Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seattle Multimodal Project at Colman Dock in Washington State, 59737-59749 [2020-21015]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 185 (Wednesday, September 23, 2020)]
[Notices]
[Pages 59737-59749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21015]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA389]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seattle Multimodal Project at 
Colman Dock 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 IHA to the Washington State Department of 
Transportation (WSDKT) to incidentally harass, by Level A and Level B 
harassment, marine mammals during construction associated to Seattle 
Multimodal Project at Colman Dock in Seattle, Washington State.

DATES: This Authorization is effective from September 10, 2020, through 
September 9, 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 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 April 21, 2020, NMFS received a request from WSDOT for an 
Incidental Harassment Authorization (IHA) to take marine mammals 
incidental to the fourth year of work associated with the Seattle 
Multimodal Project at Colman Dock in Seattle, Washington. The 
application was deemed adequate and complete on May 13, 2020. WSDOT's 
request is for take of a small number of 11 species of marine mammals 
by Level A and Level B 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 31579, July 7, 2017; 83 FR 35226, July 25, 
2018; 84 FR 36581, July 29, 2019). The project will reconfigure the 
dock while maintaining approximately the same vehicle holding capacity 
as current conditions. 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 the Specified Activity on Marine Mammals and their 
Habitat section. WSDOT's previous monitoring reports are available 
online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Description of Proposed Activity

Overview

    The purpose of the Seattle Multimodal Project at Colman Dock is to 
preserve the transportation function of an aging, deteriorating and 
seismically deficient facility to continue providing safe and reliable 
service. The project will also address existing safety concerns related 
to conflicts between vehicles and pedestrian traffic and operational 
inefficiencies.
    Key project elements include:
     Replacing and re-configuring the timber trestle portion of 
the dock;
     Replacing the main terminal building;
     Reconfiguring the dock layout to provide safer and more 
efficient operations;
     Replacing the vehicle transfer span and the overhead 
loading structures of Slip 3;
     Replacing vessel landing aids;
     Maintaining a connection to the Marion Street pedestrian 
overpass;
     Moving the current passenger only ferry (POF) slip 
temporarily to the north to make way for south trestle construction, 
and then constructing a new POF slip in the south trestle area.
     Mitigating for additional 5,400 square feet (ft\2\) (502 
square meters (m\2\)) of overwater coverage; and
     Capping contaminated sediments.
    The Seattle Multimodal Project at Colman Dock involves in-water 
impact and vibratory pile driving and vibratory pile removal. Details 
of the proposed construction activities are provided below.

Dates and Duration

    Due to NMFS and 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 at this location. 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 47 days (Table 1).

Specific Geographic Region

    The Seattle Ferry Terminal at Colman Dock, serving State Route 519, 
is located on the downtown Seattle waterfront, in King County, 
Washington. The terminal services vessels from the Bainbridge Island 
and Bremerton routes, and is the most heavily used terminal in the WSF 
system. The Seattle terminal is located in Section 6, Township 24 
North, Range 4 East, and is adjacent to Elliott Bay, a tributary to 
Puget Sound (Figure 1).

[[Page 59738]]

Land use in the area is highly urban, and includes business, 
industrial, the Port of Seattle container loading facility, 
residential, the Pioneer Square Historic District and local parks.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN23SE20.005

