Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the King Pile Markers Project on the Columbia River, 53689-53699 [2019-21905]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 195 (Tuesday, October 8, 2019)]
[Notices]
[Pages 53689-53699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21905]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG908


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the King Pile Markers Project on 
the Columbia River

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 NMFS has issued an incidental harassment authorization (IHA) to 
the U.S. Army Corps of Engineers, Portland District (Corps) to 
incidentally harass, by Level A and Level B harassment only, marine 
mammals during the King Pile Markers Project on the Columbia River in 
Washington and Oregon.

DATES: This Authorization is effective from October 1, 2020 through 
September 30, 2021.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/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 may be 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 in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On February 11, 2019, NMFS received a request from the Corps for an 
IHA to take marine mammals incidental to pile driving associated with 
the replacement of king pile markers at numerous dike locations in the 
lower Columbia River system. The king pile markers are located in 
Oregon and Washington between river miles (RM) 41 and 137. The 
application was deemed adequate and complete on August 2, 2019. The 
Corps' request is for take of small numbers of harbor seal (Phoca 
vitulina), Steller sea lion (Eumetopias jubatus),

[[Page 53690]]

and California sea lion (Zalophus californianus) that may occur in the 
vicinity of the project by Level A and Level B harassment. Neither the 
Corps nor NMFS expects serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.

Description of Planned Activity

Overview

    The Corps is replacing up to 68 king pile markers at 68 pile dike 
sites along the lower Columbia River between river miles (RM) 41 and 
137. There are a total of 256 pile dikes, in the existing dike system. 
The king piles that require replacement are not functioning as 
intended. They were designed to aid navigation by helping mariners 
avoid pile dikes during high water. Many existing king piles are either 
missing completely, damaged, or degraded to a point where they no 
longer provide a visual identifier. This lack of visibility poses a 
safety concern to both recreational and commercial boaters on the 
river. Replacement of the king piles will improve visibility of pile 
dikes and improve safety for Columbia River traffic. Impact and 
vibratory pile installation would introduce underwater sounds at levels 
that may result in take, by Level B harassment, of marine mammals in 
the lower Columbia River. Pile installation is expected to occur for up 
to 61 days and take place in October and November of 2020. As a 
contingency, the IHA is effective for a period of one year, from 
October 1, 2020 through September 30, 2021.
    A detailed description of the planned King Pile Project is provided 
in the Federal Register notice for the proposed IHA (84 FR 44866; 
August 27, 2019). Since that time, no changes have been made to the 
planned project activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    We published a notice of receipt of the Corps' application and 
proposed IHA in the Federal Register on August 27, 2019 (84 FR 44866). 
That notice described, in detail, the Corps' activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. During the 30-day public comment 
period, NMFS received comments from the Marine Mammal Commission 
(Commission).
    Comment: The Commission recommended that NMFS authorize 52 Level B 
harassment takes and 1 Level A harassment take of harbor seals and 27 
Level B harassment takes of Steller sea lions for each of the 68 piles 
to be driven. The Commission also recommended that take should be 
calculated based on the number of piles driven instead of the number of 
working days.
    Response: For harbor seals, NMFS has accepted the Commission's 
recommendation to calculate take based on the total number of piles 
instead of the total number of driving days as up to nine piles could 
be driven in single day. The Commission noted that there are a number 
of harbor seal haulouts located along the section of the Columbia River 
where king piles will be installed (Jeffries et al. 2000). However, 
this data is 20 years old, and biologists with the Corps indicated 
there were not aware of large harbor seal haul-outs in close proximity 
to any of the king pile locations. NMFS has increased the take of 
harbor seals from three per day to 10 per pile based on local anecdotal 
evidence included in the Port of Kalama IHA application for the Kalama 
Manufacturing and Marine Export Facility (81 FR 89436; December 12, 
2016). Since the anecdotal evidence pertains to a single fixed 
location, without an associated temporal component. NMFS calculated 
take based on the number of piles, instead of the number of days. It is 
important to note that driving times are relatively short at each king 
pile location and will require no more than 1 hour of impact and 30 
minutes of vibratory driving. NMFS is also authorizing Level A take of 
10 harbor seals as it is possible during impact pile driving that some 
small number of individuals could enter the permanent threshold shift 
(PTS) zone and stay for a sufficient duration to be taken before being 
detected by observers. Of the haulouts cited by Jeffries et al. (2000) 
only 5 were located in the project area and these were described as low 
use. A total of 10 king pile installation locations are located within 
five miles of these haulouts.
    In the proposed rule, NMFS based Level B take of Steller sea lions 
on observations at one of three tailtraces at Bonneville Dam. NMFS 
multiplied the number (56) by 3 to account for all the tailtraces for 
each driving day in the proposed IHA. NMFS understands that many of 
these observations are likely repeated sightings of the same animal and 
acknowledges that this take estimate is likely overestimated. A number 
of these sea lions were ``branded'' and could be individually 
identified. Some of these identified animals were observed at the dam 
over multiple days. NMFS acknowledges that the number of sea lions 
swimming up and down the Columbia River, passing king pile markers 
along the way, is far less than the number observed at the dam. 
Therefore, NMFS will assume that 56 (the maximum number seen at where 
observations were conducted at the tailtrace, instead of multiplying by 
3) is the total number of Steller sea lions could be taken per day 
resulting in 3,416 takes by Level B harassment. The take estimate for 
California sea lions remains unchanged at 9 per day for a total of 549 
takes by Level B harassment.
    Comment: If NMFS chooses to authorize 56 Level B harassment takes 
of Steller sea lion per day, the Commission recommends that, at a 
minimum, NMFS authorize the same number of Level B harassment takes of 
harbor seals as Steller sea lions and include 1 Level A harassment take 
per pile of harbor seals.
    Response: NMFS explained the reasoning behind the revised estimated 
take numbers for harbor seals and Steller sea lions in the previous 
response. NMFS does agree that that authorizing limited take of harbor 
seals by Level A harassment is prudent and has included this as part of 
the final authorization. The PTS isopleth is 56.9 meters (m) for harbor 
seals during impact pile driving so it is conceivable that a harbor 
seal could enter the Level A harassment zone before being detected 
resulting in multiple shutdowns which could delay the project, however, 
the small size of the zone and the likelihood of some degree of 
aversion make it unlikely that this would happen often.
    Comment: The Commission recommended that NMFS obtain more recent 
pinniped haul-out count data from Washington Department of Fish and 
Wildlife and the Oregon Department of Fish and Wildlife before 
processing any additional authorizations for activities occurring in 
the Columbia River.
    Response: When NMFS receives another application for an IHA at a 
location on the Columbia River these agencies will be contacted.
    Comment: The Commission recommended that NMFS conduct a more 
thorough review of the applications and Federal Register notices to 
ensure accuracy, completeness, and consistency and to ensure that they 
are based on best available science, prior to submitting them to the 
Federal Register for public comment.
    Response: NMFS thanks the Commission for its recommendation. NMFS 
makes every effort to read the notices thoroughly prior to publication 
and will continue this effort to publish

