Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Bremerton Ferry Terminal Dolphin Relocation Project in Washington State, 32881-32888 [2019-14683]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 132 (Wednesday, July 10, 2019)]
[Notices]
[Pages 32881-32888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14683]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XR014


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Bremerton Ferry Terminal Dolphin 
Relocation Project in Washington State

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

ACTION: Notice; incidental harassment authorization; request for 
comments on proposed renewal.

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SUMMARY: NMFS received a request from the Washington State Department 
of Transportation (WSDOT) for the Renewal of their currently active 
incidental harassment authorization (IHA) to take marine mammals 
incidental to the dolphin (a man-made structure that protects other 
structures from being struck by boats) relocation project at the 
Bremerton Ferry Terminal in Washington State. These activities consist 
of activities that are covered by the current authorization but will 
not be completed prior to its expiration. Pursuant to the Marine Mammal 
Protection Act (MMPA), prior to issuing the currently active IHA, NMFS 
requested comments on both the proposed IHA and the potential for 
renewing the initial authorization if certain requirements were 
satisfied. The Renewal requirements have been satisfied, and NMFS is 
now providing an additional 15-day comment period to allow for any 
additional comments on the requested Renewal not previously provided 
during the initial 30-day comment period.

DATES: Comments and information must be received no later than July 25, 
2019.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. 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 incidental take authorization is provided to the public for 
review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity, and 
requested public comment on a potential Renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-year IHA Renewal when (1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned or (2) the activities would not be completed by the time the 
IHA expires and a second IHA would allow for completion of the 
activities beyond that described in the Dates and Duration section of 
the initial IHA. All of the following conditions must be met in order 
to issue a Renewal:
     A request for Renewal is received no later than 60 days 
prior to expiration of the current IHA;
     The request for Renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements; and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS

[[Page 32882]]

determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures remain the same and appropriate, 
and the initial findings remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential Renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA Renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested Renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

    Issuance of an MMPA 101(a)(5)(D) authorization requires compliance 
with the National Environmental Policy Act (NEPA).
    NMFS preliminary determined the issuance of the proposed Renewal is 
consistent with categories of activities identified in CE B4 (issuance 
of incidental harassment authorizations under section 101(a)(5)(A) and 
(D) of the MMPA for which no serious injury or mortality is 
anticipated) of NOAA's Companion Manual for NAO 216-6A, and we have not 
identified any extraordinary circumstances listed in Chapter 4 of the 
Companion Manual for NAO 216-6A that would preclude this categorical 
exclusion under NEPA.
    We will review all comments submitted in response to this notice 
prior to making a final decision as to whether application of this CE 
is appropriate in this circumstance.

History of Request

    On August 24, 2018, NMFS issued an IHA to WSDOT to take marine 
mammals incidental to Bremerton and Edmonds Ferry Terminal Dolphin 
Relocation Project in Washington State (83 FR 45897; September 11, 
2018), effective from October 1, 2018 through September 31, 2019. On 
May 8, 2019, NMFS received a request for the Renewal of that initial 
IHA. As described in the request for Renewal, the activities for which 
incidental take is requested consist of activities that are covered by 
the initial authorization but will not be completed prior to its 
expiration. As required, the applicant also provided a preliminary 
monitoring report (available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act), 
which confirms that the applicant has implemented the required 
mitigation and monitoring, and which also shows that no impacts of a 
scale or nature not previously analyzed or authorized have occurred as 
a result of the activities conducted.

