Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to In-Water Construction at Two Ferry Facilities on Bainbridge Island, Washington, 48623-48648 [2022-17141]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Notices]
[Pages 48623-48648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17141]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC114]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to In-Water Construction at Two Ferry 
Facilities on Bainbridge Island, Washington

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

ACTION: Notice; proposed incidental harassment authorization (IHA); 
request for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from the Washington State 
Department of Transportation Ferries Division (WSDOT) for authorization 
to take marine mammals incidental to two in-water construction projects 
on Bainbridge Island, Washington: the Bainbridge Island Ferry Terminal 
Overhead Loading Replacement Project and Eagle Harbor Maintenance 
Facility Slip F Improvement Project. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an IHA to incidentally take marine mammals during the specified 
activities. NMFS is also requesting comments on a possible one-time, 
one-year renewal that could be issued under certain circumstances and 
if all requirements are met, as described in Request for Public 
Comments at the end of this notice. NMFS will consider public comments 
prior to making any final decision on the issuance of the requested 
MMPA authorization and agency responses will be summarized in the final 
notice of our decision.

DATES: Comments and information must be received no later than 
September 9, 2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service and should be submitted via email to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at

[[Page 48624]]

www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. 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 proposed or, if the taking is limited to harassment, a notice of a 
proposed incidental harassment authorization is provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of 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.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (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 
preliminarily determined that the issuance of the proposed IHA 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On February 15, 2022, NMFS received a request from WSDOT for an IHA 
to take marine mammals incidental to the Bainbridge Island Ferry 
Terminal Overhead Loading Replacement Project (the Bainbridge Project) 
and Eagle Harbor Maintenance Facility Slip F Improvement Projects (the 
Eagle Harbor Project) in Bainbridge Island, Washington. The application 
was deemed adequate and complete on July 25, 2022. WSDOT's request is 
for take of 12 species of marine mammal by Level B harassment and, for 
a subset of these species (harbor seal (Phoca vitulina), harbor 
porpoise (Phocoena phocoena), and Dall's porpoise (Phocoenoides 
dalli)), Level A harassment. Neither WSDOT nor NMFS expect serious 
injury or mortality to result from this activity and, therefore, an IHA 
is appropriate.

Description of Proposed Activity

Overview

    The Washington State Department of Transportation (WSDOT) Ferries 
Division (WSF) operates and maintains 19 ferry terminals and one 
maintenance facility, all of which are located in either Puget Sound or 
the San Juan Islands. Two projects are proposed to be conducted: 
replacement of the Bainbridge Island Ferry Terminal overhead loading 
structure, and improvement of the Eagle Harbor Maintenance Facility 
Slip F. Both of the projects are located within Eagle Harbor on 
Bainbridge Island, Washington, would be completed within the same in-
water work season, would have overlapping ensonified areas, and use the 
same datasets to estimate marine mammal takes. Therefore, WSDOT has 
submitted one application for a single IHA to cover both projects.
    The purpose of the Bainbridge Project is to replace the seismically 
vulnerable timber trestle and fixed steel portions of the overhead 
loading structure at the Bainbridge Island Ferry Terminal. The purpose 
of the Eagle Harbor Project is to improve the maintenance efficiency of 
the facility. The facility has six vessel slips whose purpose is to 
maintain the Washington State Ferry (WSF) system's vessels.

Dates and Duration

    Due to in-water work timing restrictions established by NMFS and 
the U.S. Army Corps of Engineers, construction in the projects area is 
limited each year from August 1 through February 15. Both the 
Bainbridge Project and the Eagle Harbor Project would be constructed 
during the August 1, 2022 to February 15, 2023 in-water work season. 
For the Bainbridge Project, in-water construction is expected to occur 
on up to 57 days (Table 1). For the Eagle Harbor Project, in-water 
construction is expected to occur on up to 31 days (Table 2).

Specific Geographic Region

    Both projects are located within Eagle Harbor on Bainbridge Island, 
Washington, approximately 9 miles (mi; 14.5 kilometers (km)) west of 
Seattle, Washington. The Eagle Harbor Maintenance Facility is 
approximately \1/4\ mi (0.4 km) southwest of the Bainbridge Island 
Ferry Terminal. Eagle Harbor contains a mix of commercial docks, public 
marinas, private docks, and undeveloped waterfront properties. The 
harbor extends 2 mi (1.2 km) west from the mouth of the harbor, which 
is approximately 900 feet (ft; 274.3 meters (m)) wide and is bounded by 
Wing Point to the north and Bill Point to the south. A large underwater 
sand bar extends to the southeast from Wing Point. Water depths within 
Eagle Harbor range are up to 50 ft (15.2 m) but outside the harbor, 
water depths between Bainbridge Island and Seattle can be over 700 ft 
(213.4 m).

[[Page 48625]]

[GRAPHIC] [TIFF OMITTED] TN10AU22.251

Detailed Description of Specific Activity

Bainbridge Project
    The existing overhead loading fixed walkway at the Bainbridge 
Island Ferry Terminal consists of two major components: a timber 
trestle, constructed in 1972, which is approximately 345 ft (105.2 m) 
long and supported on timber batter piles; and a steel truss, 
constructed in 1988, which is approximately 78 ft (23.8 m) long and 
supported on a concrete shaft at each end. The walkway is elevated 
approximately 40 ft (12.2 m) above ground.
    The proposed project elements for the Bainbridge Project include:
    1. Installation of temporary work platforms: two temporary work 
platforms would support construction equipment. A total of 31 24-inch 
(in) steel pipe piles would support the structures, which would be 
installed first using a vibratory hammer to within 5 ft (1.5 m) of tip 
elevation, and then driven with an impact hammer to verify bearing 
capacity.
    2. Installation of temporary walkway: a temporary walkway would be 
constructed to maintain overhead loading operations while the new 
walkway is constructed. This would allow the inshore portion of the 
existing walkway to be demolished so the new walkway can be 
constructed. The offshore portion of the existing walkway would remain 
to allow passenger loading until the new walkway is completed. The 
temporary walkway would be supported on four 24-inch diameter steel 
piles, which would be installed first using a vibratory hammer to 
within 5 ft (1.5 m) of tip elevation, and then driven with an impact 
hammer to verify bearing capacity.
    3. Installation of new permanent walkway: the new walkway would be 
supported by 14 30-in and 12 36-in steel pipe piles, which would be 
installed first using a vibratory hammer to within 5 ft (1.5 m) of tip 
elevation, and then driven with an impact hammer to verify bearing 
capacity.
    4. Removal of existing overhead loading walkway: the existing 
overhead loading walkway, including 76 creosote-treated 12-in timber 
piles and one 4.5 ft (1.4 m) diameter concrete drill shaft, would be 
removed. The piles would be removed using a vibratory hammer and the 
concrete drill shaft would be removed by cutting it with a saw at the 
mudline.
    5. Removal of temporary walkway and work platform: after the new 
walkway is constructed, all piles associated with the temporary walkway 
and work platform would be removed with a vibratory hammer.
    The construction schedule would be coordinated to allow work to 
occur around ferry boats that may be present in the Bainbridge Island 
Ferry Terminal slips.

[[Page 48626]]



                                                Table 1--Proposed Pile Driving for the Bainbridge Project
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                                                                                                           Duration per
        Project element            Pile size and    Install or remove        Method          Number of         pile        Piles per day     Duration
                                        type                                                   piles         (minutes)                        (days)
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Temporary work platform and      24-in Steel......  Install..........  Vibratory........              39              30               4              10
 temporary walkway.
                                                                       Impact...........              39              30               4              10
                                                    Remove...........  Vibratory........              39              30               4              10
New Overhead Loading Structure.  24-in Steel......  Install..........  Vibratory........               6              30               2               3
                                                                       Impact...........               6              30               2               3
                                 30-in Steel......  Install..........  Vibratory........               4              30               2               2
                                                                       Impact...........               4              30               2               2
                                 36-in Steel......  Install..........  Vibratory........              12              30               2               6
                                                                       Impact...........              12              30               2               6
Old Overhead Loading Structure   12-in Timber.....  Remove...........  Vibratory........              76              15              15               5
 Removal.
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Total Temporary Piles Installed and Removed.............................................              39  ..............  ..............  ..............
Total Permanent Piles Installed.........................................................              26  ..............  ..............  ..............
Total Timber Piles Removed..............................................................              76  ..............  ..............  ..............
Total Duration (days)...................................................................  ..............  ..............  ..............              57
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Eagle Harbor Project
    The last seven vessels built for the WSF fleet have evacuation 
slides on the passenger deck. These require the use of a vehicle drive-
on slip to allow changing out these slides. Currently, only two of the 
six slips are vehicle drive-on slips. This results in delays when more 
than two vessels are undergoing maintenance. A new vehicle drive-on 
slip would be constructed to reduce maintenance delays, and provide 
more flexibility in accomplishing the various maintenance activities on 
the vessels that is crucial to making the WSF system as reliable as 
possible.
    The proposed project elements for the Eagle Harbor Project include:
    1. Trestle and transfer span: The vehicle transfer span is the link 
for vehicles to load and unload from the fixed trestle to the vehicle 
deck of the ferry vessel. At Eagle Harbor, the existing Slip F 
gangplank system would be replaced with a new pile supported trestle 
and a transfer span adjustable with a mechanical system. The new 
trestle would be approximately 15-ft (4.6 m) wide and 80 ft (24.4 m) 
long, and will be supported by nine 24-in steel pipe piles and two 36-
in steel pipe piles which would each be installed first using a 
vibratory hammer to within 5 ft (1.5 m) of tip elevation, and then 
driven with an impact hammer to verify bearing capacity.
    2. Wingwalls and dolphins: The existing pair of timber dolphins 
would be replaced with a new pair of steel wingwalls. Two new fixed 
pile dolphins would be constructed adjacent to the Trask Pier. The 
wingwalls design would consist of four 36-inch diameter steel reaction 
piles and two 36-inch diameter fender piles. Two fixed dolphins would 
be constructed adjacent to the Trask Pier to provide protection to the 
pier and mooring lines for tie-up. The dolphin design would consist of 
four 30-inch diameter steel reaction piles and one 36-inch diameter 
fender pile. Wingwall and dolphin piles would be installed using a 
vibratory hammer only.
    3. Removal of timber walkway, timber dolphins, and U-float: the 
project would also include the removal of a currently existing timber 
walkway/trestle, four timber pile dolphins, and a U-float. The timber 
trestle removal includes 52 12-inch diameter timber piles, the four 
dolphins include a total of 134 12-inch diameter timber piles, and the 
U-float consists of four 18-inch diameter steel piles, all of which 
would be removed using a vibratory hammer.

                                                                   Table 2--Proposed Pile Driving for the Eagle Harbor Project
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                                                                                                                     Number of     Duration per      Duration                        Duration
           Project element                Pile size and type       Install or remove              Method               piles      pile (minutes)      (hours)      Rate per day       (days)
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Timber Walkway Pile Removal..........  12-in Timber...........  Remove.................  Vibratory..............              52              15              13              15               4
Timber Dolphin Removal...............  12-in Timber...........  Remove.................  Vibratory..............             134              15            33.5              15               9
Temporary Relocated Float............  18-in Steel............  Install................  Vibratory..............               4              30               4               4               1
                                                                Remove.................                                        4              30               3               4               1
U-Float Removal......................  18-in Steel............  Remove.................  Vibratory..............               4              30               4               4               1
Trestle and Transfer Span............  24-in Steel............  Install................  Vibratory..............               9              30             4.5               4               3
                                                                                         Impact.................               9              30             4.5               3               3
                                       36-inSteel.............  Install................  Vibratory..............               2              30               1               4               1
                                                                                         Impact.................               2              30               1               3               1
Wingwall.............................  30-in Steel............  Install................  Vibratory..............               8              30               4               4               2
                                       36-in Steel............  Install................  Vibratory..............               4              30               2               4               1

[[Page 48627]]

 
Intermediate Dolphin.................  30-in Steel............  Install................  Vibratory..............               4              30               2               4               1
                                       36-in Steel............  Install................  Vibratory..............               1              30               5               4               1
Outer Dolphin........................  30-in Steel............  Install................  Vibratory..............               4              30               2               4               1
                                       36-in Steel............  Install................  Vibratory..............               2              30               1               4               1
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Total Piles Removed.............................................................................................             194
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Total Piles Installed...........................................................................................              38
Total Duration (days)...........................................................................................  ..............  ..............  ..............  ..............              31
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    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

