Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Jordan Cove Energy Project, Coos Bay, Oregon, 6917-6936 [2020-02338]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 25 (Thursday, February 6, 2020)]
[Notices]
[Pages 6917-6936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02338]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XR026]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Jordan Cove Energy Project, 
Coos Bay, Oregon

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: NMFS has hereby issued an incidental harassment authorization 
to Jordan Cove Energy Project, LP (JCEP) for authorization to take 
marine mammals incidental to pile driving associated with construction 
of the Jordan Cove Liquified Natural Gas (LNG) terminal and ancillary 
projects. This project is being tracked on the Permitting Dashboard, 
which can be accessed at https://www.permits.performance.gov/permitting-projects/jordan-cove-lng-terminal-and-pacific-connector-gas-pipeline.

DATES: The IHA is effective October 1, 2020 through September 30, 2021.

ADDRESSES: 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 below.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 427-8401.

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. Under the MMPA, take is defined as meaning to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal.
    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 monitoring and 
reporting of such takings must be set forth. The definitions of all 
applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    On April 23, 2019, NMFS received a request from JCEP for an IHA to 
take marine mammals incidental to pile driving associated with the 
Jordan Cove LNG Project, Coos Bay, Oregon. The application was deemed 
adequate and complete on August 16, 2019. JCEP requested the take of a 
small number of seven species of marine mammals by Level B harassment. 
Neither JCEP nor

[[Page 6918]]

NMFS expects serious injury or mortality to result from this activity 
and, therefore, an IHA is appropriate. The IHA is effective from 
October 1, 2020, through September 30, 2021.

Description of Proposed Activity

Overview

    JCEP is proposing to construct an LNG terminal in Coos Bay, install 
a pipeline, conduct dredging to allow for a broader operational weather 
window, widen the TransPacific Parkway (TPP) to facilitate construction 
traffic, and carry out two habitat-related compensatory mitigation 
projects. A subset of this work would occur under the issued IHA. Pile 
driving is the primary means by which marine mammals within Coos Bay 
may be taken by Level B harassment. Work associated with the project 
may occur year-round beginning in October 2020; however, impact pile 
driving is restricted to the in-water work window established to 
protect salmonids (October 1 to February 15, annually). In-water 
vibratory pile driving may occur year-round. Pile driving at various 
locations may occur simultaneously; however, JCEP would only use one 
hammer at any given site.

Dates and Duration

    LNG Terminal construction will begin in 2020, with a target in-
service date in the first half of 2024. NMFS has authorized take that 
may occur from the pile driving activities in the first year of 
construction (October 1, 2020 through September 30, 2021). Conformance 
to the ODFW regulatory in-water work window for dredging and in-water 
impact driving will be implemented to reduce impacts on listed fish 
species per other permitting authorities. The in-water work window is 
the period of October 1 to February 15, and the period outside the in-
water work window is February 16 to September 30.
    JCEP estimates pile driving may occur over 230 days from October 1, 
2020 through September 30, 2021. The majority of this pile driving 
would be at the water's edge but would result in elevated in-water 
noise levels. Pile driving may occur from approximately 10 minutes to 5 
hours per day depending on the pile driving location and pile driving 
method. At any given location, only one hammer will be used.

Specific Geographic Region

    JCEP would construct the LNG terminal and ancillary projects within 
Coos Bay, Oregon. Coos Bay is an approximately 55.28 km\2\ estuary in 
Coos County, Oregon, A detailed description of the area is provided in 
the Federal Register notice of proposed IHAs (84 FR 63618; November 18, 
2019) and is not repeated here. Please see that Federal Register notice 
for more information.

[[Page 6919]]

[GRAPHIC] [TIFF OMITTED] TN06FE20.009

    JCEP is proposing to construct an LNG facility on the bay side of 
the North Spit of Coos Bay at about Channel Mile (CM) 7.3, along the 
existing federal navigation channel. The LNG Terminal would be capable 
of receiving and loading ocean-going LNG carriers, to export LNG to 
Asian markets, and sized to export 7.8 million metric tons of LNG per 
annum. The LNG Terminal is located in what is referenced as Ingram Yard 
in Figure 1 and would include a gas conditioning plant, a utility 
corridor, liquefaction facilities (including five liquefaction trains), 
two full-containment LNG storage tanks, and LNG loading facilities. The 
LNG Terminal also would include a marine slip, access channel, material 
offloading facility (MOF), and temporary materials barge berth (TMBB), 
collectively referred to as the Marine Facilities. These Marine 
Facilities are the focus of JCEP's application as these are within or 
connected to the waters of Coos Bay where marine mammals may be 
present.
    Table 1 below summarizes the piles installed at the terminal and 
ancillary projects. A detailed description of the specified activity is 
in the Federal Register notice of proposed IHA (84 FR 63618; December 
18, 2019) and is not repeated here. Please see that Federal Register 
notice for more information. No changes have been made to the specified 
activities described therein.

[[Page 6920]]



           Table 1--Total Piles Associated With the Jordan Cove LNG Terminal and Ancillary Activities
----------------------------------------------------------------------------------------------------------------
                                 In-the-dry vs
                                  in-water vs                                      Driving days      Duration
    Method        Pile type          behind        Total piles       Location           \a\         driving per
                                   cofferdam?                                                        day (min)
----------------------------------------------------------------------------------------------------------------
                                                  LNG Terminal
----------------------------------------------------------------------------------------------------------------
Vibratory....  Sheet Pile.....  In-the-dry.....           1,246  MOF (outside in              97             309
                                                                  water work
                                                                  window).
Vibratory....  Sheet Pile.....  In-the-dry.....             623  MOF (inside in               48             309
                                                                  water work
                                                                  window).
Vibratory....  Sheet Pile.....  In-the-dry.....             113  W. berth wall,              8.5             329
                                                                  2.5% nearest
                                                                  berm (outside
                                                                  in water work
                                                                  window).
Vibratory....  Pipe Pile......  In-the-dry.....               6  TMBB mooring                 10               9
                                                                  pile (inside
                                                                  in water work
                                                                  window).
----------------------------------------------------------------------------------------------------------------
                       Ancillary Activities (all would occur inside in-water work window)
----------------------------------------------------------------------------------------------------------------
Impact.......  Timber.........  Behind                    1,150  TPP/US-101                   60              50
                                 cofferdam.                       intersection.
Vibratory....                                                                                 60             100
Vibratory....  Sheet Pile.....  In-water.......             311  TPP/US-101                   16             100
                                                                  intersection.
Impact.......  Pipe Pile......  In-water with                36  TPP/US-101                    9              20
                                 BCA (for                         intersection.
                                 impact
                                 driving).
Vibratory....                                                                                  9              30
Vibratory....  Pipe Pile......  In-water.......              33  APCO sites.....               9              30
----------------------------------------------------------------------------------------------------------------
\a\ May occur concurrently with other pile-driving activities but only one pile hammer would be operating in any
  given area.
TPP/US-101--TransPacific Parkway/U.S. Highway 101.
MOF--Material Offloading Facility.
TMBB--Temporary Material Barge Berth.
LNG Terminal--Liquid Natural Gas Terminal.
BCA--Bubble Curtain Attenuation or equivalent.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Jordan Cove was 
published in the Federal Register on November 18, 2019 (84 FR 63618). 
That notice described, in detail, Jordan Cove's proposed activity, the 
marine mammal species that may be affected by the activity, the 
anticipated effects on marine mammals and their habitat, proposed 
amount and manner of take, and proposed mitigation, monitoring and 
reporting measures. During the 30-day public comment period, NMFS 
received comment letters from the Marine Mammal Commission (Commission) 
and the Oregon Shores Conservation Coalition (OSCC) on behalf of Rogue 
Climate, Sierra Club, Cascadia Wildlands, Rogue Riverkeeper, Oregon 
Wild, Pipeline Awareness Southern Oregon, Western Environmental Law 
Center, Center for Biological Diversity (hereafter collectively 
referred to as OSCC). Comments contained in those letters, including 
the Commission's recommendations, and our responses are provided here, 
and the comments have been posted online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. We note that OSCC made a 
general comment urging NMFS to implement all of the Commission's 
recommendations; therefore, any response directed at the Commission 
also satisfies OSCC comment.
    Comment 1: The Commission contends that modeling conducted by JASCO 
to estimate distances to the Level B harassment threshold for vibratory 
driving sheet piles at the terminal (i.e., in-the-dry) applied data 
that resulted in a higher broadband source level (SL) than that used 
for in-water vibratory pile driving (i.e., 163 dB rms vs 160 dB rms, 
respectively); therefore, the higher SL should also be used in the in-
water pile driving acoustic analysis. The Commission recommends that 
NMFS (1) use 163 rather than 160 dB re 1 [mu]Pa at 1 m as the SL for 
vibratory installation of sheet piles at TPP/U.S. 101 intersection, (2) 
revise the Level A and B harassment zones accordingly, and (3) re-
estimate the numbers of takes of harbor seals.
    Response: The purpose of JASCO's modeling was to estimate distances 
to NMFS Level B harassment distances from in-the-dry vibratory pile 
driving using a sophisticated propagation model (Appendix D in JCEP's 
application). JASCO's report clearly identified their propagation model 
incorporates, among other things, a one-third octave band SL spectrum 
rather than a single broadband SL to estimate distances to the Level B 
harassment threshold. JASCO chose the spectrum from the Port of Oakland 
Berth 23 project and reported the one-third octave band SLs in their 
report. In contrast, JCEP modeled in-water pile driving propagation 
using a simple practical spreading loss model (i.e., 15logR) that 
incorporates a single broadband SL (in this case the average, broadband 
SL based on various projects and provided in Caltrans (Table I.2.2)). 
These modeling approaches are not comparable. Spectra data for 
vibratory sheet pile driving is currently limited (most data sources, 
like Caltrans, do not provide accompanying spectral data