[[Page 53691]]

the best possible product for public comment using the best available 
science
    Comment: The Commission recommended that NMFS conduct a more 
thorough review of final incidental harassment authorizations and 
letters of authorization to ensure accuracy and completeness and 
consistency with the information stipulated in the Federal Register 
notice for final issuance.
    Response: NMFS thanks the Commission for its concerns regarding the 
IHA process and will make a concerted effort to ensure that language in 
the final IHA is in agreement with text in the Federal Register notice 
for final issuance.
    Comment: The Commission recommended that NMFS refrain from using 
the proposed renewal process for the Corps' authorization. The renewal 
process should be used sparingly and selectively, by limiting its use 
only to those proposed incidental harassment authorizations that are 
expected to have the lowest levels of impacts on marine mammals and 
that require the least complex analyses. If NMFS elects to use the 
renewal process frequently or for authorizations that require a more 
complex review or for which much new information has been generated the 
Commission recommended that NMFS provide the Commission and other 
reviewers the full 30-day comment period as set forth in section 
101(a)(5)(D)(iii) of the MMPA.
    Response: We appreciate the Commission's input and direct the 
reader to our recent response to the identical comment, which can be 
found at 84 FR 52464 (October 2, 2019), pg. 52466.
    Comment: The Commission recommended that, for all relevant 
incidental take authorizations, NMFS refrain from using a source level 
reduction factor for sound attenuation device implementation during 
impact pile driving, including the 24-in steel piles proposed for use 
by USACE, until such time that it consults with Caltrans regarding the 
appropriate source level reduction factor to use to minimize far-field 
effects on marine mammals.
    Response: We direct the reader to our recent response to the nearly 
identical comment, which can be found at 84 FR 45983 (September 3, 
2019), pg. 45985. NMFS will evaluate the appropriateness of using a 
certain source level reduction factor for sound attenuation device 
implementation during impact pile driving for all relevant incidental 
take authorizations when more data become available. Caltrans and other 
entities that have pertinent data may be contacted as necessary.