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. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' Stock Assessment Reports 
(SARs; 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' website (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. 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' 
SARs). While no serious injury or 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' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Pacific and Alaska SARs. All values presented in Table 3 are 
the most recent available at the time of publication and are available 
in the 2020 SARs (Carretta et al., 2021, Muto et al., 2021) and draft 
2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                              Table 3--Species Likely Impacted by the Specified Activities
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                                                                                                                 Stock abundance
                                                                                 ESA/MMPA status;  strategic     (CV, Nmin, most               Annual M/
            Common name                Scientific name            Stock                   (Y/N) \1\             recent abundance       PBR       SI \3\
                                                                                                                   survey) \2\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale....................  Eschrichtius          Eastern N Pacific...  -, -, N                       26,960 (0.05,               801        131
                                     robustus.                                                                 25,849, 2016).
Family Balaenopteridae (rorquals):
    Minke whale...................  Balaenoptera          California/Oregon/    -, -, N                       915 (0.792, 509,            4.1     >=0.59
                                     acutorostrata.        Washington.                                         2018).
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Long-Beaked Common Dolphin....  Delphinus capensis..  California..........  -, -, N                       83,379 (0.216,              668     >=29.7
                                                                                                               69,636, 2018).
    Bottlenose Dolphin............  Tursiops truncatus..  California Coastal..  -, -, N                       453 (0.06, 346,             2.7      >=2.0
                                                                                                               2011).
    Pacific White-Sided Dolphin...  Lagenorhynchus        California/Oregon/    -, -, N                       34,999 (0.222,              279          7
                                     obliquidens.          Washington.                                         29,090, 2018).
    Killer Whale..................  Orcinus orca........  West Coast Transient  -, -, N                       349 \4\ (N/A, 349,          3.5        0.4
                                                                                                               2018).
Family Phocoenidae (porpoises):
    Harbor Porpoise...............  Phocoena phocoena...  Washington Inland     -, -, N                       11,233 (0.37, 8,308,         66      >=7.2
                                                           Waters.                                             2015).
    Dall's Porpoise...............  Phocoenoides dalli..  California/Oregon/    -, -, N                       16,498 (0.61,                99     >=0.66
                                                           Washington.                                         10,286, 2019).
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[[Page 48628]]

 
                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California Sea Lion...........  Zalophus              U.S.................  -, -, N                       257,606 (N/A,            14,011       >320
                                     californianus.                                                            233,515, 2014).
    Steller Sea Lion..............  Eumetopias jubatus..  Eastern.............  -, -, N                       43,201 \5\ (see SAR,      2,592        112
                                                                                                               43,201, 2017).
Family Phocidae (earless seals):
    Harbor Seal...................  Phoca vitulina......  Washington Northern   -, -, N                       11,036 \6\ (UNK,            UND        9.8
                                                           Inland Waters.                                      UNK, 1999).
    Northern Elephant Seal........  Mirounga              California Breeding.  -, -, N                       187,386 (N/A,             5,122       13.7
                                     angustirostris.                                                           85,369, 2013).
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\1\ 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-assessment-reports-region. 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 mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range.
\4\ Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted
  infrequently.
\5\ Best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys.
\6\ The abundance estimate for this stock is greater than eight years old and is therefore not considered current. PBR is considered undetermined for
  this stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as
  these represent the best available information for use in this document.

    As indicated above, all 12 species (with 12 managed stocks) in 
Table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. While humpback whales 
(Megaptera novaeangliae) and killer whales from the Southern Resident 
stock are known to occur in Puget Sound, in consideration of the 
proposed requirements described in the Proposed Mitigation and Proposed 
Monitoring and Reporting sections of this notice, WSDOT has determined 
that take of these species is unlikely to occur and has therefore not 
requested take of humpback whales or Southern Resident killer whales. 
NMFS has concurred with this determination and no take of these species 
is anticipated or proposed to be authorized.

Gray Whale

    Gray whales generally spend the summer and fall in Arctic feeding 
grounds and winter to early spring in Mexican breeding areas. Between 
October and February, the species migrates south along the U.S. West 
Coast, returning north between February and July (Carretta et al., 
2021). A subpopulation of the Eastern North Pacific stock, referred to 
as the Pacific Coast Feeding Group (PCFG), remains along the Washington 
and Oregon coast to feed for extended periods while the rest of the 
stock continues along their migratory path (Calambokidis et al., 2018). 
Occurrence of gray whales in Puget Sound has been steadily increasing 
in recent years and is generally highest between February and May. Most 
gray whales remain further north in Puget Sound, concentrating in the 
waters around Whidbey Island, but some venture south, including into 
Elliott Bay near WSDOT's proposed activities (Orca Network, 2021). 
During 372 total days of construction at the Washington State Ferries 
Multimodal Project at Colman Dock in Seattle between 2017 and 2021, a 
total of 4 gray whales were observed, with a maximum of 1 individual 
observed on a single day.
    Biologically Important Areas (BIAs) for feeding gray whales along 
the coasts of Washington, Oregon, and California have been identified, 
including northern Puget Sound, Northwestern Washington, and Grays 
Harbor in Washington, Depoe Bay and Cape Blanco and Orford Reef in 
Oregon, and Point St. George in California; most of these areas are of 
importance from late spring through early fall (Calambokidis et al., 
2015). BIAs have also been identified for migrating gray whales along 
the entire coasts of Washington (including the inland waters of Puget 
Sound), Oregon, and California; although most whales travel within 10 
km from shore, the BIAs were extended out to 47 km from the coastline 
(Calambokidis et al., 2015).
    On May 30, 2019, NMFS declared an unusual mortality event (UME) for 
gray whales after elevated numbers of strandings occurred along the 
U.S. west coast. As of January 7, 2022, a total of 502 stranded gray 
whales have been reported, including 256 in the United States (117 in 
Alaska, 56 in Washington, 12 in Oregon, and 71 in California), 225 in 
Mexico, and 21 in Canada. Full or partial necropsy examinations were 
conducted on a subset of the whales. Preliminary findings in several of 
the whales have shown evidence of emaciation. These findings are not 
consistent across all of the whales examined, so more research is 
needed. The UME is ongoing, and NMFS continues to investigate the 
cause(s). Additional information about the UME is available at https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2020-gray-whale-unusual-mortality-event-along-west-coast.

Minke Whale

    The International Whaling Commission (IWC) recognizes three stocks 
of minke whales in the North Pacific: The Sea of Japan/East China Sea, 
the rest of the western Pacific west of 180[deg] N, and the remainder 
of the Pacific (Donovan 1991). Minke whales are relatively common in 
the Bering and Chukchi seas and in the Gulf of Alaska, but are not 
considered abundant in any other part of the eastern Pacific 
(Brueggeman et al., 1990). In the far north, minke whales are thought 
to be migratory, but they are believed to be year-round residents in 
coastal waters off the west coast of the United States (Dorsey et al., 
1990).
    Minke whales are reported in Washington inland waters year-round, 
although few are reported in the winter (i.e., during the anticipated 
in-water work window for these projects;

[[Page 48629]]

Calambokidis and Baird 1994). They are relatively common in the San 
Juan Islands and Strait of Juan de Fuca (especially around several of 
the banks in both the central and eastern Strait), but are relatively 
rare in Puget Sound and the Orca Network has no sighting records of 
minke whales in the project areas. During 372 total days of 
construction at the Washington State Ferries Multimodal Project at 
Colman Dock in Seattle between 2017 and 2021, a single minke whale was 
observed.

Long-Beaked Common Dolphin

    Long-beaked common dolphins are commonly found along the U.S. West 
Coast, from Baja California, Mexico (including the Gulf of California), 
northward to about central California (Carretta et al., 2020). The 
Salish Sea is not considered part of their typical range (Carretta et 
al., 2020), but there have been reports of long-beaked common dolphins 
in inland waters. Two individual common dolphins were observed in 
August and September of 2011 (Whale Museum, 2015). The first record of 
a pod of long-beaked common dolphins in this area came in the summer of 
2016. Beginning on June 16, 2016 long-beaked common dolphins were 
observed near Victoria, B.C. Over the following weeks, a pod of 15 to 
20 (including a calf) was observed in central and southern Puget Sound. 
They were positively identified as long-beaked common dolphins (Orca 
Network 2016). Two long-beaked common dolphins were observed by 
Washington State Department of Transportation (WSDOT) marine mammal 
monitors during construction at Washington State Ferries Multimodal 
Project at Colman Dock in Seattle during the 2017-18 construction 
window (WSDOT 2019).

Bottlenose Dolphin

    Bottlenose dolphins are distributed worldwide from approximately 
45[deg] N to 45[deg] S. Bottlenose dolphins inhabiting west coast U.S. 
waters are considered to be in either the California coastal stock, 
which ranges from Mexico to the San Francisco area within approximately 
1 kilometer of shore, or the California/Oregon/Washington offshore 
stock, which is most commonly found along the California coast, 
northward to about the Oregon border. NMFS offshore surveys from 1991 
to 2014 resulted in no sightings during study transects off the Oregon 
or Washington coasts (Carretta et al., 2019). In September 2017, 
however, multiple sightings of a bottlenose dolphin throughout the 
Puget Sound and in Elliott Bay were reported to Cascadia Research 
Collective and Orca Network. One of the individuals was identified as 
belonging to the California coastal stock (Cascadia Research 
Collective, 2017). Bottlenose dolphins are considered rare in Puget 
Sound but occasional sightings have continued since the initial reports 
in 2017 (Orca Network, 2021). During 372 total days of construction at 
the Washington State Ferries Multimodal Project at Colman Dock in 
Seattle between 2017 and 2021, a total of 6 bottlenose dolphins were 
observed, with a maximum of 2 individuals observed on a single day.

Pacific White-Sided Dolphin

    The Pacific white-sided dolphin is found in cool temperate waters 
of the North Pacific from the southern Gulf of California to Alaska. 
Across the North Pacific, it appears to have a relatively narrow 
distribution between 38[deg] N and 47[deg] N (Brownell et al., 1999). 
In the eastern North Pacific Ocean, the Pacific white-sided dolphin is 
one of the most common cetacean species, occurring primarily in shelf 
and slope waters (Green et al., 1993; Barlow 2003, 2010). It is known 
to occur close to shore in certain regions, including (seasonally) 
southern California (Brownell et al., 1999). Results of aerial and 
shipboard surveys strongly suggest seasonal north-south movements of 
the species between California and Oregon/Washington; the movements 
apparently are related to oceanographic influences, particularly water 
temperature (Green et al., 1993; Forney and Barlow 1998; Buchanan et 
al., 2001). During winter, this species is most abundant in California 
slope and offshore areas; as northern waters begin to warm in the 
spring, it appears to move north to slope and offshore waters off 
Oregon/Washington (Green et al., 1992, 1993; Forney 1994; Forney et 
al., 1995; Buchanan et al., 2001; Barlow 2003). The highest encounter 
rates off Oregon and Washington have been reported during March-May in 
slope and offshore waters (Green et al., 1992). Large groups of Pacific 
white-sided dolphins have been observed in San Juan Channel (Orca 
Network 2012), north of Puget Sound, and may rarely occur in Central 
Puget Sound. During 372 total days of construction at the Washington 
State Ferries Multimodal Project at Colman Dock in Seattle between 2017 
and 2021, a total of 2 Pacific white-sided dolphins were observed on 
one day of construction.

Killer Whale

    There are three distinct ecotypes, or forms, of killer whales 
recognized in the north Pacific: resident, transient, and offshore. The 
three ecotypes differ morphologically, ecologically, behaviorally, and 
genetically. Resident killer whales exclusively prey upon fish, with a 
clear preference for salmon (Ford and Ellis 2006; Hanson et al., 2010; 
Ford et al., 2016), while transient killer whales exclusively prey upon 
marine mammals (Caretta et al., 2019). Less is known about offshore 
killer whales, but they are believed to consume primarily fish, 
including several species of shark (Dahlheim et al., 2008). Currently, 
there are eight killer whale stocks recognized in the U.S. Pacific 
(Carretta et al., 2021; Muto et al., 2021). Of those, individuals from 
the West Coast Transient stock may occur in the project areas and be 
taken incidental to WSDOT's proposed activities.
    Within Puget Sound, transient killer whales primarily hunt 
pinnipeds and porpoises, though some groups will occasionally target 
larger whales. The West Coast Transient stock of killer whales occurs 
from California through southeast Alaska (Muto et al., 2021). The 
seasonal movements of transients are largely unpredictable, although 
there is a tendency to investigate harbor seal haulouts off Vancouver 
Island more frequently during the pupping season in August and 
September (Baird 1994; Ford 2014). Transient killer whales have been 
observed in central Puget Sound in all months (Orca Network 2021). 
During 372 total days of construction at the Washington State Ferries 
Multimodal Project at Colman Dock in Seattle between 2017 and 2021, a 
total of 47 transient killer whales were observed, with a maximum of 20 
individuals observed on a single day.

Harbor Porpoise

    In the eastern North Pacific Ocean, harbor porpoise are found in 
coastal and inland waters from Point Barrow, along the Alaskan coast, 
and down the west coast of North America to Point Conception, 
California (Gaskin 1984). Harbor porpoise are known to occur year-round 
in the inland trans-boundary waters of Washington and British Columbia, 
Canada (Osborne et al., 1988), and along the Oregon/Washington coast 
(Barlow 1988, Barlow et al., 1988, Green et al., 1992). There was a 
significant decline in harbor porpoise sightings within southern Puget 
Sound between the 1940s and 1990s but sightings have increased 
seasonally in the last 10 years (Carretta et al., 2019). Annual winter 
aerial surveys conducted by the Washington Department of Fish and 
Wildlife from 1995 to 2015 revealed an increasing trend in harbor 
porpoise in Washington

[[Page 48630]]

inland waters, including the return of harbor porpoise to Puget Sound. 
The data suggest that harbor porpoise were already present in Juan de 
Fuca, Georgia Straits, and the San Juan Islands from the mid-1990s to 
mid-2000s, and then expanded into Puget Sound and Hood Canal from the 
mid-2000s to 2015, areas they had used historically but abandoned. 
Changes in fishery-related entanglement was suspected as the cause of 
their previous decline and more recent recovery, including a return to 
Puget Sound (Evenson et al., 2016). Seasonal surveys conducted in 
spring, summer, and fall 2013-2015 in Puget Sound and Hood Canal 
documented substantial numbers of harbor porpoise in Puget Sound. 
Observed porpoise numbers were twice as high in spring as in fall or 
summer, indicating a seasonal shift in distribution of harbor porpoise 
(Smultea 2015). The reasons for the seasonal shift and for the increase 
in sightings is unknown. During 372 total days of construction at the 
Washington State Ferries Multimodal Project at Colman Dock in Seattle 
between 2017 and 2021, a total of 413 harbor porpoises were observed, 
with a maximum of 40 individuals observed on a single day.

