Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Mukilteo Multimodal Construction Project in Washington State, 47737-47750 [2020-17212]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 152 (Thursday, August 6, 2020)]
[Notices]
[Pages 47737-47750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17212]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA335]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Mukilteo Multimodal Construction 
Project in Washington State

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Washington State Department of Transportation (WSDOT) to 
incidentally harass, by Level A and Level B harassment, marine mammals 
during pile driving and pile removal activities associated with the 
Mukilteo Multimodal Construction Project in Washington State.

DATES: This authorization is effective from August 1, 2020 through July 
31, 2021.

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

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not

[[Page 47738]]

intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization may be 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On February 18, 2020, NMFS received a request from WSDOT for an IHA 
to take marine mammals incidental to Mukilteo Multimodal Project in 
Mukilteo, Washington. The application was deemed adequate and complete 
on April 13, 2020. WSDOT's request is for take of a small number of 11 
species of marine mammals by Level B harassment and Level A harassment. 
Neither WSDOT nor NMFS expects serious injury or mortality to result 
from this activity and, therefore, an IHA is appropriate.
    This IHA covers one year of a larger project for which WSDOT 
obtained prior IHAs (82 FR 44164; September 21, 2017; 83 FR 43849; 
August 28, 2018; 84 FR 39263; August 9, 2019). The larger four-year 
project involves relocating the Mukilteo Ferry Terminal approximately 
one-third of a mile east of the existing terminal. This is expected to 
be the fourth and final year of project activity. WSDOT complied with 
all the requirements (e.g., mitigation, monitoring, and reporting) of 
the previous IHAs and information regarding their monitoring results 
may be found in the Potential Effects of Specified Activities on Marine 
Mammals and their Habitat section.
    A Federal Register notice for the proposed IHA was published on 
June 12, 2020 (85 FR 35906).

Description of the Proposed Activity

Overview

    The purpose of the Mukilteo Multimodal Project is to provide safe, 
reliable, and effective service and connection for general-purpose 
transportation, transit, high occupancy vehicles (HOV), pedestrians, 
and bicyclists traveling between Island County and the Seattle/Everett 
metropolitan area and beyond by constructing a new ferry terminal. The 
current Mukilteo Ferry Terminal has not had significant improvements 
for almost 30 years and needs key repairs. The existing facility is 
deficient in a number of aspects, such as safety, multimodal 
connectivity, capacity, and the ability to support the goals of local 
and regional long-range transportation and comprehensive plans. The 
project is intended to:
     Reduce conflicts, congestion, and safety concerns for 
pedestrians, bicyclists, and motorists by improving local traffic and 
safety at the terminal and the surrounding area that serves these 
transportation needs.
     Provide a terminal and supporting facilities with the 
infrastructure and operating characteristics needed to improve the 
safety, security, quality, reliability, efficiency, and effectiveness 
of multimodal transportation.
     Accommodate future demand projected for transit, HOV, 
pedestrian, bicycle, and general-purpose traffic.
    The proposed Mukilteo Multimodal Project would involve in-water 
vibratory pile driving and vibratory pile removal. Details of the 
proposed construction project are provided below.

Dates and Duration

    Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water 
work timing restrictions to protect Endangered Species Act (ESA)-listed 
salmonids, planned WSDOT in-water construction is limited each year to 
July 15 through February 15. For this project, in-water construction is 
planned to take place between August 1, 2020 and February 15, 2021. The 
total worst-case time for pile installation and removal is 54 days 
(Table 1).

Specific Geographic Region

    The Mukilteo Ferry Terminal is located in the City of Mukilteo, 
Snohomish County, Washington. The terminal is located in Township 28 
North, Range 4 East, Section 3, in Possession Sound. The new terminal 
will be approximately 1,700 ft (518 m) east of the existing terminal in 
Township 28N, Range 4E, Section 33 (Figure 1). Land use in the Mukilteo 
area is a mix of residential, commercial, industrial, and open space 
and/or undeveloped lands.

[[Page 47739]]

[GRAPHIC] [TIFF OMITTED] TN06AU20.004

Detailed Description of Specific Activity

    The proposed project has two activities involving noise production 
that may impact marine mammals: Vibratory pile removal and vibratory 
pile driving.
(1) Temporary Pile Removal
    Sixty-nine temporary 24 inch steel piles installed to support work 
platforms will be removed with a vibratory hammer.
(2) Floating Dolphin Piling
    The floating dolphin will be moved from the current terminal to the 
new terminal. A combination of anchors (four) and piles (four) will be 
used to secure the dolphin anchor chains to the sea floor. Four 30 inch 
steel piles will be installed with a vibratory hammer.
(3) Existing Terminal Removal
    The existing terminal will be removed once the new terminal is 
complete. The existing terminal comprises 8,120 feet\2\ (ft\2\) (754 
meters\2\ (m\2\) of overwater cover and contains approximately 290 12-
inch diameter timber piles. All timber piles may be removed with a 
vibratory hammer, a clamshell, or pulled directly. Use of the vibratory 
hammer for timber pile removal is not the preferred method and it is 
likely that most piles will be removed via direct pull. However, for 
purposes of analysis we assume that all timber piles will be removed 
using the vibratory hammer.
    Details of pile driving activities are provided below and are 
summarized in Table 1.
     Vibratory removal of 12-inch timber piles would take 15 
minutes per pile, 10 piles per day, with 290 piles removed over 29 
days.
     Vibratory removal of 24-inch steel pipe piles would take 
15 minutes per pile, 3 piles removed per day, with 69 piles removed in 
23 days.
     Vibratory driving of 30-inch steel pipe piles would take 
30 minutes per pile, 2 piles per day, with 4 piles installed in 2 days.
    Pile driving or removal will occur in different days. There is no 
concurrent pile driving or pile removing.

