Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to Bremerton and Edmonds Ferry Terminals Dolphin Relocation Project in Washington State, 45897-45909 [2018-19592]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 176 (Tuesday, September 11, 2018)]
[Notices]
[Pages 45897-45909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19592]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG011


Takes of Marine Mammals Incidental To Specified Activities; 
Taking Marine Mammals Incidental to Bremerton and Edmonds Ferry 
Terminals Dolphin Relocation Project in Washington State

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to 
Washington State Department of Transportation (WSDOT) to take small 
numbers of marine mammals, by harassment, incidental to Bremerton and 
Edmonds ferry terminals dolphin relocation project in Washington State.

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

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued IHA, may be obtained 
online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In 
case of problems accessing these documents, please call the contact 
listed above.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (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 October 4, 2017, WSDOT submitted a request to NMFS requesting an 
IHA for the possible harassment of small numbers of marine mammal 
species incidental to the dolphin relocation project at the Bremerton 
and Edmonds ferry terminals in Washington State, between October 1, 
2018, to September 30, 2019. NMFS determined that the IHA application 
is adequate and complete on December 4, 2017, with a few minor comments 
and questions. WSDOT subsequently addressed all NMFS comments and 
submitted a revised IHA application on March 1, 2018. NMFS is proposing 
to authorize the take by Level B harassment of the following marine 
mammal species: Harbor seal (Phoca vitulina); northern elephant seal 
(Mirounga angustirostris); California sea lion (Zalophus 
californianus); Steller sea lion (Eumetopias jubatus); killer whale 
(Orcinus orca); gray whale (Eschrichtius robustus); humpback whale 
(Megaptera novaeangliae); minke whale (Balaenoptera acutorostrata); 
harbor porpoise (Phocoena phocoena); Dall's

[[Page 45898]]

porpoise (Phocoenoides dalli); and long-beaked common dolphin 
(Delphinus delphis).

Description of Proposed Activity

Overview

    The WSDOT is proposing to relocate one dolphin to improve safety at 
each of the Bremerton and Edmonds ferry terminals. The Olympic Class 
ferries have an atypical shape, which at some terminals causes the 
vessel to make contact with the inner dolphin prior to the stern 
reaching the intermediate or outer dolphin. This tends to cause 
rotation of the vessel away from the wingwalls and presents a safety 
issue. The project will reduce the risk of landing issues for Olympic 
Class ferries at the Bremerton and Edmonds ferry terminals.

Dates and Duration

    Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water 
work timing restrictions to protect ESA-listed salmonids, planned WSDOT 
in-water construction is limited each year to July 16 through February 
15.
    In-water construction at the Bremerton Ferry Terminal will commence 
after October 1, and is planned during the August 1, 2018, to February 
15, 2019 in-water work window. In-water construction at the Edmonds 
Ferry Terminal will commence October 1, and is planned during the July 
15, 2018, to February 15, 2019 in-water work window.

Specified Geographic Region

    The Bremerton Ferry Terminal is located in the city of Bremerton, 
east of the Navy shipyard. Bremerton is on the shoreline of Sinclair 
Inlet, south of Bainbridge Island. Located in Kitsap County, 
Washington, the terminal is located in Section 24, Township 24 North, 
Range 1 East. The Edmonds Ferry Terminal is located in the city of 
Edmonds, along the downtown waterfront. Edmonds is in Snohomish County, 
approximately 15 miles north of Seattle. The terminal is located in 
Section 23, Township 27 North, Range 3 East (Figure 1-2 in the IHA 
application). Land use near both ferry terminals is a mix of 
residential, commercial, industrial, and open space and/or undeveloped 
lands.

Detailed Description of In-Water Pile Driving and Removal Associated 
With the Dolphin Relocation Project at Bremerton and Edmonds Ferry 
Terminals

    The proposed project includes vibratory hammer driving and removal 
creating elevated in-water and in-air noise that may impact marine 
mammals.
    The following construction activities (in sequence) are anticipated 
for the Bremerton Ferry Terminal.
     Install one temporary 36-inch diameter steel indicator 
pile with a vibratory hammer. The temporary indicator pile will be used 
as a visual landing aid reference for vessel captains during 
construction. It will be relocated to become a fender pile for the new 
dolphin.
     Remove the existing left outer dolphin that consists of 
six 36-inch diameter steel pipe piles with a vibratory hammer and/or by 
direct pull and clamshell removal.
     Using a vibratory hammer, install three 30-inch steel pile 
reaction piles. This is a back group of piles that provide stability to 
the dolphin.
     Install a concrete diaphragm (the diaphragm joins the 
piles at their tops), then use a vibratory hammer to install the 
remaining four 30-inch reaction piles.
     Using a vibratory hammer, install three 36-inch diameter 
steel pipe fender piles; install fenders and attach rub panels to the 
fender piles. Fender piles absorb much of the energy as the ferry 
vessel makes contact with the dolphin.
     Using a vibratory hammer, remove the 36-inch temporary 
indicator pile and install it as the last remaining fender pile along 
with the fender and fender panel.
    The following construction activities (in sequence) are anticipated 
for the Edmonds Ferry Terminal.
     Install one temporary 36-inch diameter steel indicator 
pile with a vibratory hammer. The temporary indicator pile will be used 
as a visual landing aid reference for vessel captains during 
construction.
     Using a vibratory hammer, install one 30-inch reaction 
pile.
     Using a vibratory hammer, install the two remaining 
reaction piles through the diaphragm.
     Using a vibratory hammer, remove three 36-inch steel pipe 
fender piles and reinstall them in their new locations.
     Using a vibratory hammer, remove the 36-inch temporary 
indicator pile (this portion of the project will not reuse the 
indicator pile).
    A summary of the piles to be installed and removed, along with pile 
driving information, is provided in Table 1.