Dall's Porpoise

    Dall's porpoises are endemic to temperate waters of the North 
Pacific Ocean. Off the U.S. West Coast, they are commonly seen in 
shelf, slope, and offshore waters (Morejohn 1979). Sighting patterns 
from aerial and shipboard surveys conducted in California, Oregon, and 
Washington (Green et al., 1992, 1993; Forney and Barlow 1998; Barlow 
2016) suggest that north-south movement between these states occurs as 
oceanographic conditions change, both on seasonal and inter-annual time 
scales. Dall's porpoise are considered rare in Puget Sound. During 372 
total days of construction at the Washington State Ferries Multimodal 
Project at Colman Dock in Seattle between 2017 and 2021, a total of 8 
Dall's porpoises were observed, with a maximum of 5 individuals 
observed on a single day.

California Sea Lion

    The California sea lion is the most frequently sighted pinniped 
found in Washington waters and uses haul-out sites along the outer 
coast, Strait of Juan de Fuca, and in Puget Sound. Haul-out sites are 
located on jetties, offshore rocks and islands, log booms, marina 
docks, and navigation buoys. This species also may be frequently seen 
resting in the water, rafted together in groups in Puget Sound. Only 
male California sea lions migrate into Pacific Northwest waters, with 
females remaining in waters near their breeding rookeries off the coast 
of California and Mexico. The California sea lion was considered rare 
in Washington waters prior to the 1950s. More recently, peak numbers of 
3,000 to 5,000 animals move into the Salish Sea during the fall and 
remain until late spring, when most return to breeding rookeries in 
California and Mexico (Jeffries et al., 2000).
    California sea lions are often observed in the area of potential 
effects and are known to be comfortable and seemingly curious around 
human activities. The nearest documented California sea lion haulout is 
2.3 mi (3.7 km) southeast of the project sites on Blakely Rocks. 
Jeffries et al. (2000) estimated less than 100 California sea lions 
occupy the Blakely Rocks haulout site. California sea lions are not 
commonly observed in Eagle Harbor but are regularly observed in Elliott 
Bay, especially around two navigational buoys near Alki Point, at the 
southwest edge of Elliott Bay. During 372 total days of construction at 
the Washington State Ferries Multimodal Project at Colman Dock in 
Seattle between 2017 and 2021, a maximum of 38 California sea lions 
were observed on a single day.

Steller Sea Lion

    Steller sea lions range along the North Pacific Rim from northern 
Japan to California (Loughlin et al., 1984). There are two separate 
stocks of Steller sea lions, the Eastern U.S. stock, which occurs east 
of Cape Suckling, Alaska (144[deg] W), and the Western U.S. stock, 
which occurs west of that point. Only the Western stock of Steller sea 
lions, which is designated as the Western DPS of Steller sea lions, is 
listed as endangered under the ESA (78 FR 66139; November 4, 2013). 
Unlike the Western U.S. stock of Steller sea lions, there has been a 
sustained and robust increase in abundance of the Eastern U.S. stock 
throughout its breeding range. The eastern stock of Steller sea lions 
has historically bred on rookeries located in Southeast Alaska, British 
Columbia, Oregon, and California. However, within the last several 
years a new rookery has become established on the outer Washington 
coast (at the Carroll Island and Sea Lion Rock complex), with more than 
100 pups born there in 2015 (Muto et al., 2020).
    Steller sea lions use haul-out locations in Puget Sound, and may 
occur at the same haul-outs as California sea lions, but are considered 
rare visitors to the waters around Bainbridge Island. Few Steller sea 
lions have been observed during monitoring of recent construction 
projects in the Seattle area; typically fewer than 5 total observations 
per year (e.g., Anchor QEA 2018, 2019). During 372 total days of 
construction at the Washington State Ferries Multimodal Project at 
Colman Dock in Seattle between 2017 and 2021, a total of 100 Steller 
sea lions were observed, with a maximum of 10 Steller sea lions 
observed on a single day.

Harbor Seal

    Harbor seals inhabit coastal and estuarine waters off Baja 
California, north along the western coasts of the continental U.S., 
British Columbia, and Southeast Alaska, west through the Gulf of Alaska 
and Aleutian Islands, and in the Bering Sea north to Cape Newenham and 
the Pribilof Islands (Carretta et al., 2014). They haul out on rocks, 
reefs, beaches, and drifting glacial ice and feed in marine, estuarine, 
and occasionally fresh waters. Harbor seals generally are non-
migratory, with local movements associated with such factors as tides, 
weather, season, food availability, and reproduction (Scheffer and 
Slipp 1944; Fisher 1952; Bigg 1969, 1981). Within U.S. west coast 
waters, five stocks of harbor seals are recognized: (1) Southern Puget 
Sound (south of the Tacoma Narrows Bridge); (2) Washington Northern 
Inland Waters (including Puget Sound north of the Tacoma Narrows 
Bridge, the San Juan Islands, and the Strait of Juan de Fuca); (3) Hood 
Canal; (4) Oregon/Washington Coast; and (5) California. Harbor seals in 
the project areas would be from the Washington Northern Inland Waters 
stock.
    Harbor seals are the only pinniped species that occurs year-round 
and breeds in Washington waters (Jeffries et al., 2000). Pupping 
seasons vary by geographic region, with pups born in coastal estuaries 
(Columbia River, Willapa Bay, and Grays Harbor) from mid-April through 
June; Olympic Peninsula coast from May through July; San Juan Islands 
and eastern bays of Puget Sound from June through August; southern 
Puget Sound from mid-July through September; and Hood Canal from August 
through January (Jeffries et al., 2000). The most recent estimate for 
the Washington Northern Inland Waters Stock is 11,036 based on surveys 
conducted in 1999. There are no current estimates of abundance for this 
stock but the population is thought to be stable (Carretta et al., 
2014).
    There is one documented harbor seal haulout area near Bainbridge 
Island at Blakely Rocks, approximately 2.3 mi (3.7 km) southeast of the 
project sites. The haulout, which is estimated at less

[[Page 48631]]

than 100 animals, consists of intertidal rocks and reef areas 
(Jefferies et al., 2000). Harbor seals are a commonly observed marine 
mammal in the area of potential effects and are known to be comfortable 
and seemingly curious around human activities. Observations of harbor 
seals were reported during many recent construction projects along the 
Seattle waterfront. During 372 total days of construction at the 
Washington State Ferries Multimodal Project at Colman Dock in Seattle 
between 2017 and 2021, a maximum of 43 harbor seals were observed on a 
single day.

Northern Elephant Seal

    Northern elephant seals breed and give birth in California (U.S.) 
and Baja California (Mexico), primarily on offshore islands (Stewart et 
al., 1994), from December to March (NOAA 2015). Males migrate to the 
Gulf of Alaska and western Aleutian Islands along the continental shelf 
to feed on benthic prey, while females migrate to pelagic areas in the 
Gulf of Alaska and the central North Pacific Ocean to feed on pelagic 
prey (Le Boeuf et al., 2000). Adults return to land between March and 
August to molt, with males returning later than females. Adults return 
to their feeding areas again between their spring/summer molting and 
their winter breeding seasons (Carretta et al., 2015).
    During 372 total days of construction at the Washington State 
Ferries Multimodal Project at Colman Dock in Seattle between 2017 and 
2021, a single northern elephant seal was observed. Elephant seals are 
generally considered rare in Puget Sound. However, a female elephant 
seal has been reported hauled-out in Mutiny Bay on Whidbey Island 
periodically since 2010. She was observed alone for her first three 
visits to the area, but in March 2015, she was seen with a pup. Since 
then, she has produced two more pups, born in 2018 and 2020. Northern 
elephant seals generally give birth in January but this individual has 
repeatedly given birth in March. She typically returns to Mutiny Bay in 
April and May to molt. Her pups have also repeatedly returned to haul-
out on nearby beaches (Orca Network 2020).

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. 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, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). 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 4.

           Table 4--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.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a 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 Proposed Mitigation section, to draw conclusions regarding the 
likely impacts of these activities on the reproductive success or 
survivorship of individuals and whether those impacts are reasonably 
expected to, or reasonably likely to, adversely affect the species or 
stock through effects on annual rates of recruitment or survival.
    Acoustic effects on marine mammals during the specified activities 
can occur from impact pile driving and vibratory driving and removal. 
The effects of underwater noise from WSDOT's proposed activities have 
the potential to result in Level A or Level B harassment of marine 
mammals in the action areas.

Description of Sound Sources

    The marine soundscape is comprised of both ambient and 
anthropogenic sounds. Ambient sound is defined as the all-encompassing 
sound in a given place and is usually a composite of sound from many 
sources both near and far (ANSI 1995). The sound level of an area is 
defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., waves, wind, 
precipitation, earthquakes, ice, atmospheric sound), biological (e.g.,

[[Page 48632]]

sounds produced by marine mammals, fish, and invertebrates), and 
anthropogenic sound (e.g., vessels, dredging, aircraft, construction).
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 
decibels (dB) from day to day (Richardson et al., 1995). The result is 
that, depending on the source type and its intensity, sound from the 
specified activities may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    In-water construction activities associated with the projects would 
include impact and vibratory pile driving and removal. The sounds 
produced by these activities fall into one of two general sound types: 
impulsive and non-impulsive. Impulsive sounds (e.g., explosions, sonic 
booms, impact pile driving) are typically transient, brief (less than 1 
second), broadband, and consist of high peak sound pressure with rapid 
rise time and rapid decay (ANSI, 1986; NIOSH, 1998; NMFS, 2018). Non-
impulsive sounds (e.g., machinery operations such as drilling or 
dredging, vibratory pile driving, underwater chainsaws, and active 
sonar systems) can be broadband, narrowband or tonal, brief or 
prolonged (continuous or intermittent), and typically do not have the 
high peak sound pressure with raid rise/decay time that impulsive 
sounds do (ANSI 1995; NIOSH 1998; NMFS 2018). The distinction between 
these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward 1997 in Southall et al., 2007).
    Two types of hammers would be used on these projects, impact and 
vibratory. Impact hammers operate by repeatedly dropping and/or pushing 
a heavy piston onto a pile to drive the pile into the substrate. Sound 
generated by impact hammers is considered impulsive. Vibratory hammers 
install piles by vibrating them and allowing the weight of the hammer 
to push them into the sediment. Vibratory hammers produce non-
impulsive, continuous sounds. Vibratory hammering generally produces 
SPLs 10 to 20 dB lower than impact pile driving of the same-sized pile 
(Oestman et al., 2009). Rise time is slower, reducing the probability 
and severity of injury, and sound energy is distributed over a greater 
amount of time (Nedwell and Edwards, 2002; Carlson et al., 2005).
    The likely or possible impacts of WSDOT's proposed activities on 
marine mammals could be generated from both non-acoustic and acoustic 
stressors. Potential non-acoustic stressors include the physical 
presence of the equipment, vessels, and personnel; however, we expect 
that any animals that approach the project site(s) close enough to be 
harassed due to the presence of equipment or personnel would be within 
the Level B harassment zones from pile driving and would already be 
subject to harassment from the in-water activities. Therefore, any 
impacts to marine mammals are expected to primarily be acoustic in 
nature. Acoustic stressors are generated by heavy equipment operation 
during pile installation and removal (i.e., impact and vibratory pile 
driving and removal).

