Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental To Ferndale Refinery Dock Maintenance and Pile Replacement Activities in Ferndale, Washington, 66057-66067 [2024-18146]
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Federal Register / Vol. 89, No. 157 / Wednesday, August 14, 2024 / Notices
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Authority: 40 U.S.C. 11331(f), 15
U.S.C. 278g–3.
Alicia Chambers,
NIST Executive Secretariat.
[FR Doc. 2024–17956 Filed 8–13–24; 8:45 am]
BILLING CODE 3510–13–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XE180]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental To Ferndale
Refinery Dock Maintenance and Pile
Replacement Activities in Ferndale,
Washington
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of an incidental
harassment authorization.
ddrumheller on DSK120RN23PROD with NOTICES1
AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA) as
amended, notification is hereby given
that NMFS has issued an incidental
harassment authorization (IHA) to
Phillips 66 Co. to incidentally harass
SUMMARY:
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marine mammals during construction
activities associated with a dock
replacement project in Ferndale,
Washington.
DATES: This authorization is effective
from August 1 through July 31, 2025.
ADDRESSES: Electronic copies of the
application and supporting documents,
as well as a list of the references cited
in this document, may be obtained
online at: https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-phillips66-cos-ferndale-refinery-dockmaintenance-and-pile. In case of
problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT:
Jennifer Gatzke, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
proposed or, if the taking is limited to
harassment, a notice of a proposed IHA
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 monitoring and
reporting of the takings. The definitions
of all applicable MMPA statutory terms
cited above are included in the relevant
sections below.
Summary of Request
On February 29, 2024 we received a
request from Phillips 66 for an IHA to
take marine mammals incidental to
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66057
Ferndale Refinery Dock Maintenance
and Pile Replacement Activities in
Ferndale, Washington. Following
NMFS’ review of the application,
Phillips 66 submitted revised versions
on May 16 and May 20, 2024. The
application was deemed adequate and
complete on May 21, 2024. Phillips 66
has requested authorization of take by
Level B harassment for harbor seal,
California sea lion, Steller sea lion and
harbor porpoise. Neither Phillips 66 nor
NMFS expect serious injury or mortality
to result from this activity and,
therefore, an IHA is appropriate. There
are no changes from the proposed
authorization to the final authorization.
Description of the Specified Activity
Phillips 66 is planning to modernize
the existing timber loading dock (on the
southeastern shoreline of the Strait of
Georgia in Ferndale, Washington) and
replace it with a stronger structure that
meets current industry best practices.
The activity includes installation of
steel piles by vibratory driving, and pile
removal using an underwater chainsaw
or cutting torch.
In-water pile installation construction
will occur for 35 days, which will occur
intermittently through approximately
October 31, 2024. Take of marine
mammals is anticipated to occur due to
vibratory pile installation. Removal of
all piles is expected to take up to 66
days for underwater pile cutting with a
chainsaw. Take of marine mammals is
not anticipated to occur due to pile
removal.
This IHA is valid for a period of 1
year from the date of issuance. Due to
in-water work timing restrictions to
protect Endangered Species Act (ESA)listed salmonids, all planned in-water
construction in this area is limited to a
work window beginning August 1 and
ending February 1. However, since the
Strait of Georgia is a very large water
body with a long fetch, calm in-water
work conditions are typically only
available from August to the end of
October. Pile removal processes are less
dependent on good weather, and this
portion of the project may occur from
approximately August 1 to February 1.
Therefore, Phillips 66 expects that inwater pile installation construction
work will occur through October 31,
2024. Pile driving is anticipated to take
up to 35 days to complete. Work may
occur on nonconsecutive days due to
weather and other project needs. Pile
driving will be completed intermittently
throughout daylight hours.
A detailed description of the planned
dock maintenance and pile replacement
project is provided in the Federal
Register notice for the proposed IHA (89
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FR 53046, June 25, 2024). Since that
time, no changes have been made to the
planned activities. Therefore, a detailed
description is not provided here. Please
refer to that Federal Register notice for
the description of the specific activity.
Comments and Responses
A notice of NMFS’ proposal to issue
an IHA to Phillips 66 was published in
the Federal Register on June 25, 2024
(89 FR 53046). That notice described, in
detail, Phillips 66’s activity, the marine
mammal species that may be affected by
the activity, and the anticipated effects
on marine mammals. In that notice, we
requested public input on the request
for authorization described therein, our
analyses, the proposed authorization,
and any other aspect of the notice of
proposed IHA, and requested that
interested persons submit relevant
information, suggestions, and
comments. During the 30-day public
comment period, NMFS did not receive
any public comments.
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, instead of
reprinting the information. Additional
information regarding population trends
and threats may be found in NMFS’
Stock Assessment Reports (SARs;
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessments)
and more general information about
these species (e.g., physical and
behavioral descriptions) may be found
on NMFS’ website (https://
www.fisheries.noaa.gov/find-species).
Table 2 lists all species or stocks for
which exposure is expected for this
activity and summarizes information
related to the population or stock,
including regulatory status under the
MMPA and 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 proposed to
be authorized here, PBR and annual
serious injury and mortality from
anthropogenic sources are included here
as gross indicators of the status of the
species or stocks 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’ Alaska and Pacific SARs. All
values presented in table 2 are the most
recent available at the time of
publication (including from the draft
2023 SARs) and are available online at:
(https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-stock-assessmentreports). All species that could
potentially occur in the proposed
project area are included in table 2 of
the IHA application. While the gray
whale, minke whale, Dall’s porpoise,
and the Eastern North Pacific Northern
Resident stock of killer whale have been
reported in the area, the temporal and/
or spatial occurrence of these species is
such that take is not expected to occur,
and they are not discussed further
beyond the explanation provided in the
Federal Register Notice for the
proposed IHA (89 FR 53046, June 25,
2024).
TABLE 2—SPECIES FOR WHICH TAKE COULD OCCUR IN THE PROJECT AREA
Common name
Scientific name
ESA/MMPA status;
Strategic (Y/N) 1
Stock
Stock abundance (CV,
Nmin, most recent
abundance survey) 2
Annual M/SI3 3
PBR
Order Artiodactyla—Cetacea—Mysticeti (baleen whales)
Family Balaenopteridae
(rorquals):
Humpback Whale ..
Humpback Whale ..
Humpback Whale ..
Megaptera
novaeangliae.
Central America/Southern Mexico—CA/OR/
WA.
Mainland Mexico—CA/
OR/WA.
Hawaii ...........................
Megaptera
novaeangliae.
Megaptera
novaeangliae.
E, D, Y ..........................
1,494 (0.171, 1,284,
2021).
3.5
14.9
T, D, Y ..........................
3,477 (0.101, 3,185,
2018).
11,278 (0.56, 7,265,
2020).
43
22
127
27.09
-, -, N ............................
Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae:
Killer Whale ............
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Killer Whale ............
Family Phocoenidae
(porpoises):
Harbor porpoise .....
Orcinus orca .................
Orcinus orca .................
Phocoena phocoena ....
Eastern North Pacific
Southern Resident.
West Coast Transient ...
E, D, Y ..........................
73 (N/A, 73, 2022) ........
0.13
0
-, -, N ............................
349 (N/A, 349, 2018) ....
3.5
0.4
Washington Inland
Waters.
-, -, N ............................
11,233 (0.37, 8,308,
2015).
66
≥7.2
14,011
>321
2,178
93.2
Order Carnivora—Pinnipedia
Family Otariidae (eared
seals and sea lions):
California Sea Lion
Steller Sea Lion .....
Zalophus californianus
U.S. ...............................
-,-; N .............................
Eumetopias jubatus ......
Eastern .........................
-,-; N .............................
257,606 (N/A, 233,515,
2014).
36,308 (N/A, 36,308,
2022).
Family Phocidae (earless seals):
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TABLE 2—SPECIES FOR WHICH TAKE COULD OCCUR IN THE PROJECT AREA—Continued
Common name
Harbor Seal ............
Scientific name
ESA/MMPA status;
Strategic (Y/N) 1
Stock
Phoca vitulina ...............
Washington Northern
Inland Waters.
-, -, N ............................
Stock abundance (CV,
Nmin, most recent
abundance survey) 2
Annual M/SI3 3
PBR
16,451 (0.07, 15,462,
2019).
928
40
1 Information on the classification of marine mammal species follows The Society for Marine Mammalogy’s Committee on Taxonomy (https://
www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/). ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for
which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
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 lowfrequency cetaceans where the lower
bound was deemed to be biologically
implausible and the lower bound from
Southall et al. (2007) retained. Marine
mammal hearing groups and their
associated hearing ranges are provided
in table 3.
TABLE 3—MARINE MAMMAL HEARING GROUPS
[NMFS, 2018]
Hearing group
Generalized hearing
range *
Low-frequency (LF) cetaceans (baleen whales) .........................................................................................................................
Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ..............................................