                                             Table 1--Summary of In-Water Pile Driving and Removal Durations
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                                                                                                                    Duration/   Number pile/   Duration
            Location                Pile element           Method           Pile type    Size (inch)    Pile No.    pile (min)      day         (days)
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Bremerton......................  Indicator pile....  Vibratory install.  Steel.........           36            1           20            1            1
                                 Indicator pile....  Vibratory removal.  Steel.........           36            1           15            1            1
                                 Existing dolphin..  Vibratory removal.  Steel.........           36            6           15            3            2
                                 Relocate dolphin    Vibratory install.  Steel.........           36            4           20            3            2
                                  install.
                                 Relocated dolphin   Vibratory install.  Steel.........           30            7           20            3            3
                                  install.
                                                                                        ----------------------------------------------------------------
    Subtotal...................  ..................  ..................  ..............  ...........           19          345  ...........            9
Edmond.........................  Indicator pile....  Vibratory install.  Steel.........           36            1           20            1            1
                                 Indicator pile....  Vibratory removal.  Steel.........           36            1           15            1            1
                                 Existing dolphin    Vibratory removal.  Steel.........           36            3           15            3            1
                                  removal.
                                 Relocated dolphin.  Vibratory install.  Steel.........           36            3           20            3            1
                                 Relocated dolphin.  Vibratory install.  Steel.........           30            3           20            3            1
                                                                                        ----------------------------------------------------------------
    Subtotal...................  ..................  ..................  ..............  ...........           11          200  ...........            5
                                                                                        ----------------------------------------------------------------
        Total..................  ..................  ..................  ..............  ...........           30          545  ...........           14
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    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Mitigation'' 
and ``Monitoring and Reporting'' sections).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on April 16, 2018 (83 FR

[[Page 45899]]

16330). During the 30-day public comment period, NMFS received comment 
letters from the Marine Mammal Commission (Commission) and the Whale 
and Dolphin Conservation (WDC). Specific comments and responses are 
provided below.
    Comment 1: The Commission recommends that NMFS require WSDOT to 
collect spectral data at the source to verify the spectrum of 36-in 
piles and adjust the Level A harassment zones as necessary, rather than 
continue to use the spectrum associated with 30-in piles.
    Response: NMFS agrees with the Commission that if WSDOT plans to 
conduct pile driving source level measurements, spectral data should be 
required to calculate Level A harassment zones. However, WSDOT stated 
that it does not plan to conduct source level measurements for the 
Bremerton-Edmonds ferry terminal construction. Instead, WSDOT plans to 
use broadband source level measurement on the 36-in piles collected at 
Edmonds Ferry Terminal in 2017 and applies the 30-in pile spectrum to 
model for Level A harassment zones. NMFS has determined that this is 
acceptable for this activity, though we plan to continue evaluating 
this determination as new information is collected. Therefore, since 
WSDOT does not plan to conduct source measurements for the Bremerton-
Edmonds ferry terminal project, NMFS will not request it to acquire 
spectral data.
    Comment 2: The Commission commented that the method NMFS used to 
estimate the numbers of takes during the proposed activities, which 
summed fractions of takes for each species across project days, does 
not account for and negates the intent of NMFS' 24-hour reset policy. 
The Commission also recommends that NMFS develop and share guidance on 
this issue.
    Response: NMFS has provided the guidance to the Commission; and, as 
described therein and discussed subsequently, we have determined that 
the method used for rounding take estimates here is appropriate and 
does not conflict with the methodology that the Commission refers to as 
the ``24-hour reset policy.''
    Comment 3: The Commission requested clarification of certain issues 
associated with NMFS's notice that one-year renewals could be issued in 
certain limited circumstances and expressed concern that the process 
would bypass the public notice and comment requirements. The Commission 
also suggested that NMFS should discuss the possibility of renewals 
through a more general route, such as a rulemaking, instead of notice 
in a specific authorization. The Commission further recommended that if 
NMFS did not pursue a more general route, that the agency provide the 
Commission and the public with a legal analysis supporting our 
conclusion that this process is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA.
    Response: The process of issuing a renewal IHA does not bypass the 
public notice and comment requirements of the MMPA. The notice of the 
proposed IHA expressly notifies the public that under certain, limited 
conditions an applicant could seek a renewal IHA for an additional 
year. The notice describes the conditions under which such a renewal 
request could be considered and expressly seeks public comment in the 
event such a renewal is sought. Additional reference to this 
solicitation of public comment has recently been added at the beginning 
of FR notices that consider renewals. NMFS appreciates the streamlining 
achieved by the use of abbreviated Federal Register notices and intends 
to continue using them for proposed IHAs that include minor changes 
from previously issued IHAs, but which do not satisfy the renewal 
requirements. However, we believe our proposed method for issuing 
renewals meets statutory requirements and maximizes efficiency. 
Importantly, such renewals would be limited to where the activities are 
identical or nearly identical to those analyzed in the proposed IHA, 
monitoring does not indicate impacts that were not previously analyzed 
and authorized, and the mitigation and monitoring requirements remain 
the same, all of which allow the public to comment on the 
appropriateness and effects of a renewal at the same time the public 
provides comments on the initial IHA. NMFS has, however, modified the 
language for future proposed IHAs to clarify that all IHAs, including 
renewal IHAs, are valid for no more than one year and that the agency 
would consider only one renewal for a project at this time. In 
addition, notice of issuance or denial of a renewal IHA would be 
published in the Federal Register, as are all IHAs. Last, NMFS will 
publish on our website a description of the renewal process before any 
renewal is issued utilizing the new process.
    Comment 4: The WDC states that as part of the recently initiated 
Washington State Southern Resident Recovery Task Force, WSDOT should 
utilize locally available resources, including a hydrophone network and 
well-informed local sightings network, to monitor the presence, 
abundance, and movement of killer whales in the area during the 
project. WDC further recommends that if a protected species observer 
(PSO) is unable to differentiate between transient and resident killer 
whales, any killer whale sighting near the shutdown zone should result 
in shutdown measures. In addition, WDC recommends WSDOT employ soft-
start or ramp-up methods for pile driving activities to give any marine 
mammal within hearing range time to respond to increased noise levels 
and leave the area before work begins.
    Response: NMFS agrees with WDC's recommendations. In fact, all the 
recommended mitigation and monitoring measures in the WDC's comment 
letter were already in the proposed IHA. These measures include, but 
not limited to, (1) coordinating with the Orca Network on a daily basis 
during pile driving to understand marine mammal presence near the 
project areas and also sharing project sightings data with Orca 
Network; (2) implementing shutdown measures if a killer whale is 
sighted near the shutdown zone when the ecotype of the killer whale is 
unknown, and (3) implementing ramp-up methods for pile driving 
activities.