Acoustic Impacts

    The introduction of anthropogenic noise into the aquatic 
environment from pile driving equipment is the primary means by which 
marine mammals may be harassed from WSDOT's specified activities. In 
general, animals exposed to natural or anthropogenic sound may 
experience physical and psychological effects, ranging in magnitude 
from none to severe (Southall et al., 2007). Generally, exposure to 
pile driving and removal and other construction noise has the potential 
to result in auditory threshold shifts and behavioral reactions (e.g., 
avoidance, temporary cessation of foraging and vocalizing, changes in 
dive behavior). Exposure to anthropogenic noise can also lead to non-
observable physiological responses such as an increase in stress 
hormones. Additional noise in a marine mammal's habitat can mask 
acoustic cues used by marine mammals to carry out daily functions such 
as communication and predator and prey detection. The effects of pile 
driving and demolition noise on marine mammals are dependent on several 
factors, including, but not limited to, sound type (e.g., impulsive vs. 
non-impulsive), the species, age and sex class (e.g., adult male vs. 
mother with calf), duration of exposure, the distance between the pile 
and the animal, received levels, behavior at time of exposure, and 
previous history with exposure (Wartzok et al., 2004; Southall et al., 
2007). Here we discuss physical auditory effects (threshold shifts) 
followed by behavioral effects and potential impacts on habitat. No 
physiological effects other than PTS are anticipated or proposed to be 
authorized, and therefore are not discussed further.
    NMFS defines a noise-induced threshold shift (TS) as a change, 
usually an increase, in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS, 2018). The amount of 
threshold shift is customarily expressed in dB. A TS can be permanent 
or temporary. As described in NMFS (2018), there are numerous factors 
to consider when examining the consequence of TS, including, but not 
limited to, the signal temporal pattern (e.g., impulsive or non-
impulsive), likelihood an individual would be exposed for a long enough 
duration or to a high enough level to induce a TS, the magnitude of the 
TS, time to recovery (seconds to minutes or hours to days), the 
frequency range of the exposure (i.e., spectral content), the hearing 
and vocalization frequency range of the exposed species relative to the 
signal's frequency spectrum (i.e., how animal uses sound within the 
frequency band of the signal; e.g., Kastelein et al., 2014), and the 
overlap between the animal and the source (e.g., spatial, temporal, and 
spectral).
    Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent, 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2018). Available data from 
humans and other terrestrial mammals indicate that a 40 dB threshold 
shift approximates PTS onset (see Ward et al., 1958, 1959; Ward, 1960; 
Kryter et al., 1966; Miller, 1974; Ahroon et al., 1996; Henderson et 
al., 2008). PTS levels for marine mammals are estimates, because there 
are limited empirical data measuring PTS in marine mammals (e.g., 
Kastak et al., 2008), largely due to the fact that, for various ethical 
reasons, experiments involving anthropogenic noise exposure at levels 
inducing PTS are not typically pursued or authorized (NMFS, 2018).
    Temporary Threshold Shift (TTS)--TTS is a temporary, reversible 
increase in the threshold of audibility at a specified frequency or 
portion of an individual's hearing range above a

[[Page 48633]]

previously established reference level (NMFS, 2018). Based on data from 
cetacean TTS measurements (see Southall et al., 2007), a TTS of 6 dB is 
considered the minimum threshold shift clearly larger than any day-to-
day or session-to-session variation in a subject's normal hearing 
ability (Schlundt et al., 2000; Finneran et al., 2000, 2002). As 
described in Finneran (2016), marine mammal studies have shown the 
amount of TTS increases with cumulative sound exposure level 
(SELcum) in an accelerating fashion: At low exposures with 
lower SELcum, the amount of TTS is typically small and the 
growth curves have shallow slopes. At exposures with higher 
SELcum, the growth curves become steeper and approach linear 
relationships with the noise SEL.
    Depending on the degree (elevation of threshold in dB), duration 
(i.e., recovery time), and frequency range of TTS, and the context in 
which it is experienced, TTS can have effects on marine mammals ranging 
from discountable to serious (similar to those discussed in auditory 
masking, below). For example, a marine mammal may be able to readily 
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal 
is traveling through the open ocean, where ambient noise is lower and 
there are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts. We note that reduced hearing sensitivity as 
a simple function of aging has been observed in marine mammals, as well 
as humans and other taxa (Southall et al., 2007), so we can infer that 
strategies exist for coping with this condition to some degree, though 
likely not without cost.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor 
porpoise, and Yangtze finless porpoise (Neophocoena asiaeorientalis)) 
and five species of pinnipeds exposed to a limited number of sound 
sources (i.e., mostly tones and octave-band noise) in laboratory 
settings (Finneran, 2015). TTS was not observed in trained spotted 
(Phoca largha) and ringed (Pusa hispida) seals exposed to impulsive 
noise at levels matching previous predictions of TTS onset (Reichmuth 
et al., 2016). In general, harbor seals and harbor porpoises have a 
lower TTS onset than other measured pinniped or cetacean species 
(Finneran, 2015). The potential for TTS from impact pile driving 
exists. After exposure to playbacks of impact pile driving sounds (rate 
2,760 strikes/hour) in captivity, mean TTS increased from 0 dB after 15 
minute exposure to 5 dB after 360 minute exposure; recovery occurred 
within 60 minutes (Kastelein et al., 2016). Additionally, the existing 
marine mammal TTS data come from a limited number of individuals within 
these species. No data are available on noise-induced hearing loss for 
mysticetes. Nonetheless, what we considered is the best available 
science. For summaries of data on TTS in marine mammals or for further 
discussion of TTS onset thresholds, please see Southall et al. (2007), 
Finneran and Jenkins (2012), Finneran (2015), and Table 5 in NMFS 
(2018).
    WSDOT proposes to use impact pile driving to install some piles for 
these projects. There would likely be pauses in activities producing 
the sound (e.g., impact pile driving) during each day. Given these 
pauses and the fact that many marine mammals are likely moving through 
the project areas and not remaining for extended periods of time, the 
potential for TS declines.
    Behavioral Harassment--Exposure to noise from pile driving and 
removal also has the potential to behaviorally disturb marine mammals. 
Available studies show wide variation in response to underwater sound; 
therefore, it is difficult to predict specifically how any given sound 
in a particular instance might affect marine mammals perceiving the 
signal. If a marine mammal does react briefly to an underwater sound by 
changing its behavior or moving a small distance, the impacts of the 
change are unlikely to be significant to the individual, let alone the 
stock or population. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on individuals and populations could be significant 
(e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC, 2005).
    Disturbance may result in changing durations of surfacing and 
dives, number of blows per surfacing, or moving direction and/or speed; 
reduced/increased vocal activities; changing/cessation of certain 
behavioral activities (such as socializing or feeding); visible startle 
response or aggressive behavior (such as tail/fluke slapping or jaw 
clapping); or avoidance of areas where sound sources are located. 
Pinnipeds may increase their haul-out time, possibly to avoid in-water 
disturbance (Thorson and Reyff, 2006). Behavioral responses to sound 
are highly variable and context-specific and any reactions depend on 
numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors 
(e.g., Richardson et al., 1995; Wartzok et al., 2004; Southall et al., 
2007; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can 
vary not only among individuals but also within an individual, 
depending on previous experience with a sound source, context, and 
numerous other factors (Ellison et al., 2012), and can vary depending 
on characteristics associated with the sound source (e.g., whether it 
is moving or stationary, number of sources, distance from the source). 
In general, pinnipeds seem more tolerant of, or at least habituate more 
quickly to, potentially disturbing underwater sound than do cetaceans, 
and generally seem to be less responsive to exposure to industrial 
sound than most cetaceans. Please see Appendices B and C of Southall et 
al. (2007) for a review of studies involving marine mammal behavioral 
responses to sound.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al., 
2007). A determination of whether foraging disruptions incur fitness 
consequences would require information on or estimates of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal.
    In 2016, the Alaska Department of Transportation and Public 
Facilities (ADOT&PF) documented observations of marine mammals during 
construction activities (i.e., pile driving) at the Kodiak Ferry Dock 
(see 80 FR 60636, October 7, 2015). In the marine mammal monitoring 
report for that project (ABR 2016), 1,281 Steller sea lions were 
observed within the Level B disturbance zone during pile driving or 
drilling (i.e., documented as Level B harassment take). Of these, 19 
individuals demonstrated an alert behavior, 7 were fleeing, and 19 swam 
away from the

[[Page 48634]]

project site. All other animals (98 percent) were engaged in activities 
such as milling, foraging, or fighting and did not change their 
behavior. In addition, two sea lions approached within 20 m of active 
vibratory pile driving activities. Three harbor seals were observed 
within the disturbance zone during pile driving activities; none of 
them displayed disturbance behaviors. Fifteen killer whales and three 
harbor porpoise were also observed within the Level B harassment zone 
during pile driving. The killer whales were travelling or milling while 
all harbor porpoises were travelling. No signs of disturbance were 
noted for either of these species. Given the similarities in species, 
activities, and habitat (e.g., cool-temperate waters, industrialized 
area), we expect similar behavioral responses from the same and similar 
species affected by WSDOT's specified activities. That is, disturbance, 
if any, is likely to be temporary and localized (e.g., small area 
movements).
    Stress responses--An animal's perception of a threat may be 
sufficient to trigger stress responses consisting of some combination 
of behavioral responses, autonomic nervous system responses, 
neuroendocrine responses, or immune responses (e.g., Seyle 1950; Moberg 
2000). In many cases, an animal's first and sometimes most economical 
(in terms of energetic costs) response is behavioral avoidance of the 
potential stressor. Autonomic nervous system responses to stress 
typically involve changes in heart rate, blood pressure, and 
gastrointestinal activity. These responses have a relatively short 
duration and may or may not have a significant long-term effect on an 
animal's fitness.
    Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that 
are affected by stress--including immune competence, reproduction, 
metabolism, and behavior--are regulated by pituitary hormones. Stress-
induced changes in the secretion of pituitary hormones have been 
implicated in failed reproduction, altered metabolism, reduced immune 
competence, and behavioral disturbance (e.g., Moberg 1987; Blecha 
2000). Increases in the circulation of glucocorticoids are also equated 
with stress (Romano et al., 2004).
    The primary distinction between stress (which is adaptive and does 
not normally place an animal at risk) and ``distress'' is the cost of 
the response. During a stress response, an animal uses glycogen stores 
that can be quickly replenished once the stress is alleviated. In such 
circumstances, the cost of the stress response would not pose serious 
fitness consequences. However, when an animal does not have sufficient 
energy reserves to satisfy the energetic costs of a stress response, 
energy resources must be diverted from other functions. This state of 
distress will last until the animal replenishes its energetic reserves 
sufficient to restore normal function.
    Relationships between these physiological mechanisms, animal 
behavior, and the costs of stress responses are well-studied through 
controlled experiments and for both laboratory and free-ranging animals 
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; 
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to 
exposure to anthropogenic sounds or other stressors and their effects 
on marine mammals have also been reviewed (Fair and Becker 2000; Romano 
et al., 2002b) and, more rarely, studied in wild populations (e.g., 
Romano et al., 2002a). For example, Rolland et al. (2012) found that 
noise reduction from reduced ship traffic in the Bay of Fundy was 
associated with decreased stress in North Atlantic right whales. These 
and other studies lead to a reasonable expectation that some marine 
mammals will experience physiological stress responses upon exposure to 
acoustic stressors and that it is possible that some of these would be 
classified as ``distress.'' In addition, any animal experiencing TTS 
would likely also experience stress responses (NRC, 2003), however 
distress is an unlikely result of these projects based on observations 
of marine mammals during previous, similar projects in the area.
    Masking--Sound can disrupt behavior through masking, or interfering 
with, an animal's ability to detect, recognize, or discriminate between 
acoustic signals of interest (e.g., those used for intraspecific 
communication and social interactions, prey detection, predator 
avoidance, navigation) (Richardson et al., 1995). Masking occurs when 
the receipt of a sound is interfered with by another coincident sound 
at similar frequencies and at similar or higher intensity, and may 
occur whether the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., pile driving, shipping, sonar, 
seismic exploration) in origin. The ability of a noise source to mask 
biologically important sounds depends on the characteristics of both 
the noise source and the signal of interest (e.g., signal-to-noise 
ratio, temporal variability, direction), in relation to each other and 
to an animal's hearing abilities (e.g., sensitivity, frequency range, 
critical ratios, frequency discrimination, directional discrimination, 
age or TTS hearing loss), and existing ambient noise and propagation 
conditions. Masking of natural sounds can result when human activities 
produce high levels of background sound at frequencies important to 
marine mammals. Conversely, if the background level of underwater sound 
is high (e.g., on a day with strong wind and high waves), an 
anthropogenic sound source would not be detectable as far away as would 
be possible under quieter conditions and would itself be masked. The 
Puget Sound area contains active commercial shipping, ferry operations, 
and commercial fishing as well as numerous recreational and other 
commercial vessels, and background sound levels in the area are already 
elevated.
    Airborne Acoustic Effects--Pinnipeds that occur near the project 
site could be exposed to airborne sounds associated with pile driving 
and removal that have the potential to cause behavioral harassment, 
depending on their distance from pile driving activities. Cetaceans are 
not expected to be exposed to airborne sounds that would result in 
harassment as defined under the MMPA.
    Airborne noise would primarily be an issue for pinnipeds that are 
swimming or hauled out near the project site within the range of noise 
levels elevated above the acoustic criteria. We recognize that 
pinnipeds in the water could be exposed to airborne sound that may 
result in behavioral harassment when looking with their heads above 
water. Most likely, airborne sound would cause behavioral responses 
similar to those discussed above in relation to underwater sound. For 
instance, anthropogenic sound could cause hauled-out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to temporarily abandon the area and move 
further from the source. However, these animals would likely previously 
have been `taken' because of exposure to underwater sound above the 
behavioral harassment thresholds, which are generally larger than those 
associated with airborne sound. There are no haulouts near the project 
sites. Thus, the behavioral harassment of these animals is already 
accounted for in these estimates of potential take. Therefore, we do 
not believe that authorization of incidental take resulting from 
airborne sound for pinnipeds is warranted, and airborne sound is not 
discussed further here.