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Construction activities during the Year 4 Seattle Multimodal 
Project at Colman Dock include the following components.
    The project will remove the northern timber trestle and replace a 
portion of it with a new concrete trestle. The area from Marion Street 
to the north edge of the property will not be rebuilt and after 
demolition will become a new area of open water. A section of fill 
contained behind a bulkhead underneath the northeast section of the 
dock will be removed. WSDOT will construct a new steel and concrete 
trestle from Columbia Street northward to Marion Street.
    The project will maintain the current King County POF functions on 
site, and address safety concerns related to pedestrian/vehicle 
conflicts at Yesler Street. A new covered pier, sized to accommodate 
POF passenger waiting and connected by a new overhead pedestrian bridge 
to the terminal building and the Marion Street Overpass, will be 
constructed along the south side of Colman Dock.
    The reconfiguration will increase total permanent overwater 
coverage (OWC) by about 5,400 ft\2\ (502 m\2\, about 1.7 percent more 
than existing overwater coverage at the site), due to the new walkway 
from the POF facility to Alaskan Way and new stairways and elevators 
from the POF to the upper level of the terminal. Removal of at least 
5,400 ft\2\ (502 m\2\) from Pier 48, a condemned timber structure, will 
serve as mitigation for the permanent OWC increase.
    Construction of the reconfigured dock will narrow (reduce) the OWC 
along the shoreline (at the landward edge) by 180 linear feet (ft) at 
the north end of the site, while 30 linear ft (9.14 m) of new trestle 
will be constructed along the shoreline at the south end of the site. 
The net reduction of OWC in the nearshore zone is 150 linear ft (45.72 
m).
    The project includes demolition of the existing terminal building 
and construction of a new terminal building. The new terminal building 
will be located along the west edge of the dock, spanning all three 
slips to handle passenger traffic more efficiently, and will connect to 
the Marion Street Overpass by an elevated deck.

[[Page 59739]]

    The project includes reconstruction of the vehicle transfer span 
and the passenger overhead loading (OHL) structures of Slip 3, 
including new hydraulic systems. The new OHL will be wider than the 
existing OHL, to accommodate the increased walk-on passenger volumes.
    Sediment beneath the terminal has been contaminated by the 
creosote-treated piles and other chemicals discharged to the 
environment over the years. A cap was installed to cover contaminated 
sediment on the south half of the site prior to trestle expansion in 
1990. WSDOT will place a new sediment cap to the north and south of the 
current cap during construction of the project to contain existing 
contamination.
    Specific in-water pile driving and pile removal activities include 
the following components:
     Vibratory driving followed by impact proofing (driving) of 
36-inch steel piles. A total of 73 piles will be installed using the 
vibratory hammer over 9 days, with an average of approximately 8 piles 
installed per day. Vibratory pile driving and impact proofing will 
occur on different days, and an additional nine days is estimated for 
impact proofing.
     Vibratory driving and then removal of 24-inch temporary 
steel piles. A total of 30 piles will be installed and later removed, 
with an average of 8 piles installed/removed per day. Vibratory pile 
driving and removal will occur on different days.
     Vibratory removal of 355 14-inch timber piles over 18 
days, with approximately 20 piles removed per day.
     Vibratory removal of 30 12-inch steel piles over 3 days, 
with 10 piles removed per day.
    A summary of the pile driving and pile removal activities for the 
Year 4 Seattle Multimodal Project at Colman Dock is provided in Table 
1.

                                                   Table 1--Summary of In-Water Pile Driving Durations
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                                                                             Pile size                                                       Duration
                  Method                              Pile type               (inch)        Pile number      Piles/day     Minutes/pile       (days)
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Impact drive (proof)......................  Steel.......................              36            * 73               8              10               9
Vibratory drive...........................  Steel.......................              36            * 73               8              20               9
Vibratory drive...........................  Steel (temporary)...........              24            * 30               8              20               4
Vibratory remove..........................  Steel (temporary)...........              24            * 30               8              20               4
Vibratory remove..........................  Timber......................              14             355              20              15              18
Vibratory remove..........................  Steel.......................              12              30              10              20               3
                                                                         -------------------------------------------------------------------------------
    Total.................................  ............................  ..............             488  ..............  ..............              47
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* These are same piles

