Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to In-Water Construction on Bainbridge Island, Washington, 48191-48194 [2023-15755]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Notices]
[Pages 48191-48194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15755]



[[Page 48191]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD137]


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

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

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

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SUMMARY: NMFS received a request from Washington State Department of 
Transportation (WSDOT) Ferries Division for the renewal of their 
currently active incidental harassment authorization (IHA) to take 
marine mammals incidental to the Bainbridge Island Ferry Terminal 
Overhead Loading Replacement Project on Bainbridge Island, Washington 
within the Puget Sound. These activities consist of activities that are 
covered by the current authorization but will not be completed prior to 
its expiration. Pursuant to the Marine Mammal Protection Act, prior to 
issuing the currently active IHA, NMFS requested comments on both the 
proposed IHA and the potential for renewing the initial authorization 
if certain requirements were satisfied. The renewal requirements have 
been satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than August 
10, 2023.

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]. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed below.
    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. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://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: Rachel Wachtendonk, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, an incidental harassment authorization is issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-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 Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. 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 1 year from expiration of the 
initial IHA);
    2. The request for renewal must include the following:
     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); and
     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; and
    3. 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

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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.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

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

History of Request

    On September 16, 2022, NMFS issued an IHA to WSDOT to take marine 
mammals incidental to two in-water construction projects on Bainbridge 
Island, Washington, in the Puget Sound: the Bainbridge Island Ferry 
Terminal Overhead Loading Replacement Project and Eagle Harbor 
Maintenance Facility Slip F Improvement Project (87 FR 58313), 
effective from September 16, 2022 through September 15, 2023. On 
February 15, 2023, NMFS received an application for the renewal of that 
initial IHA. As described in the application for renewal IHA, the 
activities for which incidental take is requested, consist of 
activities that are covered by the initial authorization but will not 
be completed prior to its expiration. As required, the applicant also 
provided a preliminary monitoring report which confirms that the 
applicant has implemented the required mitigation and monitoring, and 
which also shows that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted.

Description of the Specified Activities and Anticipated Impacts

    The WSDOT construction project consists of the Eagle Harbor Slip F 
Project (the Eagle Harbor Project) and the Bainbridge Ferry Overhead 
Loading Replacement Project (the Bainbridge Project). The Bainbridge 
Project consists of replacing the timber trestle and fixed steel 
portions of the overhead loading structure. This will require the 
installation of temporary work platforms, installation of a temporary 
walkway, installation of a new permanent walkway, the removal of the 
existing overhead loading walkway, and removal of all temporary work 
platforms and walkways. The Eagle Harbor Project consists of improving 
the maintenance efficiency of the facility. This will require replacing 
the existing gangplank system with a pile supported trestle, replacing 
the existing pair of timber dolphins with a pair of steel wingwalls and 
two fixed dolphins, and the removal of the existing timber walkway/
trestle, four timber pile dolphins, and a U-float.
    In total, the initial Bainbridge Project included the installation 
and removal of 39 24-inch (in) diameter temporary steel pipe piles, the 
installation of 26 permanent piles (14 30-in and 12 36-in steel pipe 
piles), and the removal of 76 12-in timber piles. All temporary and 
permanent piles would be installed first using a vibratory hammer to 
within 5 feet (ft; 1.5 meter (m)) of tip elevation, and then driven 
with an impact hammer to verify bearing capacity. The existing timber 
piles would be removed using a vibratory hammer. The vibratory and 
impact installation and vibratory extraction of the piles were expected 
to take up to 57 days of in-water work. The initial Eagle Harbor 
Project expected the installation of a new trestle supported by 9 24-in 
and 2 36-in steel pipe piles, the installation of the pair of steel 
wingwalls which would consist of 4 36-in steel reaction piles and 2 36-
in fender piles, the installation of two fixed dolphins which would 
consist of 4 30-in diameter steel reaction piles and 1 36-inch diameter 
fender pile, and the removal of 186 12-in timber piles and 4 18-in 
steel piles. The piles supporting the trestle 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. The 
installation of the wingwall and dolphin piles and the removal of the 
steel and timber piles would use a vibratory hammer only. The vibratory 
and impact installation and vibratory extraction of the piles was 
expected to take up to 31 days of in-water work.
    Under the initial IHA, all work associated with the Eagle Harbor 
Slip F Project was completed over a 22-day period with use of a 
vibratory and impact hammer. For the Bainbridge Ferry Terminal Overhead 
Loading Replacement Project, all project related pile installation 
activities were completed over a 33-day period with use of a vibratory 
and impact hammer.
    This renewal request is to cover the subset of the activities 
described for the initial IHA that will not be completed during the 
effective IHA period. WSDOT plans to remove all 45 12-inch steel pipe 
and timber piles through vibratory means between September 2023 and 
September 2024. WSDOT estimates it will take 30 minutes to remove a 
single pile, with up to 10 piles removed per day.
    The likely or possible impacts of the WSDOT's proposed activity on 
marine mammals could involve both non-acoustic and acoustic stressors 
and is unchanged from the impacts described in the initial IHA. 
Potential non-acoustic stressors could result from the physical 
presence of the equipment, vessels, and personnel; however, any impacts 
to marine mammals are expected to primarily be acoustic in nature. 
Acoustic stressors include effects of heavy equipment operation during 
pile removal. The effects of underwater noise from the WSDOT's proposed 
activities have the potential to result in Level B harassment of marine 
mammals in the action area