                               Table 1--Summary of In-Water Pile Driving Durations
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                                                                    Minutes per
            Method              Pile size (inch)      # piles          pile        Piles per day       Days
----------------------------------------------------------------------------------------------------------------
Vibratory Removal.............  12 (timber).....             290              15              10              29
Vibratory Removal.............  24 (steel)......              69              15               3              23

[[Page 47740]]

 
Vibratory Drive...............  30 (steel)......               4              30               2               2
                               ---------------------------------------------------------------------------------
    Total.....................  ................  ..............  ..............  ..............              54
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Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on June 12, 2020 (85 FR 35906). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). Specific comments and responses are 
provided below.
    Comment 1: The Commission recommends that NMFS (1) include the 
revised Level B harassment zone of 1.6 kilometer (km) in the Federal 
Register announcing NMFS' decision regarding the IHA request and in 
Tables 2 and 3 of the final authorization, (2) include the revised 
densities from Navy (2019) in the final notice, (3) revise the Level B 
harassment takes to 1,322 for harbor porpoises, 35 for Dall's 
porpoises, 4,989 for harbor seals, 2,430 for California sea lions, and 
324 for Steller sea lions in the final notice and in Table 1 of the 
IHA, and (4) ensure WSDOT is aware of the correct extents of the Level 
A harassment zones.
    Response: NMFS reviewed the WSDOT's noise level measurement report 
and agrees that the Level B harassment distance should be established 
at 1.6 km instead of 1.13 km. NMFS updated the Level B harassment 
distance in its final IHA. NMFS also revised the marine mammal density 
information based on the Navy's 2019 database. Therefore, marine mammal 
takes were re-calculated accordingly using the latest density 
information or based on WSDOT prior year sighting records. Based on the 
revision, NMFS agrees to revise the harbor porpoise take estimates to 
1,322 and Dall's porpoise to 35 animals, based on updated density 
information and group size. However, NMFS does not agree with the 
Commission to change the numbers of Level B harassment takes of harbor 
seal, California sea lion, and Steller sea lion. NMFS worked with WSDOT 
and conservatively used the highest daily observation of these species 
during prior phases of the Mukilteo Multimodal Project. Takes of these 
species were calculated using the daily high observation multiplied by 
the total number of pile driving days (54 days), which yield total 
Level B harassment numbers of 3,888 for harbor seals, 2,620 for 
California sea lions, and 108 for Steller sea lions for the Mukilteo 
Multimodal Project.
    Finally, WSDOT is aware of the referenced error for the Level A 
harassment zones that was provided in its draft marine mammal 
monitoring plan. WSDOT has since fixed the error and provided an 
updated marine mammal monitoring plan.
    Comment 2: The Commission recommends that NMFS (1) reinforce the 
fact that WSDOT must comply with the various reporting requirements in 
the final authorization, including conditions 6(a)(vii) and (xii), (2) 
ensure that WSDOT extrapolates the observed numbers of takes to the 
extents of the Level B harassment zones when estimating the total 
numbers of takes and by considering both the observation platform of 
each protected species observer (PSO) and the species for the 2020 
final authorization, and (3) require WSDOT to submit a revised 
monitoring report for its 2019-2020 activities, consistent with 
conditions 6(a)(ix) and (xi) in the 2019 final authorization and the 
recommendations herein.
    Response: Conditions 6(a)(vii) and 6(a)(xii) in the draft IHA 
states:
    6(a)(vii) Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting).
    6(a)(xii) An 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.
    NMFS is reminding WSDOT that it must comply with condition 
6(a)(vii) to include distances and bearing of marine mammals observed 
during pile driving in its final report, as it appears that this 
information was not included in its final report for the 2019 season. 
However, NMFS does not agree with the Commission's recommendation on 
condition 6(a)(xii) regarding extrapolation of 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. Although this condition was included in the draft 
IHA at the suggestion of the Commission at the time when the proposed 
IHA was drafted, NMFS later realized that the extrapolation of Level B 
harassment takes based on simple visual detection of the areas 
monitored is not scientifically sound for various reasons. Some of 
these reasons include, (1) visual detection rate vs. distance is a 
complex function that cannot be simply determined by an ``all or none'' 
method; distance sampling methods must be used to properly extrapolate 
marine mammal takes in the area, and (2) marine mammals are not 
uniformly distributed in small Level B harassment zones. While it is 
appropriate to use density information as an average to estimate marine 
mammal abundance in a larger project area, for a much smaller area such 
as a Level B harassment zone with a radius at approximately 2 to 8 km, 
extrapolation from sighting without more sophisticated distance 
sampling methods is not appropriate. Given the small area, the animals 
sighted could be the only individuals or groups within that area and, 
therefore, would represent all the animals taken by Level B harassment. 
Therefore, NMFS has removed condition 6(a)(xii) from the final IHA 
issued to WSDOT.
    Conditions 6(a)(ix) and (xi) in the 2019 IHA states:
    6(a)(ix) Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting).
    6(a)(xi) Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zone, and 
estimates of number of marine mammals taken, by species (a correction 
factor may be applied to total take numbers, as appropriate).
    NMFS has requested WSDOT to provide information required in the 
2019 IHA.
    Comment 3: The Commission states that a requirement to conduct pile 
driving only in daylight hours is necessary to ensure that WSDOT is 
effecting the least practicable adverse impact on the species and 
stocks, particularly Southern Resident killer whales, and recommends 
that NMFS include in the final authorization the