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on July 8, 2020 (85 FR 40992). 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 points out that the noise levels of the 
36-inch pile impact driving at 11 m from the source was used, instead 
of 10 m, thus resulted in a underestimated Level A harassment and Level 
B harassment zones for the 36-inch pile. The Commission also suggested 
a few changes to take estimates based on the newly available monitoring 
data. The Commission recommends that NMFS (1) include the revised Level 
A harassment zones and shut-down zones for impact installation of 36-in 
steel piles, and (2) revise the Level B harassment takes to 752 for 
harbor porpoises, 35 for Dall's porpoises, 7 for gray whales, and 141 
for Steller sea lions and revise the Level A harassment takes to 21 for 
harbor porpoises.
    Response: NMFS recalculated the ensonified areas for Level A and 
Level B harassment using the noise levels measured at 11 m from the 36-
inch steel pile impact driving measurements. The revised Level A and 
Level B harassment zones and shutdown zones are provided in Table 6 and 
Table 9, respectively.
    NMFS further agrees with the Commission on revising some of the 
Level B harassment take numbers. Specifically, harbor porpoise Level B 
harassment take is revised from 649 to 442 based on updated density 
estimate; Dall's porpoise Level B harassment take is revised from 40 to 
35, based on its group size of 5 animals over the 7 months activity 
period; gray whale Level B harassment take is revised from 5 to 7, 
based on an assumption of 1 take per month during the 7 months 
construction window; and Steller sea lion Level B harassment take is 
revised from 39 to 141, based on an average of 3 takes per day over the 
47 days of construction. The updated take numbers are provided in Table 
8 below.
    Comment 2: The Commission points out that WSDOT's monitoring report 
for 2019-2020 activities did not include the basic information (e.g., 
distance from the pile to the animal and total number of each species 
taken, including a correction factor as appropriate) that was required 
to be reported under the final authorization (e.g., conditions 
6(a)(vii) and (ix), respectively). The Commission recommends that NMFS 
(1) reinforce that WSDOT must comply with the various reporting 
requirements in the final authorization, including condition 6(a)(vii), 
(2) include the standard requirement that WSDOT extrapolate 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), 6(a)(ix), and 6(a)(xi) of the 2019-
2020 IHA to WSDOT's Seattle Multimodal Project at Colman Dock required 
WSDOT to submit a final report that includes the following information:
    (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.
    (ix). 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).

[[Page 59740]]

    (xi). 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.
    NMFS is reminding WSDOT that it must comply with these conditions 
to include distances and bearing of marine mammals observed during pile 
driving, information on numbers of individuals of each species 
(differentiated by month as appropriate) detected within the monitoring 
zone, and description of attempts to distinguish between the number of 
individuals taken and the number of incidences of take during marine 
mammal monitoring, as it appears that this information was not included 
in its final report for the 2019 season. NMFS has contacted WSDOT this 
information.
    Comment 3: The Commission recommends that NMFS include in the final 
authorization the requirement that WSDOT conduct pile-driving and -
removal activities during daylight hours only.
    Response: NMFS agrees with the Commission and has included the 
requirement that WSDOT conduct pile driving and removal activities 
during daylight hours only. This requirement was in the Federal 
Register for the proposed IHA.
    Comment 4: The Commission recommends that NMFS reinforce that WSDOT 
must keep a running tally of the total takes, based on observed and 
extrapolated takes, for Level B harassment.
    Response: We agree that WSDOT must ensure they do not exceed 
authorized takes. As described in the monitoring and reporting 
requirements, WSDOT is required to keep a running tally of the marine 
mammals observed within harassment zones and, further, they are 
required to estimate the number of takes in their final report 
(applying a correction as appropriate).
    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: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
Renewal process.

Changes From the Proposed IHA to Final IHA

    There is no change in the WSDOT's Seattle Multimodal Project at 
Colman Dock construction activities from the Federal Register notice 
for the proposed IHA (85 FR 40992; July 8, 2020).
    There was an error on the noise level for the 36-inch impact pile 
driving reported in the proposed IHA. The single strike sound exposure 
level (SELss) of 174 decibel in reference to 1 micropascal-
second (dB re 1 [micro]Pa\2\s) is based on measurement conducted at 11 
m, not 10 m. The corrected 10-m SELss is 175 dB re 1 
[micro]Pa\2\s, and is reflected in Table 5 of this document. This 
correction also resulted in larger Level A harassment distances and 
some of the shutdown distances. The revised Level A distances are 
presented in Table 6 and Table 9 of this document, respectively.
    Additionally, numbers of Level B harassment take of several marine 
mammal species are also updated based on the updated density estimate 
or the most recent marine mammal monitoring report. Specifically, 
harbor porpoise Level B harassment take is revised from 649 to 442 
based on updated density estimate of 0.54 porpoises/square kilometer 
(km\2\) (updated in Table 7 below); Dall's porpoise Level B harassment 
take is revised from 40 to 35, based on its group size of 5 animals 
over the 7 months activity period; gray whale Level B harassment take 
is revised from 5 to 7, based on an assumption of 1 take per month 
during the 7 months construction window; and Steller sea lion Level B 
harassment take is revised from 39 to 141, based on an average of 3 
takes per day over the 47 days of construction. The updated take 
numbers are provided in Table 8 below.