Description of Marine Mammals in the Area of Specified Activities

    We have reviewed the applicant's species information, which 
summarizes available information regarding status and trends, 
distribution and habitat preferences, behavior and life history, and 
auditory capabilities of the potentially affected species--for accuracy 
and completeness and refer the reader to Sections 3 and 4 of the 
applications, as well as to NMFS' Stock Assessment Reports (SAR; 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports).
    Table 2 lists all species with expected potential for occurrence in 
Bremerton and Edmonds ferry terminal project area and summarizes 
information related to the population or stock, including potential 
biological removal (PBR), where known. For taxonomy, we follow 
Committee on Taxonomy (2017). PBR, defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population, is considered in 
concert with known sources of ongoing anthropogenic mortality to assess 
the population-level effects of the anticipated mortality from a 
specific project (as described in

[[Page 45900]]

NMFS' SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' 2017 U.S. Pacific Marine Mammal SARs (Carretta et al., 2018). The 
2017 SAR is available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports.

                                    Table 2--Marine Mammals With Potential Presence Within the Proposed 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
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Gray whale..........................  Eschrichtius robustus..  Eastern North Pacific..  -; N                20,990 (0.05, 20,125).        624        132
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                                                                 Family Balaenopteridae
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Humpback whale......................  Megaptera novaneagliae.  California/Oregon/       E/D;Y               1,918 (0.03, 1,976)...       11.0       >6.5
                                                                Washington.
Minke whale.........................  Balaenoptera             California/Oregon/       -; N                636 (0.72, 369).......        3.5       >1.3
                                       acutorostrata.           Washington.
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                                                                   Family Delphinidae
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Killer whale........................  Orcinus orca...........  Eastern N Pacific        E/D; Y              83 (NA, 83)...........       0.14          0
                                                                Southern resident.
                                                               West coast transient...  -; N                243 (NA, 243).........        2.4          0
Long-beaked common dolphin..........  Delphinus delphis......  California.............  -; N                101,305 (0.49, 68,432)        657      >35.4
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                                                             Family Phocoenidae (porpoises)
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Harbor porpoise.....................  Phocoena phocoena......  Washington inland        -; N                11,233 (0.37, 8,308)..         66        7.2
                                                                waters.
Dall's porpoise.....................  Phocoenoides dali......  California/Oregon/       -; N                25,750 (0.45, 17,954).        172        0.3
                                                                Washington.
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                                                         Order Carnivora--Superfamily Pinnipedia
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                                                      Family Otariidae (eared seals and sea lions)
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California sea lion.................  Zalophus californianus.  U.S....................  -; N                296,750 (NA, 153,337).      9,200        389
Steller sea lion....................  Eumetopias jubatus.....  Eastern U.S............  -; N                41,638 (NA, 41,638)...      2,498        108
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                                                             Family Phocidae (earless seals)
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Harbor seal.........................  Phoca vitulina.........  Washington northern      -; N                11,036 \4\ (unk, unk).      1,641         43
                                                                inland waters.
Northern elephant seal..............  Mirounga angustirostris  California breeding....  -; N                179,000 (NA, 81,368)..      4,882        8.8
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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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports. 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\ Harbor seal estimate is based on data that are 8 years old, but this is the best available information for use here.