[[Page 6921]]

with their source levels) and therefore there are few one-third octave 
band spectra available for JASCO to apply to its sound propagation 
model.
    Essentially, the Commission is recommending that because JASCO used 
the Berth 23 spectrum in its propagation model, JCEP and NMFS must 
limit themselves to using the single, broadband SL calculated from the 
Berth 23 project (which was not used in JASCO's model) and apply it to 
the in-water pile driving practical spreading loss model. This approach 
ignores all other broadband source level data available. That is, the 
160 dB rms broadband SL applied to JCEP's in-water acoustic analysis 
represents the typical SL averaged from all data available in Caltrans 
and is a reasonable and justified SL. Further, 160dB rms has 
consistently been applied by NMFS in previous sheet pile driving 
projects where site specific data are absent without question from the 
Commission, including the recently issued IHA for the U.S. Army Corps 
of Engineers pile driving project in Coos Bay (85 FR 1140, January 9, 
2020).
    For the reasons described above, NMFS disagrees with the Commission 
that it is necessary to apply the single broadband SL from the Port of 
Oakland Berth 23 project to the in-water pile driving acoustic analysis 
simply because the spectrum generated for that project was used in 
JASCO's in-the-dry model. Therefore, we did not recalculate Level B 
harassment zones and as a result, did not adjust harbor seal takes 
based on modified harassment zones.
    Comment 2: The Commission noted that the potential for Level A 
harassment from impact pile driving at APCO sites 1 and 2 was not 
analyzed. Should there be a possibility that impact driving may be 
necessary to install the 24-in piles at APCO Sites 1 and 2, the 
Commissions recommends that NMFS estimate the extents of the Level A 
harassment zones and revise the various tables accordingly in the FR 
notice and final incidental harassment authorization.
    Response: JCEP has clarified that proofing 24-in piles at APCO 
Sites 1 and 2 with an impact hammer may occur and that the pile driving 
scenario would be similar to that at the US101/TPP site. Therefore, the 
analysis at the US101/TPP site has been applied to the APCO Sites, 
including implementing the same shutdown zones to avoid Level A 
harassment of all marine mammals; therefore, no Level A harassment is 
anticipated or authorized.
    Comment 3: The Commission noted there is potential for vibratory 
hammering to occur for 80 minutes per day during installation of 24-in 
piles at the TPP/U.S. 101 intersection; however, JCEP (and NMFS) used a 
30 minute duration in the User Spreadsheet to calculate distances to 
Level A harassment zones. The Commission recommends that NMFS 
recalculate the Level A harassment zones to account for the maximum 
time that vibratory installation could occur on a given day and revise 
Tables 9 and 10 in the Federal Register notice accordingly.
    Response: JCEP has clarified the 80 minute duration presented in 
their application and subsequently carried over the proposed IHA is a 
typographical error. All vibratory pile driving is expected to be 
limited to 30 minutes per day. Therefore, NMFS has determined no 
further analysis is necessary.
    Comment 4: The Commission recommends that NMFS finish reviewing and 
finalize its recommended proxy source levels for both impact and 
vibratory installation of the various pile types and sizes and make 
them available to the public as they are completed.
    Response: As the Commission notes, NMFS is developing proxy source 
level recommendations for impact and vibratory pile driving based on 
all available data, and we intend to make that information available to 
the public as it is developed. Until that time, NMFS has advised 
applicants and the Commission that Caltrans 2015 represents the most 
complete pile driving source level compilation, and applicants should 
defer to these data absent any project site specific data.
    Comment 5: The Commission disagrees with NMFS's application of a 7 
dB source level reduction in its acoustic analysis because bubble 
curtains placed immediately around the pile do not attenuate ground-
borne source and there are data available that indicate less sound 
reduction has been achieved in certain cases and NMFS is in possession 
of that data. The Commission recommends that NMFS (1) consult with 
acousticians, including those at UW-APL, regarding the appropriate 
source level reduction factor to use to minimize near-field (<100 m) 
and far-field (>100 m) effects on marine mammals or (2) use the data 
NMFS has compiled regarding source level reductions at 10 m for near-
field effects and assume no source level reduction for far-field 
effects for all relevant incidental take authorizations.
    Response: The Commission has raised this concern before and NMFS 
refers readers to our response, which may be found in the notice of 
issuance of an IHA to Carnival (84 FR64833, November 25, 2019), 
incorporated here by reference.
    Comment 6: The Commission recommends that NMFS strongly encourage 
JCEP to collect in-situ data during impact pile driving of half the 
piles with and half without use of the bubble curtain and require JCEP 
to position the far-field hydrophone at least 5 m in depth and at least 
100 m or 20 times the source depth away from the pile, whichever is 
greater.
    Response: The Oregon Department of Fish and Wildlife (ODFG), NMFS, 
and the U.S. Fish and Wildlife Service restrict JCEP from impact pile 
driving without a bubble curtain to protect ESA-listed species. NMFS 
has no authority to override this restriction through this IHA; 
therefore, NMFS is not requiring JCEP to test bubble curtain 
effectiveness. With respect to hydrophone placement, JCEP has updated 
its acoustic monitoring plan to reflect the far-field hydrophone will 
be placed in at least 5 m water depth and at least 100 m or 20 times 
the source depths away from the pile, whichever is greater.
    Comment 7: The Commission had concerns regarding our approach for 
estimating harbor seals take in the proposed IHA and provided 
alternative methods of calculating those take estimates. The Commission 
recommends that NMFS (1) use a density of (a) 16.0 seals/km\2\ rather 
than 3 seals/km\2\ for fall/winter and (b) 32.0 seals/km\2\ rather than 
6.0 seals/km\2\ for spring and summer; (2) refrain from using JCEP's 
movement model; and (3) recalculate the number of Level B harassment 
takes of harbor seals accordingly.
    Response: The Commission recommends NMFS apply harbor seal 
densities for both winter and summer based on winter survey data. For 
winter, the Commission recommends we apply the highest density value of 
11.1 seals/km\2\ stated in AECOM (2018) and apply a correction factor 
(1.53 seals; Huber et al., 2001) to the number of seals used in AECOM's 
calculation, resulting a density of 16 seals/km\2\. NMFS agrees 
applying a correction factor to harbor seal haulout counts is a 
conservative approach to estimating density and has done so in our 
revised take estimates for both summer and winter (see Estimated Take 
section). However, NMFS finds the density values reported in AECOM 2018 
are not actually density values. AECOM inappropriately applied the 
opportunistic boat-based survey area (15.09 km\2\), which was a 
separate effort than the drone-based aerial survey counts, to the 
haulout count data to estimate a density. Therefore, NMFS finds the 
density values in AECOM's

[[Page 6922]]

report are not accurate and that the count of 167 animals solely 
represents the abundance of harbor seals at the two haulout sites 
surveyed.
    The Commission then recommended applying a spring/summer density of 
32 seals/km\2\ (16 *2) based on the 50 percent summer/winter density 
ratio NMFS originally proposed (6.2 for summer and 3.0 for winter). 
NMFS finds this approach ill-advised for many reasons. First, as 
discussed above, the values provided in AECOM 2018 are not true 
densities. Moreover, even if the density was accurate, it would 
represent seals near the bay's entrance, whereas JCEP would be 
conducting all in-water pile driving in areas far removed from where 
the winter haulout counts were conducted. More importantly, the 
Commission's approach is to base summer density on winter density, 
which essentially disregards all ODFW spring/summer data at all four 
haulout sites within Coos Bay (which is a good bay-wide representation 
of where JCEP would be working). Finally, the Commission's 
recommendation is to double the density in summer based on the 
originally proposed summer/winter density ratio, despite the fact that 
the Commission takes issue with the originally proposed winter density. 
For all these reasons, NMFS has not implemented the Commission's 
recommended summer and winter densities.
    The Commission's recommendation also does not consider the 
contextual factors associated with data collection locations and pile 
driving locations. The Commission questions why the density in AECOM 
2018 was not used as it was recently used for estimating take for 
another project within Coos Bay. Above, we discuss why this is not a 
true density; however, we also find that applying the AECOM 2018 stated 
``density'' is more appropriate for the U.S. Army Corps of Engineers 
project as it is taking place at the jetties, which are in close 
proximity to the harbor seal haul-out sites where those data were 
collected. As discussed in the notice of proposed IHA, all in-water 
pile driving for the Jordan Cove project will take place at the 
U.S.101/TPP site (which is located in the northern part of Coos Bay, 
behind a berm that is fully enclosed except for two small locations), 
and APCO sites, which are in the eastern portion of Coos Bay, far from 
the bay's entrance. NMFS finds these contextual factors are important 
when estimating take.
    NMFS further considered the Commission's overall concern that the 
number of harbor seals takes proposed may be an underestimate. 
Therefore, we adjusted harbor seal take numbers based on all 
appropriate survey data and project location relative to those data. 
First, we applied the 1.53 correction factor, as recommended by the 
Commission, to harbor seal haulout counts to calculate a density for 
both summer and winter. Our proposed IHA explained why we did not do 
this initially (i.e., the June 2014 survey is taken during peak 
abundance times; however, that density is applied through the summer 
when seal abundance may decrease) but upon re-evaluation we determined 
the 1.53 correction factor is appropriately more conservative. The 
Commission also took issue with JCEP calculating density based on the 
area of Coos Bay; however, ODFW's June 2014 survey data includes counts 
for all four haulout sites within Coos Bay (including the single 
haulout near the APCO sites); therefore, applying the area of Coos Bay 
(55.28 km\2\) to generate a harbor seal bay-wide density is 
appropriate. In total, this results in a spring/summer density of 9.2 
seals/km\2\ (333 seals observed x 1.53)/55.28).
    Because the haulout survey data from AECOM 2018 only included two 
of the four haulout sites, as described above, we estimated haulout 
abundance at the two un-surveyed haulouts, based on the ratio of 
animals observed during the ODFW surveys (this assumes equal habitat 
distribution throughout the year which we have determined is 
reasonable). This results in a fall/winter density of 3.0 seals/km\2\. 
We provide more detail on these calculations in the Estimated Take 
section below.
    The Commission recommended NMFS not apply JCEP's movement method 
for estimating harbor seal take from out-of-water pile driving at the 
Jordan Cove terminal site and states that it results in an 
underestimate of take. The Commission's concern is that the movement 
model is a new, unique method and varies from any take estimate 
approaches in other authorizations. NMFS disagrees with the 
Commission's suggestion that ``consistency'' is a paramount 
consideration above others in evaluating take estimates. While 
consistency in use of the best available science is the goal, it may be 
more appropriate (and a better use of the best available science) or 
equally appropriate to use different inputs or methods in different 
circumstances. More specifically, the Commission took issue with the 
model description (e.g., seals ``drift'') and that current speeds were 
applied that were slower than average swim speeds. We do not agree the 
Commission's issue is of scientific concern because, as described in 
the proposed IHA notice, this speed falls within the bounds of harbor 
seal swim speeds used in Navy modeling. The Commission also postulated 
JCEP's simple movement method does not account for any estimate of the 
probability of occurrence. We find this statement is not accurate, as 
JCEP's movement model does account for density and Level B harassment 
area; the same parameters included in the standard method which the 
Commission recommended we use as an alternative to the movement method. 
Lastly, we note the Commission's letter failed to recognize that JCEP 
conservatively applied the findings from JASCO's vibratory model for 
piles set back 30 ft (9 m) from the water's edge to all piles that are 
to be installed within 100 ft (30 m) of the water's edge, as described 
in our notice of proposed IHA. Therefore, the Commission's assumption 
the movement model underestimates takes is not supported.
    For all the reasons provided above, we implemented some but not all 
of the Commission's specific recommendations. We applied a correction 
factor to harbor seal haulout counts and adjusted harbor seal densities 
for both the in-water (fall/winter) and out-of-water (spring/summer) 
work windows using the same methods as in the proposed IHA. As 
described in the notice of proposed IHA, NMFS finds JCEP's movement 
method, while innovative, is a reasonable approach to estimating take 
and we have continued to apply it with the adjusted densities described 
above and in the Estimated Take section.
    Comment 8: The Commission recommends that NMFS revise its estimated 
takes of California sea lions to at least 654 and estimated takes of 
Steller sea lions to at least 327 because the take estimates should be 
based on the total number of days pile driving is expected to occur at 
the project sites combined, and AECOM's May 2017 survey data indicate 
the potential for at least two and potentially three California sea 
lions to occur in the project area on any given day.
    Response: In our proposed IHA, NMFS estimated one California sea 
lion and one Steller sea lion could be observed on any given calendar 
day of pile driving (n = 270). To be conservative, NMFS increased the 
number of California sea lion that could occur on any given day to two 
animals based on the Commission's comment in the final IHA. However, 
the Commission is incorrect that 327 days of pile driving (the input if 
pile driving at each location occurred on independent days) should be 
used in our take estimate. That