High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L.
australis).
Phocid pinnipeds (PW) (underwater) (true seals) .......................................................................................................................
Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ..................................................................................................
7 Hz to 35 kHz.
150 Hz to 160 kHz.
275 Hz to 160 kHz.
50 Hz to 86 kHz.
60 Hz to 39 kHz.
* 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).
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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
(Hemilä et al., 2006; Kastelein et al.,
2009; Reichmuth et al., 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
The effects of underwater noise from
Phillip’s 66 dock replacement activities
have the potential to result in behavioral
harassment of marine mammals in the
vicinity of the southeastern shores of the
Strait of Georgia, in Puget Sound WA.
The notice of proposed IHA (89 FR
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53046, June 25, 2024) included a
discussion of the effects of
anthropogenic noise on marine
mammals and the potential effects of
underwater noise from vibratory pile
driving on marine mammals and their
habitat. That information and analysis is
referenced in this final IHA
determination and is not repeated here;
please refer to the notice of proposed
IHA (89 FR 53046, June 25, 2024).
Estimated Take of Marine Mammals
This section provides an estimate of
the number of incidental takes
authorized through the IHA, which
informs NMFS’ consideration of ‘‘small
numbers,’’ the negligible impact
determinations, and impacts on
subsistence uses.
Harassment is the only type of take
expected to result from these activities.
Except with respect to certain activities
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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 will be by Level B
harassment only, as use of the acoustic
stressors (i.e., pile driving) has the
potential to result in disruption of
behavioral patterns for individual
marine mammals. The mitigation and
monitoring measures are expected to
minimize the severity of the taking to
the extent practicable.
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As described previously, no serious
injury or mortality is anticipated or
authorized for this activity. Below we
describe how the 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 take estimates.
Acoustic Thresholds
NMFS recommends the use of
acoustic thresholds that identify the
received level of underwater sound
above which exposed marine mammals
will be reasonably expected to be
behaviorally harassed (equated to Level
B 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-meansquared pressure received levels (RMS
SPL) of 120 dB (referenced to 1
micropascal (re 1 mPa)) for continuous
(e.g., vibratory pile driving, drilling) and
above RMS SPL 160 dB (re 1 mPa) for
non-explosive impulsive (e.g., seismic
airguns) or intermittent (e.g., scientific
sonar) sources. Generally speaking,
Level B harassment take estimates based
on these behavioral harassment
thresholds are expected to include any
likely takes by TTS as, in most cases,
the likelihood of TTS occurs at
distances from the source less than
those at which behavioral harassment is
likely. TTS of a sufficient degree can
manifest as behavioral harassment, as
reduced hearing sensitivity and the
potential reduced opportunities to
detect important signals (conspecific
communication, predators, prey) may
result in changes in behavior patterns
that would not otherwise occur.
The Phillips 66 activity includes the
use of continuous sound sources
(vibratory driving), and therefore the
RMS SPL threshold of 120 dB re 1 mPa
is applicable.
These thresholds are provided in the
table 4 below. The references, analysis,
and methodology used in the
development of the thresholds are
described in NMFS’ 2018 Technical
Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/
national/marine-mammal-protection/
marine-mammal-acoustic-technicalguidance.
TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT
PTS onset acoustic thresholds *
(received level)
Hearing group
Impulsive
Low-Frequency (LF) Cetaceans ......................................
Mid-Frequency (MF) Cetaceans ......................................
High-Frequency (HF) Cetaceans .....................................
Phocid Pinnipeds (PW) (Underwater) .............................
Otariid Pinnipeds (OW) (Underwater) .............................
Cell
Cell
Cell
Cell
Cell
1:
3:
5:
7:
9:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
Lpk,flat:
219
230
202
218
232
dB;
dB;
dB;
dB;
dB;
Non-impulsive
LE,LF,24h: 183 dB .........................
LE,MF,24h: 185 dB ........................
LE,HF,24h: 155 dB ........................
LE,PW,24h: 185 dB .......................
LE,OW,24h: 203 dB .......................
Cell
Cell
Cell
Cell
Cell
2: LE,LF,24h: 199 dB.
4: LE,MF,24h: 198 dB.
6: LE,HF,24h: 173 dB.
8: LE,PW,24h: 201 dB.
10: LE,OW,24h: 219 dB.
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should
also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s.
In this table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure
is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being
included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated
with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level
thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for
action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.
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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
TL coefficient.
The sound field in the project area is
the existing background noise plus
additional construction noise from the
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project. Marine mammals are expected
to be affected via sound generated by
the primary components of the project
(i.e., vibratory pile driving).
Additionally, vessel traffic and other
commercial and industrial activities in
the project area may contribute to
elevated background noise levels which
may mask sounds produced by the
project.
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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),
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Where:
TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from
the driven pile, and
R2 = the distance from the driven pile of the
initial measurement
This formula neglects loss due to
scattering and absorption, which is
assumed to be zero here. The degree to
which underwater sound propagates
away from a sound source is dependent
on a variety of factors, most notably the
water bathymetry and presence or
absence of reflective or absorptive
conditions including in-water structures
and sediments. Spherical spreading
occurs in a perfectly unobstructed (freefield) environment not limited by depth
or water surface, resulting in a 6-dB
reduction in sound level for each
doubling of distance from the source
(20*log[range]). Cylindrical spreading
occurs in an environment in which
sound propagation is bounded by the
water surface and sea bottom, resulting
in a reduction of 3 dB in sound level for
each doubling of distance from the
source (10*log[range]). A practical
spreading value of 15 is often used
under conditions, such as the project
site, where water increases with depth
as the receiver moves away from the
shoreline, resulting in an expected
propagation environment that would lie
between spherical and cylindrical
spreading loss conditions. Practical
spreading loss is assumed here.
66061
The intensity of pile driving sounds is
greatly influenced by factors such as the
type of piles, hammers, and the physical
environment in which the activity takes
place. In order to calculate the distances
to the Level B harassment sound
thresholds for the method and piles
being used in this project, NMFS used
acoustic monitoring data from other
locations to develop proxy source levels
for the various pile types, sizes and
methods. The project includes vibratory
pile installation of 20-in steel piles.
Source levels for the pile size and
driving method are presented in table 5.
The closest representative pile size for
reference sound levels was 24-inch piles
(WSDOT 2020).
TABLE 5—PROXY SOUND SOURCE LEVELS FOR PILE SIZES AND DRIVING METHODS
Noise level
Equipment used
dB Peak
dB rms
dB SEL
(m)
181
153
........................
Vibratory pile driving 24-inch steel piles 1 ........................................................
1 Caltrans
Distance from
measurement
10
2020.
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
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 impact or vibratory pile
driving 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. Inputs used for impact driving in
the optional NMFS User Spreadsheet
tool, and the resulting estimated
isopleths, are reported below in table 6
and table 7 below.
TABLE 6—USER SPREADSHEET INPUTS FOR LEVEL A HARASSMENT ISOPLETHS
Inputs
20-in Steel vibratory
installation
Spreadsheet Tab Used ..............................................................................................................................................
Vibratory Pile Driving
(STATIONARY: Non-impulsive,
Continuous)
..................................................
..................................................
153
2.5
..................................................
16
15
15
10
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Source Level (Single Strike/shot SEL) ......................................................................................................................
Peak ...........................................................................................................................................................................
RMS ...........................................................................................................................................................................
Weighting Factor Adjustment (kHz) ...........................................................................................................................
Strikes per pile ...........................................................................................................................................................
Piles Per day .............................................................................................................................................................
Propagation (xLogR) ..................................................................................................................................................
Duration .....................................................................................................................................................................
Distance of source level measurement (meters)∂ ....................................................................................................
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TABLE 7—CALCULATED LEVEL A AND LEVEL B HARASSMENT ISOPLETHS (m) AND ENSONIFIED AREAS
[km2 in parentheses]
Level A pinnipeds
Level A cetaceans
Pile size/type
Level B
Harbor seal
I
Sea lions
LF
MF
I
I
HF
Vibratory Installation
20-in steel ................................................
3.1 (.003)
I
<1 (.000)
120 dB
threshold
5 (.005)
<1 (.000)
I
I
7.5 (.007)
1585 (1.5)
* The Level A harassment isopleths associated with vibratory installation are all below the minimum shutdown zone and result in very small
ensonified areas. Therefore they are not provided in this table but will be included in the following calculated take tables.
(NMSDD) Phase III for the Northwest
Training and Testing Study Area (Navy,
2019). These density estimates are
shown in table 8 and will be used to
calculate take due to the lack of sitespecific data that is available.
To quantitatively assess potential
exposure of marine mammals to noise
levels from pile driving over the NMFS
threshold guidance, the following
Marine Mammal Occurrence and Take
Estimation
In this section we provide information
about the occurrence of marine
mammals, including density or other
relevant information which will inform
the take calculations. The primary
source for density estimates is from the
Navy Marine Species Density Database
equation was first used to provide an
estimate of potential exposures within
estimated harassment zones:
Exposure estimate = N × harassment
zone (km2) × maximum days of pile
driving
where
N = density estimate (animals per km2) used
for each species.