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 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).

[[Page 59741]]



                                         Table 2--Marine Mammals With Potential Presence Within the Project Area
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                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    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.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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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.
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
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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). Annual serious injury/mortality often cannot be determined precisely and is in some cases presented as a minimum
  value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Harbor seal estimate is based on data that are 9 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 (SPKW). 
Take of SRKW can be avoided by implementing strict monitoring and 
mitigation measures (see Mitigation and Monitoring and Reporting 
sections below). All species that could potentially occur in the 
project areas are included in Table 2 of the IHA application.
    In addition, the sea otter may be found in inland waters of 
Washington. However, this species is managed by the U.S. Fish and 
Wildlife Service 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 the Year 3 Seattle Multimodal 
Project at Colman Dock proposed IHA (84 FR 25757, June 4, 2019). This 
information remains valid 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.

[[Page 59742]]



           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           150 Hz to 160 kHz.
 (dolphins, 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)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea 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).

    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. 
11 marine mammal species (7 cetacean and 4 pinniped (2 otariid and 2 
phocid) species) have the reasonable potential to co-occur with the 
proposed construction activities. Please refer to Table 2. Of the 
cetacean species that may be present, 3 are classified as low-frequency 
cetaceans (i.e., all mysticete species), 2 are classified as mid-
frequency cetaceans (i.e., all delphinid species), and 2 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 Seattle Multimodal Project at Colman Dock 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 40992; 
July 8, 2020) for the proposed IHA, and is not repeated here.

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 primarily be by Level B harassment, as noise 
from in-water impact and vibratory pile driving has the potential to 
result in disruption of behavioral patterns for individual marine 
mammals. There is also some potential for auditory injury (Level A 
harassment) to result, primarily for high frequency cetaceans and 
phocids because predicted auditory injury zones are relatively large. 
Auditory injury is unlikely to occur for low- and mid-frequency 
cetaceans and otariids. The prescribed mitigation and monitoring 
measures are expected to minimize the severity of the taking to the 
extent practicable.
    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

[[Page 59743]]

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 (root-mean-square (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 Seattle Multimodal Project at Colman Dock Year 4 
construction activity includes the use impact pile driving, vibratory 
pile driving and pile removal, and therefore the 120 dB and 160 dB re 1 
[mu]Pa (rms) are applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). WSDOT's Seattle Multimodal Project at 
Colman Dock Year 4 construction activity includes the use of impulsive 
(impact pile driving) and 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.

                     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: 219 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.

Source Levels

    The project includes impact pile driving (proofing) of 36-inch 
steel piles, vibratory pile driving of 36- and 24-inch steel piles, and 
vibratory pile removal of 24- and 12-inch steel piles, and 14-inch 
timber 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 Seattle Multimodal Project at Colman Dock Year 4
                                 Project
------------------------------------------------------------------------
                                 Source level (at
      Activity/pile size              10 m)          Literature source
------------------------------------------------------------------------
Impact pile drive (proof) 36    175 dB (SELss)...  WSDOT Colman Year 1
 inch steel pile.                                   measurement (2018).
Vibratory drive/remove 36 inch  177 dB (SPLrms)..  WSDOT Port Townsend
 steel pile.                                        measurement (2010).
Vibratory drive 24 inch steel   174 dB (SPLrms)..  WSDOT Port Townsend
 pile.                                              measurement (2010).
Vibratory removal 14 inch       155 dB (SPLrms)..  WSDOT Port Townsend
 timber pile \1\.                                   measurement (2011).
Vibratory removal 12 inch       155 dB (SPLrms)..  Caltrans (2015) data
 steel pile \2\.                                    for same pile.
------------------------------------------------------------------------
\1\ Vibratory removal of 14-in timber piles is based on removal of 12-in
  timber piles.
\2\ Vibratory removal of 12-in steel piles is based on vibratory
  installation of 12-in steel piles.