Description of the Specified Activities and Anticipated Impacts

    WSDOT proposes to relocate one dolphin to improve safety at the 
Bremerton Ferry Terminal. The Olympic Class ferries have an atypical 
shape, which at some terminals causes the vessels to make contact with 
the inner dolphin prior to the stern of the vessel reaching the 
intermediate or outer dolphin. This tends to cause rotation of the 
vessel away from the wingwalls, which presents a safety issue. 
Relocating the dolphin will reduce the risk of landing issues for 
Olympic Class ferries at the Bremerton ferry terminal. 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 at the Bremerton ferry terminal is limited to August 1, 
2019 through February 15, 2020. All work proposed by WSDOT would be 
conducted within this window.
    The specified activities described for this Renewal are an 
identical subset of the activities covered by the initial IHA. NMFS 
previously published notices of proposed IHA (83 FR 16330; April 16, 
2018) and issued IHA (83 FR 45897; September 11, 2018). These 
documents, as well as WSDOT's initial IHA application and the 
preliminary monitoring report for the previously issued IHA, are 
available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-state-department-transportation-ferry-terminal.
    Similarly, the anticipated impacts are identical to those described 
in the initial IHA. Specifically, we anticipate the take of individuals 
of eleven marine mammal stocks (including four pinniped and seven 
cetacean stocks), by Level B harassment only, incidental to noise 
resulting from pile driving associated with the proposed activities. 
WSDOT was not able to complete the pile driving activities analyzed in 
the initial IHA by the date that IHA is set to expire and anticipates 
the need for additional pile driving to complete the project.
    The following documents are referenced in this notice and include 
important supporting information, and may be found at the indicated 
location:
     Initial Proposed IHA: Takes of Marine Mammals Incidental 
to Specified Activities; Taking Marine Mammals Incidental to Bremerton 
and Edmonds Ferry Terminals Dolphin Relocation Project in Washington 
State (83 FR 16330; April 16, 2018). Available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-state-department-transportation-ferry-terminal;
     Initial Final IHA: Takes of Marine Mammals Incidental to 
Specified Activities; Taking Marine Mammals Incidental to Bremerton and 
Edmonds Ferry Terminals Dolphin Relocation Project in Washington State 
(83 FR 45897; September 11, 2018). Available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-state-department-transportation-ferry-terminal; and
     Preliminary Monitoring Report from Initial IHA. Available 
at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-state-department-transportation-ferry-terminal.

Detailed Description of the Activity

    As described above, WSDOT was not able to complete the activities 
analyzed in the initial IHA by the date that IHA is set to expire 
(September 30, 2019). As such, the activities WSDOT proposes to conduct 
between August 1, 2019 and February 15, 2020 would be a continuation of 
the activities as described in the initial 2018 IHA and would be 
identical to the activities analyzed in the initial IHA (e.g., same 
location, equipment, methods, seasonality). The initial IHA analyzed 
the potential impacts to marine mammals from the relocation of one 
dolphin each at the Edmonds and Bremerton ferry terminals to 
accommodate the Olympic Class ferries.
    WSDOT completed all planned activities at the Edmonds ferry 
terminal in the 2018-2019 in-water work period but no work was 
conducted at the Bremerton ferry terminal. The numbers of each pile 
size that were planned to be driven during the 2018-2019 work window is 
shown in Table 1 of the initial proposed IHA (83 FR 16330; April 16, 
2018). WETA planned to install and remove a total of 30 piles in the 
2018-2019 work window (11 at the Edmonds ferry terminal and 19 at the 
Bremerton ferry terminal). However, as described above, WSDOT was only 
able

[[Page 32883]]

