...............            90             0             0             0  Design change, not needed.
Impact Driving..................  24..................            69             4        \1\ 65        \2\ 22  Proofed for load-bearing.
                                  30..................            30            25             0             0  Fewer needed, complete.
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\1\ These 65 piles represent the same 65 temporary 24'' piles driven with a vibratory hammer. The temporary piles would be installed, proofed, and
  removed.
\2\ Impact hammering would be conducted on same day as vibratory pile driving so these are not additional days.

    Description of Marine Mammals--A description of the marine mammals 
in the area of the activities is found in the notice of proposed IHA 
(83 FR 30421, June 28, 2018). This information remains valid so we do 
not repeat it here but provide a summary table with marine mammal 
species and stock details.

                                              Table 2--Species and Stocks Expected To Occur in Project Area
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                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific..  N                   20,990 (0.05, 20,125,         624        132
                                                                                                             2014).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  California/Oregon/       Y                   1,918 (0.03, 1,876,          11.0        9.2
                                                                Washington.                                  2017).
    Minke whale *...................  Balaenoptera             California/Oregon/       N                   636 (0.72, 369, 2016).        3.5        1.3
                                       acutorostrata.           Washington.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale....................  Orcinus orca...........  Eastern North Pacific    Y                   76 (n/a, 76, 2017) \4\          0       0.14
                                                                Southern Resident.
                                                               West coast transient...  N                   unk (unk, 243 2013)...        2.4          0
    Bottlenose dolphin *............  Tursiops truncatus.....  California coastal.....  N                   453 (0.06, 346, 2016).        2.7        >=2
    Long-beaked common dolphin *....  Delphinus delphis        California.............  N                   101,305 (0.49, 68,432,        657       35.4
                                       bairdii.                                                              2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena...............  Washington inland        N                   11,233 (0.37, 8,308,           66        7.2
                                                                waters.                                      2016).
    Dall's porpoise.................  Phocoenoides dalli.....  California/Oregon/       N                   25,750 (0.45, 17,954,         172        0.3
                                                                Washington.                                  2016).
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  U.S....................  N                   296,750 (n/a, 153,337,      9,200        389
                                                                                                             2014).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  N                   52,139 (n/a, 41,638,        2,498        108
                                                                                                             2015).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Washington northern      N                   11,036 (0.15, 1999)...      1,641         43
                                                                inland waters.
    Elephant seal...................  Mirounga angustirostris  California breeding....  N                   179,000 (n/a, 81,368,       2,882        8.8
                                                                                                             2014).
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\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.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ SRWK population abundance as of December 31, 2017 according to the Center for Whale Research.

[[Page 43852]]

 
\5\ Harbor seal estimate is based on data that are greater than 8 years old, but this is the best available information for use here.
* Indicates species added.

    Harassment Zones--The harassment threshold distances and areas 
provided in the Federal Register notice of proposed IHA (83 FR 30421, 
June 28, 2018) remain unchanged. Please refer to that document 
documents for details; we provide a summary tables here (Table 3 and 
4).

                                  Table 3--Level A Harassment Distances Considering Pile Driving Duration per 24 Hours
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                                                                                                    Level A (meters)
               Method                  Pile size      Source level (dB)    ----------------------------------------------------------------- Level B (m)
                                                                               LF \1\       MF \1\       HF \1\       PH \1\       OT \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory...........................           24  166 rms \2\............         30.6          2.7         45.3         18.6          1.3    \6\ 8,000
                                               30  174 rms \3\............        104.5          9.3        154.5         63.5          4.5    \6\ 8,000
                                               36  177 rms \3\............        165.6         14.7        244.9        100.7          7.1    \7\ 8,700
                                               78  180 rms \4\............        200.3         17.8        296.2        121.8          8.5   \8\ 20,000
                                              120  180 rms \4\............        126.2         11.2        186.6         76.7          5.4  ...........
Impact..............................           24  178 SEL (single strike)/       432.1         15.4        514.7        231.2         16.8        1,585
                                                    193 rms \5\.
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\1\ The abbreviatation mean: LF = low frequency cetacean, MF = mid-frequency cetacean, HF = high-frequency cetacean, PH = phocid, OT = otariid.
\2\ We assume vibratory removal and vibratory driving the same size pile would result in equal sound levels. Source level for 24'' piles is based on
  direct measurements during the Manette Bridge project (Loughlin, 2010a).
\3\ Source levels for 30-in and 36-in piles is based on direct measurements during the Port Townsend Project (Loughlin, 2010b).
\4\ WSDOT does not have noise data for 78 and 120-in piles; therefore, we used data from Caltrans (2015).
\5\ Single strike SEL and rms values for impact driving 24-in piles is based on direct measurements during pile driving using a bubble curtain (i.e.,
  source levels are attenuated) at the Coupeville Terminal (WSDOT, 2017).
\6\ Measurements during 30'' vibratory pile driving at Mukilteo in 2017 indicate pile driving was not detected at range of 7.9 km (Laughlin, 2017a).
  This equates to 66 km\2\.
\7\ At the Coleman Terminal, vibratory installation of two 36'' piles driven simultaneously was not detectable at 8.69 km (5.4 miles) (Laughlin 2017b).
  This equates to 69 km\2\.
\8\ The calculated Level B zone using a practical spreading loss model is 100,000 m; however, land is reached at a maximum of 20,000 m (Lowell Point on
  Camano Island). This equates to 107 km\2\.