[[Page 47741]]

requirement that WSDOT conduct pile-driving and removal activities 
during daylight hours only.
    Response: WSDOT has indicated that all pile driving and removal 
activities will be conducted during daylight hours only. NMFS has 
included this condition in the final IHA issued to WSDOT.
    Comment 4: The Commission recommends that NMFS ensure that WSDOT 
keep a running tally of the total takes, based on observed and 
extrapolated takes, for Level B harassment consistent with condition 
4(h) of the final authorization
    Response: We agree that WSDOT must ensure they do not exceed 
authorized takes but do not concur with the recommendation. NMFS is not 
responsible for ensuring that WSDOT does not operate in violation of an 
issued IHA.
    Comment 5: Commission recommends that NMFS refrain from issuing 
renewals for any authorization and instead use its abbreviated Federal 
Register notice process, which is similarly expeditious and fulfills 
NMFS's intent to maximize efficiencies.
    Response: NMFS does not agree with the Commission and, therefore, 
does not adopt the Commission's recommendation. On July 22, 2020, NMFS 
provided a detailed explanation of its reasons for (in part) not 
following the Commission's recommendations regarding renewals, as 
required by section 202(d) of the MMPA.

Changes From the Proposed IHA to Final IHA

    There is no change in the WSDOT's Mukilteo Multimodal construction 
activities from the Federal Register notice for the proposed IHA (85 FR 
35906; June 12, 2020). Some of the marine mammal density information 
was updated based on the latest density information (Navy 2019). Take 
calculations for these species were revised based on the updated marine 
mammal density information. After further examining the noise 
measurements of the Level B harassment distance from vibratory pile 
removal of 12-inch timber pile, the distance where underwater pile 
driving noise cannot be detected for all species should be at 1.61 km, 
not 1.13 km at stated in the proposed IHA. Therefore the Level B 
harassment distance is changed to 1.61 km, and the ensonified area was 
updated to 3.9 km\2\. Potential Level B harassment takes of marine 
mammals associated with the new distance were re-calculated. However, 
these changes in take numbers based on revised density and Level B 
harassment zone do not change our impact assessment to marine mammals 
from incidental takes by WSDOT's Mukilteo Multimodal project.
    In addition, the final IHA removed condition 6(a)(xii) from the 
draft IHA, which would require WSDOT to extrapolate Level B harassment 
takes from visual observation. The reason for the removal is stated in 
Response to Comment 2.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
authorized to be taken for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and ESA and potential biological removal (PBR), where known. 
For taxonomy, we follow Committee on Taxonomy (2019). PBR is defined by 
the MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS's SARs). While no mortality is 
anticipated or authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for all species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. All managed stocks in this region are assessed in 
NMFS's U.S Pacific and Alaska SARs (e.g., Carretta et al., 2020; Muto 
et al., 2020). All values presented in Table 2 are the most recent 
available at the time of publication and are available in the 2018 SARs 
(Carretta et al., 2019; Muto et al., 2019) and draft 2019 SARs 
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                    Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
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                                                                                                             Stock abundance (CV,
             Common name                  Scientific name               Stock           ESA/ MMPA status;      Nmin, most recent       PBR     Annual M/
                                                                                       Strategic (Y/N) \1\   abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:..............
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific.  N                    26,960 (0.05, 25,849).        801        139
                                      Family Balaenopteridae
                                       (rorquals):.
    Humpback whale..................  Megaptera novaeangliae.  California/Oregon/      Y                    2,900 (0.05, 2,784)...       16.7        unk
                                                                Washington.
    Minke whale.....................  Balaenoptera             California/Oregon/      N                    636 (0.72, 369).......        3.5        1.3
                                       acutorostrata.           Washington.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale....................  Orcinus orca...........  Eastern North Pacific   Y                    75 (NA, 75)...........          0          0
                                                                Southern Resident.
                                                               West coast transient..  N                    243 (NA, 243).........        2.4          0
    Bottlenose dolphin..............  Tursiops truncatus.....  California/Oregon/      N                    1,924 (0.54, 1,255)...         11        1.6
                                                                Washington offshore.

[[Page 47742]]

 
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Washington inland       N                    11,233 (0.37, 8,308)..         66        7.2
                                                                waters.
    Dall's porpoise.................  P. dalli...............  California/Oregon/      N                    25,750 (0.45, 17,954).        172        0.3
                                                                Washington.
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                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  U.S...................  N                    257,606 (NA, 233,515).     14,011        321
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S...........  N                    43,201 (NA, 43,201)...      2,592        113
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Washington northern     N                    11,036 \4\............         NA       10.6
                                                                inland waters.
    Northern elephant seal..........  Mirounga angustirostris  California breeding...  N                    179,000(NA, 81,368)...      4,882        8.8
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike).
\4\ Harbor seal estimate is based on data that are greater than 8 years old, but this is the best available information for use here.