[[Page 6923]]

approach would assume that animals are taken more than once on any 
given day and would be overly conservative for species that are more 
likely to remain near the bay's entrance and likely display seasonal 
use of Coos Bay. California sea lions or Steller sea lions are unlikely 
to be exposed to pile driving noise at the U.S. 101/TPP site given its 
location behind a berm; however, we conservatively included all pile 
driving activity in our take estimate. Also, there were no sightings of 
either species on AECOM's 4-day fall/winter survey; therefore, their 
presence during this time is likely much less than that in spring/
summer. The Commission's recommendation to treat the sites independent 
of each other does not take these contextual factors into account and 
results in a gross overestimate of potential take. Therefore, 230 
calendar days of pile driving is the appropriate input into our 
estimated take calculations. We have authorized 460 California sea lion 
takes (2 animals x 230 days), by Level B harassment, and retained the 
230 Steller sea lion takes, by Level B harassment, as originally 
proposed.
    Comment 9: The Commission recommends that NMFS (1) update and use 
its various templates for Federal Register notices and draft 
authorizations and (2) conduct a more thorough review of the notices, 
draft authorizations, and final authorizations to ensure accuracy, 
completeness, and consistency.
    Response: The Commission has provided this recommendation 
previously. NMFS makes every reasonable effort to publish the best 
possible products for public comment.
    Comment 10: The Commission recommends that NMFS (1) specify, in the 
Federal Register for the authorization issuance and the final 
authorization, that JCEP would be required to (a) conduct its 
activities during daylight hours only, (b) keep a running tally of both 
observed and extrapolated takes, and (c) delay or cease pile driving if 
PSOs cannot observe the entirety of the shut-down zone due to low-
visibility conditions, and (2) specify in section 5(a) of the final 
authorization that two PSOs would be required to monitor at each site 
when pile-driving activities occur.
    Response: The Federal Register notice for the proposed action (84 
FR 63618, November 18, 2019) did not include a description of the time 
of day that the activity would take place. NMFS has noted below, in the 
Changes from Proposed IHA to Final IHA section, that the applicant has 
indeed clarified their intention for pile driving to occur during 
daylight hours. NMFS agrees that the Federal Register notice for a 
proposed action should detail whether a specified activity will take 
place during daylight hours only, or whether an activity may, or will, 
take place at night. NMFS bases its determinations on how an applicant 
describes their activities and expects that an applicant will carry out 
a project as it is described in the associated application and Federal 
Register notices. Additionally, NMFS includes here a requirement that 
``should environmental conditions deteriorate such that marine mammals 
within the entire shutdown zone would not be visible (e.g., fog, heavy 
rain), pile driving and removal must be delayed until the PSO is 
confident marine mammals within the shutdown zone could be detected.'' 
This requirement implies that a shutdown zone should either be visible 
due to daylight, or an applicant must illuminate the shutdown zone to 
allow sufficient visibility. Therefore, NMFS does not agree that it is 
necessary to stipulate that the activity may only occur during daylight 
hours.
    JCEP's Marine Mammal Monitoring Plan clearly stipulates that two 
PSOs will be on-site at each pile driving location. However, NMFS 
agrees that this description should be contained in the IHA and has 
done so. We have also included in the authorization that JCEP must 
include extrapolation of the estimated takes by Level B harassment 
based on the number of observed exposures within the Level B harassment 
zone and the percentage of the Level B harassment zone that was not 
visible in the draft and final reports.
    Comment 11: The Commission recommends that NMFS require that JCEP 
report: (1) The number of strikes per pile or strikes per day in 
section 5(d)(ii); and (2) pulse durations associated with impact pile 
driving and the spectra for all pile types and installation methods in 
section 5(d)(iii) of the final authorization.
    Response: These components are included in JCEP's acoustic 
monitoring plan; however, NMFS has also included the Commission's 
recommended components specifically in the IHA.
    Comment 12: The Commission recommends that NMFS (1) stipulate that 
a renewal is a one-time opportunity in all Federal Register notices 
requesting comments on the possibility of a renewal, on its web page 
detailing the renewal process, and in all draft and final 
authorizations that include a term and condition for a renewal, (2) 
ensure that action proponents have met all renewal requirements prior 
to proposing to issue a renewal in the Federal Register, and (3) follow 
its own renewal process of informing all commenters on the original 
authorization of the opportunity to submit additional comments on the 
proposed renewal.
    Response: NMFS' website indicates that Renewals are good for ``up 
to another year of the activities covered in the initial IHA.'' NMFS 
has never issued a Renewal for more than one year and in no place have 
we implied that Renewals are available for more than one year. Any 
given FR notice considering a Renewal clearly indicates that it is only 
being considered for one year. Accordingly, changes to the Renewal 
language on the website, notices, and authorizations are not necessary.
    NMFS is also already evaluating each renewal request against the 
criteria clearly described on our website and is following our own 
renewal process of informing all commenters on the original 
authorization. We believe the Commission provided recommendations 2 and 
3 in light of recent action wherein we inadvertently neglected to alert 
the Commission about a specific renewal request and the preliminary 
monitoring report was not available at the time of the proposed Renewal 
IHA. However, once we noticed the error, we republished the notice of 
proposed Renewal IHA (along with a preliminary monitoring report) in 
the Federal Register for that project. Therefore, NMFS is already 
implementing the Commission's recommendation.
    Comment 13: OCSS indicated JCEP's IHA application did not consider 
impacts to ESA-listed marine mammals from tanker transit and 
incorrectly identifies certain activities (e.g., land-based 
construction activities, channel-widening dredging activities) as not 
expecting to result in take of marine mammals.
    Response: NMFS' IHA authorizes take of marine mammals incidental to 
one-year of pile driving associated with the Jordan Cove LNG Terminal; 
therefore, vessel transit is not part of the specified activities as 
the terminal would not be complete. No incidental take of ESA-listed 
marine mammal species was requested or expected to result from this 
activity and we did not authorize such in the IHA. Therefore, NMFS has 
determined that formal consultation under section 7 of the ESA is not 
required for this action.
    With respect to other activities, as described in JCEP's 
application, channel-widening dredging activities would not occur under 
the IHA, but would occur in subsequent years. We recognize the timing 
description in the proposed IHA notice was not clear. JCEP will be 
excavating a 30-acre access channel at the terminal site (located far

[[Page 6924]]