TABLE 8—MARINE MAMMAL SPECIES DENSITIES USED FOR EXPOSURE CALCULATIONS
Species
Density
(Animals/km2)
Region characterized
Humpback Whale ....................................
Killer Whale (Southern Resident) ............
Killer Whale (Transient) ...........................
Harbor Porpoise ......................................
Steller Sea Lion .......................................
California Sea Lion ..................................
Harbor Seal .............................................
North
North
North
North
North
North
North
Puget
Puget
Puget
Puget
Puget
Puget
Puget
Sound/San Juan Islands (Fall and Winter) ...........................................
Sound/San Juan Islands (Fall and Winter) ...........................................
Sound/San Juan Islands (Fall and Winter) ...........................................
Sound ....................................................................................................
Sound/San Juan Islands (Fall) .............................................................
Sound/San Juan Islands (Fall) .............................................................
Sound/San Juan Islands (Fall) .............................................................
0.0027
0.0078
0.0031
2.16
0.0027
0.0179
0.76
Source: Navy 2019.
Potential Level A harassment zones
were all calculated to less than 10
meters. As seen from table 7, marine
mammals will have to be very close to
the vibratory driving activity to be
within the estimated Level A
harassment zone. Marine mammal
monitors will be in place, closely
monitoring this zone and stopping work
before any marine mammal gets near the
largest Level A harassment zone of 6.2m
from the project source. Based on the
estimated Level A harassment zones,
and density-based calculations for all
species, no take by Level A Harassment
was estimated (all less than 1.0). Harbor
porpoise is the species with the highest
density at 2.16 per km, multiplied by
the Level A harassment zone of .007 km
(table 7), and 35 days of work yields
0.53 individuals exposed to Level A
harassment. Therefore, when considered
in context of planned mitigation, no
take by Level A harassment is expected.
Table 9 below shows the total calculated
take by Level B harassment over the 35
in-water work days planned for the
Phillips 66 activity resulting in total
calculated take.
TABLE 9—CALCULATED AND REQUESTED TAKE BY LEVEL B HARASSMENT FROM VIBRATORY PILE INSTALLATION
35 Days of 20-inch pile installation by vibratory hammer
Total Level B
harassment
calculated
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Species
Harbor Porpoise ...........................................................................................................................................
Steller Sea Lion ...........................................................................................................................................
California Sea Lion ......................................................................................................................................
Harbor Seal ..................................................................................................................................................
Humpback Whale
Humpback whales are an uncommon
occurrence near the project area but
they do have the potential to be in the
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area as they migrate to feeding grounds
to the north and mating grounds far
south. Based on best available density
estimates, Phillips 66 has calculated the
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447
1
4
157
Level B
harassment
proposed for
authorization
447
35
105
157
potential take of one humpback whale,
by Level B harassment only. However,
Phillips 66 proposes to shut down
whenever humpback whales approach
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the Level B harassment zone. Given the
low density of humpback whales in the
project area, the ability to detect the
whales visually from a considerable
distance, the capacity to track whales
through the Orca Network, and the
anticipated efficacy of mitigation and
monitoring measures, Phillips 66
determined that no take of humpback
whales is likely to occur and did not
request that any such take be
authorized. NMFS concurs with this
request and, therefore, has not
authorized take of humpback whales.
Killer Whales
Both SRKW and transient killer
whales could potentially occur near the
project area. Based on best available
density estimates, Phillips 66 has
calculated that up to two SRKWs and
one transient whale could be taken, by
Level B harassment only. Even though
the project site is located in summer
core area critical habitat, and the project
may begin August 1, the southeastern
corner of the Strait of Georgia (where
the project is located) is not a location
where SRKW are commonly sighted.
According to the monthly ORCA
network reports of September through
October, from 2016–2023, the
occurrence of killer whales from any
stock was uncommon in the
southeastern corner of the Strait of
Georgia. When compared to transient
killer whales, sightings of SRKWs were
far less prevalent (ORCA 2024).
Mitigation requires that pile driving
activity shut down whenever a killer
whale from any stock is observed
approaching a harassment zone. Given
the ability to visually detect killer
whales from proposed PSO locations
(including boats), the capacity to track
this species through contact with the
ORCA Network, and the expected
efficacy of mitigation and monitoring
measures, Phillips 66 elected to not
request take. Due to the expansive range
of SRKWs; the relatively small area of
their habitat that may be affected by the
project; the ready availability of habitat
of similar or higher value, and the shortterm nature of installation construction
(35 days), Phillips 66 determined that
no take of killer whales is likely to occur
and did not request that any such take
be authorized. NMFS concurs with this
request and, therefore, has not
authorized take of killer whales.
Steller Sea Lion
Calculated take based upon the
species density in the Strait of Georgia
yielded one potential take by Level B
harassment during the 35 days of inwater pile driving work. While there are
no known nearby haulouts, there are
haulouts in the greater Strait of Georgia.
Phillips 66 determined, based on
anecdotal sightings at the facility, that
the calculated value was too low. In
addition, this species is known to travel
significant distances in search for prey,
possibly into the surrounding marine
waters of the Cherry Point Aquatic
Reserve.
NMFS reviewed other IHA monitoring
reports from Puget Sound and found
that the Seattle Pier 63 construction
project (87 FR 31985, May 26, 2022)
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reported a maximum of one animal
present per day over 17 in-water work
days between October 12 and November
30, 2022. Therefore, NMFS assumes a
similar rate of occurrence and has
authorized 35 (one/day) takes of Steller
sea lion by Level B harassment.
California Sea Lion
Calculated take based upon the
species density in the Strait of Georgia
found 4 potential takes by Level B
harassment during the 35 days of pile
driving work at the Phillips 66 dock.
While there are no known nearby
haulouts, there are haulouts in the
greater Strait of Georgia. Phillips 66
determined, based on anecdotal
sightings at the facility, that the
calculated value was too low. In
addition, this species is known to travel
significant distances in search for prey,
possibly into the surrounding marine
waters of the Cherry Point Aquatic
Reserve.
NMFS reviewed other IHA monitoring
reports from Puget Sound and found
that the Seattle Pier 63 construction
project (87 FR 31985, May 26, 2022)
reported a maximum of three California
sea lions present per day over 17 inwater work days between October 12
and November 30, 2022. Therefore,
NMFS assumes a similar rate of
occurrence and has authorized 105
(three/day) takes of California sea lions
by Level B Harassment.
Details of takes by Level B harassment
as a percentage of stocks are shown in
table 10.
TABLE 10—AUTHORIZED TAKE OF MARINE MAMMALS BY LEVEL B HARASSMENT BY SPECIES, STOCK, AND PERCENT OF
TAKE BY STOCK
Common name
Stock
Harbor porpoise .....................................
Steller sea lion .......................................
California sea lion ..................................
Harbor seal ............................................
Washington Inland Waters ....................
Eastern U.S ...........................................
U.S ........................................................
Washington Northern Inland .................
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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.
NMFS regulations require applicants for
incidental take authorizations to include
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Stock abundance
11,233
36,308
257,606
16,451
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
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Total authorized
take
447
35
105
157
Authorized take
as percentage
of stock
3.97
0.10
0.04
0.95
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
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implemented as planned), the
likelihood of effective implementation
(probability implemented as planned),
and;
(2) The practicability of the measures
for applicant implementation, which
may consider such things as cost,
impact on operations.
Pre-start Clearance Monitoring—Prior
to the start of daily in-water
construction activity, or whenever a
break in pile driving/removal 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 zone,
a soft-start (discussed below) cannot
proceed until the animal has left the
zone or has not been observed for 15
minutes. If the monitoring zone has
been observed for 30 minutes and
marine mammals are not present within
the zone, soft-start procedures can
commence and work can continue. Prestart clearance monitoring must be
conducted during periods of visibility
sufficient for the lead PSO to determine
that the shutdown zones, indicated in
table 11, are clear of marine mammals.
Pile driving may commence following
30 minutes of observation, when the
determination is made that the
shutdown zones are clear of marine
mammals. If work ceases for more than
30 minutes, the pre-activity monitoring
of both the monitoring zone and
shutdown zone would commence.
Implementation of Shutdown Zones—
For all pile driving activities, Phillips 66
would implement shutdowns within
designated zones. The purpose of a
shutdown zone is generally to define an
area within which shutdown of activity
would occur upon sighting of a marine
mammal (or in anticipation of an animal
entering the defined area).
Implementation of shutdowns would be
used to avoid takes by Level A
harassment from vibratory pile driving
for all four species for which take may
occur.
A minimum shutdown zone of 10 m
would be required for all in-water
construction activities to avoid physical
interaction with marine mammals.