Changes From the Proposed IHA to Final IHA

    The project has been delayed by one year due to contracting issues. 
Therefore, construction activities will not begin until October 1, 
2020. Therefore, NMFS has revised the effective dates of the IHA from 
October 1, 2020 through September 30, 2021 to reflect this change.
    As described in the Federal Register notice for the proposed IHA 
(84 FR 44866; August 27, 2019), NMFS did not propose take by Level A 
harassment. The permanent threshold shift (PTS) isopleth is 56.9 m for 
harbor seal for an hour of impact pile driving. As such, it is possible 
that during the course of the activities some small number of harbor 
seals could enter the Level A harassment zone and stay for a sufficient 
duration to be taken before the Corps detects them and is able to 
shutdown. Therefore, in consideration of the recommendation from the 
Commission, NMFS is authorizing 10 instances of take of harbor seal by 
Level A harassment. NMFS has also revised Level B harassment takes for 
harbor seals based on the number of piles installed instead of the 
number of pile driving days. These changes are described in the 
``Estimated Take'' section.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all marine mammal species with expected potential for 
occurrence in the lower Columbia River and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and ESA and potential biological removal (PBR), where known. 
For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by 
the MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS's SARs). While no mortality is 
anticipated or authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprise that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's 2018 U.S. Pacific Marine Mammal SARs (Carretta et al., 2019). 
All values presented in Table 1 are the most recent available at the 
time of publication and are available in the 2018 SARs (Carretta et 
al., 2019).

                             Table 1--Marine Mammal Species Likely To Be in Lower Columbia River Near King Pile Marker Sites
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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 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. Stock.............  -, -, N             257,606 (N/A, 233,515,     14,011       >320
                                                                                                             2014).

[[Page 53692]]

 
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  -, -, N             41,638 (See SAR,            2,498        108
                                                                                                             41,638, 2015).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina           Oregon and Washington    -, -, N             UNK (UNK, UNK, 1999)..        UND       10.6
                                       richardii.               Coast.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual 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.

    All species that could potentially occur in the planned survey 
areas are included in Table 1. All three species (with three managed 
stocks) described below co-occur temporally and spatially co-occur with 
the planned activity to the degree that take is reasonably likely to 
occur, and we have authorized it.
    A detailed description of the of the species likely to be affected 
by the Corps' project, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, were provided in the Federal Register notice for 
the proposed IHA (84 FR 44866; August 27, 2019). Since that time, we 
are not aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    Acoustic effects on marine mammals during the specified activity 
can occur from vibratory and impact pile driving. The effects of 
underwater noise from the Corps' planned activities have the potential 
to result in Level A and Level B harassment of marine mammals in the 
vicinity of the action area. The effects of pile driving on marine 
mammals are dependent on several factors, including the size, type, and 
depth of the animal; the depth, intensity, and duration of the pile 
driving sound; the depth of the water column; the substrate of the 
habitat; the standoff distance between the pile and the animal; and the 
sound propagation properties of the environment. It is likely that the 
pile driving could result in temporary, short term changes in an 
animal's typical behavioral patterns and/or avoidance of the affected 
area as well as minor PTS in a limited number of harbor seal. The 
Federal Register notice for the proposed IHA (84 FR 44866; August 27, 
2019) included a discussion of the effects of anthropogenic noise on 
marine mammals, therefore that information is not repeated here.

Anticipated Effects on Marine Mammal Habitat

    The main impact issue associated with the planned activity would be 
temporarily elevated sound levels and the associated direct effects on 
marine mammals. The most likely impact to marine mammal habitat occurs 
from pile driving effects on likely marine mammal prey (i.e., fish) 
near where the piles are installed. Impacts to the immediate substrate 
during installation and removal of piles are anticipated, but these 
would be limited to minor, temporary suspension of sediments, which 
could impact water quality and visibility for a short amount of time, 
but which would not be expected to have any effects on individual 
marine mammals. Impacts to substrate are therefore not discussed 
further. These potential effects are discussed in detail in the Federal 
Register notice for the proposed IHA (84 FR 44866; August 27, 2019).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which informs both NMFS' consideration of 
``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Take of marine mammals incidental to the Corps' pile driving 
activities could occur as a result of Level A and B harassment. As 
described previously, no mortality is anticipated or authorized for 
this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here 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

[[Page 53693]]

exposed marine mammals would be reasonably expected to be behaviorally 
harassed (equated to Level B harassment) or to incur PTS of some degree 
(equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g., 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources.
    The Corps' planned activity includes the use of continuous 
(vibratory pile driving) and impulsive (impact pile driving) sources, 
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) are applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) 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). The Corp's planned activity includes the 
use of impulsive (impact pile driving) and non-impulsive (vibratory 
pile driving) source.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