    All species that could potentially occur in the proposed 
construction areas are included in Table 2. Although the SRKW could 
occur in the vicinity of the project area, WSDOT proposes to implement 
strict monitoring and mitigation measures with assistance from local 
marine mammal researchers and observers. Thus, the take of this marine 
mammal stock can be avoided (see details in Mitigation section).
    In addition, sea otters may be found in Puget Sound area. However, 
this species is managed by the U.S. Fish and Wildlife Service and are 
not considered further in this document.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described 
generalized hearing ranges for

[[Page 45901]]

these marine mammal hearing groups. Generalized hearing ranges were 
chosen based on the approximately 65 decibel (dB) threshold from the 
normalized composite audiograms, with the exception for lower limits 
for low-frequency cetaceans where the lower bound was deemed to be 
biologically implausible and the lower bound from Southall et al. 
(2007) retained. The functional groups and the associated frequencies 
are indicated below (note that these frequency ranges correspond to the 
range for the composite group, with the entire range not necessarily 
reflecting the capabilities of every species within that group):
     Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 hertz (Hz) and 35 
kilohertz (kHz);
     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz.
     Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
     Pinnipeds in water; Otariidae (eared seals): Generalized 
hearing is estimated to occur between 60 Hz and 39 kHz.
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al., 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2016) for a review of available information. 
Eleven marine mammal species (7 cetacean and 4 pinniped (2 otariid and 
2 phocid) species) have the reasonable potential to co-occur with the 
proposed construction activities. Please refer to Table 2. Of the 
cetacean species that may be present, one species is classified as low-
frequency cetaceans (i.e., gray, humpback, and minke whales), two are 
classified as mid-frequency cetaceans (killer whale and long-beaked 
common dolphin), and two are classified as high-frequency cetaceans 
(i.e., harbor and Dall's porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take by Incidental Harassment'' section 
later in this document will include a quantitative analysis of the 
number of individuals that are expected to be taken by this activity. 
The ``Negligible Impact Analysis and Determination'' section will 
consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, and the ``Mitigation'' section, to 
draw conclusions regarding the likely impacts of these activities on 
the reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.
    Potential impacts to marine mammals from the Bremerton-Edmonds 
ferry terminal construction project are from noise generated during in-
water pile driving and pile removal activities.

Acoustic Effects

    Here, we first provide background information on marine mammal 
hearing before discussing the potential effects of the use of active 
acoustic sources on marine mammals.
    The WSDOT's Bremerton-Edmond ferry terminal construction project 
using in-water pile driving and pile removal could adversely affect 
marine mammal species and stocks by exposing them to elevated noise 
levels in the vicinity of the activity area.
    Exposure to high intensity sound for a sufficient duration may 
result in auditory effects such as a noise-induced threshold shift 
(TS)--an increase in the auditory threshold after exposure to noise 
(Finneran et al., 2005). Factors that influence the amount of threshold 
shift include the amplitude, duration, frequency content, temporal 
pattern, and energy distribution of noise exposure. The magnitude of 
hearing threshold shift normally decreases over time following 
cessation of the noise exposure. The amount of TS just after exposure 
is the initial TS. If the TS eventually returns to zero (i.e., the 
threshold returns to the pre-exposure value), it is a temporary 
threshold shift (TTS) (Southall et al., 2007).
    Threshold Shift (noise-induced loss of hearing)--When animals 
exhibit reduced hearing sensitivity (i.e., sounds must be louder for an 
animal to detect them) following exposure to an intense sound or sound 
for long duration, it is referred to as a noise-induced TS. An animal 
can experience TTS or permanent threshold shift (PTS). TTS can last 
from minutes or hours to days (i.e., there is complete recovery), can 
occur in specific frequency ranges (i.e., an animal might only have a 
temporary loss of hearing sensitivity between the frequencies of 1 and 
10 kHz), and can be of varying amounts (for example, an animal's 
hearing sensitivity might be reduced initially by only 6 dB or reduced 
by 30 dB). PTS is permanent, but some recovery is possible. PTS can 
also occur in a specific frequency range and amount as mentioned above 
for TTS.
    For marine mammals, published data are limited to the captive 
bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless 
porpoise (Finneran, 2015). For pinnipeds in water, data are limited to 
measurements of TTS in harbor seals, an elephant seal, and California 
sea lions (Kastak et al., 1999, 2005; Kastelein et al., 2012b).
    Lucke et al. (2009) found a TS of a harbor porpoise after exposing 
it to airgun noise with a received sound pressure level (SPL) at 200.2 
dB (peak-to-peak) re: 1 micropascal ([mu]Pa), which corresponds to a 
sound exposure level of 164.5 dB re: 1 [mu]Pa\2\ s after integrating 
exposure. Because the airgun noise is a broadband impulse, one cannot 
directly determine the equivalent of root mean square (rms) SPL from 
the reported peak-to-peak SPLs. However, applying a conservative 
conversion factor of 16 dB for broadband signals from seismic surveys 
(McCauley, et al., 2000) to correct for the difference between peak-to-
peak levels reported in Lucke et al. (2009) and rms SPLs, the rms SPL 
for TTS would be approximately 184 dB re: 1 [mu]Pa, and the received 
levels associated with PTS (Level A harassment) would be higher. 
Therefore, based on these studies, NMFS recognizes that TTS of harbor 
porpoises is lower than other cetacean species empirically tested 
(Finneran & Schlundt, 2010; Finneran et al., 2002; Kastelein and 
Jennings, 2012).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery

[[Page 45902]]

time), and frequency range of TTS, and the context in which it is 
experienced, TTS can have effects on marine mammals ranging from 
discountable to serious (similar to those discussed in auditory 
masking, below). For example, a marine mammal may be able to readily 
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that occurs during a time where ambient noise 
is lower and there are not as many competing sounds present. 
Alternatively, a larger amount and longer duration of TTS sustained 
during time when communication is critical for successful mother/calf 
interactions could have more serious impacts. Also, depending on the 
degree and frequency range, the effects of PTS on an animal could range 
in severity, although it is considered generally more serious because 
it is a permanent condition. Of note, reduced hearing sensitivity as a 
simple function of aging has been observed in marine mammals, as well 
as humans and other taxa (Southall et al., 2007), so one can infer that 
strategies exist for coping with this condition to some degree, though 
likely not without cost.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals, which utilize sound for vital biological functions 
(Clark et al., 2009). Acoustic masking is when other noises such as 
from human sources interfere with animal detection of acoustic signals 
such as communication calls, echolocation sounds, and environmental 
sounds important to marine mammals. Therefore, under certain 
circumstances, marine mammals whose acoustical sensors or environment 
are being severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction.
    Masking occurs at the frequency band that the animals utilize. 
Therefore, since noise generated from vibratory pile driving is mostly 
concentrated at low frequency ranges, it may have less effect on high 
frequency echolocation sounds by odontocetes (toothed whales). However, 
lower frequency man-made noises are more likely to affect detection of 
communication calls and other potentially important natural sounds such 
as surf and prey noise. It may also affect communication signals when 
they occur near the noise band and thus reduce the communication space 
of animals (e.g., Clark et al., 2009) and cause increased stress levels 
(e.g., Foote et al., 2004; Holt et al., 2009).
    Unlike TS, masking, which can occur over large temporal and spatial 
scales, can potentially affect the species at population, community, or 
even ecosystem levels, as well as individual levels. Masking affects 
both senders and receivers of the signals and could have long-term 
chronic effects on marine mammal species and populations. Recent 
science suggests that low frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, and most of these increases 
are from distant shipping (Hildebrand, 2009). For WSDOT's Bremerton-
Edmonds ferry terminal project, noises from vibratory pile driving and 
pile removal contribute to the elevated ambient noise levels in the 
project area, thus increasing potential for or severity of masking. 
Baseline ambient noise levels in the vicinity of project area are high 
due to ongoing shipping, construction and other activities in the Puget 
Sound.
    Finally, marine mammals' exposure to certain sounds could lead to 
behavioral disturbance (Richardson et al., 1995), such as changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities; 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al., 2007). Currently NMFS uses a received level of 160 dB re 1 [mu]Pa 
(rms) to predict the onset of behavioral harassment from impulse noises 
(such as impact pile driving), and 120 dB re 1 [mu]Pa (rms) for 
continuous noises (such as vibratory pile driving). For the WSDOT's 
Bremerton-Edmonds ferry terminal project, only 120-dB level is 
considered for effects analysis because WSDOT plans to use only 
vibratory pile driving and pile removal.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be biologically significant if the change affects 
growth, survival, and/or reproduction, which depends on the severity, 
duration, and context of the effects.

Potential Effects on Marine Mammal Habitat

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

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of whether the number of takes is ``small'' and the negligible impact 
determination.

[[Page 45903]]

    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise generated from vibratory pile driving 
and removal. Based on the nature of the activity and the anticipated 
effectiveness of the mitigation measures (i.e., shutdown measures--
discussed in detail below in Mitigation section), Level A harassment is 
neither anticipated nor authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be behaviorally harassed or incur 
some degree of permanent hearing impairment; (2) the area or volume of 
water that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) and the number of days of activities. Below, we describe these 
components in more detail and present the take estimate.

Acoustic Thresholds

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

                 Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
----------------------------------------------------------------------------------------------------------------
                                           PTS onset thresholds                    Behavioral thresholds
          Hearing group          -------------------------------------------------------------------------------
                                       Impulsive         Non-impulsive         Impulsive         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Lpk,flat: 219 dB;   LE,LF,24h: 199 dB.  Lrms,flat: 160 dB.  Lrms,flat: 120 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)             Lpk,flat: 218 dB;   LE,PW,24h: 201 dB.
 (Underwater).                     LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW)            Lpk,flat: 232 dB;   LE,OW,24h: 219 dB.
 (Underwater).                     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.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa2s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
Source Levels
    The project includes vibratory removal and/or driving of 30-inch 
and 36-inch diameter hollow steel piles. Based on in-water measurements 
at

[[Page 45904]]

Edmonds Ferry Terminal in 2017 (WSDOT 2017), vibratory driving of 30-
inch steel piles generated 174 dB rms re 1 [micro]Pa at 10 meters and 
vibratory pile driving of a 36-inch steel pile generated 177 dB rms re 
1 [micro]Pa measured at 10 meters. As a conservative estimate, 
vibratory pile removal source level of 36-in steel pile is based on 36-
in pile installation level of 177 dB re 1 [micro]Pa SEL.
    A summary of source levels from different pile driving and pile 
removal activities is provided in Table 4.