Proposed shutdown and monitoring
zones for each activity type are shown
in table 11.
TABLE 11—SHUTDOWN ZONES DURING PILE INSTALLATION AND REMOVAL
[m]
Shutdown zones
HF
Phocid
Otariid
Level B
harassment
monitoring zone
10
10
10
1,585
Pile size/type
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20-in steel Vibratory .................................................................
All marine mammals would be
monitored in the Level B harassment
zones and throughout the area as far as
visual monitoring can take place. If one
of the four species of marine mammal
for which take would be authorized
enters the Level B harassment zone, inwater activities would continue and
PSOs would document the animal’s
presence within the estimated
harassment zone.
If a species for which authorization
has not been granted, or a species which
has been granted but the authorized
takes are met, is observed approaching
or within the Level B harassment zone,
pile driving activities will be shut down
immediately. Activities will not resume
until the animal has been confirmed to
have left the area or 15 minutes has
elapsed with no sighting of the animal.
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
sightings of any killer whales or
humpback whales. Phillips 66 must
delay or halt pile driving activities if
any killer whales or humpback whales
are sighted within the vicinity of the
project area and are approaching the
Level B harassment zones (table 11)
during in-water activities. Finally, if a
SRKW, unidentified killer whale, or
humpback whale enters the Level B
harassment zone undetected, in-water
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pile driving must be suspended
immediately upon detection and must
not resume until the animal exits the
Level B harassment zone or 15 minutes
have passed without re-detection of the
animal.
Based on our evaluation of the
applicant’s proposed measures, NMFS
has determined that these 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.
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.
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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
activity; 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
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physical components of marine
mammal habitat); and,
• Mitigation and monitoring
effectiveness.
Visual Monitoring
Monitoring shall be conducted by
NMFS-approved observers. Trained
observers shall be placed from the best
vantage point(s) practicable to monitor
for marine mammals and implement
shutdown or delay procedures when
applicable through communication with
the equipment operator. Observer
training must be provided prior to
project start, and shall include
instruction on species identification
(sufficient to distinguish the species in
the project area), description and
categorization of observed behaviors
and interpretation of behaviors that may
be construed as being reactions to the
specified activity, proper completion of
data forms, and other basic components
of biological monitoring, including
tracking of observed animals or groups
of animals such that repeat sound
exposures may be attributed to
individuals (to the extent possible).
Monitoring would be conducted 30
minutes before, during, and 30 minutes
after pile driving activities. In addition,
observers shall record all incidents of
marine mammal occurrence, regardless
of distance from activity, and shall
document any behavioral reactions in
concert with distance from piles being
driven. 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.
A minimum of two PSOs would be on
duty during all in-water pile driving
activities. One ‘shore-based’ observer
will be stationed at locations offering
best line of sight views to monitor the
entirety of the shutdown zones and
provide the most complete coverage of
the monitoring zones. Additionally,
Phillips 66 proposes to deploy one boatbased PSO that will be positioned at a
location or moving in a pattern that
offers the most complete visual coverage
of the monitoring zone. Note, however,
PSO position(s) may vary based on
construction activity and location of
piles or equipment.
PSOs would scan the waters using
binoculars and would use a handheld
range-finder device to verify the
distance to each sighting from the
project site. All PSOs would be trained
in marine mammal identification and
behaviors and are required to have no
other project-related tasks while
conducting monitoring. In addition,
monitoring would be conducted by
qualified observers, who would be
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placed at the best vantage point(s)
practicable to monitor for marine
mammals and implement shutdown/
delay procedures when applicable by
calling for the shutdown to the hammer
operator via a radio. Phillips 66 would
adhere to the following observer
qualifications:
(i) PSOs must be independent of the
activity contractor (for example,
employed by a subcontractor) and have
no other assigned tasks during
monitoring periods,
(ii) At least one PSO must have prior
experience performing the duties of a
PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization,
(iii) Other PSOs may substitute other
relevant experience, education (degree
in biological science or related field), or
training for prior experience performing
the duties of a PSO during construction
activity pursuant to a NMFS-issued
incidental take authorization,
(iv) Where a team of three or more
PSOs is required, a lead observer or
monitoring coordinator must be
designated. The lead observer must have
prior experience performing the duties
of a PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization,
(v) PSOs must be approved by NMFS
prior to beginning any activity subject to
this IHA.
Additional standard observer
qualifications include:
• 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 and
times when in-water construction
activities were suspended to avoid
potential incidental injury from
construction sound of marine mammals
observed within a defined shutdown
zone; 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.
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Reporting
A draft marine mammal monitoring
report would be submitted to NMFS
within 90 days after the completion of
pile driving and removal activities. It
would include an overall description of
work completed, a narrative regarding
marine mammal sightings, and
associated PSO data sheets. Specifically,
the report must include:
• Dates and times (begin and end) of
all marine mammal monitoring,
• Construction activities occurring
during each daily observation period,
including the number and type of piles
driven or removed and by what method,
and the total equipment duration or
total number of minutes for each pile
(vibratory driving),
• PSO locations during marine
mammal monitoring,
• 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,
• Upon observation of a marine
mammal, the following information:
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 bearing of each marine
mammal observed relative to the pile
being driven for each sighting (if pile
driving was occurring at time of
sighting); Estimated number of animals
(min/max/best estimate); Estimated
number of animals by cohort (adults,
juveniles, neonates, group composition,
etc.); Animal’s closest point of approach
and estimated time spent within the
harassment zone; and 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 zone, by
species,
• Detailed information about any
implementation of any mitigation
triggered (e.g., shutdowns and delays), a
description of specific actions that
ensued, and resulting changes in
behavior of the animal(s), if any.
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If no comments are received from
NMFS within 30 days, the draft final
report will constitute the final report. If
comments are received, a final report
addressing NMFS comments must be
submitted within 30 days after receipt of
comments.
Reporting Injured or Dead Marine
Mammals
In the unanticipated event that the
specified activity clearly causes the take
of a marine mammal in a manner
prohibited by the IHA (if issued), such
as an injury, serious injury or mortality,
Phillips 66 would immediately cease
the specified activities and report the
incident to the Office of Protected
Resources, NMFS, and the West Coast
Region regional stranding coordinator.
The report will include the following
information:
• Description of the incident;
• Environmental conditions (e.g.,
Beaufort sea state, visibility);
• Description of all marine mammal
observations in the 24 hours preceding
the incident;
• Species identification or
description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the
animal(s) (if equipment is available).
Activities will not resume until NMFS
is able to review the circumstances of
the prohibited take. NMFS would work
with Phillips 66 to determine what is
necessary to minimize the likelihood of
further prohibited take and ensure
MMPA compliance. Phillips 66 will not
be able to resume their activities until
notified by NMFS.
In the event that Phillips 66 discovers
an injured or dead marine mammal, and
the lead PSO determines that the cause
of the injury or death is unknown and
the death is relatively recent (e.g., in
less than a moderate state of
decomposition as described in the next
paragraph), Phillips 66 will immediately
report the incident to the Office of
Protected Resources
(PR.ITP.MonitoringReports@noaa.gov),
NMFS and to the West Coast Region
regional stranding coordinator as soon
as feasible. The report will include the
same information identified in the
paragraph above. Activities will be able
to continue while NMFS reviews the
circumstances of the incident. NMFS
will work with Phillips 66 to determine
whether modifications in the activities
are appropriate.
Negligible Impact Analysis and
Determination
NMFS has defined negligible impact
as an impact resulting from the
specified activity that cannot be
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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., populationlevel 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).
To avoid repetition, the majority of
our analysis applies to all the species
listed in table 9, given that many of the
anticipated effects of this project on
different marine mammal stocks are
expected to be relatively similar in
nature. Where there are meaningful
differences between species or stocks, or
groups of species, in anticipated
individual responses to activities,
impact of expected take on the
population due to differences in
population status, or impacts on habitat,
they are described independently in the
analysis below.
Pile driving activities associated with
the project as outlined previously, have
the potential to disturb or displace
marine mammals. Specifically, the
specified activities may result in take, in
the form of Level B harassment from
underwater sounds generated from pile
driving. Potential takes could occur if
individuals of these species are present
in zones ensonified above the
thresholds for Level B harassment
identified above when these activities
are underway.
Take by Level B harassment would be
due to potential behavioral disturbance,
and TTS. No serious injury or mortality
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Fmt 4703
Sfmt 4703
is anticipated or authorized given the
nature of the activity 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 Mitigation
section).
Based on reports in the literature as
well as monitoring from other similar
activities, behavioral disturbance (i.e.,
Level B harassment) would likely be
limited to reactions such as increased
swimming speeds, increased surfacing
time, or decreased foraging (if such
activity were occurring) (e.g., Thorson
and Reyff, 2006; HDR, Inc., 2012; Lerma,
2014). Most likely for pile driving,
individuals would simply move away
from the sound source and be
temporarily displaced from the areas of
pile driving, although even this reaction
has been observed primarily only in
association with impact pile driving.