    As indicated above, all 11 species (with 12 managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have authorized 
it, with the exception of the Southern Resident killer whale. Take of 
Southern Resident killer whale can be avoided by implementing strict 
monitoring and mitigation measures (see Mitigation and Monitoring and 
Reporting sections below).
    In addition, the sea otter may be found in inland waters of 
Washington. However, this species is managed by the USFWS and is not 
considered further in this document.
    A detailed description of the marine mammals in the area of the 
activities is found in the notice of proposed IHA for WSDOT's Season 3 
Mukilteo Multimodal construction project (83 FR 30421, June 28, 2018). 
This information remains valid, as there is no new information 
available, so we do not repeat it here but provide a summary table with 
marine mammal species and stock details (Table 2).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).


[[Page 47743]]

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Eleven marine mammal species (seven cetacean and four pinniped (two 
otariid and two phocid) species) have the reasonable potential to co-
occur with the proposed construction activities. Please refer to Table 
2. Of the cetacean species that may be present, three are classified as 
low-frequency cetaceans (i.e., all mysticete species), two are 
classified as mid-frequency cetaceans (i.e., all delphinid species), 
and two are classified as high-frequency cetaceans (i.e., porpoise 
species).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take 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, 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.
    The WSDOT's Mukilteo Multimodal construction work using in-water 
pile driving and pile removal could adversely affect marine mammal 
species and stocks by exposing them to elevated noise levels in the 
vicinity of the activity area.
    A detailed description on the noise impacts on marine mammals and 
their habitat is provided in the Federal Register notice (85 FR 35906; 
June 12, 2020) for the proposed IHA, and is not repeated here.

Estimated Take

    This section provides an estimate of the number of incidental takes 
that are 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 vibratory pile driving and pile removal. 
Based on the nature of the activity and the anticipated effectiveness 
of the mitigation measures (i.e., shutting down pile driving or removal 
activities when a marine mammal is observed to approach the injury 
zone)--discussed in detail below in Mitigation section, Level A 
harassment is neither anticipated nor authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur 
permanent threshold shift (PTS) of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g., 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources.
    WSDOT's Mukilteo Ferry Terminal Year 4 construction project 
includes the use vibratory pile driving and pile removal, and therefore 
the 120 dB re 1 [mu]Pa (rms) is 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). WSDOT's Mukilteo Ferry Terminal Year 4 
construction project includes the use non-impulsive (vibratory pile 
driving) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

[[Page 47744]]



                     Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset acoustic thresholds *  (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1:Lpk,flat: 219 dB;    Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10:
                                          LE,OW,24h: 203 dB.         LE,OW,24h: 219 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[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.
Source Levels
    The project includes vibratory pile removal of 12-inch timber piles 
and 24-inch steel piles, and vibratory pile driving of 30-inch steel 
piles. Near source levels (defined as noise level at 10-m from the 
pile) of these pile driving and removal activities are all based on 
prior measurements conducted by WSDOT. A summary of the 10-m near 
source levels of the pile driving and removal activities is provided in 
Table 5, along with references.

Table 5--Near Source Noise Levels at 10-m From the Pile for Various Pile
      Driving and Removal at Mukilteo Ferry Terminal Year 4 Project
------------------------------------------------------------------------
                                  Source level
       Activity/pile size        (dB RMS SPL at     Literature source
                                      10m)
------------------------------------------------------------------------
Vibratory removal of 12-inch                153  WSDOT Port Townsend
 timber pile.                                     measurement (2011).
Vibratory removal of 24-inch                166  WSDOT Manette Bridge
 steel pile.                                      measurement (2010).
Vibratory driving of 30-inch                170  WSDOT Manette Bridge
 steel pile.                                      measurement (2010).
------------------------------------------------------------------------

Level A Harassment Distances and Areas
    Distances to Level A harassment thresholds were estimated using the 
NMFS User Spreadsheet. When the NMFS Technical Guidance (2016) was 
published, in recognition of the fact that ensonified area/volume could 
be more technically challenging to predict because of the duration 
component in the new thresholds, we developed a User Spreadsheet that 
includes tools to help predict a simple isopleth that can be used in 
conjunction with marine mammal density or occurrence to help predict 
takes. We note that because of some of the assumptions included in the 
methods used for these tools, we anticipate that isopleths produced are 
typically going to be overestimates of some degree, which may result in 
some degree of overestimate of Level A harassment take. However, these 
tools offer the best way to predict appropriate isopleths when more 
sophisticated 3D modeling methods are not available, and NMFS continues 
to develop ways to quantitatively refine these tools, and will 
qualitatively address the output where appropriate. For stationary 
sources such as vibratory pile driving and pile removal, NMFS User 
Spreadsheet predicts the distance at which, if a marine mammal remained 
at that distance the whole duration of the activity, it would incur 
PTS.
    A summary of the calculated Level A harassment distances and areas 
is presented in Table 6.
Level B Harassment Distances and Areas
    Level B harassment distances from all pile driving and pile removal 
activities were based on in situ measurements conducted by WSDOT on the 
same or similar piles at Mukilteo Ferry Terminal in the early phases of 
this project. Specifically, the following measurement data were used.
    WSDOT has conducted in situ measurements of the Level B harassment 
zones from vibratory removal of 12-inch diameter timber piles, and 
vibratory driving of 30-inch diameter steel piles at the Mukilteo Ferry 
Terminal. For removal of 12-inch timber piles, the measurement results 
show that underwater noise cannot be detected at a distance of 1.6 km/1 
mile (Laughlin 2015). For driving of 30-inch steel piles, the sound 
source verification (SSV) results show that underwater noise cannot be 
detected at a distance of 7.9 km/4.9 miles) (Laughlin 2017).
    No far distance measurement for 24-inch piles has been conducted at 
the Mukilteo project site to establish the Level B harassment zone. For 
24-inch piles, the practical spreading model results in a Level B 
harassment distance of 10 km/6.2 miles for the source level of 166 
dBrms (root-mean-square decibel level). However, given that 
this source level is less than the 170 dBrms source level 
for the 30-inch piles, it is assumed that the size of Level B 
harassment zone for 24-inch pile removal will be the