[[Page 48635]]

Marine Mammal Habitat Effects

    WSDOT's proposed construction activities could have localized, 
temporary impacts on marine mammal habitat, including prey, by 
increasing in-water sound pressure levels and slightly decreasing water 
quality. Increased noise levels may affect acoustic habitat (see 
masking discussion above) and adversely affect marine mammal prey in 
the vicinity of the project areas (see discussion below). During impact 
and vibratory pile driving or removal, elevated levels of underwater 
noise would ensonify the project areas where both fishes and mammals 
occur and could affect foraging success. Additionally, marine mammals 
may avoid the area during construction, however, displacement due to 
noise is expected to be temporary and is not expected to result in 
long-term effects to the individuals or populations. Construction 
activities are of short duration and would likely have temporary 
impacts on marine mammal habitat through increases in underwater and 
airborne sound.
    A temporary and localized increase in turbidity near the seafloor 
would occur in the immediate area surrounding the area where piles are 
installed or removed. In general, turbidity associated with pile 
installation is localized to about a 25-ft (7.6-m) radius around the 
pile (Everitt et al., 1980). The sediments of the project site will 
settle out rapidly when disturbed. Cetaceans are not expected to be 
close enough to the pile driving areas to experience effects of 
turbidity, and any pinnipeds could avoid localized areas of turbidity. 
Local currents are anticipated to disburse any additional suspended 
sediments produced by project activities at moderate to rapid rates 
depending on tidal stage. Therefore, we expect the impact from 
increased turbidity levels to be discountable to marine mammals and do 
not discuss it further.

In-Water Construction Effects on Potential Foraging Habitat

    The area likely impacted by the project is relatively small 
compared to the available habitat in Puget Sound. The area is highly 
influenced by anthropogenic activities. The total seafloor area 
affected by pile installation and removal is a small area compared to 
the vast foraging area available to marine mammals in the area. At 
best, the impact area provides marginal foraging habitat for marine 
mammals and fishes. Furthermore, pile driving and removal at the 
project site would not obstruct long-term movements or migration of 
marine mammals.
    Avoidance by potential prey (i.e., fish or, in the case of 
transient killer whales, other marine mammals) of the immediate area 
due to the temporary loss of this foraging habitat is also possible. 
The duration of fish and marine mammal avoidance of this area after 
pile driving stops is unknown, but a rapid return to normal 
recruitment, distribution, and behavior is anticipated. Any behavioral 
avoidance by fish or marine mammals of the disturbed area would still 
leave significantly large areas of fish and marine mammal foraging 
habitat in the nearby vicinity.
    In-Water Construction Effects on Potential Prey--Sound may affect 
marine mammals through impacts on the abundance, behavior, or 
distribution of prey species (e.g., crustaceans, cephalopods, fish, 
zooplankton, other marine mammals). Marine mammal prey varies by 
species, season, and location. Here, we describe studies regarding the 
effects of noise on known marine mammal prey other than other marine 
mammals (which have been discussed earlier).
    Fish utilize the soundscape and components of sound in their 
environment to perform important functions such as foraging, predator 
avoidance, mating, and spawning (e.g., Zelick and Mann, 1999; Fay, 
2009). Depending on their hearing anatomy and peripheral sensory 
structures, which vary among species, fishes hear sounds using pressure 
and particle motion sensitivity capabilities and detect the motion of 
surrounding water (Fay et al., 2008). The potential effects of noise on 
fishes depends on the overlapping frequency range, distance from the 
sound source, water depth of exposure, and species-specific hearing 
sensitivity, anatomy, and physiology. Key impacts to fishes may include 
behavioral responses, hearing damage, barotrauma (pressure-related 
injuries), and mortality.
    Fish react to sounds which are especially strong and/or 
intermittent low-frequency sounds, and behavioral responses such as 
flight or avoidance are the most likely effects. Short duration, sharp 
sounds can cause overt or subtle changes in fish behavior and local 
distribution. The reaction of fish to noise depends on the 
physiological state of the fish, past exposures, motivation (e.g., 
feeding, spawning, migration), and other environmental factors. 
Hastings and Popper (2005) identified several studies that suggest fish 
may relocate to avoid certain areas of sound energy. Additional studies 
have documented effects of pile driving on fish; several are based on 
studies in support of large, multiyear bridge construction projects 
(e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Several 
studies have demonstrated that impulse sounds might affect the 
distribution and behavior of some fishes, potentially impacting 
foraging opportunities or increasing energetic costs (e.g., Fewtrell 
and McCauley, 2012; Pearson et al., 1992; Skalski et al., 1992; 
Santulli et al., 1999; Paxton et al., 2017). However, some studies have 
shown no or slight reaction to impulse sounds (e.g., Pena et al., 2013; 
Wardle et al., 2001; Jorgenson and Gyselman, 2009; Popper et al., 
2015).
    SPLs of sufficient strength have been known to cause injury to fish 
and fish mortality. However, in most fish species, hair cells in the 
ear continuously regenerate and loss of auditory function likely is 
restored when damaged cells are replaced with new cells. Halvorsen et 
al. (2012a) showed that a TTS of 4-6 dB was recoverable within 24 hours 
for one species. Impacts would be most severe when the individual fish 
is close to the source and when the duration of exposure is long. 
Injury caused by barotrauma can range from slight to severe and can 
cause death, and is most likely for fish with swim bladders. Barotrauma 
injuries have been documented during controlled exposure to impact pile 
driving (Halvorsen et al., 2012b; Casper et al., 2013).
    The most likely impact to fishes from pile driving and removal and 
construction activities at the project areas would be temporary 
behavioral avoidance of the area. The duration of fish avoidance of 
this area after pile driving stops is unknown, but a rapid return to 
normal recruitment, distribution, and behavior is anticipated.
    Construction activities, in the form of increased turbidity, have 
the potential to adversely affect forage fish in the project areas. 
Forage fish form a significant prey base for many marine mammal species 
that occur in the project areas. Increased turbidity is expected to 
occur in the immediate vicinity (on the order of 10 ft (3 m) or less) 
of construction activities. However, suspended sediments and 
particulates are expected to dissipate quickly within a single tidal 
cycle. Given the limited area affected and high tidal dilution rates 
any effects on forage fish are expected to be minor or negligible. 
Finally, exposure to turbid waters from construction activities is not 
expected to be different from the current exposure; fish and marine 
mammals in Eagle Harbor are routinely exposed to substantial levels of 
suspended

[[Page 48636]]

sediment from natural and anthropogenic sources.
    In summary, given the short daily duration of sound associated with 
individual pile driving events and the relatively small areas being 
affected, pile driving activities associated with the proposed actions 
are not likely to have a permanent, adverse effect on any fish habitat, 
or populations of fish species. Any behavioral avoidance by fish of the 
disturbed area would still leave significantly large areas of fish and 
marine mammal foraging habitat in the nearby vicinity. Thus, we 
conclude that impacts of the specified activities are not likely to 
have more than short-term adverse effects on any prey habitat or 
populations of prey species. Further, any impacts to marine mammal 
habitat are not expected to result in significant or long-term 
consequences for individual marine mammals, or to contribute to adverse 
impacts on their populations.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determinations.
    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 (in the 
form of behavioral disturbance and TTS), as use of the acoustic sources 
(i.e., vibratory or impact pile driving and removal) have the potential 
to result in disruption of behavioral patterns and cause a temporary 
loss in hearing sensitivity for individual marine mammals. There is 
also some potential for auditory injury (Level A harassment) to result 
for porpoises and harbor seals because predicted auditory injury zones 
are larger. The proposed mitigation and monitoring measures are 
expected to minimize the severity of the taking to the extent 
practicable.
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized for this activity. Below we 
describe how the proposed take numbers are estimated.
    For acoustic impacts, 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) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the proposed take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--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 or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (rms SPL) of 120 dB (referenced 
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile-
driving, drilling) and above rms SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources.
    WSDOT's proposed activities includes the use of continuous 
(vibratory hammer) and impulsive (impact hammer) sources, and therefore 
the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
    Level A harassment--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 
activities include the use of impulsive (impact hammer) and non-
impulsive (vibratory hammer) 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: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 5--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.

[[Page 48637]]

 
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, ANSI defines peak sound pressure 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 are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    The sound field in the project areas is the existing background 
noise plus additional construction noise from the proposed project. 
Marine mammals are expected to be affected by sound generated by the 
primary components of the project (i.e., impact and vibratory pile 
driving).
    In order to calculate distances to the Level A harassment and Level 
B harassment thresholds for the methods and piles being used in these 
projects, NMFS used acoustic monitoring data from previous pile driving 
at the Bainbridge Island Ferry Terminal (impact installation of 24-in 
steel piles) and Eagle Harbor Maintenance Facility (impact installation 
of 30-in steel piles), as well as pile driving at other locations 
within Puget Sound to develop source levels for the various pile types, 
sizes, and methods for the two projects (Table 6). A source level for 
vibratory driving of 18-in steel piles is not available so it is 
conservatively assumed to be equivalent to the source level for 24-in 
steel piles.

                                  Table 6--Expected Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                                                                              Source level
     Pile type and size (in)              Method        Source level (dB re    measurement        Reference
                                                             1 [mu]Pa)        distance (m)
----------------------------------------------------------------------------------------------------------------
12-in timber.....................  Vibratory removal..  152 dB rms.........              10  Greenbusch Group
                                                                                              (2018).
18-in and 24-in steel............  Vibratory            166 dB rms.........              10  WSDOT (2020) \1\.
                                    installation and
                                    removal.
30-in steel......................  Vibratory            176 dB rms.........               6  WSDOT (2020) \1\.
                                    installation and
                                    removal.
36-in steel......................  Vibratory            184 dB rms.........              10  WSDOT (2020) \1\.
                                    installation.
24-in steel......................  Impact installation  206 dB peak; 179 dB              10  WSDOT (2020) \1\.
                                                         SEL; 195 dB rms.
30-in steel......................  Impact installation  194 dB peak; 182 dB              10  WSDOT (2020) \1\.
                                                         SEL; 184 dB rms.
36-in steel......................  Impact installation  205 dB peak; 178 dB              10  WSDOT (2020) \1\.
                                                         SEL; 191 dB rms.
----------------------------------------------------------------------------------------------------------------
\1\ WSDOT Biological Assessment Manual Table 7-15.

Level B Harassment Zones

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

TL = B * Log10 (R1/R2)

Where:

TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for WSDOT's proposed activities in the absence of specific 
modelling. The Level B harassment zones for WSDOT's proposed activities 
are shown in Table 7.

Level A Harassment Zones

    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically

[[Page 48638]]

going to be overestimates of some degree, which may result in an 
overestimate of potential take by Level A harassment. However, this 
optional tool offers the best way to estimate isopleth distances when 
more sophisticated modeling methods are not available or practical. For 
stationary sources such as pile installation and removal, the optional 
User Spreadsheet tool predicts the distance at which, if a marine 
mammal remained at that distance for the duration of the activity, it 
would be expected to incur PTS. The isopleths generated by the User 
Spreadsheet used the same TL coefficient as the Level B harassment zone 
calculations (i.e., the practical spreading value of 15). Inputs used 
in the User Spreadsheet (e.g., number of piles per day, duration and/or 
strikes per pile) are presented in Tables 1 and 2, and the resulting 
isopleths are reported below in Table 7.

                                                Table 7--Level A Harassment and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Level A harassment zone (m)
         Pile size/type              Pile driving    -------------------------------------------------------------------------------- Level B harassment
                                        method         LF cetaceans    MF cetaceans    HF cetaceans       Phocids        Otariids          zone (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber....................  Vibratory removal.             4.1             0.4             6.1             2.5             0.2           \a\ 1,360
18-in steel.....................  Vibratory                     23.4             2.1            34.5            14.2             1.0          \a\ 11,659
                                   installation/
                                   removal.
24-in steel.....................  Vibratory                     27.1             2.4            40.1            16.5             1.2          \a\ 11,659
                                   installation/
                                   removal.
30-in steel.....................  Vibratory                     65.1             5.8            96.2            39.5             2.8      \a\ \b\ 32,470
                                   installation/
                                   removal.
36-in steel.....................  Vibratory                    485.1            43.0           717.2           294.9            20.7     \a\ \b\ 184,785
                                   installation.
24-in steel.....................  Impact                       784.8            27.9           934.8           420.0            30.6           \c\ 2,154
                                   installation.
30-in steel.....................  Impact                     1,359.6            48.4         1,619.5           727.6            53.0        \c\ 2,154398
                                   installation.
36-in steel.....................  Impact                       795.9            28.3           948.0           425.9            31.0      \c\ 2,1541,166
                                   installation.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Distance to 120 dB rms threshold.
\b\ Distance to Level B harassment threshold without obstruction; however for these projects, 13,345 m is the maximum in-water distance until land is
  reached.
\c\ Distance to 160 dB rms threshold.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information, that 
will inform the quantitative estimate of the take that is reasonably 
likely to occur and proposed for authorization. Unless otherwise 
specified, the term ``pile driving'' in this section, and all following 
sections, may refer to either pile installation or removal. WSDOT first 
estimated take for both projects using the areas ensonified above the 
Level B harassment threshold and density estimates for marine mammals 
in Puget Sound. Density estimates for all species except harbor 
porpoises were from the U.S. Navy's Marine Species Density Database 
(MSDD) for the Northwest Training and Testing (NWTT) Study Area (U.S. 
Navy, 2019). For harbor porpoises, WSDOT used the density estimate from 
Evenson (2016) as it was considered more conservative than the density 
estimate for harbor porpoises from the NWTT MSDD. However, for all 
species except harbor seals and harbor porpoises, WSDOT did not 
consider the resulting take estimates to be realistic (i.e., either 
over- or underestimated take). Instead, WSDOT compiled monitoring 
results from pile driving between August 2017 and February 2021 at the 
Seattle Ferry Terminal Multimodal Project at Colman Dock (WSDOT 2021) 
(Table 8). Because the Level B harassment zones from vibratory pile 
driving at Colman Dock extended to or near the Bainbridge Island 
shoreline, and because the Level B harassment zones from vibratory pile 
driving at the Bainbridge Ferry Terminal and Eagle Harbor Maintenance 
Facility extend to the shoreline, WSDOT considered the monitoring 
results from the Seattle Multimodal Project to be the most relevant and 
comprehensive sightings data available for the project areas. Based on 
the Seattle Multimodal Project monitoring results, WSDOT used their 
best professional judgement to estimate the number of marine mammals 
that may be taken incidental to the proposed activities.
    NMFS has carefully reviewed WSDOT's analysis and concludes that it 
represents an appropriate and accurate method for estimating incidental 
take caused by WSDOT's activities.