                          Table 4--Corresponding Harassment Threshold Ensonified Areas
----------------------------------------------------------------------------------------------------------------
                                                                Level A (km\2\) \1\
             Method                  Pile size   ------------------------------------------------     Level B
                                                        HF              PH              OT          (km\2\) \2\
----------------------------------------------------------------------------------------------------------------
Vibratory.......................              24           <0.01           <0.01           <0.01              66
                                              30           <0.01           <0.01  ..............              66
                                              36            0.06            0.06  ..............              69
                                              78            0.01            0.01  ..............             107
                                             120            0.01            0.01  ..............  ..............
Impact..........................              24             0.4             0.4  ..............               4
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\1\ Level A harassment areas are provided for species hearing groups for which Level A take is authorized.
\2\ Level B harassment areas are germane to all species.

    Estimated Take--A description of the methods used to estimate take 
anticipated to occur from the project is found in the project's 
aforementioned documents. The methods (i.e., equations) and rational 
for estimating take in the proposed IHA (83 FR 30421, June 28, 2018) 
for all species remains unchanged; however, we adjusted the number of 
days of pile driving factored into the takes estimates in the issued 
IHA. For harbor porpoise and harbor seals, as described below, we also 
made additional small adjustments to the final take estimates based on 
other factors, as recommended in comments made by the Commission (see 
Comments and Responses). Densities presented in the proposed IHA (83 FR 
30421, June 28, 2018) remain unchanged (Table 5). For density based 
estimates, the equation used is density x area ensonified above the 
threshold x number of pile driving days summed across all piles types. 
For harbor porpoise, we calculated take using the density identified in 
Table 5. For 24-in and 30-in piles: 0.75 x 66 km\2\ x 58 days 
(vibratory installation and removal) equals 2,871 animals. For 36-in 
piles: 0.75 x 69 km\2\ x 2 days equals 104 animals. For 78-in and 120-
in piles: 0.75 x 107 km\2\ x 2 days = 161 animals. In total, we 
calculated 3,136 harbor porpoise could be taken. However, marine mammal 
monitoring conducted under the 2017 IHA yielded only 85 harbor porpoise 
sightings of which 28 were taken by harassment. In the notice of 
proposed IHA (83 FR 30421, June 28, 2018), we proposed authorizing 10 
percent of the calculated take (which incorrectly considered an 
additional two days of pile driving) as the raw calculated take greatly 
exceeded expected take based on previous marine mammal monitoring 
efforts around the terminal (e.g., WSDOT, 2018). However, the 
Commission was concerned this approach may yield an underestimate of 
potential take. Therefore, we increased the number of takes to 25 
percent of the total calculated take for a total of 784 Level B 
harassment takes. The Commission was also concerned the calculated 
number of Level A harassment takes using the full density provided in 
Smultea et al. (2017) (n=7) would also be an underestimate. Based on 
the Commission's recommendation to assume one group of three harbor 
porpoise could be within the Level A harassment area on half of the 
pile driving days where the potential for Level A harassment exists, 
(13 of the 26 days) we issued 39 Level A harassment takes for harbor 
porpoise.
    We repeated these calculations using the approach above for Dall's 
porpoise, minke whales, humpback whales, gray whales, and Steller sea 
lions; however, we are not authorizing Level A harassment take for the 
latter three species as the potential for Level A harassment of these 
species is discountable due to high visibility of these species, small 
Level A harassment zones, and implementation of mitigation measures 
(e.g., shut downs). We