The pile driving activities analyzed here
are similar to, or less impactful than,
numerous other construction activities
conducted in Washington, which have
taken place with no observed severe
responses of any individuals or known
long-term adverse consequences. The
impact of Level B harassment takes on
the affected individuals will be
minimized through use of mitigation
measures described herein and, if sound
produced by project activities is
sufficiently disturbing, animals are
likely to simply avoid the area while the
activity is occurring. The project site
itself is frequented by large tankers
every few days, but the majority of
sound fields produced by the specified
activities are relatively close to the
dock. Animals disturbed by project
sound will be expected to avoid the area
and use nearby higher-quality habitats.
The project also is not expected to
have significant adverse effects on
affected marine mammals’ habitat. The
project activities will not modify
existing marine mammal habitat for a
significant amount of time. The
activities may cause some fish or
invertebrates 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
intermittent driving schedule (35 inwater work days between August 1 and
October 31, 2024); short duration of the
activities (no more than 4 hours per day
vibratory driving); the relatively small
area of the habitat that may be affected;
and the availability of nearby habitat of
similar or higher value, the impacts to
marine mammal habitat are not
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expected to cause significant or longterm negative consequences.
While there are haulouts for
pinnipeds in the area, these locations
are some distance from the actual
project site. There are two documented
California sea lion haulouts in the
southern Strait of Georgia, both on the
western coast of the Strait in British
Columbia. The closest haulout in near
Tumbo Island on the eastern edge of the
Gulf Island, over 15 miles from the
project site. The closest documented
Steller sea lion haulout location is over
10 miles from the project site, on Sucia
Island (Jeffries et al., 2000). The closest
documented harbor seal haulouts are
two different low population (>100
individuals) locations approximately 5
miles from the project site, one to the
north and one to the south (Jeffries et
al., 2000). To the southwest and west of
the project location are 14 other
haulouts dotted throughout a few of the
small northern San Juan Islands (North
of Orcas Island) within 10 miles of the
project (Jeffries et al., 2000).
While repeated exposures of
individuals to this pile driving activity
could cause limited Level B harassment
in harbor seals, harbor porpoises, and
sea lions, they are unlikely to
considerably disrupt foraging behavior
or result in significant decrease in
fitness, reproduction, or survival for the
affected individuals.
In summary and as described above,
the following factors primarily support
our determination that the impacts
resulting from this activity are not
expected to adversely affect any of the
species or stocks through effects on
annual rates of recruitment or survival:
• No serious injury or mortality is
anticipated or authorized;
• The anticipated incidents of Level B
harassment would consist of, at worst,
temporary modifications in behavior
that would not result in fitness impacts
to individuals;
• The ensonifed area from the project
is very small relative to the overall
habitat ranges of all species and stocks,
and no habitat of particular importance
would be impacted;
• Repeated exposures of marine
mammals to this pile driving activity
could cause Level B harassment in seals,
harbor porpoise and sea lion species,
but are unlikely to considerably disrupt
foraging behavior or result in significant
decrease in fitness, reproduction, or
survival for the affected individuals. In
all, there would be no adverse impacts
to the stocks as a whole; and
• The mitigation measures are
expected to reduce the effects of the
specified activity by minimizing the
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intensity and/or duration of harassment
events.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
proposed monitoring and mitigation
measures, NMFS finds that the total
marine mammal take from the proposed
activity will have a negligible impact on
all affected marine mammal species or
stocks.
Small Numbers
As noted previously, only take of
small numbers of marine mammals 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.
Table 8 demonstrates the number of
instances in which individuals of a
given species could be exposed to
received noise levels that could cause
take of marine mammals. Our analysis
shows that the total taking authorized is
less than 4 percent of the best available
population abundance estimate for all
species.
Based on the analysis contained
herein of the activity (including the
mitigation and monitoring measures)
and the anticipated take of marine
mammals, NMFS 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.
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Fmt 4703
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66067
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.
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 NAO 216–
6A, which do not individually or
cumulatively have the potential for
significant impacts on the quality of the
human environment and for which we
have not identified any extraordinary
circumstances that would preclude this
categorical exclusion. Accordingly,
NMFS has determined that the issuance
of the IHA qualifies to be categorically
excluded from further NEPA review.
Authorization
NMFS has issued an IHA to Phillips
66 for the potential harassment of small
numbers of 4 marine mammal species
incidental to the Ferndale Refinery Dock
Replacement in-water pile driving
activities in Ferndale Washington, that
includes the previously explained
mitigation, monitoring and reporting
requirements.
Dated: August 9, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2024–18146 Filed 8–13–24; 8:45 am]
BILLING CODE 3510–22–P
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[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Notices]
[Pages 66057-66067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18146]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE180]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental To Ferndale Refinery Dock Maintenance
and Pile Replacement Activities in Ferndale, Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Phillips 66 Co. to incidentally harass marine mammals during
construction activities associated with a dock replacement project in
Ferndale, Washington.
DATES: This authorization is effective from August 1 through July 31,
2025.
ADDRESSES: Electronic copies of the application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-phillips-66-cos-ferndale-refinery-dock-maintenance-and-pile. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Jennifer Gatzke, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA 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 monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms cited above are included in the relevant sections
below.
Summary of Request
On February 29, 2024 we received a request from Phillips 66 for an
IHA to take marine mammals incidental to Ferndale Refinery Dock
Maintenance and Pile Replacement Activities in Ferndale, Washington.
Following NMFS' review of the application, Phillips 66 submitted
revised versions on May 16 and May 20, 2024. The application was deemed
adequate and complete on May 21, 2024. Phillips 66 has requested
authorization of take by Level B harassment for harbor seal, California
sea lion, Steller sea lion and harbor porpoise. Neither Phillips 66 nor
NMFS expect serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate. There are no changes from the
proposed authorization to the final authorization.
Description of the Specified Activity
Phillips 66 is planning to modernize the existing timber loading
dock (on the southeastern shoreline of the Strait of Georgia in
Ferndale, Washington) and replace it with a stronger structure that
meets current industry best practices. The activity includes
installation of steel piles by vibratory driving, and pile removal
using an underwater chainsaw or cutting torch.
In-water pile installation construction will occur for 35 days,
which will occur intermittently through approximately October 31, 2024.
Take of marine mammals is anticipated to occur due to vibratory pile
installation. Removal of all piles is expected to take up to 66 days
for underwater pile cutting with a chainsaw. Take of marine mammals is
not anticipated to occur due to pile removal.
This IHA is valid for a period of 1 year from the date of issuance.
Due to in-water work timing restrictions to protect Endangered Species
Act (ESA)-listed salmonids, all planned in-water construction in this
area is limited to a work window beginning August 1 and ending February
1. However, since the Strait of Georgia is a very large water body with
a long fetch, calm in-water work conditions are typically only
available from August to the end of October. Pile removal processes are
less dependent on good weather, and this portion of the project may
occur from approximately August 1 to February 1. Therefore, Phillips 66
expects that in-water pile installation construction work will occur
through October 31, 2024. Pile driving is anticipated to take up to 35
days to complete. Work may occur on nonconsecutive days due to weather
and other project needs. Pile driving will be completed intermittently
throughout daylight hours.
A detailed description of the planned dock maintenance and pile
replacement project is provided in the Federal Register notice for the
proposed IHA (89
[[Page 66058]]
FR 53046, June 25, 2024). Since that time, no changes have been made to
the planned activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Phillips 66 was
published in the Federal Register on June 25, 2024 (89 FR 53046). That
notice described, in detail, Phillips 66's activity, the marine mammal
species that may be affected by the activity, and the anticipated
effects on marine mammals. In that notice, we requested public input on
the request for authorization described therein, our analyses, the
proposed authorization, and any other aspect of the notice of proposed
IHA, and requested that interested persons submit relevant information,
suggestions, and comments. During the 30-day public comment period,
NMFS did not receive any public comments.
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, instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
Table 2 lists all species or stocks for which exposure is expected
for this activity and summarizes information related to the population
or stock, including regulatory status under the MMPA and 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 proposed to be authorized here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks 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' Alaska and Pacific SARs. All values presented in table 2 are the
most recent available at the time of publication (including from the
draft 2023 SARs) and are available online at: (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). All species that could potentially occur in
the proposed project area are included in table 2 of the IHA
application. While the gray whale, minke whale, Dall's porpoise, and
the Eastern North Pacific Northern Resident stock of killer whale have
been reported in the area, the temporal and/or spatial occurrence of
these species is such that take is not expected to occur, and they are
not discussed further beyond the explanation provided in the Federal
Register Notice for the proposed IHA (89 FR 53046, June 25, 2024).