[[Page 47745]]

same as for the driving of 30-inch piles (7.9 km/4.9 miles).
    The Level B harassment areas were estimated by WSDOT using 
geographic information system (GIS) tools to eliminate land masses and 
other obstacles that block sound propagation.
    A summary of the measured Level B harassment distances (and assumed 
Level B harassment distance for 30-in steel piles) and associated 
areas, and modeled Level A harassment distances, is presented in Table 
6.

                                               Table 6--Level A and Level B Harassment Distances and Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Level A harassment distance  (m)/area (km\2\)                               Level B
                                       -----------------------------------------------------------------------------------------------     harassment
                Source                                                                                                                 distance (m)/area
                                           LF cetaceans       MF cetaceans       HF cetaceans         Phocids            Otariids           (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory removal 12 inch timber pile.            3.7/0.0            0.3/0.0            5.4/0.0            2.2/0.0            0.2/0.0          1,610/3.9
Vibratory removal 24 inch steel pile..           12.1/0.0            1.1/0.0           18.0/0.0            7.4/0.0            0.5/0.0           7,900/66
Vibratory drive 30 inch steel pile....           27.2/0.0            2.4/0.0           40.2/0.0           16.5/0.0            1.2/0.0           7,900/66
--------------------------------------------------------------------------------------------------------------------------------------------------------

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.
    Marine mammal occurrence are based on the U.S. Navy Marine Species 
Density Database (U.S. Navy, 2019) and on WSDOT marine mammal 
monitoring efforts during prior years of construction work at Mukilteo 
Ferry Terminal. A summary of the marine mammal density is provided in 
Table 7.

 Table 7--Marine Mammal Density in the WSDOT Mukilteo Multimodal Project
                                  Area
------------------------------------------------------------------------
                                                       Density (animals/
                    Marine mammals                           km\2\)
------------------------------------------------------------------------
Gray whale...........................................             0.0048
Humpback whale.......................................            0.00074
Minke whale..........................................            0.00045
Killer whale (West Coast transient)..................           0.005141
Bottlenose dolphin...................................                 NA
Harbor porpoise......................................               0.75
Dall's porpoise......................................            0.00045
Harbor seal..........................................               2.83
Northern elephant seal...............................             0.0000
California sea lion..................................             0.2211
Steller sea lion.....................................             0.0478
------------------------------------------------------------------------

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    For most species, take numbers were calculated using the 
information aggregated in the Navy density database (U.S. Navy, 2019). 
Where a low to high range of densities is given for a species, the more 
conservative high density was used. In these cases, take numbers were 
calculated as:

Total Take = marine mammal density x ensonified area x pile driving 
days

    For species with no density data (e.g., bottlenose dolphin) or 
species with very low density but observations were made at the project 
location which may indicate more animals could be present (e.g., 
humpback whale, West Coast transient killer whale, and northern 
elephant seal), adjustments were made to estimate the take numbers. 
Specific adjustments for calculating take numbers for these species are 
provided below.
     Northern elephant seal--During the Mukilteo project, 
individuals have been observed on two occasions. Observations have been 
of single individuals, not groups. It is assumed that one individual 
may be present in the Level B harassment zone once a month during the 
in-water work window (7 months), or seven incidents of take.
     Humpback whale--During the Mukilteo project, individuals 
have been observed on two occasions. Observations have been of single 
individuals, not groups. It is assumed that one individual may be 
present in the Level B harassment zone once a month during the in-water 
work window (7 months), or seven incidents of take.
     West Coast transient killer whale--take is based on 
maximum group size observed during the project. Groups of 8 individuals 
have been observed on two occasions. It is assumed that one group of 
eight animals may be present in the Level B harassment zone once a 
month during the in-water work window (7 months), or 56 incidents of 
take.
     Bottlenose dolphin--The bottlenose dolphin take estimate 
is based on sightings data from Cascadia Research Collective. Between 
September 2017 and March 2018, a group of up to seven individuals was 
sighted in South Puget Sound (EPS, 2018). It is assumed that this group 
is still present in the area. Given how rare bottlenose dolphins are in 
the area, it is unlikely they would be present on a daily basis. 
Instead it is ass-umed that one group size of seven animals may be 
present in the Level B harassment zone once a month during the in-water 
work window (7 months), or 49 incidents of take.
     Dall's porpoise--No Dall's porpoise were observed during 
previous WSDOT marine mammal monitoring. However, they are known to 
occur in the inland waters of Puget Sound in the project area. Take 
number of this species is assessed by assuming taking of one group per 
month with an average group size of five animals for 7 months. Thus the 
total Level B harassment take of Dall's porpoise is estimated to be 35 
animals.
     Harbor seal--The harbor seal take estimate is based on 
WSDOT marine mammal observations in prior years at Mukilteo. For the 
Mukilteo Project from August 2015 to January 2020, there have been 134 
days of monitoring and 3,130 harbor seals observed, an average of 24/
day. From September 2017 to February 2018, WSDOT conducted marine 
mammal monitoring during Year Two of the Mukilteo Multimodal Project. 
During 51 days of monitoring, 1,703 harbor seals were observed within 
the Level B harassment zones, with a one-day high of 72 individuals on 
October 24, 2017 (WSDOT 2018). The daily high number of 72 animals per 
day was used to calculate potential takes during the 54-day project 
season, which yields a total of 3,888 Level B harassment takes.
     California sea lion--For the Mukilteo Project from August 
2015 to January 2020, there have been 134 days of monitoring and 1,716 
California sea

[[Page 47746]]

lions observed, an average of 13 observed per day. From August to 
November 2015, WSF conducted marine mammal monitoring during tank farm 
pier removal at the Mukilteo Multimodal Project. During 51 days of 
monitoring, 345 California sea lions were observed within the Level B 
harassment zone, with a one-day high of 30 individuals on October 22, 
2015 (WSDOT 2016). The highest number of 30 animals per day was used to 
calculate potential takes during the 54-day project season, which 
yields a total of 1,620 Level B harassment takes.
     Steller sea lion--For the Mukilteo Project from August 
2015 to January 2020, there have been 134 days of monitoring and 26 
Steller sea lions observed, an average of 0.20 observed per day. From 
October 2019 to January 2020, WSF conducted marine mammal monitoring 
during Year Three of the Mukilteo Multimodal Project (which is still in 
construction). During 32 days of monitoring, 18 Steller sea lions were 
observed within the ZOIs, with a one-day high of two individuals on 
October 21, 2019 (WSDOT 2020). The highest number of two animals per 
day was used to calculate potential takes during the 54-day project 
season, which yields a total of 108 Level B harassment takes.
    A summary of estimated marine mammal takes is listed in Table 8.

  Table 8--Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Cause Level B
                                                   Harassment
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated
                         Marine mammals                               Level B        Abundance      Percentage
                                                                    harassment                          (%)
----------------------------------------------------------------------------------------------------------------
Gray whale......................................................               9          26,906               0
Humpback whale..................................................               7           2,900               0
Minke whale.....................................................               3             636               0
Killer whale (West Coast transient).............................              56             243              23
Bottlenose dolphin..............................................              49            1924               3
Harbor porpoise.................................................           1,322          11,233              12
Dall's porpoise.................................................              35          25,750               0
Harbor seal.....................................................           3,888          11,036              35
Northern elephant seal..........................................               7         179,000               0
California sea lion.............................................           1,620         257,606               1
Steller sea lion................................................             108          43,201               0
----------------------------------------------------------------------------------------------------------------

Mitigation

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

Time Restriction

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between August 1, 2020, and 
February 15, 2021.

Establishing and Monitoring Level A, Level B Harassment Zones, and 
Exclusion Zones

    Before the commencement of in-water construction activities, which 
include vibratory pile driving and pile removal, WSDOT shall establish 
Level A harassment zones where received underwater SPLs or 
SELcum (cumulative sound exposure level) could cause PTS.
    WSDOT shall also establish Level B harassment zones where received 
underwater SPLs are higher than 120 dBrms re 1 [micro]Pa for 
continuous noise sources (vibratory pile driving and pile removal).
    WSDOT shall establish a 50 m exclusion zone for all in-water pile 
driving for cetaceans except Southern Resident killer whale and a 20 m 
exclusion zone for all in-water pile driving for pinnipeds. These zones 
encompass all estimated Level A harassment zones.
    WSDOT shall establish exclusion zones for Southern Resident killer 
whale and all marine mammals for which takes are not authorized at the 
Level B harassment distances. Specifically, for vibratory pile removal 
of 12-inch timber piles, a 1.6 km exclusion zone shall be established. 
For vibratory pile removal of 24-inch steel piles and vibratory pile 
driving of 30-inch steel piles, a 7.9 km exclusion zone shall be 
established.
    A summary of exclusion zones is provided in Table 9.

[[Page 47747]]



         Table 9--Exclusion Zones (m) for Various Marine Mammals
------------------------------------------------------------------------
                                    Cetaceans
            Activities                except     Pinnipeds       SRKW
                                      SRKW *
------------------------------------------------------------------------
Vibratory pile removal, 12-inch             50           20        1,600
 timber pile.....................
Vibratory pile removal, 24-inch             50           20        7,900
 steel pile or vibratory pile
 driving, 30-inch steel pile.....
------------------------------------------------------------------------
* SRKW = Southern Resident killer whale.

