[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Notices]
[Pages 48941-48947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19953]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XY07


Takes of Marine Mammals Incidental to Specified Activities; 
Piling and Structure Removal in Woodard Bay Natural Resources 
Conservation Area, Washington

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received an application from the Washington State 
Department of Natural Resources (DNR) for an Incidental Harassment 
Authorization (IHA) to take marine mammals, by harassment, incidental 
to derelict creosote piling and structure removal within the Woodard 
Bay Natural Resources Conservation Area (NRCA). Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an IHA to the DNR to incidentally harass, by Level B 
Harassment only, harbor seals during the specified activity.

DATES: Comments and information must be received no later than 
September 13, 2010.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-

[[Page 48942]]

West Highway, Silver Spring, MD 20910-3225. The mailbox address for 
providing e-mail comments is [email protected]. NMFS is not 
responsible for e-mail comments sent to addresses other than the one 
provided here. Comments sent via e-mail, including all attachments, 
must not exceed a 10-megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also be viewed, by 
appointment, during regular business hours, at the aforementioned 
address. NMFS is also preparing an Environmental Assessment (EA) for 
this action (see NEPA section at the end of this notice) and will also 
be made available at the above listed Web site when complete.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 151.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization.
    Except with respect to certain activities not pertinent here, 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].

Summary of Request

    On June 9, 2010, NMFS received an application from the WA DNR 
requesting authorization to take, by harassment, small numbers of 
marine mammals incidental to derelict creosote piling and structure 
removal associated with a habitat restoration project within the 
Woodard Bay NRCA, Washington. The specified activity includes removal 
of approximately 615 timber pilings and a trestle located in Woodard 
Bay and a portion of pier superstructure located at the mouth of 
Chapman Bay. Pilings would be removed by vibratory hammer extraction 
methods and structures would be removed via cable lifting. In addition, 
approximately 25 nest boxes for purple martins would be relocated from 
removed pilings to pilings that are retained for seal habitat and 
buffer, using a small boat if necessary and would require a battery 
powered drill. Activities would occur across 40 days between November 
1, 2010, and February 28, 2011.
    Harbor seals have been utilizing the remnant log boom structures at 
Woodard Bay NRCA as haul-out habitat for resting, pupping and molting 
for more than 30 years. These booms are situated among the piles and 
structure planned for removal. The WA DNR anticipates harbor seals will 
flush into the water upon crew arrival and onset of pile and structure 
removal activities; hence, harbor seals may be harassed during pile 
removal activities. The DNR is thus requesting an IHA to take harbor 
seals, by Level B harassment, incidental to the piling and structure 
removal project.

Description of the Specified Activity

    The Woodard Bay NRCA, located within Henderson Inlet in southern 
Puget Sound, was designated by the Washington State Legislature in 1987 
to protect a large, intact complex of nearshore habitats and related 
biological communities, and to provide opportunities for low-impact 
public use and environmental education for the people of Washington. 
The site includes the former Weyerhaeuser South Bay Log Dump, which 
operated from the 1920s until the 1980s. The remnant structures from 
the log dump, including several hundred creosoted pilings, and a 
trestle and pier, continue to negatively impact nearshore ecosystems 
protected by the conservation area. Therefore, the WA DNR has proposed 
to remove these dilapidated structures to enhance the processes, 
functions, and structures of the nearshore ecosystems. However, a few 
of the remnant log booms from dumping operations have supported a 
healthy population of harbor seals for more than 30 years by providing 
haulout habitat. However, seals concentrate themselves and primarily 
haul out at only two locations within the NRCA (see Figure 4 in 
application).
    The proposed project involves the removal of 615 creosote treated 
wood pilings and overwater creosoted structures (i.e., a trestle and 
pier superstructure) that are not associated with the booms seals use 
as a haulout (i.e., not within 30 yards (27 m) of the booms). Pile and 
structure removal would be accomplished using vibratory extraction, 
direct pull, and/or diver cutting techniques. The vibratory hammer is a 
large steel device suspended by a cable from a crane that is stationed 
on a barge adjacent to the piling. The pile is then lifted out of the 
water and placed on a barge.
    Approximately 615 12-24 inch diameter pilings would be removed near 
but not directly adjacent to haulouts. An average of 30 pilings removed 
per day would be removed via vibratory hammer extraction methods. 
Typically the hammer vibrates for less than one minute per pile, so 
there would be no more than 30 minutes of hammer vibration over an 8-
hour period. After

[[Page 48943]]