to complete pile driving at the Edmonds ferry terminal. Four 36-inch 
steel pipe piles were removed with a vibratory hammer and seven steel 
pipe piles (three 30-inch and four 36-inch) were installed with a 
vibratory hammer at the Edmonds ferry terminal. Construction occurred 
on six days between January 29 and February 7, 2019. WSDOT therefore 
proposes to complete pile driving activities at the Bremerton ferry 
terminal in the 2019-2020 work window.
    The proposed activities at the Bremerton ferry terminal include 
vibratory installation and removal of steel pipe piles. A total of 19 
steel pipe piles will be installed and removed at the Bremerton ferry 
terminal. One temporary 36-inch indicator pile will be installed with a 
vibratory hammer. The temporary indicator pile will be used as a visual 
landing aid for vessel captains during construction. Once the indicator 
pile is in place, the 6 36-inch piles that comprise the left outer 
dolphin will be removed with a vibratory hammer and/or by direct pull 
and clamshell removal. Using a vibratory hammer, three 30-inch reaction 
piles will be installed as a back group of piles to provide stability 
to the dolphin. A concrete diaphragm atop the back piles will be 
installed, followed by four additional 30-inch reaction piles installed 
with a vibratory hammer. Three 36-inch steel pipe fender piles will be 
installed with a vibratory hammer. Fenders and rub panels will be 
installed to absorb energy from the vessel as it makes contact with the 
dolphin. Finally, using a vibratory hammer, the 36-inch temporary 
indicator pile will be removed and reinstalled as the last fender pile. 
Vibratory removal of both 30- and 36-inch piles is expected to take up 
to 15 minutes per pile. Vibratory installation of 30- and 36-inch piles 
is expected to take up to 20 minutes per pile. Underwater sound 
resulting from pile driving could result in the harassment of marine 
mammals. The proposed Renewal would be effective from August 1, 2019 
through July 31, 2020.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Notices of the proposed IHA for the initial authorization (83 FR 16330; 
April 16, 2018). The marine mammal species for which take was 
authorized in the initial IHA, and for which take is proposed in this 
requested Renewal are: Pacific harbor seal (Phoca vitulina richardii), 
Northern elephant seal (Mirounga angustirostris), California sea lion 
(Zalophus californianus), eastern Distinct Population Segment (eDPS) 
Steller sea lion (Eumetopias jubatus), transient killer whales (Orcinus 
orca), gray whale (Eschrichtius robustus), humpback whale (Megaptera 
novaeangliae), minke whale (Balaenoptera acutorostrata), harbor 
porpoise (Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), and 
common dolphin (Delphinus delphis).
    NMFS has reviewed the monitoring data from the initial IHA, recent 
draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature. The 2018 Stock 
Assessment Report notes that the estimated abundance of California sea 
lions has decreased slightly and the estimated abundances of Eastern 
North Pacific gray whales and California/Oregon/Washington humpback 
whales increased slightly. Additionally, since January 1, 2019, 
elevated gray whale strandings have occurred along the west coast of 
North America from Mexico through Alaska. NMFS declared an Unusual 
Mortality Event on May 31, 2019. As of June 27, 2019, a total of 85 
gray whales have stranded along the U.S. coast, with a combined 
additional 86 whales stranded in Mexico and Canada. Full or partial 
necropsy examinations have been conducted on a subset of the stranded 
gray whales. Preliminary findings in several of the whales have shown 
evidence of emaciation. However, neither this nor any other new 
information affects which species or stocks have the potential to be 
affected or the pertinent information in the Description of the Marine 
Mammals in the Area of Specified Activities contained in the supporting 
documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Notices of the proposed IHA for the 
initial authorization (83 FR 16330; April 16, 2018). NMFS has reviewed 
the monitoring data from the initial IHA, recent draft Stock Assessment 
Reports, information on relevant Unusual Mortality Events, and other 
scientific literature, and determined that neither this nor any other 
new information affects our initial analysis of impacts on marine 
mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Notice of proposed IHA 
(83 FR 16330; April 16, 2018) and issued IHA (83 FR 45897; September 
11, 2018) for the initial authorization. The pile driving equipment 
that may result in take, as well as the source levels, marine mammal 
stocks taken, and the methods of take estimation remain unchanged from 
the previously issued IHA. Changes in the density of seven stocks are 
indicated below, though they result in only minor changes in the take 
estimates that do not affect our findings, as described.
    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 acoustic sources (i.e., vibratory pile 
driving). Based on the nature of the activity and the anticipated 
effectiveness of the mitigation measures (i.e., shutdowns) discussed in 
detail below in Proposed Mitigation section, Level A harassment is 
neither anticipated nor proposed to be authorized.
    As described above, WSDOT completed all pile driving activities at 
the Edmonds ferry terminal in the 2018-2019 in-water work period and 
proposes to install and remove a total of 19 piles at the Bremerton 
ferry terminal in the 2019-2020 work period to complete the project. 
All piles to be installed and removed at the Bremerton ferry terminal 
would be 30- and 36-inch steel pipe piles. The number of piles for each 
respective size and element are shown in Table 1.

                    Table 1--Number and Sizes of Piles Proposed for Installation and Removal, and Estimated Duration of Pile Driving
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                                                                                             Number of     Duration/pile     Number of       Duration
               Pile element                            Method               Size (inch)        piles           (min)       piles per day      (days)
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Indicator pile............................  Vibratory install...........              36               1              20               1               1

[[Page 32884]]

 
Indicator pile............................  Vibratory removal...........              36               1              15               1               1
Existing dolphin..........................  Vibratory removal...........              36               6              15               3               2
Relocate dolphin install..................  Vibratory install...........              36               4              20               3               2
Relocated dolphin install.................  Vibratory install...........              30               7              20               3               3
                                                                         -------------------------------------------------------------------------------
    Total.................................  ............................  ..............              19             345  ..............               9
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    Distances to the isopleths corresponding to the Level B harassment 
threshold for each pile size are shown in Table 2. Distances to the 
isopleths corresponding to the Level A harassment thresholds for the 
various marine mammal functional hearing groups, by pile size and 
duration of pile driving, are shown in Table 3. Descriptions of the 
modeling methods used to determine the distances shown in Tables 2 and 
3 are described in detail in the Notice of proposed IHA (83 FR 16330; 
April 16, 2018) for the initial IHA. These methods have not changed 
from the initial IHA, and all values shown in Tables 2 and 3 have not 
changed from the initial IHA.