                             Table 4--Summary of In-Water Pile Driving Source Levels
                                              [At 10 m from source]
----------------------------------------------------------------------------------------------------------------
                                                                               SEL (dB re 1     SPLrms (dB re 1
                   Method                            Pile type/size          [micro]Pa\2\-s)       [micro]Pa)
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal..................  36-in steel pile.............                177                177
Vibratory driving..........................  30-in steel pile.............                174                174
----------------------------------------------------------------------------------------------------------------

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

Estimating Harassment Zones

    For Level B harassment, ensonified areas are based on WSDOT's 
source measurements (see above) computed using 15 * log(R) for 
transmission loss to derive the distances up to 120-dB isopleths.
    For Level A harassment, calculation is based on duration of 
installation/removal per pile and number of piles installed or removed 
per day, using spectral modeling based on vibratory pile driving 
recordings made at Edmonds Ferry Terminal for the same piles. One-
second sound exposure level (SEL) power spectral densities (PSDs) were 
calculated and used as representative pile driving sources to assess 
Level A harassment for marine mammals in different hearing groups. 
Initial results showed that Level A harassment zones from the 3-in 
piles were smaller than those from 30-in piles for high-frequency 
cetaceans, despite the broadband noise level from the 36-in pile being 
3 dB higher than that of 30-in pile. Close examination of the pile 
driving spectra revealed some unusual high decay rate in the 36-in pile 
driving sound above 2 kHz. This unusual decay was probably due to the 
specific sediment in the pile driving location. Therefore, the spectrum 
for the 30-in pile was used to model the 36-in pile and scaled up to 
the 177 dB broadband level.
    Transmission loss due to absorption was also incorporated based 
using the equation

TL(f) = 15log(R) + a(f) * R/1000

where TL(f) is frequency dependent transmission loss, and a(f) is 
frequency dependent transmission loss coefficient.
    Distances of ensonified area for different pile driving/removal 
activities for different marine mammal hearing groups is present in 
Table 5.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    In most cases, marine mammal density data are from the U.S. Navy 
Marine Species Density Database (U.S. Navy 2015) except California sea 
lion and harbor porpoise. California sea lion density at Bremerton area 
is based on survey data of California sea lions at the Navy Shipyard at 
Bremerton from 2012-2016 (Navy 2017). Survey results indicate as many 
as 144 animals hauled out each day during this time period, with the 
majority of animals observed August through May and the greatest 
numbers observed in November. The average of the monthly maximum counts 
during the in-water work window provides an estimate of 69 sea lions 
per day. For harbor porpoise, because Washington Department of Fish and 
Wildlife has better local distribution data based on recent survey in 
the area, local animal abundance are used to calculate the take numbers 
(Evenson, 2016).

[[Page 45905]]

[GRAPHIC] [TIFF OMITTED] TN11SE18.000

    A summary of marine mammal density and local occurrence used for 
take estimates is provided in Table 6.

Table 6--Marine Mammal Density and Local Occurrence in the WSDOT Project
                                  Area
------------------------------------------------------------------------
                                                                Density
                           Species                             (#/km\2\)
------------------------------------------------------------------------
Gray whale...................................................     0.0051
Humpback whale...............................................     0.0007
Minke whale..................................................    0.00003
Killer whale (West coast transient)..........................      0.002
Long-beaked common dolphin...................................      0.002
Harbor porpoise..............................................       0.58
Dall's porpoise..............................................      0.048
California sea lion..........................................     * 0.03
Steller sea lion.............................................       0.04
Harbor seal..................................................       1.22
Northern elephant seal.......................................    0.00001
------------------------------------------------------------------------
* This density is only used for Edmonds Ferry Terminal area. For animals
  at Bremerton Ferry Terminal, a daily sighting of 69 animals is used
  for take estimates.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. For all marine 
mammals except California sea lion at Bremerton Ferry Terminal area, 
takes were calculated as: Take = ensonified area x average animal 
abundance in the area x pile driving days and rounded up to the nearest 
integer. For California sea lion at Bremerton, take estimate is based 
on the average daily sighting of 69 animals within the area multiplied 
by the nine project days, which yield a total of 621 estimated takes.
    For calculated take number less than 10, such as northern elephant 
seals, transient killer whales, humpback whales, minke whales, and 
long-beaked common dolphins, takes numbers were adjusted to account for 
group encounter and the likelihood of encountering. Specifically, for 
northern elephant seal, take of 15 animals is estimated based on the 
likelihood of encountering this species during the project period. For 
transient killer whale, takes of 30 animals is estimated based on the 
group size and the likelihood of encountering in the area. For humpback 
and minke whales, takes of eight animals each are estimated based on 
the likelihood of encountering. For long-beaked common dolphin, take of 
50 animals is estimated based on the group size and the likelihood of 
encountering in the area.
    No Level A harassment take is calculated using the aforementioned 
estimation method because of the small injury zones and relatively low 
average animal density in the area. Since the largest Level A 
harassment distance is only 35 m from the source for high-frequency 
cetaceans (harbor porpoise and Dall's porpoise), NMFS considers that 
WSDOT can effectively monitor such small zones to implement shutdown 
measures and avoid Level A harassment takes. Therefore, no Level A 
harassment take of marine mammal is anticipated for the dolphin 
replacement project at the Bremerton and Edmonds ferry terminals.
    A summary of estimated takes based on the above analysis is listed 
in Table 7.