from any haulout), which requires the dredging of 1.4 million cubic 
yards of sand and silt. At times, dredging could be conducted 
concurrent with pile driving. In our proposed notice, we described why 
dredging is not expected to result in take (i.e., it is located at 
least 500 m from any haulout site, dredging would not occur during the 
pupping season, harbor seals are likely habituated to past and present 
routine dredging, and non-harbor seal presence in Coos Bay is rare). 
The proposed IHA also included a mitigation measure that JCEP must 
implement a shutdown of dredging should a marine mammal come within 10 
m of the dredge. That measure remains in the final IHA.
    On-land construction activities are located at least 3 miles (4.8 
km) from any major haulout site. While it is unlikely pinnipeds would 
randomly haul-out near construction activities, any disturbance would 
likely be captured as the animal enters the water and is exposed to 
pile driving noise. However, to minimize disturbance, we have included 
a measure in the final IHA that all JCEP personnel must abide by NMFS' 
Marine Mammal Viewing Guidelines, maintaining a 50-yard setback from 
any hauled-out pinniped.
    Comment 14: OCSS is concerned about the long-term, cumulative 
impacts associated with JCEP's project, during construction and once 
complete, and indicates NMFS should consider ODFW's analysis and 
recommendations on Jordan Cove's DEIS prior to any final decision on 
the proposed IHA. OCSS specifically suggests NMFS should consider 
ODFW's comments on the Jordan Cove DEIS regarding long-term habitat 
impacts such as the creation of the deepwater alcove at the proposed 
terminal site and eelgrass habitat impacts and the effectiveness of the 
proposed eelgrass mitigation plan.
    Response: NMFS is a cooperating agency on the Federal Energy 
Regulatory Commission's EIS prepared pursuant to the National 
Environmental Policy Act (NEPA). The EIS considers the individual and 
cumulative effects of the project on all aquatic resources, including 
habitat and marine mammal prey species. These impacts are fully 
described in Chapter 4 of the FEIS. Further, NMFS evaluated impacts to 
ESA-listed marine mammal prey such as salmonids and is requiring a 
number of fish mitigation measures be implemented in the Terms and 
Conditions of NMFS' Biological Opinion, issued January 10, 2020. These 
measures include salvaging fish (through relocation), using confined 
and/or confined bubble curtains during pile driving to reduce the 
potential for fish injury, monitoring and minimize suspended sediment 
loads, minimizing fish kills during dredging by maintain contact 
between the draghead and seafloor, and successfully restoring eelgrass 
habitat and other tidal wetland restoration project, among other 
things. We refer the reader to section 2.9.3 of the Incidental Take 
Statement contained within the Biological Opinion for a complete list 
of mitigation and minimization measures.
    Comment 15: OSCC commented the MMPA allows the NMFS to authorize 
marine mammal take only if certain conditions are met and must provide 
for the monitoring and reporting of such takings and must prescribe 
methods and means of effecting the ``least practicable impact'' on the 
species or stock and its habitat.
    Response: NMFS has provided a detailed description on how we 
reached our conclusion that taking under the IHA would have a 
negligible impact on marine mammals species and stocks and would 
satisfy the small numbers standard. We have also provided mitigation, 
monitoring and reporting requirements JCEP must adhere to in the IHA.
    Comment 15: OSCC questioned whether the construction dates 
contained within the IHA request are accurate. The OSCC notes that in 
May 2019, the Oregon Department of Environmental Quality denied JCEP's 
request for Clean Water Act Section 401 Certification and therefore 
implied construction is unlikely to begin in October 2020.
    Response: Any IHA issued by NMFS is only valid for otherwise lawful 
activities. If JCEP does not begin construction due to a permitting 
delay, harassment of marine mammals incidental to the specified 
activity would not occur. On January 16, 2020, JCEP indicated to NMFS 
that the construction start date in the IHA application (October 1, 
2020), remains valid and therefore, the IHA reflects that anticipated 
start date.
    Comment 16: OSCC commented that the Applicant's materials appear to 
underestimate the impacts of noise on Pacific harbor seals and other 
identified marine mammal species in Coos Bay.
    Response: OSCC is concerned pile driving (impact and vibratory) 
will lead to fish kills (including those piles driven in-the-dry) and 
marine mammal impacts will be similar to those demonstrated during 
offshore wind farm construction in Europe. OSCC cites modeled noise 
levels from offshore wind farm construction (250 dB peak-peak @ 1m; 
Bailey et al., 2010) to justify this comment. In that study, the 
authors recorded noise levels in Moray Forth, Scotland, during 
installation of two 88 m tall wind turbines. Each pile required 5000-
7000 strikes. The turbines were mounted on four-legged steel jackets 
fixed to the seabed using four (1.8 m diameter) tubular steel piles.
    There are several issues with OSCC's argument. Foremost, OSCC's 
comparison between noise levels, an associated impacts to marine 
mammals and their prey, generated from installing 1.8 m diameter piles 
in the North Sea to the proposed project (sheet piles and 24-in piles 
in an estuary) are in no-way analogous, with much more sound produced 
by the former. In addition, the North Sea wind farm is located in an 
area far from everyday human disturbance (other than shipping traffic). 
In contrast, animals residing within Coos Bay are subjected to daily 
human disturbance in all forms. Given the difference in baseline noise/
disturbance exposure, we would expect the North Sea marine mammals to 
react more strongly to new stimuli than habituated marine mammals in 
Coos Bay.
    Furthermore, OCSS cited noise levels that Bailey et al., (2010) 
clearly indicates are likely not accurate. Bailey et al. (2010) states 
the modeled 250 dB peak-peak SL probably greatly over-estimates the 
actual source as inspection of the data highlights that this fit 
exceeds the majority of the measured data at close range and source 
level calculated for the subset of data closest to the pile-driving (up 
to 1 km) was 226 dB re 1 [micro]Pa at 1 m (95% CI  14.2), 
which is similar to that predicted (225 dB re 1 [micro]Pa at 1 m) in 
the Environmental Statement (Talisman, 2005).
    NMFS conducted a full analysis of the potential for marine mammal 
auditory injury and harassment based on NMFS' thresholds, which 
represent the best available science. At the terminal, JCEP 
conservatively applied findings from JASCO's acoustic analysis for 
piles set back 30 ft (9 m) from the water's edge to all piles within 
100 ft (30 m) of the water's edge--a very conservative approach. There 
is no potential for PTS from piles driven at the terminal and where 
there is a small potential for PTS from piles driven in-water, JCEP 
will implement shutdown zones greater than the most conservative PTS 
isopleths. We also were conservative in estimating the potential for 
harassment, as described in the Estimated Take section. For these 
reasons, NMFS does not agree we have underestimated the impacts of 
noise on marine mammals incidental to pile driving.
    Comment 17: OCSS suggested NMFS should give further consideration 
to the

[[Page 6925]]

potential injury to marine mammals likely to result from LNG tanker 
transit because the pile driving associated with the proposed marine 
facilities is meant to facilitate LNG tanker transit to and from the 
proposed LNG Terminal.
    Response: Under the MMPA, NMFS is required to assess the impacts to 
marine mammals from a specified activity. Here, the activity 
evaluation, and for which take was requested and is authorized, is 
limited to pile driving during the effective period of the IHA. No 
tanker transit would occur during the effective dates of the IHA as the 
terminal would not be complete.

Changes From Proposed IHA to Final IHA

    The most substantive change since we published the Notice of 
proposed IHA, described above and in the Estimated Take section, is the 
increase in the Level B harassment take numbers for harbor seals from 
8,754 to 13,984 and California sea lions from 230 to 460. In addition, 
we expanded the shutdown zones at the APCO sites to account for the 
potential for impact pile driving at these locations (not originally 
considered in the proposed IHA). We also included additional monitoring 
and reporting conditions in the IHA, some of which were reflected in 
JCEP's application and marine mammal and acoustic monitoring plans but 
were not contained within the proposed IHA. These additions include 
stipulating at least two PSOs must be stationed at each pile driving 
location and the entire shutdown zone must be visible during pile 
driving, reporting extrapolated takes in the draft and final reports, 
and reporting specific acoustic monitoring data, including, but not 
limited to, the number of impact driving strikes of the pile being 
measured and spectra. None of these modifications affect our negligible 
impact or small numbers determinations.

Description of Marine Mammals in the Area of Specified Activities

    Systematic marine mammal surveys in Coos Bay are limited; 
therefore, JCEP conducted seasonal multi-day surveys in support of the 
IHA application and relied on Oregon Department of Fish and Wildlife 
(ODFW) aerial surveys as well as anecdotal reports (e.g., media 
reports) to better understand marine mammal presence in Coos Bay. Based 
on these data, seven marine mammal species comprising seven stocks have 
the potential to occur within Coos Bay during the project.
    Table 2 lists all species with expected potential for occurrence in 
Coos Bay and summarizes information related to the population or stock, 
including regulatory status under the MMPA and ESA and potential 
biological removal (PBR) values, where known. Additional detail 
regarding the affected species and stocks, including local occurrence 
data in Coos Bay is fully described, in detail, in our notice of 
proposed IHA (84 FR 63618, December 18, 2019) and that information is 
not repeated here.

                   Table 2--Marine Mammal Species Potentially Present Within Coos Bay During the Jordan Cove LNG Project Construction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific..  N, N                26,960 (0.05, 25,849,         801        139
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer Whale....................  Orcinus orca...........  West Coast Transient...  N, N                521 (-, 243, 2012)....        2.4          0
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Northern CA/Southern OR  N, N                35,769 (0.52, 23,749,         475      >=0.6
                                                                                                             2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    Northern elephant seal..........  Mirounga angustirostris  California breeding....  N, N                179,000 (n/a, 81,368,       4,882        8.8
                                                                                                             2010).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  N,N                 43,201 (-, 43,201,          2,592        113
                                                                                                             2017).
    California sea lion.............  Zalophus californianus.  U.S....................  N, N                257,606 (n/a, 233,515,     14,011      >=321
                                                                                                             2014).
Family Phocidae (earless seals):
    Pacific harbor seal.............  Phoca vitulina.........  Oregon/Washington        N, N                24,732 (unk, -,               unk        unk
                                                                Coastal.                                     1999)\5\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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.
\4\ The minimum population estimate (NMIN) for the West Coast Transient stock of killer whales is derived from mark-recapture analysis for West Coast
  transient population whales from the inside waters of Alaska and British Columbia of 243 whales (95% probability interval = 180-339) in 2006 (DFO
  2009), which includes animals found in Canadian waters.
\5\ Because the most recent abundance estimate is >8 years old (1999), there is no current estimate of abundance available for this stock. However, for
  purposes of our analysis, we apply the previous abundance estimate (24,732) which accounts for animals in water during aerial surveys.


[[Page 6926]]

Potential Effects of Specified Activities on Marine Mammals and their 
Habitat

    We provided discussion of the potential effects of the specified 
activity on marine mammals and their habitat in our Federal Register 
notice of proposed IHA (84 FR 63618; November 18, 2018). Therefore, we 
do not reprint the information here but refer the reader to that 
document. That document included a summary and discussion of the ways 
that components of the specified activity may impact marine mammals and 
their habitat, as well as general background information on sound. The 
Estimated Take section later in this document includes a quantitative 
analysis of the number of individuals that are expected to be taken by 
this activity. The Negligible Impact Analysis and Determination section 
considers the content of this section and the material it references, 
the Estimated Take section, and the Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform 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).
    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 pile driving. Based on the nature of the 
activity and the anticipated effectiveness of the mitigation measures 
(e.g., shutdown zone measures) discussed in detail below in the 
Mitigation section, Level A harassment is neither anticipated nor 
authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    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 proposed take 
estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (e.g., 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.
    JCEP's proposed activity includes the use of continuous, non-
impulsive (vibratory pile driving) and intermittent, impulsive (impact 
pile driving) sources, and therefore the 120 and 160 dB re 1 [mu]Pa 
(rms), respectively, 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).
    These thresholds are provided in Table 3 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 3--Thresholds identifying the onset of Permanent Threshold Shift
------------------------------------------------------------------------
                                   PTS onset acoustic thresholds \*\
                                            (received level)
        Hearing group         ------------------------------------------
                                  Impulsive           Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.  Lpk,flat: 219    LE,LF,24h: 199 dB.
                                dB; LE,LF,24h:
                                183 dB.
Mid-Frequency (MF) Cetaceans.  Lpk,flat: 230    LE,MF,24h: 198 dB.
                                dB; LE,MF,24h:
                                185 dB.
High-Frequency (HF) Cetaceans  Lpk,flat: 202    LE,HF,24h: 173 dB.
                                dB; LE,HF,24h:
                                155 dB.
Phocid Pinnipeds (PW)........  Lpk,flat: 218    LE,PW,24h: 201 dB.
(Underwater).................   dB; LE,PW,24h:
                                185 dB.

[[Page 6927]]

 
Otariid Pinnipeds (OW).......  Lpk,flat: 232    LE,OW,24h: 219 dB.
(Underwater).................   dB; LE,OW,24h:
                                203 dB.
------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever
  results in the largest isopleth for calculating PTS onset. If a non-
  impulsive sound has the potential of exceeding the peak sound pressure
  level thresholds associated with impulsive sounds, these thresholds
  should also be considered.
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.
    JCEP investigated potential source levels associated with their 
proposed pile driving activities. For piles driven in-water, JCEP used 
data from Caltrans (2015) and considered use of bubble curtains during 
impact driving to estimate source levels and in consideration of use of 
bubble curtains (required per ODFW regulations) and derive estimated 
distances to the appropriate NMFS Level B harassment isopleth (160 dB 
for impact driving, 120 dB for vibratory driving) using a practical 
(15logR) spreading model (Table 4).