[[Page 43853]]

considered Dall's porpoise to have the same potential to be taken by 
Level A harassment as harbor porpoise due to similar size and 
sightibility; therefore, we issued the same amount of Level A take for 
both species (n=39).
    We also used the same method and rational for estimates utilizing 
direct counts instead of density estimates as in the proposed IHA (83 
FR 30421, June 28, 2018), but again, adjusted the number of days 
considered. Over 51 days of marine mammal monitoring during the 2017/18 
Mukilteo project, 1,525 harbor seals were observed or 30 harbor seals 
per day. Using the equation # of animals/day * # of days, we authorized 
1860 Level B harassment takes (30 animals/day * 62 days). As described 
in the notice of proposed IHA (83 FR 30421, June 28, 2018), we consider 
five percent of that amount could be animals taken by Level A 
harassment (n=93). Based on previous marine mammal monitoring data 
(WSDOT, 2018), we estimated 14 California sea lions per day could be 
taken on the 62 days of pile driving for a total of 868 Level B 
harassment takes. As described in the notice of proposed IHA (83 FR 
30421, June 28, 2018), we did not authorize Level A harassment because 
the Level A harassment zones are very small based on one to three hours 
of pile driving and no California sea lions were taken by Level A 
harassment under the 2017 IHA. The method used to estimate take for 
transient killer whales also remained unchanged from the proposed IHA 
(83 FR 30421, June 28, 2018); however, we adjusted the number of days 
in the equation and authorized 19 takes of transient killer whales (0.3 
whales/km\2\ x 62 days). No change was necessary to the methods, 
rational, and amount of take identified in the proposed IHA (83 FR 
30421, June 28, 2018) for humpback whales, gray whales, Northern 
elephant seals, bottlenose dolphins, and long-beaked common dolphins 
because number of days was not a component of the take estimation 
process. See Table 6 for all authorized take numbers, by species, and 
the respective amount of the population that take represents.

                    Table 6--Authorized Take Amount, per Species, Relative to Population Size
----------------------------------------------------------------------------------------------------------------
                                                      Level A         Level B       Total take     % Population
----------------------------------------------------------------------------------------------------------------
Harbor seal.....................................              93           1,860            1953              18
California sea lion.............................               0             868             868             0.3
N. elephant seal................................               0               7               7            >0.1
Killer whale-transient..........................               0              19              19               8
SSL.............................................               0             154             154             0.2
Gray whale......................................               0               2               2            0.02
Humpback whale..................................               0               6               6             0.3
Dall's porpoise.................................              39             163             202             0.8
Harbor porpoise.................................              39             784             823             7.3
Minke whale.....................................               0               7               7             1.3
Bottlenose dolphin..............................               0              49              49            10.8
Long-beaked common dolphin......................               0              49              49            0.04
----------------------------------------------------------------------------------------------------------------

    Description of Mitigation, Monitoring and Reporting Measures--A 
description of mitigation, monitoring, and reporting measures is found 
in the previous documents, and we have included additional details 
based on the Commission's comments (see Comments and Responses 
section). In summary, mitigation includes use of an unconfined bubble 
curtain (with operational standards set by the U.S. Fish and Wildlife 
Service), soft start techniques during impact pile driving in greater 
than 2 ft of water, a minimum 10 m shut down zone, and species-
dependent shut down zones as described in Table 7. Some of these shut 
down zones fully encompass the Level A harassment zone; however, for 
species where we propose Level A take, this might not always be the 
case.

                                                                Table 7--Shut-Down Zones
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                                                                                         Level A (meters)
                 Method                      Pile size   --------------------------------------------------------------------------------   Level B \1\
                                                                LF              MF              HF              PH              OT              (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory...............................              24              35              10              50              20              10           8,000
                                                      30             105              10             150              60  ..............           8,000
                                                      36             170              20             200  ..............  ..............           8,690
                                                      78             205  ..............  ..............  ..............  ..............          20,000
                                                     120             130  ..............  ..............  ..............  ..............  ..............
Impact..................................              24             435  ..............  ..............  ..............              20           1,585
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Level B harassment shutdown zone applies to only those species for which take is not authorized (e.g., southern resident killer whales) or when
  take for a given species is exceeded.