    NMFS-approved PSOs shall conduct an initial survey of the exclusion 
zones to ensure that no marine mammals are seen within the zones 
beginning 30 minutes before pile driving and pile removal of a pile 
segment begins. If marine mammals are found within the exclusion zone, 
pile driving of the segment would be delayed until they move out of the 
area. If a marine mammal is seen above water and then dives below, the 
contractor would wait 15 minutes. If no marine mammals are seen by the 
observer in that time it can be assumed that the animal has moved 
beyond the exclusion zone.
    If pile driving of a segment ceases for 30 minutes or more and a 
marine mammal is sighted within the designated exclusion zone prior to 
commencement of pile driving, the observer(s) must notify the pile 
driving operator (or other authorized individual) immediately and 
continue to monitor the exclusion zone. Operations may not resume until 
the marine mammal has exited the exclusion zone or 15 minutes have 
elapsed since the last sighting.

Shutdown Measures

    WSDOT shall implement shutdown measures if a marine mammal is 
detected within or entering an exclusion zone listed in Table 9.
    WSDOT shall also implement shutdown measures if Southern Resident 
killer whales are sighted within the vicinity of the project area and 
are approaching the Level B harassment zone during in-water 
construction activities.
    If a killer whale approaches the Level B harassment zone during 
pile driving or removal, and it is unknown whether it is a Southern 
Resident killer whale or a transient killer whale, it shall be assumed 
to be a Southern Resident killer whale and WSDOT shall implement the 
shutdown measure.
    If a Southern Resident killer whale or an unidentified killer whale 
enters the Level B harassment zone undetected, in-water pile driving or 
pile removal shall be suspended until the whale exits the Level B 
harassment zone, or 15 minutes have elapsed with no sighting of the 
animal, to avoid further Level B harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA and if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone during in-
water construction activities.

Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving for the day, the Orca Network 
and/or Center for Whale Research will be contacted by WSDOT to find out 
the location of the nearest marine mammal sightings. The Local Marine 
Mammal Research Network consists of a list of over 600 (and growing) 
residents, scientists, and government agency personnel in the U.S. and 
Canada. Sightings are called or emailed into the Orca Network and 
immediately distributed to other sighting networks including: The NMFS 
Northwest Fisheries Science Center, the Center for Whale Research, 
Cascadia Research, the Whale Museum Hotline and the British Columbia 
Sightings Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that the prescribed mitigation measures provide the 
means effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

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

[[Page 47748]]

marine mammals; or (2) populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Monitoring Measures

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its Mukilteo Multimodal Project. The PSOs will observe 
and collect data on marine mammals in and around the project area for 
30 minutes before, during, and for 30 minutes after all pile removal 
and pile installation work. NMFS-approved PSOs shall meet the following 
requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    5. NMFS will require submission and approval of observer Curriculum 
vitaes.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of Level B harassment distances from 
different pile sizes, several different Level B harassment zones and 
different monitoring protocols corresponding to a specific pile size 
will be established.
     During 12-inch vibratory timber pile removal, two land-
based PSOs will monitor from the lighthouse and the new ferry terminal 
observation deck.
     During 24- and 30-inch steel vibratory driving/removal, 
three land-based and one ferry-based PSO will monitor the zones.
    Locations of the land-based PSOs and routes of monitoring vessels 
are shown in WSDOT's Marine Mammal Monitoring Plan, which is available 
online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
    To verify the required monitoring distance, the exclusion zones and 
zones of influence will be determined by using a range finder or hand-
held global positioning system device.

Reporting Measures

    WSDOT is required to submit a draft report on all marine mammal 
monitoring conducted under the IHA (if issued) within 90 calendar days 
of the completion of the project. A final report shall be prepared and 
submitted within 30 days following resolution of comments on the draft 
report from NMFS.
    The marine mammal report must contain the informational elements 
described in the Marine Mammal Monitoring Plan, dated February 18, 
2020, including, but not limited to:
    1. Dates and times (begin and end) of all marine mammal monitoring.
    2. Construction activities occurring during each daily observation 
period, including how many and what type of piles were driven or 
removed.
    3. Weather parameters and water conditions during each monitoring 
period (e.g., wind speed, percent cover, visibility, sea state).
    4. The number of marine mammals observed, by species, relative to 
the pile location and if pile driving or removal was occurring at time 
of sighting.
    5. Age and sex class, if possible, of all marine mammals observed.
    6. PSO locations during marine mammal monitoring.
    7. Distances and bearings of each marine mammal observed to the 
pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting).
    8. Description of any marine mammal behavior patterns during 
observation, including direction of travel and estimated time spent 
within the Level B harassment zones while the source was active.
    9. Number of individuals of each species (differentiated by month 
as appropriate) detected within the monitoring zone, and estimates of 
number of marine mammals taken, by species (a correction factor may be 
applied to total take numbers, as appropriate).
    10. Detailed information about any implementation of any mitigation 
triggered (e.g., shutdowns and delays), a description of specific 
actions that ensued, and resulting behavior of the animal, if any.
    11. Description of attempts to distinguish between the number of 
individual animals taken and the number of incidences of take, such as 
ability to track groups or individuals.
    12. Submit all PSO datasheets and/or raw sighting data (in a 
separate file from the Final Report referenced immediately above).
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, WSDOT shall report the 
incident to the Office of Protected Resources (301-427-8401), NMFS and 
to the West Coast Region (WCR) regional stranding coordinator (1-866-
767-6114) as soon as feasible. If the death or injury was clearly 
caused by the specified activity, WSDOT must immediately cease the 
specified activities until NMFS is able to review the circumstances of 
the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the IHA. WSDOT must 
not resume their activities until notified by NMFS.
    The report must include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.