   Table 4--Estimated Source Levels for Piles Driving and Corresponding Level B Harassment Isopleths and Areas
----------------------------------------------------------------------------------------------------------------
                                 Source levels at 10 meters (dB)   160/120 dB RMS threshold (Level B harassment)
                                --------------------------------------------------------------------------------
   Pile type/method/location                                      Distance to Level
                                    Peak       RMS        SEL       B threshold (m)       Area  (sq. km) \2\
                                                                         \2\
----------------------------------------------------------------------------------------------------------------
                                                  LNG Terminal
----------------------------------------------------------------------------------------------------------------
Sheet piles/24-in pipe piles         See Appendix D in JCEP's                 1,914  2.49.
 (in-the-dry).                             application
----------------------------------------------------------------------------------------------------------------
                                              Ancillary Activities
----------------------------------------------------------------------------------------------------------------
24[dash]inch Pipe Piles at TPP/    \1\ 196    \1\ 183    \1\ 170                341  0.136.
 US-101- Impact with BCA.
14[dash]inch Timber Piles at           180        170        160                 46  0.002.
 TPP/US-101- Impact within
 cofferdam.
24[dash]inch Pipe Piles at TPP/  .........        165        165             10,000  TPP/US101--1.18 APCO--0.40.
 US-101, and APCO sites--
 Vibratory.
14[dash]inch Timber Piles at     .........        162        162              6,310  1.18.
 TPP/US-101--Vibratory.
Sheet Piles at TPP/US-101--      .........        160        160              4,642  1.18.
 Vibratory.
----------------------------------------------------------------------------------------------------------------
\1\ Assumes a 7dB bubble curtain reduction from unattenuated sources in Caltrans (2015).
\2\ Distance to threshold is calculated whereas area accounts for cutoffs from land.

    For piles driven close to the water's edge (within 100 feet) but 
out-of-water (in water laden sediments) at the MOF, JCEP contracted 
JASCO to conduct more sophisticated acoustic modeling to determine if 
sound propagation through the sediment would contribute to elevated 
noise levels in-water above NMFS harassment thresholds. Appendix D in 
JCEP's application contains the full modeling report for vibratory pile 
driving, respectively, near the water's edge (within 9 m (30 feet)) at 
the MOF (note Appendix C contains impact pile driving model; however, 
no impact driving piles in-the-dry would occur under the IHA). The 
model methods, in summary, included use of a full-wave numerical sound 
propagation model to simulate the transmission of vibratory pile 
driving noise (based on one-third octave band levels) through water-
saturated soils into the water. One-third-octave band source levels for 
vibrating sheet piles were based on published hydrophone measurements 
of in-water sheet pile driving.
    To model sound propagation from vibratory pile driving, JASCO used 
a modified version of the RAM parabolic-equation model (Collins 1993, 
1996). The environmental data and source levels were input to 
underwater noise modeling software to estimate the underwater noise 
received levels (RL) that would be present in the water near the pile 
driving. The maximum modeled Level B harassment threshold distance for 
vibratory pile driving in-the-dry at the LNG Terminal site is 1,914 m. 
We note Jasco conservatively applied the findings from the vibratory 
model for piles set back 30 ft (9 m) from the water's edge to all piles 
that are to be installed within 100 ft (30 m) of the water's edge. The 
model predicted that the Level A harassment thresholds for

[[Page 6928]]

all hearing groups would not be reached during vibratory pile driving 
at the Terminal (all in-the-dry piles) when considering five hours of 
vibratory pile driving per day (see Table 5-2 in Appendix B in JCEP's 
application).
    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that an 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 from in-water sources 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 closest distance at which, if a marine mammal 
remained at that exact distance the whole duration of the activity, it 
could incur PTS. Inputs used in the User Spreadsheet for all the in-
water pile driving work and the resulting isopleths are reported in 
Table 5. We note none of the peak source levels exceed any Level A 
harassment threshold.

                                             Table 5--NMFS User Spreadsheet Inputs For In-Water Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 User spreadsheet input
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                        14-in timber
                                       24-In steel impact      14-In timber impact   24-In steel vibratory     Sheet vibratory           vibratory
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used...............  (E.1) Impact pile       (E.1) Impact pile       (A) Non-Impulse- Stat- (A) Non-Impulse- Stat- (A) Non-Impulse- Stat-
                                      driving.                driving.                Cont.                  Cont.                  Cont.
Source Level (Single Strike/shot     170 dB................  160 dB................  165 dB...............  160 dB...............  162 dB.
 SEL/rms).
Weighting Factor Adjustment (kHz)..  2 kHz.................  2 kHz.................  2.5 kHz..............  2.5 kHz..............  2.5 kHz.
a) Number of strikes per pile......  200...................  100...................  N/A..................  N/A..................  N/A.
a) Number of piles per day or        4.....................  20....................  0.5 hours............  1.67 hours...........  1.67 hours.
 activity duration.
Propagation (xLogR)................  15....................  15....................  15...................  15...................  15.
Distance of source level             10....................  10....................  10...................  10...................  10.
 measurement (meters).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The resulting Level A isopleths for in-water pile driving for each 
marine mammal hearing group are presented in Table 6 (the following 
discussion does not apply to in-the-dry piles as that was modeled by 
Jasco). The User Spreadsheet calculates a very small zone (less than 6 
m) when considering 1.67 hours of vibratory driving piles in-water 
(this time does not include time it takes to reset the hammer to new 
piles) and JCEP would implement a minimum 10 m shutdown zone. 
Therefore, NMFS has determined there is no potential for Level A take 
during any of the vibratory pile driving scenarios. During impact 
hammering in water (which occurs only at the TPP/US-101 and APCO 
sites), the potential for Level A take remains very small; however, it 
is greater than during vibratory driving. JCEP anticipates it could 
install up to 20 14-in timber piles per day. This could take several 
hours over the course of the entire day to reset piles; however, the 
resulting isopleth for all 20 piles is less than 56 meters for all 
species. When considering the installation of five 14-in timber piles 
(a more reasonable but still lengthy amount of time when considering 
animal movement), the Level A isopleth distance is also very small. 
Similarly, impact driving 24-in steel pipe piles at the TPP/US-101 site 
when considering the installation of four piles per day results in a 
small Level A harassment distance when using the User Spreadsheet. JCEP 
proposes to install 36 24-in piles over 9 days at this location to 
construct the work access bridge. The 36 piles installed at the TPP/US-
101 site are located in an area that is behind a berm with infrequent 
harbor seal presence. For a seal to incur PTS, it must remain 63 m from 
the pile for the time it takes for four piles to be installed. These 
piles would only be proofed with the impact hammer; therefore, 
vibratory driving would occur first and then the hammer would have to 
be reset. In total, the amount of time it may take to install four 
piles is several hours. JCEP is proposing shutdown zones equal to or 
greater than the calculated Level A harassment isopleth distance for 
all pile driving. Because the zones are small and consider several 
hours in duration, NMFS believes the potential for Level A harassment 
is de minimis and is not proposing to issue take of any marine mammal 
by Level A harassment.

                        Table 6--Calculated Level A Harassment Isopleths Based on NMFS User Spreadsheet for In-water Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Source levels at 10 meters                         Distance to level A threshold \1\ (m)
                                                       (dB)              -------------------------------------------------------------------------------
     Project element requiring pile      --------------------------------
              installation                                      RMS        Low-frequency   Mid-frequency       High-
                                             Peak \2\      (vibratory)/      cetaceans       cetaceans       frequency        Phocids        Otariids
                                                           SEL  (impact)                                     cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      LNG Terminal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sheet Piles at MOF/South West Berth wall           --\3\           --\3\              NE              NE              NE              NE              NE
 and 24-inch TMBB Mooring Piles--
 Vibratory (in water/in the dry)........
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 6929]]

 
                                                                  Ancillary Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
24-inch Pipe Piles at TPP/US-101--Impact             201         170 SEL           117.0             4.2           139.3            62.6             4.6
 with BCA...............................
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-inch Timber Piles at TPP/US-101--                 180         160 SEL            46.4             1.7            55.3            24.8             1.8
 Impact within cofferdam................
24-inch Pipe Piles at, TPP/US-101 and                191         165 RMS             8.0             0.7            11.8             4.8             0.3
 APCO sites--Vibratory in water.........
14-inch Timber Piles at TPP/US-101--                 172         162 RMS            11.2             1.0            16.5             6.8             0.5
 Vibratory within cofferdam.............
Sheet Piles at TPP/US-101--Vibratory in              175         160 RMS             8.2             0.7            12.2             5.0             0.4
 water..................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Level A thresholds are based on the NMFS 2018 Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing; cSEL
  threshold distances are shown. See footnote 3 below.
\2\ All distances to the peak Level A harassment thresholds are not met.
\3\ Since these piles will be driven on land, source values at 10m are not available; distances are calculated by JASCO modeling.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.

Harbor Seals

    Over the last several decades, intermittent and independent surveys 
of harbor seal haul-outs in Coos Bay have been conducted. The most 
recent aerial survey of haul-outs in Washington and Oregon occurred in 
2014 by ODFW. Those surveys were conducted during a time when the 
highest number of animals would be expected to haul out (i.e., the 
latter portion of the pupping season [May and June] and at low tide). 
Based on logistic population growth models, harbor seal populations of 
the Oregon Coast had reached carrying capacities during the late 1980s 
and early 1990s (Brown et al. 2005). Using these data, an estimation of 
harbor seal density within Coos Bay can be made by simply dividing the 
area of the Coos Bay estuary by the estimated abundance at all four 
haul-out sites.
    The Coos Bay estuary has an area of 55.28 square kilometers, as 
measured using geographic information system (GIS) files available from 
the Coastal Atlas (2018). We used the ODFW 2014 June aerial survey data 
collected at all four major haulout sites throughout the Bay yielding 
333 observed individuals to estimate harbor seal density in Coos Bay 
during the February 15-September 30 timeframe. In the proposed IHA, we 
did not apply the corrected abundance of 509 seals because those data 
are collected during times with higher abundance than the rest of the 
season. Therefore, we used the straight counts which, when considering 
a timeframe of February through September, is likely more 
representative of long-term abundance. The resulting density is 6.2 
seals/km\2\. While we feel this remains adequate, we recognize a level 
of uncertainty with how harbor seals move throughout the estuary (e.g., 
how many times a day they may transit past the terminal) and the 
inability to distinguish individual seals in the field; therefore, to 
be conservative we applied the 1.53 correction factor (Huber et al., 
2001) to ODFW's June harbor seal count resulting in a density of 9.2 
seals/km\2\ (509 seals/55.28 km\2\).
    To determine a fall/winter denisty for harbor seals, we applied 
seal count data based on AECOM's November/December 2018 survey. This 
survey included 3 days of aerial (drone) flyovers at the Clam Island 
and Pigeon Point haul-outs. In addition, AECOM separately conducted 
vessel-based transect surveys over a 3-day period and opportunistically 
logged marine mammal sightings. However, in their report, AECOM 
inappropriately applied the boat-based survey area to the harbor seal 
count data; therefore, we did not apply the density stated in AECOM's 
report. We also recognized the counts were only conducted at two of the 
four haulout sites and that these haulout sites are near the Bay's 
entrance channel. Therefore, assuming equal seal distribution between 
haulouts throughout the year, we estimated how many harbor seals may 
have been counted at South Slough and Coos Port by AECOM based on the 
ratio of seals observed at all four haulouts in the summer. We believe 
assuming the ratio of seals using each haulout is likely consistent 
throughout the year is reasonable because of the likely resident status 
of harbor seals in the Bay year round and there are no known changes in 
the availability of the habitat for using throughout the year.
    In the notice of proposed IHA, we estimated the winter density of 
harbor seals to be 3.0 seals/km\2\ based on 167 harbor seals hauled out 
at the Clam Island and Pigeon Point sites on any one day of the AECOM 
surveys. However, as described above, when accounting for seals that 
may have been hauled out at the other two sites, we increased that 
density to 6.0 seals/km\2\ in the final IHA. Based on all ODFW data, 
the average ratio of total seals seen at Coos Port and South Slough 
were 18 percent (62/343) and 13 percent (44/343), respectively. We then 
applied these ratios to estimate abundance at these two haulout sites 
during the fall/winter season based on the 167 seals observed at Clam 
Island and Pigeon Port (n = 167) resulting in a total of 219 seals at 
all four haulout sites (167 seals at Clam Island and Coos Port + 
(167*0.18) + (167*0.13)). Multiplying by the 1.53 correction factor 
results in a total of 334 seals (219*1.53). Dividing that seal 
abundance by the area of Coos Bay results in fall/winter density of 6.0 
seals/km\2\ (334 seals/55.28 km\2\) which we applied to the October 1-
February 15th work window.