Level A Harassment Distances and Areas
    Distances to Level A harassment 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

[[Page 59744]]

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 impact pile driving of 36-inch 
steel piles and from vibratory pile removal of 12-inch steel piles and 
14-inch timber piles are calculated using a practical spreading model 
of the sonar equation

EL = SL-15 log10(R)

where EL is the echo level (or received level), which is the sound 
threshold level at the Level B harassment (160 dB re 1 [mu]Pa for 
impact pile driving and 120 dB re 1 [mu]Pa for vibratory pile 
driving and pile removal); R is the Level B harassment distance in 
meters.

    Level B harassment distance for vibratory pile driving and removal 
of the 24-inch steel piles, and the vibratory driving of 36-inch piles 
is based on in situ measurements of vibratory pile driving of 36-inch 
piles conducted during Year One of the Seattle Multimodal Project at 
Colman Dock (WSDOT 2018). The results show that underwater pile driving 
noise cannot be detected at a distance of 8.69 km (WSDOT 2018).
    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 areas 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
          Pile type, size & pile driving method                                                                                            distance (m)/
                                                            LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid      area (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact drive (proof) 36 inch steel pile.................      377.5/0.37       13.4/0.00      449.6/0.52        202/0.11       14.7/0.00        736/1.70
Vibratory drive 36 inch steel pile......................      153.1/0.07       13.6/0.00      226.4/0.16       93.1/0.03        6.5/0.00     8,690/40.53
Vibratory drive/removal, 24 inch steel piles............       96.6/0.03        8.6/0.00      142.8/0.06       58.7/0.01        4.1/0.00     8,690/40.53
Vibratory removal 14 inch timber pile...................        8.0/0.00        0.7/0.00       11.8/0.00        4.8/0.00        0.3/0.00      2,154/5.47
Vibratory removal 12 inch steel pile....................        6.5/0.00        0.6/0.00        9.6/0.00        3.9/0.00        0.3/0.00      2,154/5.47
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 Seattle 
Multimodal Project at Colman Dock. A summary of the marine mammal 
density is provided in Table 7.

   Table 7--Marine Mammal Density in the Seattle Multimodal Project at
                      Colman Dock Construction Area
------------------------------------------------------------------------
                                                              Density
                     Marine mammals                          (animals/
                                                              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.........................................            0.54
Dall's porpoise.........................................         0.00045
Harbor seal.............................................            3.91
Northern elephant seal..................................               0
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.
    The fundamental approach for take calculation is to use the 
information aggregated in the Navy density database (U.S. Navy, 2019) 
with the following equation:

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

    Some adjustments were made based on prior observation of marine 
mammals in the project area and account for group size. Specific 
adjustments for calculating take numbers are provided below.
     Humpback whale--During the prior year WSDOT Multimodal 
Project construction, three individuals have been observed. Given that 
humpback whales are occasionally present in the area, it is unlikely 
they would be present on a daily basis. Instead it is assumed that 
three individuals may be present in the Level B harassment zones once a 
month during the in-water work window (7 months), or 21 exposures.
     Minke whale--During the prior year WSDOT Multimodal 
Project work, one individual minke whale was observed. 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 7 exposures.
     Gray whale--This species is uncommon in the project area. 
Therefore, Level B harassment take of gray whale is based on take of 1 
animal per month over the 7 months work window. This results a total of 
7 lakes.
     West Coast transient killer whale--Level B harassment 
exposures were calculated to be two. However, two groups of 10 
individuals have been observed. It is assumed that one group size of 10 
animals may be present in the Level B harassment zones once a month 
during the in-water work window (7 months), or 70 exposures.
     Bottlenose dolphin--The bottlenose dolphin 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 assumed 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 exposures.
     Northern elephant seal--Estimated northern elephant seals 
Level B harassment exposures were calculated to be zero. However, one 
individual of this species was observed in the project area once. 
Therefore, the take number was adjusted to seven takes based on