 Table 2--Distances to Isopleths Corresponding to the Level B Harassment
                                Threshold
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                                                             Distance to
                                                               Level B
                   Pile driving activity                      harassment
                                                              threshold
                                                                 (m)
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36-inch steel pile (installation and removal)..............       63,100
30-inch steel pile (installation)..........................       39,800
------------------------------------------------------------------------


                 Table 3--Distances to Isopleths Corresponding to Level A Harassment Thresholds
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                                                   Distance to Level A harassment threshold (m)
      Pile driving activity      -------------------------------------------------------------------------------
                                    LF Cetacean     MF Cetacean     HF Cetacean       Phocid          Otariid
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36-inch indicator pile install                10              10              25              10              10
 (1 pile/day)...................
36-inch indicator pile removal                10              10              10              10              10
 (1 pile/day)...................
36-inch steel pile (existing                  25              10              35              10              10
 dolphin) removal (3 piles/day).
36-inch steel pile (relocated                 25              10              35              10              10
 dolphin) install (3 piles/day).
30-inch steel pile (relocated                 25              10              25              10              10
 dolphin) install (3 piles/day).
----------------------------------------------------------------------------------------------------------------

    As the number of pile driving days that would occur in this year of 
activity is less than the number of pile driving days analyzed in the 
initial IHA, the number of takes estimated to occur in the 2019-2020 
work season, and requested for this Renewal, has changed from the 
number of takes authorized in the initial IHA. Take numbers authorized 
in the initial IHA are shown in Table 7 in the Notice of issued IHA (83 
FR 45897; September 11, 2018), available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-state-department-transportation-ferry-terminal.
    The number of takes requested for this Renewal, for each marine 
mammal stock, are shown in Table 4. Auditory injury (i.e., Level A 
harassment) is unlikely to occur for any species or stock, given the 
small injury zones. Since the largest Level A distance is only 35 m 
from the source for high-frequency cetaceans (harbor porpoise and 
Dall's porpoise, Table 3), NMFS expects that WSDOT can effectively 
monitor such small zones to implement shutdown measures and avoid Level 
A takes. Therefore, no Level A take of marine mammal is anticipated nor 
proposed to be authorized for the pile driving activities at the 
Bremerton ferry terminal.
    To inform take estimates in the initial IHA, marine mammal 
densities were taken from the U.S. Navy's Marine Species Density 
Database (MSDD; U.S. Navy 2015). Since then, the Navy has published an 
updated MSDD for the Phase III Northwest Training and Testing Study 
Area with updated densities for marine mammal species in the inland 
waters of Puget Sound (U.S. Navy 2019). In the 2019 MSDD, densities of 
harbor seals, northern elephant seals, gray whales, and humpback whales 
increased from those presented in the 2015 MSDD, while densities of 
harbor porpoises, Dall's porpoises, and transient killer whales 
decreased. The densities of Steller sea lion and minke whale remained 
the same in both iterations of the MSDD. While updated densities for 
marine mammals were used here, the method of calculating estimated 
takes remains identical to that used in the initial IHA. For all marine 
mammals except California sea lions, takes were calculated by 
multiplying the ensonified area by the average animal density in the 
area (U.S. Navy 2019) and the number of days of pile driving (9 days), 
rounded up to the nearest integer. Take of California sea lions was 
calculated by multiplying the average number of California sea lions 
sighted in daily monitoring at the U.S. Navy's Bremerton Shipyard (69 
animals) by the number of days of pile driving (9 days).
    Using the take calculation method described above (area x density x 
days) resulted in estimated zero takes of some species, despite 
possible presence in the project area. In these cases, take was 
estimated by incorporating typical group size and/or potential for 
occurrence during the project work period. Specifically, take of 
northern elephant seals was calculated by assuming one seal may be 
present each day for a total of nine takes by Level B