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the notices of the proposed and 
final IHAs for the initial authorization (87 FR 48623, August 10, 2022; 
87 FR 58313,

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November 16, 2022). As previously mentioned, this request is for a 
subset of the activities anticipated in the initial IHA that would not 
be completed prior to its expiration. The location, timing, and nature 
of the activities, including the types of equipment planned for use, 
are identical to those described in the previous notice for the initial 
IHA. WSDOT is requesting a renewal IHA for the vibratory removal of 45 
12-in timber and steel pipe piles. The proposed renewal would be 
effective for a period not exceeding one year from the date of 
expiration of the initial IHA. The proposed renewal IHA would be 
effective from September 16, 2023 through September 15, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notice of the proposed IHA for the initial authorization (87 FR 48623, 
August 10, 2022). NMFS has reviewed the monitoring data from the 
initial IHA, recent draft stock assessment reports, information on 
relevant unusual mortality events, and other scientific literature, and 
determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the description of the marine mammals in the 
area of specified activities contained in the supporting documents for 
the initial IHA (87 FR 48623, August 10, 2022).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which the 
authorization of take is proposed here may be found in the notice of 
the proposed IHA for the initial authorization (87 FR 48623, August 10, 
2022). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft stock assessment reports, information on relevant unusual 
mortality events, and other scientific literature, and determined that 
neither this nor any other new information affects our initial analysis 
of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed and final IHAs for the initial authorization (87 FR 48623, 
August 10, 2022; 87 FR 58313, November 16, 2022). Specifically, days of 
operation, area or space within which harassment is likely to occur, 
and marine mammal occurrence data applicable to this authorization 
remain unchanged from the initial IHA. Similarly, the stocks taken, 
methods of take, daily take estimates and types of take remain 
unchanged from the initial IHA. The number of takes proposed for 
authorization in this renewal are a subset of the initial authorized 
takes that represent the amount of activity left to complete. These 
takes, which reflect the lower number of remaining days of work, are 
indicated below in Table 1.

  Table 1--Proposed Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
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                                                                                                    Percent of
                    Species                                   Stock                Proposed take       stock
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Harbor seal...................................  Washington Northern Inland                    60             0.5
                                                 Waters.
California sea lion...........................  U.S.............................               3            <0.1
Steller sea lion..............................  Eastern.........................               1            <0.1
Killer whale..................................  West Coast Transient............           \1\ 6             1.7
Harbor porpoise...............................  Washington Inland Waters........               9            <0.1
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\1\ Modeled take of 1 increased to typical group size (Ford et al. 2013).