                                                      Table 8--Marine Mammal Density and Sightings
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Average
                   Species                          Density/km\2\          Sightings     sightings/day   Maximum one-            Take requested
                                                                             total        (372 days)     day sightings
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal..................................                     3.91           1,939            5.21              43  Yes.
Northern Elephant Seal.......................                  \1\ 0.0               1           0.003               1  Yes.
California Sea Lion..........................            0.0152-0.2211           2,625            7.05              38  Yes.
Steller Sea Lion.............................            0.0010-0.0478             100            0.27              10  Yes.
Unidentified pinniped........................                      N/A             118             N/A               9  N/A.
Killer Whale Southern Resident...............        0.000009-0.007828             297            0.80              26  No.
Killer Whale Transient.......................        0.001582-0.002373              47            0.13              20  Yes.

[[Page 48639]]

 
Gray Whale...................................                 0.000086               4           0.011               1  Yes.
Minke Whale..................................                  0.00045               1           0.003               1  Yes.
Unidentified large whale.....................                      N/A               2             N/A               1  N/A.
Unidentified small whale.....................                      N/A              10             N/A               9  N/A.
Harbor Porpoise..............................                     0.58             413            1.11              40  Yes.
Dall's Porpoise..............................                  0.00045               8            0.02               5  Yes.
Pacific White-sided Dolphin..................                      0.0               2           0.005               2  Yes.
Long-beaked Common Dolphin...................                      0.0               2           0.005               1  Yes.
Common Bottlenose Dolphin....................                      0.0               6            0.02               2  Yes.
Unidentified dolphin/porpoise................                      N/A              42             N/A               5  N/A.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Gray Whale
    WSDOT estimated that up to 20 gray whales could be taken by Level B 
harassment from each project, for a total of 40 takes of gray whales by 
Level B harassment. In consideration of the infrequent occurrence of 
gray whales in the project areas, the proposed mitigation and 
monitoring measures that WSDOT would be required to comply with, 
including marine mammal monitoring and coordination with Orca Network 
that would alert WSDOT to the presence of large whales in the project 
area (see Proposed Mitigation), and given the size and visibility of 
gray whales, WSDOT would be able to detect gray whales and stop work 
before gray whales could enter the Level A harassment zones. Therefore, 
it is unlikely that any gray whales would be taken by Level A 
harassment. No take of gray whales by Level A harassment is requested 
or proposed to be authorized.
Minke Whale
    WSDOT estimated that up to 20 minke whales could be taken by Level 
B harassment from each project, for a total of 40 takes of minke whales 
by Level B harassment. Like gray whales, in consideration of the 
infrequent occurrence of minke whales in the project areas, the 
proposed mitigation and monitoring measures that WSDOT would be 
required to comply with, including marine mammal monitoring and 
coordination with Orca Network (see Proposed Mitigation), and given the 
size and visibility of minke whales, WSDOT would be able to detect 
minke whales and stop work before minke whales could enter the Level A 
harassment zones. Therefore, it is unlikely that any minke whales would 
be taken by Level A harassment. No take of minke whales by Level A 
harassment is requested or proposed to be authorized.
Long-Beaked Common Dolphin
    WSDOT estimated that up to 20 long-beaked common dolphins could be 
taken by Level B harassment from each project, for a total of 40 takes 
of long-beaked common dolphins by Level B harassment. The Level A 
harassment zones for mid-frequency cetaceans are all less than 50 m. 
Given the visibility of long-beaked common dolphins, WSDOT would be 
able to cease pile driving before long-beaked common dolphins could 
enter the Level A harassment zone. No take of long-beaked common 
dolphins by Level A harassment is requested or proposed to be 
authorized.
Bottlenose Dolphin
    WSDOT estimated that up to 20 bottlenose dolphins could be taken by 
Level B harassment from each project, for a total of 40 takes of 
bottlenose dolphins by Level B harassment. The Level A harassment zones 
for mid-frequency cetaceans are all less than 50 m. Given the 
visibility of bottlenose dolphins, WSDOT would be able to cease pile 
driving before bottlenose dolphins could enter the Level A harassment 
zone. No take of bottlenose dolphins by Level A harassment is requested 
or proposed to be authorized.
Pacific White-Sided Dolphin
    WSDOT estimated that up to 20 Pacific white-sided dolphins could be 
taken by Level B harassment from each project, for a total of 40 takes 
of Pacific white-sided dolphins by Level B harassment. The Level A 
harassment zones for mid-frequency cetaceans are all less than 50 m. 
Given the visibility of long-beaked common dolphins, WSDOT would be 
able to cease pile driving before long-beaked common dolphins could 
enter the Level A harassment zone. No take of long-beaked common 
dolphins by Level A harassment is requested or proposed to be 
authorized.
Killer Whale (Transient)
    WSDOT estimated that up to 60 transient killer whales could be 
taken by Level B harassment from each project, for a total of 120 takes 
of killer whales by Level B harassment. The Level A harassment zones 
for mid-frequency cetaceans are all less than 50 m. Given the 
visibility of killer whales, WSDOT would be able to cease pile driving 
before killer whales could enter the Level A harassment zone. No take 
of killer whales by Level A harassment is requested or proposed to be 
authorized.
    As stated above, no take of Southern Resident killer whales is 
expected or proposed to be authorized.
Harbor Porpoise
    To estimate the number of harbor porpoises that may be taken by 
Level B harassment from the two projects, WSDOT calculated the area 
ensonified above the Level B harassment threshold for each pile size, 
type, and method for both projects. WSDOT then multiplied the estimated 
density of harbor porpoises in the area (0.58 per km\2\; Evenson 2016) 
by the ensonified area and the expected days of work for each project 
element (Table 9).

[[Page 48640]]



                                            Table 9--Estimated Take of Harbor Porpoises by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Bainbridge     Eagle Harbor
                                                                                                                          takes by Level  takes by Level
                                                            Bainbridge      Bainbridge     Eagle Harbor    Eagle Harbor    B harassment    B harassment
               Pile size, type, and method                  ensonified     days of work     ensonified     days of work    by pile size,   by pile size,
                                                           area (km\2\)                    area (km\2\)                      type, and       type, and
                                                                                                                              method          method
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber vibratory..................................             0.5               5             0.8              13               3               6
18-in steel vibratory...................................             N/A               0            23.2               3               0              27
24-in steel vibratory...................................             2.3               2            23.2               3               3              40
30-in steel vibratory...................................             2.3              23            23.2               4             320              53
36-in steel vibratory...................................             2.3               6            23.2               4              84              53
24-in steel impact......................................             0.9              13            0.87               3              17               2
30-in steel impact......................................             0.4               2             N/A               0               3               0
36-in steel impact......................................             0.9               6            0.87               1               8               1
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............  ..............             298             183
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The areas ensonified above the Level A harassment threshold for 
high-frequency cetaceans has been omitted from the areas ensonified 
above the Level B harassment threshold presented in Table 9. For impact 
installation of 30-in steel piles, the Level A harassment zone for 
high-frequency cetaceans is approximately 1,620 m. To estimate the 
number of harbor porpoises that may be present within the Level A 
harassment zone, WSDOT used the average sightings rate from the Seattle 
Multimodal Project at Colman Dock (0.691 harbor porpoises per day; 
Table 8) multiplied by the days of impact pile driving expected for 
each project (27 days for the Bainbridge Project and 8 days for the 
Eagle Harbor Project) to estimate that 19 and 6 harbor porpoises may be 
taken by Level A harassment from the Bainbridge Project and Eagle 
Harbor Project, respectively, for a total of 25 takes of harbor seals 
by Level A harassment.
Dall's Porpoise
    WSDOT estimated that up to 20 Dall's porpoises could be taken by 
Level B harassment from each project, for a total of 40 takes of Dall's 
porpoises by Level B harassment.
    For impact installation of 30-in steel piles, the Level A 
harassment zone for high-frequency cetaceans is approximately 1,620 m. 
Dall's porpoises are considered rare in the project area and are 
unlikely to be present within the Level A harassment zones but WSDOT 
conservatively estimates that no more than 5 Dall's porpoises could 
enter the Level A harassment zones of each project, for a total of 10 
takes of Dall's porpoises by Level A harassment.
California Sea Lion
    Over the course of 372 days of monitoring for the Seattle 
Multimodal Project at Colman Dock, the average number of California sea 
lions observed per day was 7.05 (Table 8). WSDOT used that average 
sightings rate multiplied by the days of work for each project (57 days 
for the Bainbridge Project and 31 days for the Eagle Harbor Project) to 
estimate that 402 and 219 California sea lions may be taken by Level B 
harassment from the Bainbridge Project and Eagle Harbor Project, 
respectively, for a total of 621 takes of California sea lions by Level 
B harassment.
    The largest Level A harassment zone for otariid pinnipeds is 53 m. 
WSDOT would be required to implement a 60 m shutdown zone for otariids 
for all pile driving activities. At that close range, WSDOT would be 
able to detect California sea lions and implement the required shutdown 
measures before California sea lions could enter the Level A harassment 
zone. Therefore, no takes of California sea lions by Level A harassment 
are requested or proposed to be authorized.
Steller Sea Lion
    WSDOT estimated that 180 Steller sea lions could be taken by Level 
B harassment from each project, for a total of 360 takes of Steller sea 
lions by Level B harassment. The largest Level A harassment zone for 
otariid pinnipeds is 53 m. WSDOT would be required to implement a 60 m 
shutdown zone for otariids for all pile driving activities. At that 
close range, WSDOT would be able to detect Steller sea lions and 
implement the required shutdown measures before Steller sea lions could 
enter the Level A harassment zone. Therefore, no takes of Steller sea 
lions by Level A harassment are requested or proposed to be authorized.
Harbor Seal
    To estimate the number of harbor seals that may be taken by Level B 
harassment from the two projects, WSDOT calculated the area ensonified 
above the Level B harassment threshold for each pile size, type, and 
method for both projects. WSDOT then multiplied the estimated density 
of harbor seals in the area (3.91 per km\2\; Navy 2019) by the 
ensonified area and the expected days of work for each project element 
(Table 10). In total, WSDOT estimates that 3,450 harbor seals may be 
taken by Level B harassment.

                                             Table 10--Estimated Take of Harbor Seals by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Bainbridge     Eagle Harbor
                                                            Bainbridge      Bainbridge     Eagle Harbor    Eagle Harbor    takes by pile   takes by pile
               Pile size, type, and method                  ensonified     days of work     ensonified     days of work     size, type,     size, type,
                                                           area (km\2\)                    area (km\2\)                     and method      and method
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber vibratory..................................             1.5               5             1.6              13              30              81
18-in steel vibratory...................................             N/A               0            24.1               3               0             188
24-in steel vibratory...................................            24.0               2            24.1               3             188             283
30-in steel vibratory...................................            24.0              23            24.1               4           2,158             377
36-in steel vibratory...................................            24.0               6            24.1               4             563             377
24-in steel impact......................................             2.0              13            1.66               3             102              20

[[Page 48641]]

 
30-in steel impact......................................             1.3               2             N/A               0              10               0
36-in steel impact......................................             2.0               6            1.66               1              47               7
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............  ..............           2,117           1,333
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The areas ensonified above the Level A harassment threshold for 
high-frequency cetaceans has been omitted from the areas ensonified 
above the Level B harassment threshold presented in Table 10. For 
impact installation of 30-in steel piles, the Level A harassment zone 
for phocid pinnipeds is approximately 728 m. To estimate the number of 
harbor seals that may be present within the Level A harassment zone, 
WSDOT used the average sightings rate from the Seattle Multimodal 
Project at Colman Dock (5.21 harbor seals per day; Table 8) multiplied 
by the days of impact pile driving expected for each project (27 days 
for the Bainbridge Project and 8 days for the Eagle Harbor Project) to 
estimate that 141 and 42 harbor seals may be taken by Level A 
harassment from the Bainbridge Project and Eagle Harbor Project, 
respectively, for a total of 183 takes of harbor seals by Level A 
harassment.
Northern Elephant Seal
    Individual elephant seals have occasionally been reported in 
central Puget Sound (e.g., Orca Network, 2020) but are considered rare 
in the project areas. WSDOT estimated that up to 10 northern elephant 
seals could be taken by Level B harassment from each project, for a 
total of 20 takes of northern elephant seals by Level B harassment. The 
largest Level A harassment zone (728 m) occurs during impact 
installation of 30-in steel pipe piles (Table 7). It is unlikely that 
northern elephant seals would be found within this zone, and even more 
unlikely that northern elephant seals would be found within the Level A 
harassment zones for vibratory pile driving (up to 295 m). However, 
even if northern elephant seals were encountered in the project areas, 
at that close range, WSDOT would be able to detect them and implement 
the required shutdown measures before any northern elephant seals could 
enter the Level A harassment zones. Therefore, no take of northern 
elephant seals by Level A harassment is requested or proposed to be 
authorized.