[[Page 45906]]



  Table 7--Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Cause Level B
                                                   Harassment
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated
                                                                      Level B
                             Species                                harassment       Abundance      Percentage
                                                                       take
----------------------------------------------------------------------------------------------------------------
Gray whale......................................................              10          20,990               0
Humpback whale..................................................               8           1,918               0
Minke whale.....................................................               8             636               2
Killer whale (West coast transient).............................              30             243              12
Killer whale (Southern resident)................................               0              83               0
Long-beaked common dolphin......................................              50         101,305               0
Harbor porpoise.................................................           1,087          11,233              10
Dall's porpoise.................................................              90          25,750               0
California sea lion.............................................           1,149         296,750               0
Steller sea lion................................................              75          41,638               0
Harbor seal.....................................................           2,286          11,036              21
Northern elephant seal..........................................              15         179,000               0
----------------------------------------------------------------------------------------------------------------

Mitigation

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

Mitigation for Marine Mammals and Their Habitat

1. Time Restriction
    In-water work must occur only during daylight hours, when visual 
monitoring of marine mammals can be conducted.
2. Establishing and Monitoring Level A, Level B Harassment Zones, and 
Shutdown Zones
    Before the commencement of in-water construction activities, which 
include vibratory pile driving and pile removal, WSDOT must establish 
Level A harassment zones where received underwater SELcum 
could cause PTS (see above).
    WSDOT must also establish Level B harassment zones where received 
underwater SPLs are higher than 120 dBrms re 1 [micro]Pa for 
non-impulsive noise sources (vibratory pile driving and pile removal).
    WSDOT must establish shutdown zones within which marine mammals 
could be taken by Level A harassment. For Level A harassment zones that 
is less than 10 m from the source, a minimum of 10 m distance should be 
established as a shutdown zone.
    A summary of shutdown zones is provided in Table 8.

        Table 8--Shutdown Distances for Various Pile Driving Activities and Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
                                                               Shutdown distance (m)
 Pile type, size & pile driving  -------------------------------------------------------------------------------
             method                 LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid
----------------------------------------------------------------------------------------------------------------
36'' indicate pile install (1                 10              10              25              10              10
 pile/day)......................
36'' indicate pile removal (1                 10              10              10              10              10
 pile/day)......................
36'' steel pile (existing                     25              10              35              10              10
 dolphin) removal (3 piles/day).
36'' steel pile (relocated                    25              10              35              10              10
 dolphin) install (3 piles/day).
30'' steel pile (relocated                    25              10              25              10              10
 dolphin) install (3 piles/day).
----------------------------------------------------------------------------------------------------------------

    NMFS-approved protected species observers (PSO) shall conduct an 
initial 30-minute survey of the shutdown zones to ensure that no marine 
mammals are seen within the zones before pile driving and pile removal 
of a pile segment begins. If marine mammals are found within the 
shutdown zone, pile driving of the

[[Page 45907]]

segment must be delayed until they move out of the area. If a marine 
mammal is seen above water and then dives below, the contractor must 
wait 15 minutes. If no marine mammals are seen by the observer in that 
time it can be assumed that the animal has moved beyond the shutdown 
zone.
    If pile driving of a segment ceases for 30 minutes or more and a 
marine mammal is sighted within the designated shutdown zone prior to 
commencement of pile driving, the observer(s) must notify the pile 
driving operator (or other authorized individual) immediately and 
continue to monitor the shutdown zone. Operations may not resume until 
the marine mammal has exited the shutdown zone or 30 minutes have 
elapsed since the last sighting.
    To verify the required monitoring distance, the shutdown zones and 
ZOIs will be determined by using a range finder or hand-held global 
positioning system device.
3. Shutdown Measures
    WSDOT must implement shutdown measures if a marine mammal is 
detected within or to be approaching the shutdown zones provided in 
Table 8 of this notice.
    WSDOT must implement shutdown measures if Southern Resident killer 
whales (SRKWs) are sighted within the vicinity of the project area and 
are approaching the Level B harassment zone (zone of influence, or ZOI) 
during in-water construction activities.
    If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a SRKW or a transient killer 
whale, it must be assumed to be a SRKW and WSDOT shall implement the 
shutdown measure described above.
    If a SRKW enters the ZOI undetected, in-water pile driving or pile 
removal must be suspended until the SRKW exits the ZOI to avoid further 
level B harassment.
    WSDOT must implement shutdown measures if the number of any 
allotted marine mammal takes reaches the limit under the IHA or if a 
marine mammal observed is not authorized for take under this IHA, if 
such marine mammals are sighted within the vicinity of the project area 
and are approaching the Level B harassment zone during pile removal 
activities.
    Based on our evaluation of the required measures, NMFS has 
determined that the prescribed mitigation measures provide the means 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, requirements pertaining to 
the monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Monitoring Measures

    WSDOT must employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its dolphin relocation project at Bremerton and Edmonds 
ferry terminals. The purposes of marine mammal monitoring are to 
implement mitigation measures and learn more about impacts to marine 
mammals from WSDOT's construction activities. The PSOs 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 observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer must be designated as lead observer or monitoring coordinator. 
The lead observer must have prior experience working as an observer; 
and
    5. NMFS will require submission and approval of observer CVs.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of zones of influence (ZOI) from different 
pile types, two different ZOIs and different monitoring protocols 
corresponding to a specific pile type must be established.
     For all vibratory driving/removal at the Bremerton Ferry 
Terminal, two land-based PSOs and one monitoring boat with one PSO and 
boat operator must monitor the Level A and Level B harassment zones.
     For all vibratory driving/removal at the Edmonds Ferry 
Terminal, five land-based PSOs and two ferry-based PSOs must monitor 
the Level A and Level B harassment zones.
     If the in-situ measurement showed that the Level B 
harassment zone at the Edmonds Ferry Terminal is under 15 km from the 
source, three land-based PSOs and one ferry-based PSO must be 
monitoring the Level A and Level B harassment zones.
    Locations of the land-based PSOs and routes of monitoring vessels 
are shown in WSDOT's Marine Mammal Monitoring Plan, which is available 
online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
    6. PSOs must collect the following information during marine mammal 
monitoring:
     Date and time that monitored activity begins and ends for 
each day conducted (monitoring period);