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in the proposed renewal authorization are 
identical to those included in the Federal Register notice announcing 
the issuance of the initial IHA, and the discussion of the least 
practicable adverse impact included in that document and the notice of 
the proposed IHA remains accurate. The following measures are proposed 
for this renewal:
     WSDOT must avoid direct physical interaction with marine 
mammals during construction activity. If a marine mammal comes within 
10 m of such activity, operations must cease and vessels must reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions, as necessary to avoid direct physical interaction;
     Pre-start clearance monitoring must be conducted during 
periods of visibility sufficient for the lead Protected Species 
Observer (PSO) to determine the shutdown zones clear of marine mammals. 
Construction may commence when the determination is made;
     Pile driving/removal activity must be halted upon 
observation of either a species for which incidental take is not 
authorized or a species for which incidental take has been authorized 
but the authorized number of takes has been met, entering or within the 
harassment zone;
     WSDOT will establish and implement the shutdown zones. 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). Shutdown 
zones typically vary based on the activity type and marine mammal 
hearing group. Since the Level A harassment threshold is under 10 m for 
all hearing groups, the shutdown zone for all hearing groups will be 10 
m;
     WSDOT must 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, WSDOT 
must shut down the pile driving equipment to avoid possible take of 
these species. If a killer whale 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 must be assumed 
to be a Southern Resident killer whale and WSDOT would implement the 
shutdown measure. The shutdown zone for Southern Resident

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killer whales, humpback whales, and other unauthorized species is 2,175 
m;
     Prior to the start of pile driving for the day, the PSOs 
must contact the Orca Network to find out the location of the nearest 
marine mammal sightings;
     WSDOT must submit a draft report detailing all monitoring 
within 90 calendar days of the completion of marine mammal monitoring 
or 60 days prior to the issuance of any subsequent IHA for this 
project, whichever comes first;
     WSDOT must prepare and submit final report within 30 days 
following resolution of comments on the draft report from NMFS;
     WSDOT must submit all PSO datasheets and/or raw sighting 
data (in a separate file from the Final Report referenced immediately 
above); and
     WSDOT must report injured or dead marine mammals.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (87 
FR 48623, August 10, 2022) and solicited public comments on both our 
proposal to issue the initial IHA for the Bainbridge Island Ferry 
Terminal Overhead Loading Replacement Project and Eagle Harbor 
Maintenance Facility Slip F Improvement Project and on the potential 
for a renewal IHA, should certain requirements be met. During the 30-
day public comment period, the United States Geological Survey provided 
a letter stating that it had no comment. No other comments were 
received on either the proposal to issue the initial IHA for the 
WSDOT's construction activities or on the potential for a renewal IHA.

Preliminary Determinations

    The proposed renewal request consists of a subset of activities 
analyzed through the initial authorization described above. In 
analyzing the effects of the activities for the initial IHA, NMFS 
determined that the WSDOT's activities would have a negligible impact 
on the affected species or stocks and that authorized take numbers of 
each species or stock were small relative to the relevant stocks (e.g., 
less than one-third the abundance of all stocks). The mitigation 
measures and monitoring and reporting requirements as described above 
are identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) the required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) WSDOT's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action, and 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

    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 Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to WSDOT for conducting Bainbridge Island Ferry 
Terminal Overhead Loading Replacement Project (the Bainbridge Project) 
in Bainbridge Island, Washington, from September 16, 2023 through 
September 15 2024, provided the previously described mitigation, 
monitoring, and reporting requirements are incorporated. A draft of the 
proposed and final initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed renewal IHA, and any other aspect of this notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: July 20, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-15755 Filed 7-25-23; 8:45 am]
BILLING CODE 3510-22-P