Other Pinnipeds

    No data are available to calculate density estimates for non-harbor 
seal pinnipeds; therefore, JCEP applies a presence/absence approach 
considering group size for estimating take for California sea lions, 
Steller sea lions, and Northern elephant seals. As described in the 
Description of Marine Mammals section, no haulouts for California sea 
lions and Steller sea lions

[[Page 6930]]

exist within Coos Bay where harassment from exposure to pile driving 
could occur; however, these species do haul out on the beaches adjacent 
to the entrance to Coos Bay. These animals forage individually and 
seasonal use of Coos Bay have been observed, primarily in the spring 
and summer when prey are present. For this reason, JCEP estimates two 
California sea lions and one Steller sea lion may be present each day 
of pile driving (270 days). Northern elephant seals are not common in 
Coos Bay and also forage/travel individually. JCEP estimates one 
individual may be present within a given ensonified area greater than 
the NMFS harassment threshold one day for every seven days of pile 
driving.

Cetaceans

    Similar to pinnipeds other than harbor seals, it is not possible to 
calculate density for cetaceans in Coos Bay as they are not common. 
Therefore JCEP estimates take based on a presence/absence approach and 
considers group size. During migration, gray whales species typically 
travels singly or as a mother and calf pair. This species has been 
reported in Coos Bay only a few times in the last decade and thus take 
of up to two individuals is requested as a contingency. The typical 
group size for transient killer whales is two to four, consisting of a 
mother and her offspring (Orca Network, 2018). Males and young females 
also may form small groups of around three for hunting purposes (Orca 
Network, 2018). Previous sightings in Coos Bay documented a group of 5 
transient killer whales in May 2007 (as reported by the Seattle Times, 
2007) and a pair of killer whales were observed during the 2017 May 
surveys. Considering most pile driving would occur outside the time 
period killer whales are less likely to be present, JCEP assumes that a 
group of three killer whales come into Coos Bay and could enter a Level 
B harassment zone for one day up to five times per year which would 
allow for a combination of smaller (e.g., 2 animals) or larger (e.g., 5 
animals) groups.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.

Harbor Seals

    ODFW and AECOM survey data suggest approximately 300 to 400 harbor 
seals are resident to Coos Bay. We also anticipate there is some flux 
between Coos Bay haulouts and nearby coastal haulouts, which likely 
contributes to the higher abundance estimates during the pupping 
season. Given the residency patterns, the standard approach for 
estimating take is likely insufficient to enumerate the number of 
harbor seals potentially taken by the specified activity. However, we 
do not believe that every harbor seal in the estuary (300 to 400 
individuals) would be taken every day of pile driving given distances 
from haulouts to Level B harassment zones and pile driving durations 
within a day. Therefore, an approach balancing these two extremes 
needed to be developed.
    NMFS typically relies on a standard calculation where estimated 
take = density x ensonified area x number of pile driving. This is 
considered a static approach in that it accounts for any given moment 
of pile driving--a snapshot in time. Typically, this approach allows 
for a sufficient amount of take from a typical pile driving project and 
we find it suitable for the Ancillary Activities because they would be 
limited in duration or would occur in areas where harbor seals are not 
expected to traverse frequently. However, the inputs described above 
are less applicable (and better methods are available) for estimating 
harbor seal take resulting from the vibratory pile driving that is 
planned at the LNG Terminal, because 1) vibratory driving at the 
Terminal may be occurring for several hours per day, 2) Coos Bay is 
narrow and Level B harassment noise thresholds are expected to be 
exceeded across the width of Coos Bay at the Terminal, and 3) many 
harbor seals that haul out at Clam Island, and to a lesser extent, the 
other haulouts in Coos Bay, likely swim by the LNG Terminal work zone 
throughout the day. Because of these factors, individual animals are 
expected to move into the Level B ZOI throughout the day as active 
vibratory driving is occurring at the LNG Terminal, and harbor seal 
take would be underestimated without accounting for the movement of 
animals. Therefore, JCEP developed a calculation method whereby seals 
in the ``model'' are considered to move continuously past the LNG 
Terminal site. JCEP refers to this as the movement method.
    JCEP's movement method uses the same base assumption as the typical 
static method described above--that harbor seals are distributed evenly 
across the estuary. However, this method then assumes that these evenly 
distributed harbor seals travel through the harassment zones and they 
use a current drift speed as a proxy for this drift but it could also 
be considered a slow swim speed (likely representative for animals 
milling around an estuary to which they are resident) as described 
below. The calculations used by JCEP to estimate harbor seal exposures 
(likely occurring to the same 300 to 400 individuals) is: (Seals/km\2\ 
x (ZOI) km\2\) + (Seals/km\2\ x (Current) km/min x (Pile Driving) min/
day x (Channel Width) km) = Seals/day. This calculation represents that 
take for each day is calculated by taking a snapshot of the seals that 
are in the Level B harassment zone when driving starts (i.e., the 
conventional static method), and then adding to that the seals that 
``flow'' into the leading edge of the ZOI for the duration of pile 
driving. After harbor seals flow across the leading edge of the Level B 
harassment zone, they are considered taken.
    Although seals are active swimmers and do not drift with the 
current, the purpose of the method was not to characterize actual 
movement but to estimate how many seals may pass into a given Level B 
harassment zone throughout the day. The method proposed by JCEP is a 
method designed to model the possibility seals may come within the 
Level B harassment zone in greater probability than a single snapshot 
in time in a given day (the static calculation method described above). 
In their Acoustic Integration AIM model, the U.S. Navy estimates harbor 
seal swim speeds range from 1-4 kilometers per hour (0.27 m/sec-1.1 m/
sec) (Table B-2 in Navy, 2017). The proposed method assumes a drift 
speed of 0.39 m/sec (1.4 km/hour), which is within this range. We note 
the data from which the Navy swim speeds are derived are primarily 
tagging data during dives and bouts of foraging where animals are 
likely lunging for prey and moving quickly. Therefore, because we are 
looking for representative swim speeds crossing zones and these animals 
are resident to Coos Bay, we believe the lower end of this range is 
representative of average swim speeds. Further, the proposed movement 
method assumes seals flow in one direction whereas it is more likely 
seals are moving in multiple directions, potentially not crossing or 
taking longer to cross a Level B harassment isopleth. When considering 
this straight-line movement assumption and that the speed proposed is 
within a reasonable swim speed, NMFS finds JCEP's method is acceptable 
to estimate the potential for exposure. More importantly, the resulting 
number of exposures from this method is an equally reasonable amount of 
take given the specified activity (Table 7). We do not anticipate the 
calculated exposures to represent the number of individuals taken but 
that these exposures likely

[[Page 6931]]

will occur to the same individuals repeatedly as the population appears 
to be resident with some flux in abundance as evident by the lower 
sighting rates in winter months than near pupping season.

                                                                            Table 7--Estimated Harbor Seal Exposures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                      Level B
                                                                                                     Animal                 Mins     zone area     Level B   Total Level
               Method                        Pile type           Total            Location          density    Driving    driving    from GIS b   takes per    B takes      Calculation method
                                                                 piles                                \a\        days     per day    c (sq. km)    day \a\     (year 1)
                                                                                                                                                                 \b\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       LNG Terminal Piles
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory...........................  Sheet Pile.............      1,246  MOF (outside ODFW work         9.2         97        309         2.49       95.83     9,295.54  Movement.
                                                                           window).
Vibratory...........................  Sheet Pile.............        623  MOF (inside ODFW work          6.0         48        309         2.49       63.13     3,030.36  Movement.
                                                                           window).
Vibratory...........................  Sheet Pile.............        113  W. berth wall, 2.5%            9.2        8.5        329         2.49       98.54       837.63  Movement.
                                                                           nearest berm (outside
                                                                           ODFW work window).
Vibratory...........................  Pipe Pile..............          6  TMBB mooring pile              6.0         10          9         3.19       19.22       192.16  Static.
                                                                           (inside ODFW window).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Ancillary Activities Piles (all inside ODFW window)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Impact..............................  Timber.................      1,150  TPP/US-101 intersection        6.0         60         50           NA          NA           NA  Static.
Vibratory...........................  Timber.................      1,150  TPP/US-101 intersection        6.0         60        100         1.18        7.14       428.22  Static.
Vibratory...........................  Sheet Pile.............        311  TPP/US-101 intersection        6.0         16        100         1.18        7.17       114.16  Static.
Impact..............................  Pipe Pile..............         36  TPP/US-101 intersection        6.0          9         20        NA\c\          NA           NA  Static.
Vibratory...........................  Pipe Pile..............         36  TPP/US-101 intersection        6.0          9         30         1.18        7.14        64.23  Static.
Vibratory...........................  Pipe Pile..............         33  APCO sites.............        6.0          9         30         0.40        2.39        21.47  Static.
                                     -----------------------------------------------------------------------------------------------------------------------------------------------------------
  Grand Total.......................  .......................  .........  .......................  .........  .........  .........  ...........  ..........    13,983.77  ......................
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Animal density is calculated for both in-water and out-of-water impact pile driving work windows as animal density is not uniform throughout the year.
\b\ No takes are allocated to impact pile driving as vibratory pile driving, which has larger harassment isopleths, would occur on the same day.
\c\ The calculated area of the Level B zone is influenced by land.