[[Page 59745]]

one animal for the project duration of 7 months.
     California sea lion--Estimated California sea lion Level B 
harassment exposures were calculated to be 104. However, there were 763 
observations during project monitoring, with a high of 29 individuals 
in one day. Conservatively assuming that 29 individuals may be present 
in the Level B harassment zones during 47 days of pile driving or 
removal, it is assumed that 1,363 exposures to pile driving noise may 
occur.
     Harbor porpoise--Estimated harbor porpoise Level A 
harassment exposures were calculated to be five. However, given the 
relatively larger Level A harassment distance for high-frequency 
cetaceans, we assume that three incidents of Level A harassment may 
occur per month for the 7 months work window to yield a total of 21 
takes by Level A harassment.
     Dall's porpoise--This species is uncommon in the project 
area. Therefore, Level B harassment take of Dall's porpoise is based on 
take of 3 animals per group size each month over the 7 months work 
window. This results a total of 35 lakes.
     Harbor seal--Estimated harbor seal Level A harassment 
exposures were calculated to be three. However, WSDOT made a total of 
243 harbor seal observations in the 60-184 m Level A zone, with a high 
of 2 individuals in 1 day. This portion of the Level A harassment zone 
would be beyond the prescribed shutdown zone, and this estimated zone 
would occur on 26 days. Assuming that two individuals may be present 
once a day for 26 days results in 52 potential Level A harassment 
takes.
     Steller sea lion--Level B harassment take of Steller sea 
lion is based on take of 3 animals per day over the 47 days window. 
This results a total of 141 lakes.
    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 A and
                                               Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                     Estimated       Estimated       Estimated
         Marine mammals               Level A         Level B          total         Abundance    Percentage (%)
                                    harassment      harassment      harassment
----------------------------------------------------------------------------------------------------------------
Gray whale......................               0               7               7          26,906            0.02
Humpback whale..................               0              21              21           2,900            0.72
Minke whale.....................               0               7               7             636            1.10
Killer whale (West Coast                       0              70              70             243           28.81
 transient).....................
Bottlenose dolphin..............               0              49              49           1,924            2.55
Harbor porpoise.................              21             442             463          11,233            4.12
Dall's porpoise.................               0              35              35          25,750            0.16
Harbor seal.....................              52           3,155           3,207          11,036           21.50
Northern elephant seal..........               0               7               7         179,000            0.02
California sea lion.............               0           1,363           1,363         257,606            0.72
Steller sea lion................               0             141             141          43,201            0.33
----------------------------------------------------------------------------------------------------------------

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

    The applicant stated that 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 sound pressure 
levels (SPLs) or cumulative sound exposure levels (SELcum) 
could cause PTS.
    WSDOT shall also establish Level B harassment zones where received 
underwater SPLs are higher than 160 dBrms re 1 [micro]Pa for 
impulse noise sources (impact pile driving) and 120 dBrms re 
1 [micro]Pa for continuous noise sources (vibratory pile driving and 
pile removal).
    WSDOT shall establish exclusion zones as shown in Table 9 to 
prevent Level A harassment takes of all cetaceans and otariids, and to 
minimize Level A harassment takes of phocids.
    For in-water heavy machinery work other than pile driving (e.g., 
standard barges, etc.), if a marine mammal comes

[[Page 59746]]

within 10 m, operations shall cease and vessels shall reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions. This type of work could include the following activities: 
(1) Movement of the barge to the pile location; or (2) positioning of 
the pile on the substrate via a crane.
    WSDOT shall establish exclusion zones for SRKW and all marine 
mammals that takes are not authorized at the Level B harassment 
distances. Specifically, impact pile driving of 36-inch steel piles, a 
750 m exclusion zone shall be established. For vibratory driving of 24- 
and 36-inch steel piles and vibratory pile removal of 24-inch steel 
piles, a 8.7 km exclusion zone shall be established. For vibratory pile 
removal of 14-inch timber piles and 12-inch steel piles, a 2.2 km 
exclusion zone shall be established.
    A summary of exclusion zones is provided in Table 9.

                             Table 9--Exclusion Zones (m) for Various Marine Mammals
----------------------------------------------------------------------------------------------------------------
                                                                Exclusion distance (m)
     Pile type, size & pile driving method     -------------------------------------------------------  SRKW (m)
                                                    LF         MF         HF       Phocid    Otariid
----------------------------------------------------------------------------------------------------------------
Impact drive 36-inch steel pile...............        380         15        450         60         15        750
Vibratory drive 36-inch steel pile............        160         15        230         60         10      8,700
Vibratory drive/removal, 24-inch steel piles..        100         10        150         60         10      8,700
Vibratory remove, 14-inch timber pile or 12-           10         10         15         10         10      2,200
 inch steel pile..............................
----------------------------------------------------------------------------------------------------------------
LF = low-frequency cetacean; MF = mid-frequency cetacean; HF = high-frequency cetacean; PW = phocid; OW =
  otariids; SRKW = Southern Resident killer whale.