    Monitoring requirements would be similar to the 2017 IHA 
requirements (see an updated Marine Mammal Monitoring Plan available at 
https://www.fisheries.noaa.gov/node/23111); however, we have added 
additional reporting requirements (see Comments and Responses section). 
The number and location of Protected Species Observers (PSOs) is 
dependent upon activity and weather conditions and are as follows:
    (i) Three land-based PSOs during impact driving of 24-in piles;
    (ii) four land-based and one ferry-based PSOs during 24-, 30-, 36-
in steel vibratory driving/removal;
    (iii) five land-based and one ferry-based PSOs during 78- and 120 
in steel vibratory driving/removal; and
    (iv) two ferry-based PSOs in addition to land-based PSOs when 
weather conditions are poor.
    In April, 2018, WSDOT submitted a monitoring report for 
construction that had been completed under the 2017

[[Page 43854]]

IHA. WSDOT complied with all mitigation, monitoring, and reporting 
protocols. Recorded takes were below the number authorized for the 
corresponding amount of work. The monitoring report can be viewed on 
NMFS's website at https://www.fisheries.noaa.gov/node/23111.
    WSDOT will conduct acoustic monitoring during impact pile driving 
of 24-in piles per the acoustic monitoring plan submitted for the 
previous IHA. WSDOT will also conduct acoustic monitoring during 
vibratory driving 78-in and 120-in piles. Both the impact and vibratory 
acoustic monitoring plans are available at https://www.fisheries.noaa.gov/node/23111.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on June 28, 2018 (83 FR 30421). During the 30-day 
public comment period, the Marine Mammal Commission (Commission) 
submitted a letter, providing comments as described below.
    Comment 1: The Commission recommends that NMFS issue the IHA, 
subject to inclusion of modified mitigation, monitoring and reporting 
measures. Specifically, the Commission recommended WSDOT submit more 
detailed marine mammal monitoring reports that include observer 
location, the extent of zones for each activity, the distances/bearing 
from the PSO to the animal and from the animal to the source for each 
sighting, whether mitigation was implemented. The Commission also 
suggested the acoustic monitoring report should include both medians 
and means for peak and root-mean-square sound pressure levels and 
single-strike and cumulative sound exposure levels.
    NMFS Response: NMFS has included the Commission's recommended 
marine mammal monitoring and acoustic monitoring data in the IHA.
    Comment 2: The Commission recommends increasing the amount of take 
authorized for harbor porpoises to 39 Level A takes and 3,135 Level B 
takes. The premise for this comment is that the estimated density of 
harbor porpoise of 0.75 (Smultea et al., 2017) should be used to 
calculate Level B harassment takes in absence of considering the amount 
of harbor porpoise takes identified during marine mammal monitoring the 
previous work year. During informal discussion prior to submitting 
their letter, the Commission indicated that previous monitoring should 
not be considered because the Level B harassment area is large and some 
harbor porpoise could have been missed during monitoring. In contrast, 
the Commission recommended the estimated harbor porpoise density 
(Smultea et al., 2017) not be used to estimate Level A harassment take 
but should be increased to consider a group of three harbor porpoise 
entering the Level A harassment zone on half of the days pile driving 
would occur (i.e., 31 out of 62 days).
    NMFS Response: As described in the notice of proposed IHA (83 FR 
30421, June 28, 2018), marine mammal monitoring conducted under the 
2017 IHA yielded 85 harbor porpoise sightings of which 28 were taken by 
harassment (i.e., observed within the harassment zones during pile 
work). Further, during informal correspondence with the Commission on 
this matter, NMFS indicated WSDOT employed no fewer than five PSOs 
during pile driving with additional PSOs placed on vessels under 
various circumstances (e.g., inclement weather, impact pile driving). 
The PSOs were stationed, per the IHA, in various locations at and 
around the harassment zones. Therefore, there was good observer 
coverage of the harassment area and the likelihood of harbor porpoise 
being undetected was low. Considering the number of piles driven under 
this IHA is less than last year's IHA, to use the density of harbor 
porpoise reported in Smultea et al. (2017) without consideration of 
these monitoring data would be a gross overestimate of take.
    In the proposed IHA (83 FR 30421, June 28, 2018), NMFS calculated 
the number of harbor porpoise potentially taken by Level B harassment 
using the Smultea et al. (2017) density (i.e., 0.75 harbor porpoise) 
but then reduced the resulting take to 10 percent of that number in 
consideration of the previous marine mammal monitoring results. While 
NMFS continues to believe a reduction factor is appropriate, we have 
modified it to 25 percent of the original calculation given the 
concerns of the Commission. As a result, and in consideration of the 
corrected number of pile driving days (reduced from 65 days to 62 days 
for Level B harassment), NMFS has issued 784 Level B harassment takes 
(see Estimated Take section for more details on these calculations). In 
the proposed IHA (83 FR 30421, June 28, 2018), we also used density to 
estimate the number of harbor porpoise potentially taken by Level A 
harassment but did not apply a correction factor due to the low results 
(n=7). Although the potential for Level A harassment of harbor porpoise 
is low, we accepted the Commission's recommendation and adjusted take 
numbers to reflect group size in lieu of using density, authorizing 39 
Level A harassment takes (see Estimated Take section).
    Comment 3: The Commission recommended NMFS modify the number of 
takes of marine mammals based on agreements made during informal 
correspondence. Specially, the Commission reiterated NMFS commitment to 
not use a reduction factor for harbor seals and correct the number of 
pile driving days used in the take estimates.
    NMFS Response: As indicated during informal correspondence with the 
Commission, NMFS has revised the number of takes in a manner consistent 
with the methods identified in the Commission's letter.
    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 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 (83 FR 30421, June 28, 2018) 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