            Table 2--Thresholds Identifying the Onset of PTS
------------------------------------------------------------------------
                                      PTS onset acoustic thresholds *
                                             (received level)
          Hearing group          ---------------------------------------
                                       Impulsive         Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Cell 1: Lpk,flat:   Cell 2: LE,LF,24h:
                                   219 dB;             199 dB.
                                   LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans....  Cell 3: Lpk,flat:   Cell 4: LE,MF,24h:
                                   230 dB;             198 dB.
                                   LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans...  Cell 5: Lpk,flat:   Cell 6: LE,HF,24h:
                                   202 dB;             173 dB.
                                   LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW)             Cell 7: Lpk,flat:   Cell 8: LE,PW,24h:
 (Underwater).                     218 dB;             201 dB.
                                   LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW)            Cell 9: Lpk,flat:   Cell 10:
 (Underwater).                     232 dB;             LE,OW,24h: 219
                                   LE,OW,24h: 203 dB.  dB.
------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever
  results in the largest isopleth for calculating PTS onset. If a non-
  impulsive sound has the potential of exceeding the peak sound pressure
  level thresholds associated with impulsive sounds, these thresholds
  should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa,
  and cumulative sound exposure level (LE) has a reference value of
  1[micro]Pa\2\s. 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, which include source levels and transmission loss 
coefficient.

Sound Propagation

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * log10 (R1/R2), where:
B = transmission loss coefficient (assumed to be 15)
R1 = the distance of the modeled sound pressure Level from 
the driven pile, and
R2 = the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log(range)). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log(range)). As is 
common practice in coastal waters, here we assume practical spreading 
loss (4.5 dB reduction in sound level for each doubling of distance). 
Practical spreading is a compromise that is often used under conditions 
where water depth increases as the receiver moves away from the 
shoreline, resulting in an expected propagation environment that would 
lie between spherical and cylindrical spreading loss conditions.

Sound Source Levels

    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes place. Pile driving may be done 
with

[[Page 53694]]

either vibratory or impact hammer, with vibratory driving being the 
preferred method. Due to anticipated enrockment surrounding existing 
piles, however, use of impact hammers may be required.
    Estimated in-water sound levels anticipated from vibratory 
installation and impact hammer installation of steel pipe piles are 
summarized in Table 3. Sound pressure levels for impact driving of 24-
in steel piles were taken from Caltrans (2015). The source levels (SLs) 
in the table below include a 7 dB reduction for impact driving due to 
attenuation associated with the use of bubble curtains. Vibratory 
driving source levels for 24-in steel piles came from the United States 
Navy (2015). Due to the short operating window (61 days), and concerns 
about possible delays due to bad weather, the Corps does not propose to 
use bubble curtains during vibratory driving. This should expedite pile 
installation at king pile locations where use of vibratory hammers is 
employed.

    Table 3--Estimated Underwater Source Levels Associated With Vibratory Pile Driving and Impact Hammer Pile
                                                     Driving
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
           Pile type                                           SPL (single strike)
----------------------------------------------------------------------------------------------------------------
24-Inch Steel Pipe Piles w/      200 dBPEAK................  187 dBRMS.................  171 dBSEL.
 impact hammer (attenuated) \1\.
24-Inch Steel Pipe Piles w/      Not Available.............  161 dBRMS.................  Not Available.
 vibratory (unattenuated) \2\.
----------------------------------------------------------------------------------------------------------------
\1\ From Caltrans (2015) Acoustic data from CalTrans 2015 Table I.2-1. Summary of Near-Source (10-Meter)
  Unattenuated Sound Pressure Levels for In-Water Pile Driving Using an Impact Hammer: 0.61-meter (24-inch)
  steel pipe pile in water ~15 meters deep, w/7dB reduction for use of attenuation (as per NMFS 2019 pers.
  Comm).
\2\ From United States Navy. 2015. Proxy source sound levels and potential bubble curtain attenuation for
  acoustic modeling of nearshore marine pile driving at Navy installations in Puget Sound. Prepared by Michael
  Slater, Naval Surface Warfare Center, Carderock Division, and Sharon Rainsberry, Naval Facilities Engineering
  Command Northwest. Revised January 2015. Table 2-2.