    A summary of the amount of take, by species, with respect to stock 
size is provided in Table 8. For all marine mammal species, it is 
unlikely Level A harassment would occur due to implementation of 
shutdowns, the nature of the work and movement of animals throughout 
the bay. Cetaceans especially would likely move quickly through the 
area and JCEP would implement shutdown zones equal to most conservative 
Level A harassment distance based on the User Spreadsheet (i.e., the 
output that considers the maximum amount of piles driven in one day).

                              Table 8--Total Amount of Estimated Take, per Species
----------------------------------------------------------------------------------------------------------------
                                                                               Take                 Percent of
              Common name                         Stock          --------------------------------  stock (stock
                                                                      Level A         Level B          size)
----------------------------------------------------------------------------------------------------------------
gray whale............................  Eastern North Pacific...               0               2     <1 (26,960)
killer whale..........................  West Coast Transient....               0              15         3 (521)
harbor porpoise.......................  Northern CA/Southern OR.               0              12     <1 (35,769)
Northern elephant seal................  California breeding.....               0              33    <1 (179,000)
Steller sea lion......................  Eastern U.S.............               0             230     <1 (41,638)
California sea lion...................  U.S.....................               0             460    <1 (257,606)
Pacific harbor seal...................  Oregon/Washington Coast.               0          13,984   * <2 (24,732)
----------------------------------------------------------------------------------------------------------------
* The number of takes presented here (n = 13,984) represents potential exposures to 300-400 individual harbor
  seals, not the number of individuals taken.

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

[[Page 6932]]

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.
    JCEP's project design greatly reduces marine mammal and fisheries 
impacts to in-water noise. JCEP is conducting the majority of pile 
driving (over 90 percent) at the LNG terminal site behind a berm or in-
the-dry. Further, the bulk of the terminal slip would be excavated and 
dredged before being connected to the estuary. Excavated material would 
be used to restore the former Kentuck golf course to functional 
wetlands. JCEP will primarily use a vibratory hammer to reduce the 
potential for auditory injury; pre-drill the soil at the LNG terminal 
to loosen and facilitate a more efficient installation and optimize 
vibratory driving, implement NMFS' standard soft-start procedure for 
impact hammer pile-driving, avoid in-water impact pile driving from 
February 16 through September 30 which includes the harbor seal pupping 
season. When in-water impact driving is necessary, JCEP will use a 
bubble curtain that will distribute air bubbles around 100 percent of 
the piling perimeter for the full depth of the water column, balance 
bubbles around the pile, and have the lowest bubble ring on the seabed 
floor. JCEP would implement shutdown zones (Table 9) equal to the Level 
A harassment distances as calculated based on the maximum number of 
piles driven per day. No shutdown zones are required for pile driving 
in-the-dry at the LNG terminal. These zones are all relatively small; 
therefore, there is little concern for unnecessary project delays. 
These shutdown zones will also minimize noise exposure such that the 
severity of any Level B harassment is minimized. If a species for which 
take is not authorized is observed within Coos Bay and could be exposed 
to pile driving noise, JCEP would implement a shutdown zone that 
equates to the Level B harassment zone for that activity. In addition, 
should environmental conditions deteriorate such that marine mammals 
within the entire shutdown zone would not be visible (e.g., fog, heavy 
rain), pile driving and removal must be delayed until the PSO is 
confident marine mammals within the shutdown zone could be detected.

                          Table 9--Shutdown Zones, by Pile Driving Activity and Species
----------------------------------------------------------------------------------------------------------------
                                                        Impact pile driving           Vibratory pile-driving
                                                 ---------------------------------------------------------------
                                                                                    Pipe piles,
                     Species                                       Pipe piles at   timber piles
                                                   Timber piles   TPP/US-101 and     and sheet     Pipe piles at
                                                   at TPP/US-101       APCO        piles at TPP/       APCO
                                                                                      US-101
----------------------------------------------------------------------------------------------------------------
                                                  Shutdown Zone
----------------------------------------------------------------------------------------------------------------
Harbor Seal.....................................              30              70              10              10
Northern Elephant Seal..........................              30              70              10              10
California Sea Lion.............................              10              10              10              10
Stellar Sea Lion................................              10              10              10              10
Gray Whale......................................              60             140              25              30
Killer Whale....................................              10              10              10              10
Harbor Porpoise.................................              60             140              25              30
----------------------------------------------------------------------------------------------------------------

    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that the proposed mitigation measures provide the means 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

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

[[Page 6933]]

project site during construction; (3) enforce shutdown zones (Table 9) 
for marine mammals; (4) record observations of marine mammals in the 
observable portions of the Level B harassment zones, including movement 
and behavior of animals; and (5) report the results of the 
preconstruction survey and the construction monitoring, including take 
numbers. Each of these components is discussed in detail in the 
associated Marine Mammal Monitoring Plan, provided in Appendix E of 
JCEP's application.
    At least two protected species observers (PSOs) will be on-watch 
during all pile driving. Monitoring locations will be specific to each 
activity and may be subject to change depending on physical conditions 
at the site. PSOs will be positioned on either land-based structures, 
the shoreline, or boats, depending on activity, best vantage point, and 
field and safety conditions. The PSOs will be stationed to observe 
shut-down zone and maximum visual coverage of the Level B harassment 
zones.
    A two-person PSO team will complete a one-time, boat-based, 2-day 
pre-construction survey of potential Level B harassment zones prior to 
pile driving activities at the LNG Terminal Marine Facilities (Table 
2). A one-day survey would be conducted at the TPP/US-101 and APCO 
sites prior to pile driving work. The surveys will include on-water 
observations at each of the pile driving locations to observe species 
numbers and general behaviors of animals in the area. Surveys will 
occur no earlier than seven days before the first day of construction 
at each activity site.
    Special attention will be given to the two closest harbor seal 
haul-out sites in proximity to the project area--Clam Island and Pigeon 
Point--as described in Section 4 of the IHA application. On each of the 
monitoring days, monitoring will occur for up to 12 hours (weather-
dependent), to include one low-tide survey and one high-tide survey in 
daylight hours. A small boat will be used for the survey from various 
locations that provide the best vantage points. The information 
collected from monitoring will be used for comparison with results of 
marine mammal behaviors during pile-driving activities and will 
contribute to baseline monitoring data for the area.
    Marine mammal observations will begin 30 minutes prior to the onset 
of pile driving. Monitoring the Level B harassment zone for a minimum 
of 30 minutes after pile-driving stops.
    Recording marine mammal presence in the entirety of the vibratory 
driving Level B harassment zones is not practicable and is not planned 
The Level B harassment zone will be monitored out to visible distances 
and then using the daily density calculated for each species observed, 
the number of Level B harassment take will be extrapolated out to the 
full zone or if hydroacoustics data is available, the measured Level B 
harassment zone. PSOs will continue monitoring 30 minutes post pile 
driving each day.
    A final marine mammal monitoring report shall be prepared and 
submitted within thirty days following resolution of comments on the 
draft report from NMFS. This report must contain the informational 
elements described in the Marine Mammal Monitoring Plan, including, but 
not limited to: Dates and times (begin and end) of all marine mammal 
monitoring, a description of construction activities occurring during 
each daily observation period, weather and sightability conditions, 
sighting data (e.g., number of marine mammals observed, by species) PSO 
locations during marine mammal monitoring, any mitigation action, and 
other applicable parameters as listed in the IHA available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. The report must also distinguish between 
the number of individual animals taken and the number of incidences of 
take, such as ability to track groups or individuals, and the number of 
total takes estimated based on sighting capabilities.
    In addition to marine mammal monitoring, JCEP, in coordination with 
NMFS, has developed a Hydroacoustic Monitoring Plan. This plan is 
designed to conduct sound source verification and verify that 
underwater noise thresholds are not exceeded over distances greater 
than predicted by the acoustic models used in JCEP's application and 
this analysis. For the 2020-2021 construction season, hydroacoustic 
monitoring will be conducted for a portion of all piles to be installed 
by impact or vibratory methods. In general, approximately 5 percent of 
each pile driving activity would be monitored, with a minimum of three 
and a maximum of 20 piles monitored.
    Two hydrophones will be placed for each monitoring event, one 
placed close to the pile and one placed at a greater distance so that a 
transmission loss value can be measured. For in-water pile driving, the 
hydrophone nearest the pile will be placed at least 3H from the pile, 
where H is the water depth at the pile and 0.7 to 0.85H depth from the 
surface, or 10 meters, whichever is greater (NMFS 2012b). For all pile 
driving, including in-the-dry pile installation, hydrophones will be 
placed at least 1 meter below the surface and with a clear acoustic 
line-of-sight between the pile and the hydrophone. The other hydrophone 
will be placed at mid-column depth, at a distance at least 20 times the 
source depth from each pile being monitored, in waters at least 5 
meters deep (NMFS 2012a). If the water velocity is 1.5 meters per 
second or greater, 1 to 3 meters off the bottom is recommended for 
near-field hydrophones and greater than 5 meters from the surface is 
recommended for any far-field hydrophones (FHWG 2013). A weighted tape 
measure will be used to determine the depth of the water. The 
hydrophones will be attached to a nylon cord, a steel chain, or other 
proven anti-strum features, if the current is swift enough to cause 
strumming of the line. The nylon cord or chain will be attached to an 
anchor that will keep the line the appropriate distance from each pile. 
The nylon cord or chain will be attached to a float or tied to a static 
line at the surface. The distances will be measured by a tape measure, 
where possible, or a laser range-finder. The acoustic path (line of 
sight) between the pile and the hydrophone(s) should be unobstructed in 
all cases.
    The on-site inspector/contractor will inform the acoustics 
specialist when pile driving is about to begin, to ensure that the 
monitoring equipment is operational. Underwater sound levels will be 
monitored continuously during the entire duration of each pile being 
driven, with a minimum one-third octave band frequency resolution. The 
wideband instantaneous absolute peak pressure and sound exposure level 
(SEL) values of each strike, and daily cumulative SEL (cSEL) should be 
monitored in real time during construction, to ensure that the project 
does not exceed its authorized take level. Peak and RMS pressures will 
be reported in dB (1 [micro]Pa). SEL will be reported in dB (1 
[micro]Pa\2\ per second). Wideband time series recording is strongly 
recommended during all impact pile driving.
    Underwater sound levels will be continuously monitored during the 
entire duration of each pile being driven. The peak, root-mean-square 
(RMS) (impulse level), and SEL of each strike will be monitored in real 
time. The cSEL also will be monitored, assuming no contamination from 
other noise sources. Underwater sound levels will be measured in dB 
re:1 [micro]Pa. JCEP will submit a draft report on all monitoring 
conducted under the IHA within ninety calendar days of the