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

[[Page 47749]]

incorporated into this analysis via their impacts on the environmental 
baseline (e.g., as reflected in the regulatory status of the species, 
population size and growth rate where known, ongoing sources of human-
caused mortality, or ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 9, given that the 
anticipated effects of WSDOT's Mukilteo Multimodal Project activities 
involving pile driving and pile removal on marine mammals are expected 
to be relatively similar in nature. There is no information about the 
nature or severity of the impacts, or the size, status, or structure of 
any species or stock that would lead to a different analysis by species 
for this activity, or else species-specific factors would be identified 
and analyzed.
    Marine mammal takes that are anticipated and authorized are 
expected to be limited to short-term Level B harassment (behavioral and 
temporary threshold shift (TTS)) only. Marine mammals present in the 
vicinity of the action area and taken by Level B harassment would most 
likely show overt brief disturbance (startle reaction) and avoidance of 
the area from elevated noise levels during pile driving and pile 
removal and the implosion noise. These behavioral distances are not 
expected to affect marine mammals' growth, survival, and reproduction 
due to the limited geographic area that would be affected in comparison 
to the much larger habitat for marine mammals in the Puget Sound. A few 
marine mammals could experience TTS if they occur within the Level B 
harassment zones. However, as discussed earlier in this document, TTS 
is a temporary loss of hearing sensitivity when exposed to loud sound, 
and the hearing threshold is expected to recover completely within 
minutes to hours. Therefore, it is not considered an injury.
    Portions of the SRKW range is within the proposed action area. In 
addition, the entire Puget Sound is designated as the SRKW critical 
habitat under the ESA. However, WSDOT would be required to implement 
strict mitigation measures to suspend pile driving or pile removal 
activities when this stock is detected in the vicinity of the project 
area. We anticipate that take of SRKW would be avoided. There are no 
other known important areas for other marine mammals, such as feeding 
or pupping, areas.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section. There is no other ESA designated critical 
habitat in the vicinity of the Mukilteo Multimodal Project area. The 
project activities would not permanently modify existing marine mammal 
habitat. The activities may kill some fish and cause other fish to 
leave the area temporarily, thus impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range. However, 
because of the short duration of the activities and the relatively 
small area of the habitat that may be affected, the impacts to marine 
mammal habitat are not expected to cause significant or long-term 
negative consequences. Therefore, given the consideration of potential 
impacts to marine mammal prey species and their physical environment, 
WSDOT's proposed construction activity at the Mukilteo Ferry Terminal 
would not adversely affect marine mammal habitat.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     Injury--no marine mammal would be taken by Level A 
harassment in the form of either physical injury or PTS;
     Behavioral disturbance--11 species/stocks of marine 
mammals would experience behavioral disturbance and TTS from the 
WSDOT's Mukilteo Ferry Terminal construction. However, as discussed 
earlier, the area to be affected is small and the duration of the 
project is short. In addition, the nature of the take would involve 
mild behavioral modification; and
     Although portion of the SWKR critical habitat is within 
the project area, strict mitigation measures such as implementing 
shutdown measures and suspending pile driving are expected to avoid 
take of SRKW, and impacts to prey species and the habitat itself are 
expected to be minimal. No other important habitat for marine mammals 
exist in the vicinity of the project area.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
proposed activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under 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. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    The estimated takes are below 24 percent of the population for all 
marine mammals except harbor seal (Table 7). While the estimated takes 
of harbor seal would be 35 percent of its population if all takes 
occurred to unique individuals, it is very likely that a single 
individual would be taken multiple times on different days. Therefore, 
the actual unique take of individual animals among the total population 
would be well under one-third of the population size.
    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 size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the ESA of 1973 (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 WCR Protected Resources Division 
Office, whenever we propose

[[Page 47750]]

to authorize take for endangered or threatened species.
    The only species listed under the ESA with the potential to be 
present in the action area is the Mexico DPS of humpback whales. The 
effects of this Federal action were adequately analyzed in NMFS' 
Biological Opinion for the Mukilteo Multimodal Project, Snohomish, 
Washington, dated August 1, 2017, which concluded that issuance of an 
IHA would not jeopardize the continued existence of any endangered or 
threatened species or destroy or adversely modify any designated 
critical habitat. NMFS WCR has confirmed the Incidental Take Statement 
(ITS) issued in 2017 is applicable for this IHA. That ITS authorizes 
the take of seven humpback whales from the Mexico DPS.

National Environmental Policy Act

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

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
WSDOT to conduct Mukilteo Multimodal Project Year 4 in Washington 
State, between August 1, 2020, and July 31, 2021, provided the 
previously prescribed mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: August 3, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-17212 Filed 8-5-20; 8:45 am]
BILLING CODE 3510-22-P