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources such as pile 
driving, NMFS User Spreadsheet predicts the distance at which, if a 
marine mammal remained at that distance the whole duration of the 
activity, it would incur PTS. Inputs used in the User Spreadsheet, and 
the resulting Level A harassment isopleths are reported below in Tables 
4 and 5 respectively. Note that while up to 9 piles could be installed 
in a single day, they would be driven at different locations and the 
ensonified areas associated with each location would not overlap. For 
the purpose of calculating PTS isopleths using the User Spreadsheet, it 
is assumed that a single pile would be driven per day at a single 
location (i.e., the zones for each pile are calculated independently) 
since there will be no overlap of disturbance zones from adjacent king 
pile installation sites. The Level B harassment isopleths were 
calculated using the practical spreading loss model. Underwater noise 
will fall below the behavioral effects threshold of 160 dB for impact 
driving and 120 dB rms for vibratory driving at the distances shown in 
Table 5.

            Table 4--NMFS Technical Guidance (2018) User Spreadsheet Input To Calculate PTS Isopleths
----------------------------------------------------------------------------------------------------------------
            Inputs                  24-in Steel impact installation         24-in Steel vibratory installation
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used..........  (E.1) Impact Pile Driving..............  (A.1) Vibratory Pile Driving
Source Level (Single Strike/    171 dB SEL/200 dB Peak.................  161 dB RMS
 shot SEL).
Weighting Factor Adjustment     2......................................  2.5
 (kHz).
Number of strikes per pile....  550....................................
Number of piles per day.......  1......................................  1
Duration to install single      60.....................................  30
 pile (minutes).
Propagation (xLogR)...........  15.....................................  15
Distance of source level        10.....................................  10
 measurement (meters) +.
----------------------------------------------------------------------------------------------------------------


                                Table 5--Level A and Level B Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                       Level  A harassment  PTS isopleth     Level  B harassment
                                                                   (meters)                   isopleth  (meters)
              Noise generation type               --------------------------------------------------------------
                                                     Phocid pinniped      Otariid pinniped        All groups
----------------------------------------------------------------------------------------------------------------
24'' Steel Pipe Impact attenuated................                 56.9                  4.1                  631
24'' Steel Pipe Vibratory unattenuated...........                  2.6                  0.2                5,412
----------------------------------------------------------------------------------------------------------------


[[Page 53695]]

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Pinnipeds are typically concentrated at haul out sites 
(e.g., the MCR South jetty) and feeding areas where there are 
concentrations of salmon (e.g., Bonneville Dam). Individual animals 
that occur near king pile locations are likely to be in transit between 
these two prominent sites. Pinnipeds that travel to Bonneville Dam 
consistently forage in all three of the dam's tailraces. A tailrace is 
the flume, or water channel leading away from the dam. Pinniped 
presence at the dam during the spring months has been recorded since 
2002 and during fall/winter months starting in 2011 to assess the 
impact of predation on adult salmonids and other fish (Tidwell et al. 
2019).
    Estimated take in the proposed IHA was calculated using the maximum 
daily number of individuals observed at Bonneville dam (Tidwell et al. 
2019), multiplied by the total number of work days (61). The maximum 
daily number of animals observed at the dam between August 15 and 
December 31 was used for both California sea lions (3 in 2015 and 2017) 
and Steller sea lions (56 in 2016). No harbor seals were observed 
during the fall/winter sampling period. However, only one of the three 
tailraces was monitored during the fall/winter months and only when sea 
lion abundance was >=20 animals. Therefore, NMFS multiplied the number 
of observed California and Steller sea lions by three to account for 
potential animals at all of the tailraces. Since there were no harbor 
seals observed during the fall/winter period, NMFS used the maximum 
daily observation from the spring observation period (3 in 2006) during 
which all three tailraces were monitored.
    For the final IHA, NMFS revised take numbers of Steller sea lions 
and harbor seals. For Steller sea lions NMFS reduced take by utilizing 
the maximum of observations (56) at only one tailrace instead of 
multiplying by 3 as was done in the proposed IHA because many of these 
observations at the dam are likely repeated sightings of the same 
animal, some of whom are known to remain at the dam for extended 
periods. NMFS feels this reduced take estimate is more appropriate 
given that the initial estimate in the proposed IHA was overly 
conservative. Therefore, NMFS will assume that 56 is the total number 
of Steller sea lions could be taken per day resulting in 3,416 takes by 
Level B harassment. Take of California sea lions remains unchanged at 9 
takes per day.
    Harbor seal takes were increased to 10 per pile based on anecdotal 
evidence reported by the Port of Kalama in their IHA application for 
the. Kalama Manufacturing and Marine Export Facility (81 FR 89436; 
December 12, 2016). NMFS elected to calculate seal takes based on the 
number of animals taken per pile instead of per day. This was done 
since the anecdotal data represents a single location without any 
temporal component on which a daily take rate could be derived. NMFS 
authorized take of 10 harbor seals by Level A harassment since it is 
possible during impact pile driving that a harbor seal could enter the 
Level A harassment zone before being detected by observers.
    Table 6 depicts the stocks NMFS proposes to authorize for take, the 
numbers authorized, and the percentage of the stock taken.