[[Page 32885]]

harassment. Take of transient killer whales was calculated by assuming 
one group of six killer whales (mean group size (Shields et al., 2018)) 
may enter the Level B harassment zone twice over the course of the 
project for a total of 12 takes by Level B harassment. Takes of gray 
whales, humpback whales, and minke whales was estimated by assuming one 
of each species may be present every other day during the nine days of 
pile driving, for a total of five takes by Level B harassment for each 
species. Dall's porpoises are considered rare in Puget Sound waters 
(U.S. Navy 2019) but a large group of 15 Dall's porpoises may enter the 
Level B harassment zone once during pile driving activities. Finally, 
take of common dolphins was calculated by assuming one group of seven 
dolphins (mean group size (CRC 2017)) may enter the Level B harassment 
zone once over the course of the project. No takes of Southern Resident 
killer whales were calculated, and due to mitigation measures proposed 
by WSDOT (described in detail below), no takes are anticipated or 
requested for this Renewal.
    Here, we describe in summary how the changes in density estimates 
affect the take estimates in this requested Renewal in relation to the 
take estimates in the initial IHA. For some species, the updated 
density estimates had no effect on estimated take. Even with increased 
densities, calculated takes of northern elephant seals, Southern 
Resident killer whales, transient killer whales, gray whales, humpback 
whales, minke whales, and common dolphins were zero animals taken. For 
these species, the proposed take was estimated as described above, and 
the updated densities had no effect on the number of takes. The 
estimated takes of two species were affected by the changes in density 
estimates, harbor seals and harbor porpoises.
    The estimated density of harbor porpoises decreased from the 2015 
MSDD (used to calculate takes in the initial IHA) to the 2019 MSDD. As 
a result, the calculated take estimate decreased, from 69 takes by 
Level B harassment at the Bremerton ferry terminal in the initial IHA 
to 64 takes by Level B harassment proposed for take by Level B 
harassment here. This represents a seven percent decrease. Since the 
number of harbor porpoises estimated to be taken by Level B harassment 
here are fewer than that authorized in the initial IHA, this change has 
no effect on our findings.
    The initial IHA authorized a total of 2,286 Level B takes of harbor 
seals, with an estimated 145 harbor seals taken at the Bremerton ferry 
terminal and 2,141 harbor seals taken at the Edmonds ferry terminal. 
Using the updated 2019 MSDD, the calculated takes of harbor seals at 
the Bremerton terminal increased to 465. While this increase is 
notable, the total estimated take is well below that authorized for 
both the Bremerton and Edmonds ferry terminals in the initial IHA. 
Additionally, the monitoring report from pile driving completed at the 
Edmonds terminal reports only 37 harbor seals taken by Level B 
harassment, indicating that the actual number of animals that occur are 
far below the number of takes authorized.

                                    Table 4--Total Takes Proposed for Renewal
----------------------------------------------------------------------------------------------------------------
                             Species                                  Level B         Level A          Total
----------------------------------------------------------------------------------------------------------------
Harbor seal.....................................................             465               0         \a\ 465
Northern elephant seal..........................................               9               0               9
California sea lion.............................................             621               0             621
Steller sea lion................................................               6               0               6
Southern Resident killer whale..................................               0               0               0
Transient killer whale..........................................              12               0              12
Gray whale......................................................               5               0               5
Humpback whale..................................................               5               0               5
Minke whale.....................................................               5               0               5
Harbor porpoise.................................................              64               0          \b\ 64
Dall's porpoise.................................................              15               0              15
Common dolphin..................................................               7               0               7
----------------------------------------------------------------------------------------------------------------
\a\ Take estimate increased from initial IHA due to increased density.
\b\ Take estimate decreased from initial IHA due to decreased density.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Notice announcing the issuance of the initial IHA (83 
FR 45897; September 11, 2018), and the discussion of the least 
practicable adverse impact included in that document remains accurate. 
The following measures are proposed for this renewal:
    Pre-activity monitoring will take place from 30 minutes prior to 
initiation of pile driving activity and post-activity monitoring will 
continue through 30 minutes post-completion of pile driving activity. 
Pile driving may commence at the end of the 30-minute pre-activity 
monitoring period, provided observers have determined that the shutdown 
zone (described below) is clear of marine mammals, which includes 
delaying start of pile driving activities if a marine mammal is sighted 
in the zone, as described below. A determination that the shutdown zone 
is clear must be made during a period of good visibility (i.e., the 
entire shutdown zone and surrounding waters must be visible to the 
naked eye).
    If a marine mammal approaches or enters the shutdown zone during 
activities or pre-activity monitoring, all pile driving activities at 
that location shall be halted or delayed, respectively. If pile driving 
is halted or delayed due to the presence of a marine mammal, the 
activity may not resume or commence until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
and 15 or 30 minutes (for pinnipeds/small cetaceans or large cetaceans, 
respectively) have passed without re-detection of the animal. Pile 
driving activities include the time to install or remove a single pile 
or series of piles, as long as the time elapsed between uses of the 
pile driving equipment is no more than thirty minutes.
    To prevent Level A harassment of marine mammals, WSDOT must 
establish shutdown zones equivalent to the Level A harassment zones. If 
the Level A harassment zone is less than 10 m, a minimum 10 m shutdown 
zone must be enforced. The required