[[Page 45908]]

     Construction activities occurring during each daily 
observation period, including how many and what type of piles driven;
     Deviation from initial proposal in pile numbers, pile 
types, average driving times;
     Weather parameters in each monitoring period (e.g., wind 
speed, percent cloud cover, visibility);
     Water conditions in each monitoring period (e.g., sea 
state, tide state);
     For each marine mammal sighting, the following information 
shall be collected:
    [cir] Species, numbers, and, if possible, sex and age class of 
marine mammals;
    [cir] Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
    [cir] Location and distance from pile driving activities to marine 
mammals and distance from the marine mammals to the observation point; 
and
    [cir] Estimated amount of time that the animals remained in the 
Level B harassment zone;
    [cir] Description of implementation of mitigation measures within 
each monitoring period (e.g., shutdown or delay); and
    [cir] Other human activity in the area within each monitoring 
period.
    WSDOT may conduct noise field measurement at the Edmonds Ferry 
Terminal to determine the actual Level B harassment distance from the 
source during vibratory pile driving of 36'' piles.

Reporting Measures

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

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 7, given that the 
anticipated effects of WSDOT's Bremerton and Edmonds ferry terminals 
dolphin relocation project involving pile driving and pile removal on 
marine mammals are expected to be relatively similar in nature. There 
is no information about the nature or severity of the impacts, or the 
size, status, or structure of any species or stock that would lead to a 
different analysis by species for this activity, or else species-
specific factors would be identified and analyzed.
    For all marine mammal species, takes that are anticipated and 
authorized are expected to be limited to short-term Level B harassment, 
because of the small scale (only a total of 30 piles to be installed 
and removed) and short durations (maximum nine days pile driving/
removal at Bremerton Ferry Terminal and five days pile driving/removal 
at Edmonds Ferry Terminal).
    Marine mammals present in the vicinity of the action area and taken 
by Level B harassment would most likely show overt brief disturbance 
(startle reaction) and avoidance of the area from elevated noise levels 
during pile driving and pile removal. For these reasons, these 
behavioral impacts are not expected to affect marine mammals' growth, 
survival, and reproduction, especially considering the limited 
geographic area that would be affected in comparison to the much larger 
habitat for marine mammals in the Pacific Northwest.
    Take calculation based on marine mammal densities within the 
ensonified areas did not predict a Level A harassment take. In 
addition, the estimated Level A harassment zones are small (less than 
35 m from the source) and can be effectively monitored to implement a 
shutdown measure if a marine mammal is detected to be moving towards 
that zone. The impacts are not expected to affect survival, and 
reproduction of the marine mammal population in the project vicinity.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. There is 
no ESA designated critical area in the vicinity of the Bremerton and 
Edmonds ferry terminal areas. The project activities would not 
permanently modify existing marine mammal habitat. The activities may 
kill some fish and cause other fish to leave the area temporarily, thus 
impacting marine mammals' foraging opportunities in a limited portion 
of the foraging range; 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, WSDOT's proposed construction activity 
at Bremerton and Edmonds ferry terminals

[[Page 45909]]

would not adversely affect marine mammal habitat.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No injury, serious injury, or mortality is anticipated or 
authorized;
     All harassment is Level B harassment in the form of short-
term behavioral modification; and
     No areas of specific importance to affected species are 
impacted.
    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 prescribed monitoring and 
mitigation measures, NMFS finds that the total take from the proposed 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, 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.
    The estimated takes are below 21 percent of the population for all 
marine mammals.
    Based on the analysis contained herein of the proposed activity 
(including the prescribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    NMFS has determined the issuance of the IHA is consistent with 
categories of activities identified in Categorical Exclusion B4 
(issuance of incidental harassment authorizations under section 
101(a)(5)(A) and (D) of the MMPA for which no serious injury or 
mortality is anticipated) of NOAA's Companion Manual for NAO 216-6A, 
and we have not identified any extraordinary circumstances listed in 
Chapter 4 of the Companion Manual for NAO 216-6A that would preclude 
this categorical exclusion under NEPA.

Endangered Species Act (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 West Coast Region 
Protected Resources Division, whenever we propose to authorize take for 
endangered or threatened species.
    The humpback whale and the killer whale (southern resident distinct 
population segment (DPS)) are the only marine mammal species listed 
under the ESA that could occur in the vicinity of WSDOT's proposed 
construction project. Two DPSs of the humpback whale stock, the Mexico 
DPS and the Central America DPS, are listed as threatened and 
endangered under the ESA, respectively. NMFS Office of Protected 
Resources has initiated consultation with NMFS West Coast Regional 
Office under section 7 of the ESA on the issuance of an IHA to WSDOT 
under section 101(a)(5)(D) of the MMPA for this activity. NMFS is 
authorizing take of California/Oregon/Washington stock of humpback 
whale, which are listed under the ESA.
    In March 2018, NMFS finished conducting its section 7 consultation 
and issued a Biological Opinion concluding that the issuance of the IHA 
associated with WSDOT's Bremerton-Edmonds ferry terminals construction 
project is not likely to jeopardize the continued existence of the 
endangered humpback and the Southern Resident killer whales.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
Washington State Department of Transportation for the Bremerton and 
Edmonds ferry terminals dolphin relocation project in Washington State, 
provided the previously described mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: September 5, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-19592 Filed 9-10-18; 8:45 am]
 BILLING CODE 3510-22-P