                   Table 6--Level B Harassment Take Estimates for the King Pile Marker Project
----------------------------------------------------------------------------------------------------------------
                                                                                     Stock        Percentage of
                   Species                      Level A take     Level B take      abundance       stock taken
----------------------------------------------------------------------------------------------------------------
California Sea Lion.........................  ...............              549          296,750              0.2
Stellar Sea Lion............................  ...............            3,416           41,638              8.2
Harbor Seal.................................               10              610         * 24,732              2.5
----------------------------------------------------------------------------------------------------------------
* There is no current estimate of abundance available for this stock since most recent abundance estimate is >8
  years old. Abundance value provided represents best available information from 1999.

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.
    In addition to the measures described later in this section, the 
Corps must employ the following standard mitigation measures:
     Conduct briefings between construction supervisors and 
crews and the marine mammal monitoring team prior to the start of all 
pile driving activity, and when new personnel join the work, to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures;
     For in-water heavy machinery work other than pile driving 
(e.g., standard barges, tug boats), if a marine mammal comes within 10 
m, operations shall cease and vessels shall reduce speed to

[[Page 53696]]

the minimum level required to maintain steerage and safe working 
conditions. This type of work could include the following activities: 
(1) Movement of the barge to the pile location; or (2) positioning of 
the pile on the substrate via a crane (i.e., stabbing the pile);
     Work may only occur during daylight hours, when visual 
monitoring of marine mammals can be conducted;
     For any marine mammal species for which take by Level B 
harassment has not been requested or authorized, in-water pile 
installation will shut down immediately when the animals are sighted;
     If take by Level B harassment reaches the authorized limit 
for an authorized species, pile installation will be stopped as these 
species approach the Level B harassment zone to avoid additional take 
of them.
    Establishment of Shutdown and Level A Harassment Zones--For all 
pile driving activities, the Corps shall establish a shutdown zone. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of activity would occur upon sighting of a marine mammal (or 
in anticipation of an animal entering the defined area). Shutdown zones 
will vary based on the type of driving activity and by marine mammal 
hearing group. Shutdown zones during impact and vibratory driving will 
be 10 m for all species. Planned shutdown zones are larger than the 
calculated Level A harassment isopleths shown in Table 5 for Steller 
sea lions and California sea lions. The Level A harassment zone is 
larger for phocids than for other authorized species. Seals could 
appear unexpectedly in this zone before being observed by protected 
species observers (PSOs). Therefore, the area between 10 m and 60 m is 
established as a Level A harassment zone for harbor seal and must be 
monitored as such by PSOs. The placement of PSOs during all pile 
driving activities (described in detail in the Monitoring and Reporting 
Section) will ensure that the entirety of all shutdown zones are 
visible during pile installation.
    Establishment of Monitoring Zones for Level B Harassment--The Corps 
will establish monitoring zones, based on the Level B harassment 
isopleths which are areas where SPLs are equal to or exceed the 160 dB 
rms threshold for impact driving and the 120 dB rms threshold during 
vibratory driving. Monitoring zones provide utility for observing by 
establishing monitoring protocols for areas adjacent to the shutdown 
zones. Monitoring zones enable observers to be aware of and communicate 
the presence of marine mammals in the project area outside the shutdown 
zone and thus prepare for a potential cease of activity should the 
animal enter the shutdown zone. In the unlikely event that a cetacean 
enters the Level B harassment zones work will stop immediately until 
the animal either departs the zone or is undetected for 15 minutes. 
Distances to the Level B harassment zones are depicted in Table 5. In 
addition, the Corps will establish minimum allowable work distances 
between adjacent work platforms, based on monitoring zone isopleths, to 
ensure that there is no overlap of behavioral harassment zones.
    Sound Attenuation--Bubble curtains will be used during any impact 
pile driving of piles located in water greater than 2 ft. in depth. The 
bubble curtain will be operated in a manner consistent with the 
following performance standards:
    a. The bubble curtain will distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column;
    b. The lowest bubble ring will be in contact with the mudline for 
the full circumference of the ring, and the weights attached to the 
bottom ring shall ensure 100 percent mudline contact. No parts of the 
ring or other objects shall prevent full mudline contact; and
    c. Air flow to the bubblers must be balanced around the 
circumference of the pile.
    Soft Start--The use of a soft-start procedure are believed to 
provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
will be required to provide an initial set of strikes from the hammer 
at reduced percent energy, each strike followed by no less than a 30-
second waiting period. This procedure will be conducted a total of 
three times before impact pile driving begins. Soft start is not 
required during vibratory pile driving activities. A soft start must be 
implemented at the start of each day's impact pile driving and at any 
time following cessation of impact pile driving for a period of thirty 
minutes or longer. If a marine mammal is present within the shutdown 
zone, soft start will be delayed until the animal is observed leaving 
the shutdown zone. Soft start will begin only after the PSO has 
determined, through sighting, that the animal has moved outside the 
shutdown zone or 15 minutes have passed without being seen in the zone. 
If a marine mammal is present in the Level B harassment zone, soft 
start may begin and a Level B take will be recorded for authorized 
species. Soft start up may occur whether animals enter the Level B zone 
from the shutdown zone or from outside the monitoring area.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving of 30 
minutes or longer occurs, PSOs will observe the shutdown and monitoring 
zones for a period of 30 minutes. The shutdown zone will be cleared 
when a marine mammal has not been observed within the zone for that 30-
minute period. If a marine mammal is observed within the shutdown zone, 
a soft-start cannot proceed until the animal has left the zone or has 
not been observed for 15 minutes. If the Level B harassment zone has 
been observed for 30 minutes and marine mammals are not present within 
the zone, soft start procedures can commence and work can continue even 
if visibility becomes impaired within the Level B harassment zone. When 
a marine mammal permitted for take by Level B harassment is present in 
the Level B harassment zone, pile driving activities may begin and take 
by Level B will be recorded. If work ceases for more than 30 minutes, 
the pre-activity monitoring of both the Level B harassment and shutdown 
zone will commence.
    Based on our evaluation of the applicant's required measures, NMFS 
has determined that the 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 
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:

[[Page 53697]]

     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving activities. In addition, observers shall 
record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven. Pile driving activities 
include the time to install a single pile or series of piles, as long 
as the time elapsed between uses of the pile driving equipment is no 
more than 30 minutes.
    There will be at least one PSO employed at all king pile 
installation locations during all pile driving activities. PSO will not 
perform duties for more than 12 hours in a 24-hour period. The PSO 
would be positioned close to pile driving activities at the best 
practical vantage point.
    As part of monitoring, PSOs would scan the waters using binoculars, 
and/or spotting scopes, and would use a handheld GPS or range-finder 
device to verify the distance to each sighting from the project site. 
All PSOs would be trained in marine mammal identification and behaviors 
and are required to have no other project-related tasks while 
conducting monitoring. In addition, PSOs will monitor for marine 
mammals and implement shutdown/delay procedures when applicable by 
calling for the shutdown to the hammer operator. Qualified observers 
are trained and/or experienced professionals, with the following 
minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Independent observers (i.e., not construction personnel);
     Observers must have their CVs/resumes submitted to and 
approved by NMFS;
     Advanced education in biological science or related field 
(i.e., undergraduate degree or higher). Observers may substitute 
education or training for experience;
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     At least one observer must have prior experience working 
as an observer;
     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 and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; 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.
    Due to the large size of the Level B harassment zones at each pile, 
it is impracticable for the PSO to consistently view the entire 
harassment area. Therefore, takes by Level B harassment will be 
recorded and extrapolated based upon the number of observed takes and 
the percentage of the Level B harassment zone that was not visible. 
Distances to the Level B harassment zones are depicted in Table 5.

Reporting

    A draft marine mammal monitoring report must be submitted to NMFS 
within 90 days after the completion of pile driving activities. This 
reports will include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the reports must include:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations;
     An estimate of total take based on proportion of the 
monitoring zone that was observed;
     Other human activity in the area; and
     Marine mammal PSO observational datasheets or raw data.
    If no comments are received from NMFS within 30 days, that phase's 
draft final report will constitute the final report. If comments are 
received, a final report for the given phase addressing NMFS comments 
must be submitted within 30 days after receipt of comments. In the 
unanticipated event that the specified activity clearly causes the take 
of a marine mammal in a manner prohibited by the IHAs (if issued), such 
as an injury, serious injury or mortality, the Corps would immediately 
cease the specified activities and report the incident to the Chief of 
the Permits and Conservation Division, Office of Protected Resources, 
NMFS, and the West Coast Regional Stranding Coordinator. The report 
would include the following information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).