Table 2--Species for Which Take Could Occur in the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock abundance
ESA/MMPA status; (CV, Nmin, most Annual M/SI3
Common name Scientific name Stock Strategic (Y/N) \1\ recent abundance PBR \3\
survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
(rorquals):
Humpback Whale............... Megaptera Central America/ E, D, Y............. 1,494 (0.171, 3.5 14.9
novaeangliae. Southern Mexico--CA/ 1,284, 2021).
OR/WA.
Humpback Whale............... Megaptera Mainland Mexico--CA/ T, D, Y............. 3,477 (0.101, 43 22
novaeangliae. OR/WA. 3,185, 2018).
Humpback Whale............... Megaptera Hawaii.............. -, -, N............. 11,278 (0.56, 127 27.09
novaeangliae. 7,265, 2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer Whale................. Orcinus orca........ Eastern North E, D, Y............. 73 (N/A, 73, 2022). 0.13 0
Pacific Southern
Resident.
Killer Whale................. Orcinus orca........ West Coast Transient -, -, N............. 349 (N/A, 349, 3.5 0.4
2018).
Family Phocoenidae (porpoises):
Harbor porpoise.............. Phocoena phocoena... Washington Inland -, -, N............. 11,233 (0.37, 66 >=7.2
Waters. 8,308, 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
California Sea Lion.......... Zalophus U.S................. -,-; N.............. 257,606 (N/A, 14,011 >321
californianus. 233,515, 2014).
Steller Sea Lion............. Eumetopias jubatus.. Eastern............. -,-; N.............. 36,308 (N/A, 2,178 93.2
36,308, 2022).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
[[Page 66059]]
Harbor Seal.................. Phoca vitulina...... Washington Northern -, -, N............. 16,451 (0.07, 928 40
Inland Waters. 15,462, 2019).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species follows The Society for Marine Mammalogy's Committee on Taxonomy (https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/). ESA status: Endangered (E), Threatened (T)/MMPA status:
Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic
stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the
ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic
stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
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 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 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 et al.,
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
The effects of underwater noise from Phillip's 66 dock replacement
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the southeastern shores of the Strait
of Georgia, in Puget Sound WA. The notice of proposed IHA (89 FR 53046,
June 25, 2024) included a discussion of the effects of anthropogenic
noise on marine mammals and the potential effects of underwater noise
from vibratory pile driving on marine mammals and their habitat. That
information and analysis is referenced in this final IHA determination
and is not repeated here; please refer to the notice of proposed IHA
(89 FR 53046, June 25, 2024).
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through the IHA, which informs NMFS' consideration of
``small numbers,'' the negligible impact determinations, and impacts on
subsistence uses.
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 will be by Level B harassment only, as use of the
acoustic stressors (i.e., pile driving) has the potential to result in
disruption of behavioral patterns for individual marine mammals. The
mitigation and monitoring measures are expected to minimize the
severity of the taking to the extent practicable.
[[Page 66060]]
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
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 take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
will be reasonably expected to be behaviorally harassed (equated to
Level B 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. Generally speaking, Level B harassment take
estimates based on these behavioral harassment thresholds are expected
to include any likely takes by TTS as, in most cases, the likelihood of
TTS occurs at distances from the source less than those at which
behavioral harassment is likely. TTS of a sufficient degree can
manifest as behavioral harassment, as reduced hearing sensitivity and
the potential reduced opportunities to detect important signals
(conspecific communication, predators, prey) may result in changes in
behavior patterns that would not otherwise occur.
The Phillips 66 activity includes the use of continuous sound
sources (vibratory driving), and therefore the RMS SPL threshold of 120
dB re 1 [mu]Pa is applicable.
These thresholds are provided in the table 4 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
a reference value of 1[mu]Pa\2\s. In this table, thresholds are abbreviated to reflect American National
Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and TL coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the project. Marine
mammals are expected to be affected via sound generated by the primary
components of the project (i.e., vibratory pile driving). Additionally,
vessel traffic and other commercial and industrial activities in the
project area may contribute to elevated background noise levels which
may mask sounds produced by the project.
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),
[[Page 66061]]
Where:
TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven
pile, and
R2 = the distance from the driven pile of the initial
measurement
This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(free-field) environment not limited by depth or water surface,
resulting in a 6-dB reduction in sound level for each doubling of
distance from the source (20*log[range]). Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of 3 dB in sound level
for each doubling of distance from the source (10*log[range]). A
practical spreading value of 15 is often used under conditions, such as
the project site, where water increases with depth as the receiver
moves away from the shoreline, resulting in an expected propagation
environment that would lie between spherical and cylindrical spreading
loss conditions. Practical spreading loss is assumed here.
The intensity of pile driving sounds is greatly influenced by
factors such as the type of piles, hammers, and the physical
environment in which the activity takes place. In order to calculate
the distances to the Level B harassment sound thresholds for the method
and piles being used in this project, NMFS used acoustic monitoring
data from other locations to develop proxy source levels for the
various pile types, sizes and methods. The project includes vibratory
pile installation of 20-in steel piles. Source levels for the pile size
and driving method are presented in table 5. The closest representative
pile size for reference sound levels was 24-inch piles (WSDOT 2020).
Table 5--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
Noise level
Equipment used --------------------------------------------------- Distance from
dB Peak dB rms dB SEL (m) measurement
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving 24-inch steel piles 181 153 ............... 10
\1\........................................
----------------------------------------------------------------------------------------------------------------
\1\ Caltrans 2020.
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 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 impact or vibratory pile driving 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. Inputs used for impact
driving in the optional NMFS User Spreadsheet tool, and the resulting
estimated isopleths, are reported below in table 6 and table 7 below.
Table 6--User Spreadsheet Inputs for Level A Harassment Isopleths
------------------------------------------------------------------------
20-in Steel vibratory
Inputs installation
------------------------------------------------------------------------
Spreadsheet Tab Used...................... Vibratory Pile Driving
(STATIONARY: Non-impulsive,
Continuous)
Source Level (Single Strike/shot SEL)..... ............................
Peak...................................... ............................
RMS....................................... 153
Weighting Factor Adjustment (kHz)......... 2.5
Strikes per pile.......................... ............................
Piles Per day............................. 16
Propagation (xLogR)....................... 15
Duration.................................. 15
Distance of source level measurement 10
(meters)+................................
------------------------------------------------------------------------
[[Page 66062]]
Table 7--Calculated Level A and Level B Harassment Isopleths (m) and Ensonified Areas
[km\2\ in parentheses]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A pinnipeds Level A cetaceans
Pile size/type -------------------------------------------------------------------------------- Level B
Harbor seal Sea lions LF MF HF
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Installation 120 dB
threshold
--------------------------------------------------------------------------------------------------------------------------------------------------------
20-in steel............................................. 3.1 (.003) <1 (.000) 5 (.005) <1 (.000) 7.5 (.007) 1585 (1.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The Level A harassment isopleths associated with vibratory installation are all below the minimum shutdown zone and result in very small ensonified
areas. Therefore they are not provided in this table but will be included in the following calculated take tables.
Marine Mammal Occurrence and Take Estimation
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations. The primary source for density
estimates is from the Navy Marine Species Density Database (NMSDD)
Phase III for the Northwest Training and Testing Study Area (Navy,
2019). These density estimates are shown in table 8 and will be used to
calculate take due to the lack of site-specific data that is available.
To quantitatively assess potential exposure of marine mammals to
noise levels from pile driving over the NMFS threshold guidance, the
following equation was first used to provide an estimate of potential
exposures within estimated harassment zones:
Exposure estimate = N x harassment zone (km\2\) x maximum days of pile
driving
where
N = density estimate (animals per km\2\) used for each species.
Table 8--Marine Mammal Species Densities Used for Exposure Calculations
------------------------------------------------------------------------
Density
Species Region characterized (Animals/km\2\)
------------------------------------------------------------------------
Humpback Whale................ North Puget Sound/San 0.0027
Juan Islands (Fall
and Winter).
Killer Whale (Southern North Puget Sound/San 0.0078
Resident). Juan Islands (Fall
and Winter).
Killer Whale (Transient)...... North Puget Sound/San 0.0031
Juan Islands (Fall
and Winter).
Harbor Porpoise............... North Puget Sound..... 2.16
Steller Sea Lion.............. North Puget Sound/San 0.0027
Juan Islands (Fall).
California Sea Lion........... North Puget Sound/San 0.0179
Juan Islands (Fall).
Harbor Seal................... North Puget Sound/San 0.76
Juan Islands (Fall).
------------------------------------------------------------------------
Source: Navy 2019.