   Table 11--Proposed Take of Marine Mammals by Level A and Level B Harassment From the Bainbridge Project by
                                                Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                                   Proposed take   Proposed take
                    Species                                   Stock                 by Level B      by Level A
                                                                                    harassment      harassment
----------------------------------------------------------------------------------------------------------------
Gray whale....................................  Eastern North Pacific...........              20               0
Minke whale...................................  California/Oregon/Washington....              20               0
Killer whale..................................  West Coast Transient............              60               0
Bottlenose dolphin............................  California Coastal..............              20               0
Long-beaked common dolphin....................  California......................              20               0
Pacific white-sided dolphin...................  ................................              20               0
Harbor porpoise...............................  Washington Inland Waters........             298              19
Dall's porpoise...............................  California/Oregon/Washington....              20               5
California sea lion...........................  U.S.............................             402               0
Steller sea lion..............................  Eastern.........................             180               0
Northern elephant seal........................  California Breeding.............              10               0
Harbor seal...................................  Washington Northern Inland                 2,117             141
                                                 Waters.
----------------------------------------------------------------------------------------------------------------


  Table 12--Proposed Take of Marine Mammals by Level A and Level B Harassment From the Eagle Harbor Project by
                                                Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                                   Proposed take   Proposed take
                    Species                                   Stock                 by Level B      by Level A
                                                                                    harassment      harassment
----------------------------------------------------------------------------------------------------------------
Gray whale....................................  Eastern North Pacific...........              20               0
Minke whale...................................  California/Oregon/Washington....              20               0
Killer whale..................................  West Coast Transient............              60               0
Bottlenose dolphin............................  California Coastal..............              20               0
Long-beaked common dolphin....................  California......................              20               0
Pacific white-sided dolphin...................  ................................              20               0
Harbor porpoise...............................  Washington Inland Waters........             183               6
Dall's porpoise...............................  California/Oregon/Washington....              20               5
California sea lion...........................  U.S.............................             219               0
Steller sea lion..............................  Eastern.........................             180               0
Northern elephant seal........................  California Breeding.............              10               0
Harbor seal...................................  Washington Northern Inland                 1,333              42
                                                 Waters.
----------------------------------------------------------------------------------------------------------------


[[Page 48642]]


   Table 13--Total Proposed Take of Marine Mammals by Level A and Level B Harassment, by Species and Stock and
                                            Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                  Total proposed  Total proposed
            Species                   Stock        take by Level   take by Level  Total proposed    Percent of
                                                   A harassment    B harassment        take            stock
----------------------------------------------------------------------------------------------------------------
Gray whale....................  Eastern North                  0              40              40             0.2
                                 Pacific.
Minke whale...................  California/                    0              40              40            11.0
                                 Oregon/
                                 Washington.
Killer whale..................  West Coast                     0             120             120            34.4
                                 Transient.
Bottlenose dolphin............  California                     0              40              40             8.8
                                 Coastal.
Long-beaked common dolphin....  California......               0              40              40             3.2
Pacific white-sided dolphin...  California/                    0              40              40             0.2
                                 Oregon/
                                 Washington.
Harbor porpoise...............  Washington                    25             481             506             5.0
                                 Inland Waters.
Dall's porpoise...............  California/                   10              40              50             0.3
                                 Oregon/
                                 Washington.
California sea lion...........  U.S.............               0             621             621            0.24
Steller sea lion..............  Eastern.........               0             360             360            0.83
Northern elephant seal........  California                     0              20              20            0.01
                                 Breeding.
Harbor seal...................  Washington                   183           3,450           3,633            32.9
                                 Northern Inland
                                 Waters.
----------------------------------------------------------------------------------------------------------------

Proposed 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, NMFS 
considers 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 and impact on 
operations.

Shutdown Zones

    Before the commencement of in-water construction activities, WSDOT 
would establish shutdown zones for all activities. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
the activity would occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area). Pile driving 
would also not commence until all marine mammals are clear of their 
respective shutdown zones. Shutdown zones are established in 
consideration of the Level A harassment zones and therefore typically 
vary based on the activity type and marine mammal hearing group. 
However, rather than establishing different shutdown zones for each 
hearing group for each project element, WSDOT proposed to simplify the 
shutdown zones and implement only 1 or 2 shutdown zones for each 
hearing group across all project elements (Table 14). For example, the 
720 m shutdown zone proposed to be implemented for low-frequency and 
high-frequency cetaceans for all vibratory pile driving activities 
encompasses both the largest Level A harassment zone for high-frequency 
cetaceans (717.2 m; see Table 7) and the largest Level A harassment 
zone for low-frequency cetaceans (485.1 m; see Table 7). This 
conservatively protects animals in both hearing groups, simplifies 
analysis and monitoring, and presents minimal risks to implementing the 
project, as marine mammals in these hearing groups are unlikely to be 
present within 720 m of the construction site during pile driving 
activities. For impact pile driving, WSDOT proposes to retain the 720 m 
shutdown zone for high-frequency cetaceans but increase the shutdown 
zone for low-frequency cetaceans to 2,175 m which encompasses the 
largest Level B harassment zone for impact pile driving, and is also 
the proposed shutdown zone for preventing take of unauthorized species 
(e.g., Southern Resident killer whales, humpback whales) (Table 14). 
The Level A harassment zones for high-frequency cetaceans from impact 
pile driving are all greater than 720 m (Table 7), thus any high-
frequency cetacean that enters the Level A harassment zone beyond 720 m 
would be recorded as taken by Level A harassment.
    At minimum, the shutdown zone for all hearing groups and all 
activities would be 10 m. For in-water heavy machinery work other than 
pile driving (e.g., standard barges, etc.), if a marine mammal comes 
within 10 m, operations would cease and vessels would reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions. This type of work could include, for example, the movement 
of the barge to the pile location or positioning of the pile on the 
substrate via a crane.
    WSDOT would also establish shutdown zones for all marine mammals 
for which take has not been authorized or for which incidental take has 
been authorized but the authorized number of takes has been met. These 
zones are equivalent to the Level B harassment zones for each activity 
(see Table 14).
    WSDOT would also implement shutdown measures for Southern Resident 
killer whales and humpback whales. If Southern Resident killer whales 
or humpback whales are sighted within the vicinity of the project areas 
and are approaching the Level B harassment zone (see Table 14), WSDOT 
would shut down the pile driving equipment to avoid possible take of 
these species. If a killer whale

[[Page 48643]]

approaches the Level B harassment zone during pile driving, and it is 
unknown whether it is a Southern Resident killer whale or a transient 
killer whale, it would be assumed to be a Southern Resident killer 
whale and WSDOT would implement the shutdown measure.
    If a Southern Resident killer whale, unidentified killer whale, or 
humpback whale enters the Level B harassment zone undetected, in-water 
pile driving would 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.

                                                   Table 14--Shutdown Zones for Pier 58 Reconstruction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Shutdown zone (m)
                                                         -----------------------------------------------------------------------------------------------
                                                                                                                                             Southern
                                                                                                                                             resident
                                                                                                                                          killer whales,
                  Pile type and method                                                                                                        humpback
                                                            LF cetacean     MF cetacean     HF cetacean       Phocids        Otariids       whales, and
                                                                                                                                               other
                                                                                                                                           unauthorized
                                                                                                                                              species
--------------------------------------------------------------------------------------------------------------------------------------------------------
12-in timber vibratory..................................             720              60             720              60              60           2,175
18-in steel vibratory...................................             720              60             720              60              60      \a\ 13,345
24-in steel vibratory...................................             720              60             720              60              60      \a\ 13,345
30-in steel vibratory...................................             720              60             720              60              60      \a\ 13,345
36-in steel vibratory...................................             720              60             720              60              60      \a\ 13,345
24-in steel impact......................................           2,175              60             720              60              60           2,175
30-in steel impact......................................           2,175              60             720              60              60           2,175
36-in steel impact......................................           2,175              60             720              60              60           2,175
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ 13,345 m is the maximum distance sound can travel before reaching land.

Protected Species Observers

    The placement of protected species observers (PSOs) during all pile 
driving activities (described in the Proposed Monitoring and Reporting 
section) would ensure that the entire shutdown zone is visible. Should 
environmental conditions deteriorate such that the entire shutdown zone 
would not be visible (e.g., fog, heavy rain), pile driving would be 
delayed until the PSO is confident marine mammals within the shutdown 
zone could be detected.
Monitoring for Level A and Level B Harassment
    PSOs would monitor the Level B harassment zones to the extent 
practicable, and all of the Level A harassment zones. Monitoring zones 
provide utility for observing by establishing monitoring protocols for 
areas adjacent to the shutdown zones. Monitoring zones enable observers 
to be aware of and communicate the presence of marine mammals in the 
project areas outside the shutdown zones and thus prepare for a 
potential cessation of activity should the animal enter the shutdown 
zone.
Pre-Activity Monitoring
    Prior to the start of daily in-water construction activity, or 
whenever a break in pile driving of 30 minutes or longer occurs, PSOs 
would observe the shutdown and monitoring zones for a period of 30 
minutes. The shutdown zone would be considered cleared when a marine 
mammal has not been observed within the zone for that 30-minute period. 
If a marine mammal is observed within the shutdown zones listed in 
Table 14, pile driving activity would be delayed or halted. If pile 
driving is delayed or halted due to the presence of a marine mammal, 
the activity would not commence or resume until either the animal has 
voluntarily exited and been visually confirmed beyond the shutdown 
zones or 15 minutes have passed without re-detection of the animal. 
When a marine mammal for which Level B harassment take is authorized is 
present in the Level B harassment zone, activities would begin and 
Level B harassment take would be recorded. If work ceases for more than 
30 minutes, the pre-activity monitoring of the shutdown zones would 
commence. A determination that the shutdown zone is clear must be made 
during a period of good visibility (i.e., the entire shutdown zone and 
surrounding waters must be visible to the naked eye).
Coordination With Local Marine Mammal Research Network
    Prior to the start of pile driving for the day, the PSOs would 
contact the Orca Network 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 United States 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 visual sighting network allows 
researchers to document presence and location of various marine mammal 
species.

Soft Start

    Soft-start procedures are used to provide additional protection to 
marine mammals by providing warning and/or giving marine mammals a 
chance to leave the area prior to the hammer operating at full 
capacity. For impact pile driving, contractors would be required to 
provide an initial set of three strikes from the hammer at reduced 
energy, followed by a 30-second waiting period, then two subsequent 
reduced-

[[Page 48644]]

energy strike sets. Soft start would be implemented at the start of 
each day's impact pile driving and at any time following cessation of 
impact pile driving for a period of 30 minutes or longer.

Bubble Curtain

    A bubble curtain would be employed during impact installation or 
proofing of steel piles, unless the piles are driven in the dry, or 
water is less than 3 ft (0.9 m) in depth. A noise attenuation device 
would not be required during vibratory pile driving. If a bubble 
curtain or similar measure is used, it would distribute air bubbles 
around 100 percent of the piling perimeter for the full depth of the 
water column. Any other attenuation measure would be required to 
provide 100 percent coverage in the water column for the full depth of 
the pile. The lowest bubble ring would be in contact with the mudline 
for the full circumference of the ring. The weights attached to the 
bottom ring would ensure 100 percent mudline contact. No parts of the 
ring or other objects would prevent full mudline contact.
    Based on our evaluation of the WSDOT's proposed measures, as well 
as other measures considered by NMFS, NMFS has preliminarily determined 
that the proposed mitigation measures provide the means of 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.

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

Visual Monitoring

    Marine mammal monitoring during pile driving activities would be 
conducted by PSOs meeting NMFS' standards and in a manner consistent 
with the following:
     Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods would be used;
     At least one PSO would have prior experience performing 
the duties of a PSO during construction activity pursuant to a NMFS-
issued incidental take authorization;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator would be designated. The lead 
observer would be required to have prior experience working as a marine 
mammal observer during construction.
    PSOs would have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    During impact driving of all steel piles, and during vibratory 
removal of timber piles, WSDOT would have three PSOs stationed to 
monitor the project area: one at the construction site, one across 
Eagle Harbor looking toward the construction site, and one on board the 
Seattle-Bainbridge ferry. For vibratory driving of all steel piles, 
WSDOT would have five PSOs to monitor the project area: three at the 
locations described for impact pile driving, with one additional PSO 
stationed on the Seattle waterfront and one stationed on Alki Beach 
looking west toward Bainbridge Island.
    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after all in water construction activities. In addition, 
observers would record all incidents of marine mammal occurrence, 
regardless of distance from activity, and would document any behavioral 
reactions in concert with distance from piles being driven or removed. 
Pile driving activities include the time to install or remove a single 
pile or series of piles, as long as the time elapsed between uses of 
the pile driving equipment is no more than 30 minutes.