[[Page 53698]]

    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with the Corps to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Corps would not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the Corps discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
the Corps would immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator. The report would 
include the same information identified in the paragraph above. 
Activities would be able to continue while NMFS reviews the 
circumstances of the incident. NMFS would work with the Corps to 
determine whether modifications in the activities are appropriate.
    In the event that the Corps discovers an injured or dead marine 
mammal and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in these IHAs 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Corps would report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator, within 24 hours of the discovery. The Corps would provide 
photographs, video footage (if available), or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, our analysis applies to all species listed in 
Table 6, given that NMFS expects the anticipated effects of the planned 
pile driving to be similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, NMFS has identified species-specific factors to inform the 
analysis.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result of the Corps' planned activity. As stated in the 
planned mitigation section, shutdown zones will be established and 
monitored that equal or exceed calculated Level A harassment isopleths 
during all pile driving activities.
    Behavioral responses of marine mammals to pile driving during the 
King Pile Marker Project are expected to be mild, short term, and 
temporary. Marine mammals within the Level B harassment zones may not 
show any visual cues they are disturbed by activities or they could 
become alert, avoid the area, leave the area, or display other mild 
responses that are not observable such as changes in vocalization 
patterns. Given the short duration of noise-generating activities (less 
than 90 minutes of combined daily impact and vibratory driving at 68 
separate locations over 61 days, any harassment would be likely be 
intermittent and temporary.
    In addition, for all species there are no known biologically 
important areas (BIAs) within the lower Columbia River and no ESA-
designated marine mammal critical habitat. The lower Columbia River 
represents a very small portion of the total habitat available to the 
pinniped species for which NMFS is proposing to authorize take. More 
generally, there are no known calving or rookery grounds within the 
project area, the project area represents a small portion of available 
foraging habitat, and the duration of noise-producing activities 
relatively is short, meaning impacts on marine mammal feeding for all 
species should be minimal.
    Any impacts on marine mammal prey that would occur during the 
Corps' planned activity would have at most short-terms effects on 
foraging of individual marine mammals while transiting between the 
South Jetty at the Mouth of the Columbia River and Bonneville Dam 
located 146 miles upstream. Better feeding opportunities exist at these 
two locations which is why pinnipeds tend to congregate in these areas. 
Therefore, indirect effects on marine mammal prey during the 
construction are not expected to be substantial, and these 
insubstantial effects would therefore be unlikely to cause substantial 
effects on individual marine mammals or the populations of marine 
mammals as a whole.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     The Corps would implement mitigation measures including 
bubble curtains and soft-starts during impact pile driving as well as 
shutdown zones that exceed Level A harassment zones for authorized 
species, such that Level A harassment is neither anticipated nor 
authorized;
     Anticipated incidents of Level B harassment consist of, at 
worst, temporary modifications in behavior;
     There are no BIAs or other known areas of particular 
biological importance to any of the affected stocks impacted by the 
activity within the Columbia River estuary or lower Columbia River; and
     The project area represents a very small portion of the 
available foraging area for all marine mammal species and anticipated 
habitat impacts are minimal.
    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 planned monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on

[[Page 53699]]

all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. Additionally, other qualitative 
factors may be considered in the analysis, such as the temporal or 
spatial scale of the activities.
    Table 6 in the Marine Mammal Occurrence and Take Calculation and 
Estimation section presents the number of animals that could be exposed 
to received noise levels that may result in take by Level B harassment 
from the Corps' planned activities. Our analysis shows that less than 9 
percent of the Steller sea lion stock could be taken. Less than three 
percent of harbor seal and less than one percent of California sea lion 
are expected to be taken. Given that numbers for Steller sea lions were 
derived from limited observation at Bonneville Dam, it is likely that 
many of these takes will be repeated takes of the same animals over 
multiple days. As such, the take estimate serves as a good estimate of 
instances of take, but is likely an overestimate of individuals taken, 
so actual percentage of stocks taken would be even lower. We also 
emphasize the fact that the lower Columbia River represents a very 
small portion of the stock's large range, which extends from southeast 
Alaska to southern California. It is unlikely that one quarter of the 
entire stock would travel in excess of 137 miles upstream to forage at 
Bonneville Dam on the Columbia River.
    Based on the analysis contained herein of the planned activity 
(including required 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.

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 IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Authorization

    NMFS has issued an IHA to the Corps for the harassment of small 
numbers of marine mammals incidental to the King Marker Project on the 
Columbia River provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: September 30, 2019.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2019-21905 Filed 10-7-19; 8:45 am]
BILLING CODE 3510-22-P