[[Page 32886]]

shutdown zones are presented in Table 5.

                             Table 5--Shutdown Distances for Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                               Shutdown distance (m)
 Pile type, size & pile driving  -------------------------------------------------------------------------------
             method                 LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid
----------------------------------------------------------------------------------------------------------------
36-inch indicator pile                        10              10              25              10              10
 installation...................
36-inch indicator pile removal..              10              10              10              10              10
36-inch steel dolphin pile                    25              10              35              10              10
 removal........................
36-inch steel dolphin pile                    25              10              35              10              10
 installation...................
30-inch steel dolphin pile                    25              10              25              10              10
 installation...................
----------------------------------------------------------------------------------------------------------------

    In addition to the Level A shutdown measures described above, WSDOT 
must implement shutdown measures if Southern Resident killer whales are 
sighted within the vicinity of the project and are approaching the 
Level B harassment zone during pile driving activities. If a killer 
whale approaches the Level B harassment zone and it is unknown if the 
animal is a Southern Resident or a transient killer whale, it must be 
assumed to be a Southern Resident killer whale and WSDOT must implement 
the shutdown measures described above. If a Southern Resident killer 
whale enters the Level B harassment zone undetected, pile driving must 
cease upon observation of the animal and must be suspended until the 
animal exits the Level B harassment zone.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
takes are met, is observed approaching or within the Level B harassment 
zones, pile driving and removal activities must cease immediately using 
delay and shutdown procedures. Similarly, if an animal is observed 
approaching or within the Level A harassment zones, pile driving and 
removal activities must cease immediately. Activities must not resume 
until the animal has been confirmed to have left the area or 15 or 30 
minutes (pinniped/small cetacean or large cetacean, respectively) has 
elapsed.
    For all pile driving activities, a minimum of three Protected 
Species Observers (PSOs) will be required, two land-based and one 
vessel-based. One PSO must be stationed at the active pile driving rig 
or at the best vantage point practicable to monitor the shutdown zones 
for marine mammals and implement shutdown or delay procedures when 
applicable through communication with the equipment operator.
    Monitoring of pile driving must be conducted by qualified PSOs (see 
below) who have no other assigned tasks during monitoring periods. 
WSDOT will adhere to the following conditions when selecting observers:
     Independent PSOs must be used (i.e., not construction 
personnel);
     A lead observer or monitoring coordinator must be 
designated. The lead observer must have prior experience working as a 
marine mammal observer during construction;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     WSDOT must submit PSO CVs for approval by NMFS.
    WSDOT must ensure that observers have the following additional 
qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    PSOs must collect the following information during marine mammal 
monitoring:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed;
     Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state);
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting;
     Age and sex class, if possible, of all marine mammals 
observed;
     PSO locations during marine mammal monitoring;
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
     Description of any marine mammal behavior patterns during 
observation, including direction of travel;
     Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zone, and 
estimates of number of marine mammals taken, by species (a correction 
factor may be applied to total take numbers, as appropriate);
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any; and
     Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals.
    WSDOT must submit a draft monitoring report within 90 days after 
completion of the construction work or the expiration of the IHA, 
whichever comes earlier. This report must include the information 
described above. A final report must be prepared and submitted to NMFS 
within 30 days following resolution of comments from NMFS on the draft 
report. If NMFS has no comments on the draft report, the draft will be 
considered the final report.
    In addition, NMFS would require WSDOT to notify NMFS' Office of 
Protected Resources and NMFS' West

[[Page 32887]]

Coast Region Stranding Coordinator within 48 hours of sighting an 
injured or dead marine mammal in the construction site. WSDOT must 
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.