    NMFS-approved PSO 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 SRKW 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 SRKW or a 
transient killer whale, it shall be assumed to be a SRKW and WSDOT 
shall implement the shutdown measure.
    If a SRKW 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 (if issued) 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 mitigation measures, as 
well as other measures considered by NMFS, all of which are described 
above, NMFS has determined that the precribed mitigation measures 
provide the means 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.

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

[[Page 59747]]

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

Monitoring Measures

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its Seattle Multimodal Project at Colman Dock. 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 
Vitas.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of zones of influence (ZOIs) from different 
pile sizes, several different ZOIs and different monitoring protocols 
corresponding to a specific pile size will be established.
     During vibratory driving of 36-inch pile or vibratory 
driving/removal of 24-inch piles, four land-based PSOs and one ferry-
based PSO will monitor the zone.
     During vibratory removal of 12-inch or 14-inch piles, four 
land-based PSOs will monitor the zone.
     During impact driving of 36-inch piles, three land-based 
PSOs will monitor the zone.
    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 May 12, 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.
    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 (OPR) (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.

[[Page 59748]]

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, this introductory discussion of our analyses 
applies to all the species listed in Table 8, given that the 
anticipated effects of WSDOT's Seattle Multimodal Project at Colman 
Dock 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.
    Although some marine mammals could experience, and are authorized 
for Level A harassment in the form of PTS if they stay within the Level 
A harassment zone during the entire pile driving for the day, the 
degree of injury is expected to be mild and is not likely to affect the 
reproduction or survival of the individual animals. It is expected 
that, if hearing impairments occurs, most likely the affected animal 
would lose a few dB in its hearing sensitivity, which is not likely to 
affect its survival and recruitment. Hearing impairment that occur for 
these individual animals would be limited to the dominant frequency of 
the noise sources, i.e., in the low-frequency region below 2 kilohertz 
(kHz). Therefore, the degree of PTS is not likely to affect the 
echolocation performance of the harbor porpoise specie which uses 
frequencies mostly above 100 kHz. Nevertheless, for all marine mammal 
species, it is known that in general animals avoid areas where sound 
levels could cause hearing impairment. Nonetheless, we evaluate the 
estimated take in this negligible impact analysis.
    Most marine mammal takes that are anticipated and authorized are 
expected to be limited to short-term Level B harassment (behavioral 
disturbance 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 TTS zone. 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.
    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 Seattle Multimodal Project at Colman 
Dock construction 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 relatively 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 Seattle Multimodal Project at Colman Dock 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--a few individuals of harbor seal and harbor 
porpoise could experience Level A harassment in the form of mild PTS;
     Behavioral disturbance--eleven species/stocks of marine 
mammals could experience behavioral disturbance and TTS from the 
WSDOT's Seattle Multimodal Project at Colman Dock 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 prescribed 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

[[Page 59749]]

the MMPA for specified activities other than military readiness 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. 
Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    The estimated take is below one third of the population for all 
marine mammals (Table 8).
    Based on the analysis contained herein of the proposed activity 
(including the prescribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the West Coast Regional 
Office, whenever we propose 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 Distinct Population Segment 
(DPS) of humpback whales. The effects of this Federal action were 
adequately analyzed in NMFS' Biological Opinion for the Seattle 
Multimodal Project at Colman Dock, Seattle, Washington, dated October 
1, 2018, 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 West 
Coast Region has confirmed the Incidental Take Statement (ITS) issued 
in 2017 is applicable for the IHA. That ITS exempts 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 Seattle Multimodal Project at Colman Dock Year 4 in 
Washington State, between September 10, 2020, and September 9, 2021, 
provided the previously prescribed mitigation, monitoring, and 
reporting requirements are incorporated.

    Dated: September 15, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-21015 Filed 9-22-20; 8:45 am]
BILLING CODE 3510-22-P