Potential Level A harassment zones were all calculated to less than
10 meters. As seen from table 7, marine mammals will have to be very
close to the vibratory driving activity to be within the estimated
Level A harassment zone. Marine mammal monitors will be in place,
closely monitoring this zone and stopping work before any marine mammal
gets near the largest Level A harassment zone of 6.2m from the project
source. Based on the estimated Level A harassment zones, and density-
based calculations for all species, no take by Level A Harassment was
estimated (all less than 1.0). Harbor porpoise is the species with the
highest density at 2.16 per km, multiplied by the Level A harassment
zone of .007 km (table 7), and 35 days of work yields 0.53 individuals
exposed to Level A harassment. Therefore, when considered in context of
planned mitigation, no take by Level A harassment is expected. Table 9
below shows the total calculated take by Level B harassment over the 35
in-water work days planned for the Phillips 66 activity resulting in
total calculated take.
Table 9--Calculated and Requested Take by Level B Harassment From
Vibratory Pile Installation
------------------------------------------------------------------------
35 Days of 20-inch pile installation by vibratory hammer
-------------------------------------------------------------------------
Level B
Total Level B harassment
Species harassment proposed for
calculated authorization
------------------------------------------------------------------------
Harbor Porpoise................... 447 447
Steller Sea Lion.................. 1 35
California Sea Lion............... 4 105
Harbor Seal....................... 157 157
------------------------------------------------------------------------
Humpback Whale
Humpback whales are an uncommon occurrence near the project area
but they do have the potential to be in the area as they migrate to
feeding grounds to the north and mating grounds far south. Based on
best available density estimates, Phillips 66 has calculated the
potential take of one humpback whale, by Level B harassment only.
However, Phillips 66 proposes to shut down whenever humpback whales
approach
[[Page 66063]]
the Level B harassment zone. Given the low density of humpback whales
in the project area, the ability to detect the whales visually from a
considerable distance, the capacity to track whales through the Orca
Network, and the anticipated efficacy of mitigation and monitoring
measures, Phillips 66 determined that no take of humpback whales is
likely to occur and did not request that any such take be authorized.
NMFS concurs with this request and, therefore, has not authorized take
of humpback whales.
Killer Whales
Both SRKW and transient killer whales could potentially occur near
the project area. Based on best available density estimates, Phillips
66 has calculated that up to two SRKWs and one transient whale could be
taken, by Level B harassment only. Even though the project site is
located in summer core area critical habitat, and the project may begin
August 1, the southeastern corner of the Strait of Georgia (where the
project is located) is not a location where SRKW are commonly sighted.
According to the monthly ORCA network reports of September through
October, from 2016-2023, the occurrence of killer whales from any stock
was uncommon in the southeastern corner of the Strait of Georgia. When
compared to transient killer whales, sightings of SRKWs were far less
prevalent (ORCA 2024). Mitigation requires that pile driving activity
shut down whenever a killer whale from any stock is observed
approaching a harassment zone. Given the ability to visually detect
killer whales from proposed PSO locations (including boats), the
capacity to track this species through contact with the ORCA Network,
and the expected efficacy of mitigation and monitoring measures,
Phillips 66 elected to not request take. Due to the expansive range of
SRKWs; the relatively small area of their habitat that may be affected
by the project; the ready availability of habitat of similar or higher
value, and the short-term nature of installation construction (35
days), Phillips 66 determined that no take of killer whales is likely
to occur and did not request that any such take be authorized. NMFS
concurs with this request and, therefore, has not authorized take of
killer whales.
Steller Sea Lion
Calculated take based upon the species density in the Strait of
Georgia yielded one potential take by Level B harassment during the 35
days of in-water pile driving work. While there are no known nearby
haulouts, there are haulouts in the greater Strait of Georgia. Phillips
66 determined, based on anecdotal sightings at the facility, that the
calculated value was too low. In addition, this species is known to
travel significant distances in search for prey, possibly into the
surrounding marine waters of the Cherry Point Aquatic Reserve.
NMFS reviewed other IHA monitoring reports from Puget Sound and
found that the Seattle Pier 63 construction project (87 FR 31985, May
26, 2022) reported a maximum of one animal present per day over 17 in-
water work days between October 12 and November 30, 2022. Therefore,
NMFS assumes a similar rate of occurrence and has authorized 35 (one/
day) takes of Steller sea lion by Level B harassment.
California Sea Lion
Calculated take based upon the species density in the Strait of
Georgia found 4 potential takes by Level B harassment during the 35
days of pile driving work at the Phillips 66 dock. While there are no
known nearby haulouts, there are haulouts in the greater Strait of
Georgia. Phillips 66 determined, based on anecdotal sightings at the
facility, that the calculated value was too low. In addition, this
species is known to travel significant distances in search for prey,
possibly into the surrounding marine waters of the Cherry Point Aquatic
Reserve.
NMFS reviewed other IHA monitoring reports from Puget Sound and
found that the Seattle Pier 63 construction project (87 FR 31985, May
26, 2022) reported a maximum of three California sea lions present per
day over 17 in-water work days between October 12 and November 30,
2022. Therefore, NMFS assumes a similar rate of occurrence and has
authorized 105 (three/day) takes of California sea lions by Level B
Harassment.
Details of takes by Level B harassment as a percentage of stocks
are shown in table 10.
Table 10--Authorized Take of Marine Mammals by Level B Harassment by Species, Stock, and Percent of Take by
Stock
----------------------------------------------------------------------------------------------------------------
Authorized take
Common name Stock Stock abundance Total authorized as percentage of
take stock
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................. Washington Inland 11,233 447 3.97
Waters.
Steller sea lion................. Eastern U.S......... 36,308 35 0.10
California sea lion.............. U.S................. 257,606 105 0.04
Harbor seal...................... Washington Northern 16,451 157 0.95
Inland.
----------------------------------------------------------------------------------------------------------------
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. 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
[[Page 66064]]
implemented as planned), the likelihood of effective implementation
(probability implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations.
Pre-start Clearance Monitoring--Prior to the start of daily in-
water construction activity, or whenever a break in pile driving/
removal 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 zone, a soft-start (discussed below)
cannot proceed until the animal has left the zone or has not been
observed for 15 minutes. If the monitoring zone has been observed for
30 minutes and marine mammals are not present within the zone, soft-
start procedures can commence and work can continue. Pre-start
clearance monitoring must be conducted during periods of visibility
sufficient for the lead PSO to determine that the shutdown zones,
indicated in table 11, are clear of marine mammals. Pile driving may
commence following 30 minutes of observation, when the determination is
made that the shutdown zones are clear of marine mammals. If work
ceases for more than 30 minutes, the pre-activity monitoring of both
the monitoring zone and shutdown zone would commence.
Implementation of Shutdown Zones--For all pile driving activities,
Phillips 66 would implement shutdowns within designated zones. The
purpose of a shutdown zone is generally to define an area within which
shutdown of activity would occur upon sighting of a marine mammal (or
in anticipation of an animal entering the defined area). Implementation
of shutdowns would be used to avoid takes by Level A harassment from
vibratory pile driving for all four species for which take may occur.
A minimum shutdown zone of 10 m would be required for all in-water
construction activities to avoid physical interaction with marine
mammals. Proposed shutdown and monitoring zones for each activity type
are shown in table 11.
Table 11--Shutdown Zones During Pile Installation and Removal
[m]
----------------------------------------------------------------------------------------------------------------
Shutdown zones
Pile size/type ------------------------------------------------------------ Level B harassment
HF Phocid Otariid monitoring zone
----------------------------------------------------------------------------------------------------------------
20-in steel Vibratory........... 10 10 10 1,585
----------------------------------------------------------------------------------------------------------------
All marine mammals would be monitored in the Level B harassment
zones and throughout the area as far as visual monitoring can take
place. If one of the four species of marine mammal for which take would
be authorized enters the Level B harassment zone, in-water activities
would continue and PSOs would document the animal's presence within the
estimated harassment zone.
If a species for which authorization has not been granted, or a
species which has been granted but the authorized takes are met, is
observed approaching or within the Level B harassment zone, pile
driving activities will be shut down immediately. Activities will not
resume until the animal has been confirmed to have left the area or 15
minutes has elapsed with no sighting of the animal.
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 sightings of any killer
whales or humpback whales. Phillips 66 must delay or halt pile driving
activities if any killer whales or humpback whales are sighted within
the vicinity of the project area and are approaching the Level B
harassment zones (table 11) during in-water activities. Finally, if a
SRKW, unidentified killer whale, or humpback whale enters the Level B
harassment zone undetected, in-water pile driving must be suspended
immediately upon detection and must not resume until the animal exits
the Level B harassment zone or 15 minutes have passed without re-
detection of the animal.
Based on our evaluation of the applicant's proposed measures, NMFS
has determined that these 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.
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 activity; 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
[[Page 66065]]
physical components of marine mammal habitat); and,
Mitigation and monitoring effectiveness.
Visual Monitoring
Monitoring shall be conducted by NMFS-approved observers. Trained
observers shall be placed from the best vantage point(s) practicable to
monitor for marine mammals and implement shutdown or delay procedures
when applicable through communication with the equipment operator.