Public Comments

    As noted previously, NMFS published a notice of a proposed IHA (83 
FR 16330; April 16, 2018) and solicited public comments on both our 
proposal to issue the initial IHA for pile driving at the Bremerton and 
Edmonds ferry terminals and on the potential for a Renewal, should 
certain requirements be met. All public comments were addressed in the 
notice announcing the issuance of the initial IHA (83 FR 45897; 
September 11, 2018). Below, we describe how we have addressed, with 
updated information where appropriate, any comments received that 
specifically pertain to the Renewal of the 2018 IHA.
    Comment: The Marine Mammal Commission (Commission) requested 
clarification of certain issues associated with NMFS's notice that one-
year Renewals can 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 notice of the proposed initial IHA expressly notified 
and invited comment from the public on the possibility that under 
certain, limited conditions the applicant could seek a Renewal IHA for 
an additional year. The notice described the conditions under which 
such a Renewal request could be considered and expressly sought public 
comment in the event such a Renewal were sought for this action. 
Further, since issuance of the initial IHA, NMFS has modified the 
Renewal process to provide notice through the Federal Register and an 
additional 15-day public comment period at the time the Renewal IHA is 
requested. NMFS also will provide direct notice of the requested 
Renewal to those who commented on the initial IHA, to provide an 
opportunity to submit any additional comments.
    We appreciate the Commission's suggestion that NMFS discuss the 
potential for IHA Renewals through a more general route, such as a 
rulemaking. However, utilizing the public comment process associated 
with IHAs is more efficient for the agency, while still providing for 
appropriate public input into NMFS' decision-making. Further, NMFS' 
recent modification to the Renewal process (i.e., soliciting additional 
public comment at the time of a Renewal request) should alleviate the 
Commission's concern about the lack of additional public comment and 
need for a more general rulemaking.
    For more information, NMFS has published a description of the 
Renewal process on our website (available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals).

Preliminary Determinations

    WSDOT's proposed activity is identical to the activity analyzed in 
our previously issued Notices of proposed IHA and issued IHA (with the 
exception of the number of piles proposed for installation and removal, 
which is less than the number analyzed in those documents). We 
concluded that the initial IHA would have a negligible impact on all 
marine mammal stocks and species and that the taking would be small 
relative to population sizes. The marine mammal information, potential 
effects, and the mitigation and monitoring measures remain the same as 
those analyzed in the previously issued Notices of proposed IHA and 
issued IHA, therefore the extensive analysis, as well as the associated 
findings, included in the prior documents remain applicable.
    The only differences between the initial IHA and this requested 
Renewal is that the number of piles proposed for installation and 
removal, and the numbers of marine mammal takes expected to occur 
incidental to the proposed activities (including consideration of 
changes in marine mammal density for several stocks), are lower than 
the numbers analyzed and authorized in the previously issued IHA. As 
both the number of piles and the number of takes expected to occur, and 
requested, for this Renewal, are lower than in the initial IHA, we have 
concluded that the effects of the requested Renewal would be the same 
or less than those that were analyzed in the Notices of the initial 
proposed IHA and issued IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. This includes consideration of the 
estimated abundance of California sea lions decreasing and the 
estimated abundances of gray whales and humpback whales increasing, as 
well as the ongoing gray whale Unusual Mortality Event, none of which 
are expected to change our assessment of the effects of the takes from 
this activity. Based on the information and analysis 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; 
(4) WSDOT 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, and; (5) appropriate 
monitoring and reporting requirements are included.

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, whenever we propose to authorize take for 
endangered or threatened species. The effects of this proposed federal 
action were adequately analyzed in NMFS' Biological Opinion for the 
Bremerton and Edmonds Ferry Terminals Dolphin Replacement Project, 
dated March 22, 2018, which concluded that the take NMFS proposes to 
authorize through this IHA would not jeopardize the continued existence 
of any endangered or threatened species or destroy or adversely modify 
any designated critical habitat.

[[Page 32888]]

Requested Renewal and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA Renewal to WSDOT for conducting pile driving at the 
Bremerton ferry terminal during the August 1, 2019 through February 15, 
2020 in-water work window, provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed Renewal, and any other aspect of this Notice. Please include 
with your comments any supporting data or literature citations to help 
inform our final decision on the request for MMPA authorization.

    Dated: July 5, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-14683 Filed 7-9-19; 8:45 am]
 BILLING CODE 3510-22-P