[[Page 6934]]

completion of marine mammal and/or acoustic monitoring or sixty days 
prior to the issuance of any subsequent IHA for this project, whichever 
comes first. When applying for a subsequent IHA, JCEP will include a 
summary of the monitoring data collected to date with its application.
    A final draft report, including data collected and summarized from 
all monitoring locations, will be submitted to NMFS within 90 days of 
completion of the hydroacoustic monitoring. The results will be 
summarized in graphical form and will include summary statistics and 
time histories of impact sound values for each pile. A final report 
will be prepared and submitted to NMFS within 30 days following receipt 
of comments on the draft report from NMFS. The report will include 
information of the circumstances surrounding the recordings (e.g., pile 
size, type, number of strikes, hydrophone distance to pile, spectrum, 
etc.) as presented in JCEP's Hydroacoustic Monitoring Plan.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this IHA, 
such as serious injury, or mortality, JCEP must immediately cease the 
specified activities and report the incident to the NMFS Office of 
Protected Resources (301-427-8401) and the West Coast Region Stranding 
Coordinator (206-526-4747). The report must include the time and date 
of the incident; description of the incident; environmental conditions 
(e.g., wind speed and direction, Beaufort sea state, cloud cover, and 
visibility); description of all marine mammal observations and active 
sound source use 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).
    Activities must not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with JCEP to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. JCEP may not resume 
pile driving activities until notified by NMFS.
    In the event JCEP discovers an injured or dead marine mammal, and 
the lead observer 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), JCEP must immediately report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Region Stranding Coordinator, NMFS. Activities may continue while NMFS 
reviews the circumstances of the incident. NMFS will work with JCEP to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    In the event that JCEP discovers an injured or dead marine mammal, 
and the lead observer determines that the injury or death is not 
associated with or related to the specified activities (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), JCEP must report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Region 
Stranding Coordinator, NMFS, within 24 hours of the discovery.

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, the majority of our analyses applies to all 
species listed in Table 4 except for harbor seals, given that many of 
the anticipated effects of this project on different marine mammal 
stocks are expected to be relatively similar in nature. For harbor 
seals, there are meaningful differences in anticipated individual 
responses to activities, impact of expected take on the resident 
population in Coos Bay (all part of the Oregon/Washington stock), or 
impacts on habitat; therefore, we provide a supplemental analysis 
independent of the other species for which we have authorized take.
    NMFS has identified key qualitative and quantitative factors, which 
may be employed to assess the level of analysis necessary to determine 
whether expected impacts associated with a specified activity will be 
negligible. These include (but are not limited to) the type and 
magnitude of taking, the amount and importance of the available habitat 
for the species or stock that is affected, the duration of the 
anticipated effect to the species or stock, and the status of the 
species or stock. When an evaluation of key factors shows that the 
anticipated impacts of the specified activity would clearly result in 
no greater than a negligible impact on all affected species or stocks, 
additional evaluation is not necessary. In this case, all the following 
factors are in place for all affected species or stocks except harbor 
seals:
     No takes by mortality, serious injury or Level A 
harassment are anticipated or authorized;
     Takes by Level B harassment are less than 3 percent of the 
best available abundance estimates for all stocks;
     Take would not occur in places and/or times where take 
would be more likely to accrue to impacts on reproduction or survival, 
such as within ESA-designated or proposed critical habitat, 
biologically important areas (BIA), or other habitats critical to 
recruitment or survival (e.g., rookery);
     Take would occur over a short timeframe, being limited to 
the short duration a marine mammal would be present within Coos Bay 
during pile driving;
     Take would occur over an extremely small portion of 
species/stock range;
     The affected stocks are not known to be declining and/or 
are within OSP range; and
     Any impacts to marine mammal habitat from pile driving are 
temporary and minimal.
    For all species and stocks, take, by Level B harassment only, would 
only occur within Coos Bay--a limited, confined area of any given 
stock's home range, including the Oregon/Washington stock of harbor 
seals. JCEP is not requesting, and NMFS is not expecting or 
authorizing, Level A

[[Page 6935]]

harassment of marine mammals incidental to the specified activities.
    For harbor seals, we further discuss our negligible impact finding 
in the context of potential impacts to the resident population, a small 
subset of the Oregon/Washington coastal stock, within Coos Bay. Similar 
to other stocks, take by mortality, serious injury, or Level A 
harassment is not anticipated or proposed to be authorized; takes would 
occur over a very small portion of the stock's range; and the affected 
stocks are not known to be declining. OSP for harbor seals is currently 
unknown; however, the stock was previously reported to be within its 
OSP range (Jeffries et al., 2003, Brown et al., 2005).
    As discussed in the Description of Marine Mammals and Their Habitat 
section, a resident population of approximately 300-400 harbor seals 
that belong to the Oregon/Washington Coastal stock likely reside year-
round within Coos Bay. The exact home range of this sub-population is 
unknown but harbor seals, in general, tend to have limited home range 
sizes. Therefore, we can presume a limited number of harbor seals 
(approximately 300-400) will be repeatedly taken throughout the 
effective period of the IHA, though not necessarily on sequential days. 
It is possible a limited number of harbor seals may enter the bay 
occasionally (similar to occasional Steller sea lion and California sea 
lion presence) from nearby coastal haulouts (e.g., Cape Arago); 
however, these seals would likely not be repeatedly exposed throughout 
the entire year. For those animals exposed repeatedly, these exposures 
would occur throughout the year but not every single day (230 days of 
pile driving work total). In addition, pile driving work is spread 
throughout the Bay, thereby varying the areas where Level B harassment 
may occur. Regardless, in general, repeated exposure, especially over 
sequential days, of harbor seals to pile driving noise could result in 
impacts to reproduction or survival of individuals in certain 
circumstances. The following discussion analyzes the potential impacts 
from repeated pile driving exposure to Coos Bay harbor seals and 
describes why impacts to reproduction or survivorship that could have 
an adverse impact on the stock are not anticipated.
    Harbor seals within Coos Bay are currently exposed to numerous 
anthropogenic noise sources. Coos Bay is highly developed along its 
coastline. Typical noise sources within Coos Bay include U.S. Army 
Corps of Engineers maintenance dredging, commercial shipping and 
fishing vessel traffic, and recreational boating. Despite these 
existing anthropogenic stressors, unpublished ODFW aerial survey data 
indicates that harbor seals in Coos Bay have been stable and likely 
approach carrying capacity (Wright et al., 2019, pers. comm), similar 
to the status of the entire stock. In the absence of recent abundance 
estimates throughout its range, the current population trend of the 
Oregon/Washington Coastal stock is unknown; however, based on the 
analyses of Jeffries et al. (2003) and Brown et al. (2005), both the 
Washington and Oregon portions of this stock were reported as reaching 
carrying capacity. As described in Southall et al. (2007), except for 
na[iuml]ve individuals, behavioral responses depend critically on the 
principles of habituation and sensitization, meaning that an animal's 
exposure history with a particular sound and other contextual factors 
play a role in anticipated behaviors and consequences of those 
behaviors on survival and reproduction. Examples of contextual factors 
include proximity to a source, whether the source is approaching, and 
general novelty or familiarity with a source (Southall et al., 2007).
    AECOM's acoustic surveys indicate median background noise levels in 
Coos Bay are at or higher than the harassment threshold used in our 
analysis to estimate Level B harassment (120 dB rms). The range of 
background noise levels in the presence of working commercial vessels 
have been measured up to 164 dB rms at close but unknown distance from 
the source; however, we can assume those measurements were taken 
several tens of meters away from the vessel for safety and port access 
reasons. Overall, harbor seals are familiar with several anthropogenic 
noise sources in Coos Bay, pile driving is stationary (not perceived as 
approaching), and the haulout sites within Coos Bay are no less than 
500 m from any pile driving location.
    There are no known concentrated foraging areas around the terminal 
site or location of the ancillary activities. Further, JCEP would not 
conduct any impact pile driving during the pupping season, which would 
otherwise be introducing noise that has a greater potential for injury 
during critical life stages and when abundance and density of harbor 
seals are greatest.
    In summary and as described above, although this small resident 
population is likely to be taken repeatedly throughout the year, the 
following factors primarily support our determination that the impacts 
resulting from JCEP's proposed activity are not expected to adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival on harbor seals:
     No mortality, serious injury, or Level A harassment is 
anticipated or authorized.
     Exposure resulting in Level B harassment would occur in a 
very small part of the Oregon/Washington Coastal stock's range.
     Animals exposed would primarily be limited to the 300-400 
resident harbor seals in Coos Bay, a small percentage of the overall 
stock (approximately 2 percent).
     No in-water impact pile driving would occur during the 
pupping season; therefore, no impacts to pups from this activity is 
likely to occur. Vibratory pile driving near the water's edge may 
result in noise propagation near the MOF and ancillary activities; 
however, pupping sites are located outside the Level B harassment 
ensonification areas for any pile driving activity.
     Harbor seals in Coos Bay are habituated to several sources 
of anthropogenic noise sources with no evidence exposure is impacting 
rates or recruitment and survival (as evident from steady population 
numbers as derived from several years of ODFW aerial survey data).
     The Oregon/Washington coastal stock is subject to very low 
anthropogenic sources of mortality and serious injury (e.g., annual 
minimum level of human-caused mortality and serious injury is 10.6 
harbor seals) and is likely reaching carrying capacity (Carretta, 
2018).
    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 proposed monitoring and 
mitigation measures, NMFS finds that the total taking from the proposed 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under 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

[[Page 6936]]

may be considered in the analysis, such as the temporal or spatial 
scale of the activities.
    For all stocks, the amount of authorized take is small (less than 3 
percent; Table 8). Although the number of exposures of harbor seals is 
high, as described above, takes would likely occur to the small 
(approximately 300 to 400 animals) resident population of harbor seals 
within Coos Bay.
    Based on the analysis contained herein of the proposed activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population sizes of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.
    Based on the description of the specified activity, the measures 
described to minimize adverse effects on the availability of marine 
mammals for subsistence purposes, and the proposed mitigation and 
monitoring measures, NMFS has determined that there will not be an 
unmitigable adverse impact on subsistence uses from JCEP's proposed 
activities.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the West Coast Region 
Protected Resources Division, whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed marine mammal species is proposed 
for authorization 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.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
IHA is categorically excluded from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued an IHA to JCEP 
authorizing the take, by Level B harassment only, of marine mammals 
incidental to pile driving associated with construction of the Jordan 
Cove LNG Terminal and associated ancillary activities in Coos Bay, 
Oregon from October 1, 2020 through September 30, 2021, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. A copy of the issued IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

    Dated: January 31, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-02338 Filed 2-5-20; 8:45 am]
 BILLING CODE 3510-22-P