[[Page 43855]]

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 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. 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.

Negligible Impact Analysis and Determination

    WSDOT proposes to conduct a subset of activities identical to those 
covered in the previous 2017 IHA. We have included take for three new 
species noting these are precautionary as these species are not common 
in the action area and these species were not observed during previous 
construction. We also believe the potential behavioral reactions and 
effects on the cetacean species previously analyzed is applicable to 
these species, if not to some lesser extent due to lower probability of 
occurrence.
    When issuing the 2017 IHA, NMFS found Phase 2 of the Mukilteo 
Multimodal Project, in its entirety, would have a negligible impact to 
species or stocks' rates of recruitment and survival and the amount of 
taking would be small relative to the population size of such species 
or stock (less than 15 percent). As described above, the number of 
estimated takes of the same stocks are less than takes authorized in 
the 2017 IHA and the anticipated impacts from the project are similar 
to those previously analyzed. The amount of take for the additional 
three species is also small (less than 11 percent of each stock). In 
conclusion, there is no new information suggesting that our analysis or 
findings should change.
    In this year's IHA, we have also included more mitigation with 
respect to operating the bubble curtains (to ensure effectiveness; 
thereby, potentially reducing impact pile driving received levels), and 
required WSDOT to report more details pertaining to monitoring (see 
Mitigation, Monitoring, and Reporting section). WSDOT will also conduct 
vibratory pile driving acoustic monitoring which will allow for 
verification of estimated source levels.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) WSDOT's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the West Coast Region 
Protected Resources Division Office, whenever we propose to authorize 
take for endangered or threatened species.
    The only species listed under the ESA with the potential to be 
present in the action area is the Mexico Distinct Population Segment 
(DPS) of humpback whales. The effects of this proposed Federal action 
were adequately analyzed in NMFS' Biological Opinion for the Mukilteo 
Multimodal Project, Snohomish, Washington, dated August 1, 2017, which 
concluded that issuance of an IHA would not jeopardize the continued 
existence of any endangered or threatened species or destroy or 
adversely modify any designated critical habitat. NMFS West Coast 
Region has confirmed the Incidental Take Statement (ITS) issued in 2017 
is applicable for the IHA. That ITS authorizes the take of six humpback 
whales from the Mexico DPS.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that issuance of the IHA 
qualifies to be categorically excluded from further NEPA review. We 
have reviewed all comments submitted in response to the proposed IHA 
Federal Register notice (83 FR 30421, June 28, 2018) prior to 
concluding our NEPA process and making a final decision on the IHA 
request.

Authorization

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

    Dated: August 23, 2018.
Cathryn E. Tortorici,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2018-18609 Filed 8-27-18; 8:45 am]
BILLING CODE 3510-22-P