Observer training must be provided prior to project start, and shall
include instruction on species identification (sufficient to
distinguish the species in the project area), description and
categorization of observed behaviors and interpretation of behaviors
that may be construed as being reactions to the specified activity,
proper completion of data forms, and other basic components of
biological monitoring, including tracking of observed animals or groups
of animals such that repeat sound exposures may be attributed to
individuals (to the extent possible).
Monitoring would be conducted 30 minutes before, during, and 30
minutes after pile driving activities. In addition, observers shall
record all incidents of marine mammal occurrence, regardless of
distance from activity, and shall document any behavioral reactions in
concert with distance from piles being driven. 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.
A minimum of two PSOs would be on duty during all in-water pile
driving activities. One `shore-based' observer will be stationed at
locations offering best line of sight views to monitor the entirety of
the shutdown zones and provide the most complete coverage of the
monitoring zones. Additionally, Phillips 66 proposes to deploy one
boat-based PSO that will be positioned at a location or moving in a
pattern that offers the most complete visual coverage of the monitoring
zone. Note, however, PSO position(s) may vary based on construction
activity and location of piles or equipment.
PSOs would scan the waters using binoculars and would use a
handheld range-finder device to verify the distance to each sighting
from the project site. All PSOs would be trained in marine mammal
identification and behaviors and are required to have no other project-
related tasks while conducting monitoring. In addition, monitoring
would be conducted by qualified observers, who would be placed at the
best vantage point(s) practicable to monitor for marine mammals and
implement shutdown/delay procedures when applicable by calling for the
shutdown to the hammer operator via a radio. Phillips 66 would adhere
to the following observer qualifications:
(i) PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods,
(ii) At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization,
(iii) Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization,
(iv) Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer must have prior experience performing the duties of a PSO
during construction activity pursuant to a NMFS-issued incidental take
authorization,
(v) PSOs must be approved by NMFS prior to beginning any activity
subject to this IHA.
Additional standard observer qualifications include:
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 and times when in-water construction
activities were suspended to avoid potential incidental injury from
construction sound of marine mammals observed within a defined shutdown
zone; 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.
Reporting
A draft marine mammal monitoring report would be submitted to NMFS
within 90 days after the completion of pile driving and removal
activities. It would include an overall description of work completed,
a narrative regarding marine mammal sightings, and associated PSO data
sheets. Specifically, the report must include:
Dates and times (begin and end) of all marine mammal
monitoring,
Construction activities occurring during each daily
observation period, including the number and type of piles driven or
removed and by what method, and the total equipment duration or total
number of minutes for each pile (vibratory driving),
PSO locations during marine mammal monitoring,
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,
Upon observation of a marine mammal, the following
information: 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 bearing of each
marine mammal observed relative to the pile being driven for each
sighting (if pile driving was occurring at time of sighting); Estimated
number of animals (min/max/best estimate); Estimated number of animals
by cohort (adults, juveniles, neonates, group composition, etc.);
Animal's closest point of approach and estimated time spent within the
harassment zone; and 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
zone, by species,
Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any.
[[Page 66066]]
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
Reporting Injured or Dead Marine Mammals
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA
(if issued), such as an injury, serious injury or mortality, Phillips
66 would immediately cease the specified activities and report the
incident to the Office of Protected Resources, NMFS, and the West Coast
Region regional stranding coordinator. The report will include the
following information:
Description of the incident;
Environmental conditions (e.g., Beaufort sea state,
visibility);
Description of all marine mammal observations in the 24
hours preceding the incident;
Species identification or description of the animal(s)
involved;
Fate of the animal(s); and
Photographs or video footage of the animal(s) (if
equipment is available).
Activities will not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with Phillips 66
to determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. Phillips 66 will not be
able to resume their activities until notified by NMFS.
In the event that Phillips 66 discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (e.g., in less than
a moderate state of decomposition as described in the next paragraph),
Phillips 66 will immediately report the incident to the Office of
Protected Resources ([email protected]), NMFS and to
the West Coast Region regional stranding coordinator as soon as
feasible. The report will include the same information identified in
the paragraph above. Activities will be able to continue while NMFS
reviews the circumstances of the incident. NMFS will work with Phillips
66 to determine whether modifications in the activities are
appropriate.
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).
To avoid repetition, the majority of our analysis applies to all
the species listed in table 9, given that many of the anticipated
effects of this project on different marine mammal stocks are expected
to be relatively similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of expected take
on the population due to differences in population status, or impacts
on habitat, they are described independently in the analysis below.
Pile driving activities associated with the project as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level B harassment from underwater sounds generated from pile
driving. Potential takes could occur if individuals of these species
are present in zones ensonified above the thresholds for Level B
harassment identified above when these activities are underway.
Take by Level B harassment would be due to potential behavioral
disturbance, and TTS. No serious injury or mortality is anticipated or
authorized given the nature of the activity 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 Mitigation
section).
Based on reports in the literature as well as monitoring from other
similar activities, behavioral disturbance (i.e., Level B harassment)
would likely be limited to reactions such as increased swimming speeds,
increased surfacing time, or decreased foraging (if such activity were
occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma,
2014). Most likely for pile driving, individuals would simply move away
from the sound source and be temporarily displaced from the areas of
pile driving, although even this reaction has been observed primarily
only in association with impact pile driving. The pile driving
activities analyzed here are similar to, or less impactful than,
numerous other construction activities conducted in Washington, which
have taken place with no observed severe responses of any individuals
or known long-term adverse consequences. The impact of Level B
harassment takes on the affected individuals will be minimized through
use of mitigation measures described herein and, if sound produced by
project activities is sufficiently disturbing, animals are likely to
simply avoid the area while the activity is occurring. The project site
itself is frequented by large tankers every few days, but the majority
of sound fields produced by the specified activities are relatively
close to the dock. Animals disturbed by project sound will be expected
to avoid the area and use nearby higher-quality habitats.
The project also is not expected to have significant adverse
effects on affected marine mammals' habitat. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. The activities may cause some fish or invertebrates 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 intermittent driving schedule (35 in-water work days
between August 1 and October 31, 2024); short duration of the
activities (no more than 4 hours per day vibratory driving); the
relatively small area of the habitat that may be affected; and the
availability of nearby habitat of similar or higher value, the impacts
to marine mammal habitat are not
[[Page 66067]]
expected to cause significant or long-term negative consequences.
While there are haulouts for pinnipeds in the area, these locations
are some distance from the actual project site. There are two
documented California sea lion haulouts in the southern Strait of
Georgia, both on the western coast of the Strait in British Columbia.
The closest haulout in near Tumbo Island on the eastern edge of the
Gulf Island, over 15 miles from the project site. The closest
documented Steller sea lion haulout location is over 10 miles from the
project site, on Sucia Island (Jeffries et al., 2000). The closest
documented harbor seal haulouts are two different low population (>100
individuals) locations approximately 5 miles from the project site, one
to the north and one to the south (Jeffries et al., 2000). To the
southwest and west of the project location are 14 other haulouts dotted
throughout a few of the small northern San Juan Islands (North of Orcas
Island) within 10 miles of the project (Jeffries et al., 2000).
While repeated exposures of individuals to this pile driving
activity could cause limited Level B harassment in harbor seals, harbor
porpoises, and sea lions, they are unlikely to considerably disrupt
foraging behavior or result in significant decrease in fitness,
reproduction, or survival for the affected individuals.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival:
No serious injury or mortality is anticipated or
authorized;
The anticipated incidents of Level B harassment would
consist of, at worst, temporary modifications in behavior that would
not result in fitness impacts to individuals;
The ensonifed area from the project is very small relative
to the overall habitat ranges of all species and stocks, and no habitat
of particular importance would be impacted;
Repeated exposures of marine mammals to this pile driving
activity could cause Level B harassment in seals, harbor porpoise and
sea lion species, but are unlikely to considerably disrupt foraging
behavior or result in significant decrease in fitness, reproduction, or
survival for the affected individuals. In all, there would be no
adverse impacts to the stocks as a whole; and
The mitigation measures are expected to reduce the effects
of the specified activity by minimizing the intensity and/or duration
of harassment events.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the proposed activity will have a negligible impact on all affected
marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
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.
Table 8 demonstrates the number of instances in which individuals
of a given species could be exposed to received noise levels that could
cause take of marine mammals. Our analysis shows that the total taking
authorized is less than 4 percent of the best available population
abundance estimate for all species.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS 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.
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 NAO 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of the IHA qualifies to be categorically excluded from further
NEPA review.
Authorization
NMFS has issued an IHA to Phillips 66 for the potential harassment
of small numbers of 4 marine mammal species incidental to the Ferndale
Refinery Dock Replacement in-water pile driving activities in Ferndale
Washington, that includes the previously explained mitigation,
monitoring and reporting requirements.
Dated: August 9, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-18146 Filed 8-13-24; 8:45 am]
BILLING CODE 3510-22-P