Reporting

    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of pile driving activities, or 60 
days prior to a requested date of issuance of any future IHAs for the 
project, or other projects at the same location, whichever comes first. 
The marine mammal report would include an overall description of work 
completed, a narrative regarding marine mammal sightings, and 
associated PSO data sheets. Specifically, the report would include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including: (a) How many and what type of piles were 
driven or removed and the

[[Page 48645]]

method (i.e., impact or vibratory); and (b) the total duration of time 
for each pile (vibratory driving) number of strikes for each pile 
(impact driving);
     PSO locations during marine mammal monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    For each observation of a marine mammal, the following would be 
reported:
     Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
     Time of sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
     Distance and location of each observed marine mammal 
relative to the pile being driven or hole being drilled for each 
sighting;
     Estimated number of animals (min/max/best estimate);
     Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
     Number of marine mammals detected within the harassment 
zones, by species; and
     Detailed information about implementation of any 
mitigation (e.g., shutdowns and delays), a description of specified 
actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
reports would constitute the final reports. If comments are received, a 
final report addressing NMFS' comments would be required to be 
submitted within 30 days after receipt of comments. All PSO datasheets 
and/or raw sighting data would be submitted with the draft marine 
mammal report.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, WSDOT would report the 
incident to the Office of Protected Resources (OPR) 
([email protected]), NMFS and to the West Coast Region 
(WCR) regional stranding coordinator as soon as feasible. If the death 
or injury was clearly caused by the specified activity, WSDOT would 
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 IHAs. WSDOT would not resume their activities until notified by 
NMFS.
    The report would 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 impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), 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' 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 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).
    Pile driving activities from the Bainbridge and Eagle Harbor 
Projects have the potential to disturb or displace marine mammals. 
Specifically, the project activities may result in take, in the form of 
Level A and Level B harassment, from underwater sounds generated from 
pile driving. Potential takes could occur if individuals are present in 
the ensonified zone when these activities are underway.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, TTS, and PTS. No serious injury or 
mortality is anticipated given the nature of the activities and 
measures designed to minimize the possibility of injury to marine 
mammals. The potential for harassment is minimized through the 
construction method and the implementation of the planned mitigation 
measures (see Proposed Mitigation section).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Table 3, given that the anticipated effects of 
these projects on different marine mammal stocks are expected to be 
relatively similar in nature. Where there are special circumstances for 
a species or stock (e.g., gray whales), they are included as a separate 
subsection below.
    NMFS has identified key factors which may be employed to assess the 
level of analysis necessary to conclude whether potential impacts 
associated with a specified activity should be considered negligible. 
These include (but are not limited to) the type and magnitude of 
taking, the amount and importance of the available habitat for the 
species or stock that is affected, the duration of the anticipated 
effect to the species or stock, and the status of the species or stock. 
The following factors support negligible impact determinations for all 
affected stocks.
    Take by Level A harassment is proposed for three species (harbor 
seals, harbor porpoise, and Dall's porpoise) to account for the 
possibility that an animal could enter a Level A harassment zone prior 
to detection, and remain within that zone for a duration long enough to 
incur PTS. Any take by Level A harassment is expected to arise from, at 
most, a small degree of PTS, i.e., minor degradation of hearing 
capabilities within regions of hearing that align most completely with 
the

[[Page 48646]]

energy produced by impact pile driving (i.e., the low-frequency region 
below 2 kilohertz (kHz)), not severe hearing impairment or impairment 
within the ranges of greatest hearing sensitivity. Animals would need 
to be exposed to higher levels and/or longer duration than are expected 
to occur here in order to incur any more than a small degree of PTS. 
Two of the 3 species for which Level A harassment is proposed to be 
authorized are high-frequency cetaceans (harbor porpoise and Dall's 
porpoise), and the hearing ability of the third species for which Level 
A harassment is proposed to be authorized (harbor seal) below 2 kHz is 
also poor (NMFS, 2018). Given the hearing ranges of these three 
species, PTS incurred at the low frequencies of pile driving noise 
would not interfere either with conspecific communication or 
echolocation, and therefore would not be expected to impact on the 
survival or reproductive abilities of the affected individuals, let 
alone the stock or population.
    As described above, NMFS expects that marine mammals would likely 
move away from an aversive stimulus, especially at levels that would be 
expected to result in PTS, given sufficient notice through use of soft 
start. WSDOT would also be required to shut down pile driving 
activities if marine mammals approach within hearing group-specific 
zones (see Table 14), further minimizing the likelihood and degree of 
PTS that would be incurred. Even absent mitigation, no serious injury 
or mortality from construction activities is anticipated or proposed to 
be authorized.
    Effects on individuals that are taken by Level B harassment in the 
form of behavioral disruption, on the basis of reports in the 
literature as well as monitoring from other similar activities, will 
likely be limited to reactions such as avoidance, increased swimming 
speeds, increased surfacing time, or decreased foraging (if such 
activity were occurring) (e.g., Thorson and Reyff 2006). Most likely, 
individuals would simply move away from the sound source and 
temporarily avoid the area where pile driving is occurring. If sound 
produced by project activities is sufficiently disturbing, animals are 
likely to simply avoid the area while the activities are occurring, 
particularly as the project is located in a busy harbor with high 
amounts of vessel traffic, including large ferry boats. We expect that 
any avoidance of the project areas by marine mammals would be temporary 
in nature and that any marine mammals that avoid the project areas 
during construction would not be permanently displaced. Short-term 
avoidance of the project areas and energetic impacts of interrupted 
foraging or other important behaviors is unlikely to affect the 
reproduction or survival of individual marine mammals, and the effects 
of behavioral disturbance on individuals is not likely to accrue in a 
manner that would affect the rates of recruitment or survival of any 
affected stock.
    Additionally, and as noted previously, some subset of the 
individuals that are behaviorally harassed could also simultaneously 
incur some small degree of TTS for a short duration of time. However, 
since the hearing sensitivity of individuals that incur TTS is expected 
to recover completely within minutes to hours, it is unlikely that the 
brief hearing impairment would affect the individual's long-term 
ability to forage and communicate with conspecifics, and would 
therefore not likely impact reproduction or survival of any individual 
marine mammal, let alone adversely affect rates of recruitment or 
survival of the species or stock.
    The projects are also not expected to have significant adverse 
effects on affected marine mammals' habitats. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected (with no known particular 
importance to marine mammals), the impacts to marine mammal habitat are 
not expected to cause significant or long-term negative consequences. 
Aside from the biologically important area (BIA) for gray whales 
described below, there are no known areas of importance for other 
marine mammals, such as feeding or pupping areas, in the project area.
    For all species and stocks, take would occur within a limited, 
relatively confined area (Eagle Harbor within central Puget Sound) of 
the stocks' ranges. Given the availability of suitable habitat nearby, 
any displacement of marine mammals from the project areas is not 
expected to affect marine mammals' fitness, survival, and reproduction 
due to the limited geographic area that will be affected in comparison 
to the much larger habitat for marine mammals in Puget Sound. Level A 
harassment and Level B harassment will be reduced to the level of least 
practicable adverse impact to the marine mammal species or stocks and 
their habitat through use of mitigation measures described herein. Some 
individual marine mammals in the project areas may be present and be 
subject to repeated exposure to sound from pile driving on multiple 
days. However, these individuals would likely return to normal behavior 
during gaps in pile driving activity. Eagle Harbor is a busy harbor and 
monitoring reports from previous in-water pile driving activities along 
the nearby Seattle waterfront (e.g., WSDOT, 2022) indicate that marine 
mammals continue to remain in the greater project area throughout pile 
driving activities. Therefore, any behavioral effects of repeated or 
long duration exposures are not expected to negatively affect survival 
or reproductive success of any individuals. Thus, even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any effects on rates of reproduction and survival of the 
stock.

Gray Whales

    Puget Sound is part of a BIA for migrating gray whales 
(Calambokidis et al., 2015). While Eagle Harbor is included in the BIA, 
gray whales typically remain further north in Puget Sound, primarily in 
the waters around Whidbey Island (Calambokidis et al., 2018). Gray 
whales are rarely observed in central Puget Sound, and have never been 
documented inside Eagle Harbor. Therefore, even though the project 
areas overlap with the BIA, the infrequent occurrence of gray whales 
suggests that the projects would have minimal, if any, impact on the 
migration of gray whales in the BIA, and would therefore not affect 
reproduction or survival.
    There is an ongoing UME for gray whales (see the Description of 
Marine Mammals in the Area of Specified Activities section of this 
notice). However, we do not expect the takes estimated to occur and 
proposed for authorization to exacerbate or compound upon this ongoing 
UME. As noted previously, no Level A harassment, serious injury, or 
mortality of gray whales is expected or authorized, and any Level B 
harassment takes of gray whales would most likely be in the form of 
behavioral disturbance. Preliminary findings from necropsied gray 
whales that are considered part of the ongoing UME have shown evidence 
of emaciation, suggesting that impacts to feeding would be of most 
concern. However, the project areas have not been identified as 
important for feeding of gray whales. Additionally, the project areas 
are not considered important for breeding gray whales. Therefore the 
projects are unlikely to disrupt any

[[Page 48647]]

critical behaviors (e.g., feeding, mating) or have any effect on the 
reproduction or survival of gray whales, even in light of the ongoing 
UME.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
these activities are not expected to adversely affect any of the 
species or stocks through effects on annual rates of recruitment or 
survival:
     No mortality or serious injury is anticipated or proposed 
to be authorized for either project;
     Level A harassment is not anticipated or proposed to be 
authorized for 9 of the 12 species. For the other three species, Level 
A harassment would be in the form of a slight degree of PTS;
     Level B harassment would be in the form of behavioral 
disturbance, primarily resulting in avoidance of the project areas 
around where impact or vibratory pile driving is occurring, and some 
low-level TTS that may limit the detection of acoustic cues for 
relatively brief amounts of time in relatively confined footprint of 
the activities;
     Nearby areas of similar habitat value within Puget Sound 
are available for marine mammals that may temporarily vacate the 
project areas during construction activities for both projects;
     Effects on species that serve as prey for marine mammals 
from the activities are expected to be short-term and, therefore, any 
associated impacts on marine mammal feeding are not expected to result 
in significant or long-term consequences for individuals, or to accrue 
to adverse impacts on their populations from either project;
     The number of anticipated takes by Level B harassment is 
relatively low for all stocks for both projects;
     The ensonifed areas from both projects are very small 
relative to the overall habitat ranges of all species and stocks, and 
will not adversely affect ESA-designated critical habitat, or cause 
more than minor impacts in any BIAS or any other areas of known 
biological importance;
     The lack of anticipated significant or long-term negative 
effects to marine mammal habitat from either project;
     The efficacy of the mitigation measures in reducing the 
effects of the specified activities on all species and stocks for both 
projects; and
     Monitoring reports from similar work in Puget Sound that 
have documented little to no effect on individuals of the same species 
that could be impacted by the specified activities from both projects.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily 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.
    For all species and stocks other than killer whales from the West 
Coast Transient stock, the proposed take is below one-third of the 
stock abundance. The proposed take of transient killer whales, as a 
proportion of the stock abundance is 34.4 percent, if all takes are 
assumed to occur for unique individuals. In reality, it is unlikely 
that all takes would occur to different individuals. The project area 
represents a small portion of the stock's overall range (from Alaska to 
California (Muto et al., 2019)) and based on sightings reports from the 
Orca Network, it is reasonable to expect that the same individual 
transient killer whales would be present within the project area on 
multiple days during the proposed activities. Therefore, it is more 
likely that there will be multiple takes of a smaller number of 
individuals within the project area, such that the number of 
individuals taken would be less than one third of the population.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would 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 whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to WSDOT for conducting the Bainbridge Island Ferry 
Terminal Overhead Loading Replacement Project and Eagle Harbor 
Maintenance Facility Slip F Improvement Project in Bainbridge Island, 
Washington during the August 2022 to February 2023 in-water work 
season, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated. A draft of the proposed IHA 
can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed 
Bainbridge Island Ferry Terminal Overhead Loading Replacement Project 
and Eagle Harbor Maintenance Facility Slip F Improvement Project. We 
also request comment on the potential renewal of this proposed IHA as 
described in the paragraph below. Please include with your comments any 
supporting data or literature citations to help inform

[[Page 48648]]

decisions on the request for this IHA or a subsequent renewal IHA.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical activities as described in the Description of Proposed 
Activities section of this notice is planned or (2) the activities as 
described in the Description of Proposed Activities section of this 
notice would not be completed by the time the IHA expires and a renewal 
would allow for completion of the activities beyond that described in 
the Dates and Duration section of this notice, provided all of the 
following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed renewal IHA effective date (recognizing that the 
renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: August 4, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-17141 Filed 8-9-22; 8:45 am]
BILLING CODE 3510-22-P