vibration, a choker is used to lift the pile out of the water where it 
is placed on the barge for transport to an approved disposal site. If a 
pile breaks during extraction, ideally it would do so below the 
mudline; however, if a pile is broken above the water line, then a 
choker is set on the broken pile and a diver cuts the pile at the mud 
line with a chain saw so that it may be brought up to the barge by 
crane. Operations would begin on the pilings and structures that are 
furthest from the seal haul-out so that there is an opportunity for the 
seals to adjust to the presence of the contractors and their equipment. 
Actual vibratory extraction operations could occur for approximately 21 
days over the 4-month work window (November 1 and February 28). Other 
work days would be spent removing pilings associated with the trestle, 
which is over 850 m from the haulout, and pier superstructure, which 
does not involve vibratory extraction. NMFS anticipates that the 
presence of crew and use of a vibratory hammer would result in 
behavioral harassment.
    The portion of the Chapman Bay Pier that would be removed is more 
than 100 yards (91 m) from the closest haul-out area. This activity is 
expected to take a maximum of 10 days and, although does not involve 
vibratory extraction, has the potential to result in behavioral 
harassment due to the close proximity to working crew. In contrast, the 
Woodard Bay trestle is located on the other side of a peninsula that 
separates Woodard and Chapman Bays and is a distance of more than 850 
yards (777 m) from the closest haulout area. Work here is expected to 
take a maximum of 10 days to complete. Because of the distance from the 
haul-outs, the WA DNR anticipates structure removal at the Woodard Bay 
trestle would not disturb the seals. As such, 10 out of the 40 work 
days are not expected to result in harbor seal harassment.
    Approximately 25 purple martin nest boxes would be relocated from 
the removed piles to the pilings that support or surround the haul-out 
area. This activity would only require a battery powered drill, is 
expected to take 2 days, and could also result in flushing the seals 
from the haulout. Crew would be required to complete this activity 
during the days when they are already working within 100 yards (91 m) 
of the haulout, possibly using a separate boat, so that no additional 
work days near the haulout are necessary. Presence of crew relocating 
nest boxes may result in behavioral harassment of seals. However, 
because this would be completed in tandem with pile removal, no 
substantial additional harassment is anticipated.
    There is a paucity of data on airborne and underwater noise levels 
associated with vibratory hammer extraction. As background, in-air 
noise levels are referenced to 20 microPascals (re: 20 microPa) while 
underwater noise levels are referenced to one microPascal (re: 1 
microPa). Based on information on airborne source levels measured for 
vibratory hammer steel and concrete pile driving, removal of wood piles 
is unlikely to exceed 90 dBrms re: 20 microPa (pers. comm., 
Miner-Zukerberg, 2010). The DNR and NMFS could not find hydroacoustic 
data on vibratory extraction of wood piles; however, it can be assumed 
that this activity does not result in SPLs above vibratory hammering. 
However, data is also lacking on vibratory hammering wood piles. NMFS 
could only find data on driving timber piles using an impact hammer and 
vibratory driving non-timber piles. For example, the California 
Department of Transportation (Caltrans) indicates impact driving 12- or 
14-inch wood piles typically emits peak source levels of 177 dB re: 1 
microPa (Caltrans, 2009). Vibratory pile driving 12-24 inch steel piles 
typically results in SPLs around 155-165 dB re: 1 microPa (root mean 
square) ten meters from the source (Caltrans, 2007). It should be noted 
driving steel piles likely results in higher SPLs than driving wood 
piles. Similarly, it is generally assumed that vibratory extraction 
emits lower SPLs than impact hammering wood piles or vibratory pile 
driving steel piles.

Description of Marine Mammals in the Area of the Specified Activity

    Harbor seals are the only marine mammal found within the action 
area. Harbor seals within the Woodard Bay NRCA belong to the Washington 
Inland Waters stock, which was estimated around 14,612 individuals in 
2003 (NMFS, 2003). Although the stock assessment report for this stock 
has not been updated since 2003, based on trends of other harbor seal 
stocks, this is likely an underestimate. Based on the analyses of 
Jeffries et al. (2003) and Brown et al. (2005), both the Washington and 
Oregon coastal harbor seal stock have reached carrying capacity and are 
no longer increasing. Harbor seals are not listed as depleted under the 
MMPA or as endangered or threatened under the ESA. They are considered 
the most abundant resident pinniped species in Puget Sound (Lance and 
Jeffries, 2009).
    Harbor seals haul out on rocks, reefs, beaches, and drifting 
glacial ice and feed in marine, estuarine, and occasionally fresh 
waters. Harbor seals generally are non-migratory, with local movements 
associated with such factors as tides, weather, season, food 
availability, and reproduction. They display strong fidelity for 
haulout sites (Pitcher and Calkins, 1979; Pitcher and McAllister, 
1981). The remnant log booms at the Woodard Bay NRCA support a year-
round population of harbor seals, which use the boom structures for 
haulout habitat to rest, pup, and molt in two primary locations; to the 
east and to the north of the Chapman Bay Pier (see Figure 4 in 
application). Haulout behavior is shown to be affected by time of day 
and tide cycle, as well as seasonal and weather patterns such as air 
temperature, wind speed, cloud cover, and sea conditions (Buettner et 
al., 2008). Annually, use of the log booms peaks from July, when 
females haul out to give birth to their pups, through October, during 
the late pupping season and molt (WA DNR, 2002).
    The harbor seal population within the NRCA is considered one of the 
healthier ones in southern Puget Sound. Seal numbers have been 
monitored at the site since 1977, when there were less than 50 seals. 
In 1996, the highest count year, there were 600 seals. The average 
maximum annual count between 1977 and 2008 was 315 seals with 410 
counted in August of 2008 (Buettner et al., 2008).
    Pinnipeds produce a wide range of social signals, most occurring at 
relatively low frequencies (Southall et al., 2007), suggesting that 
hearing is keenest at these frequencies. Pinnipeds communicate 
acoustically both on land and in the water, but have different hearing 
capabilities dependent upon the medium (air or water). Based on 
numerous studies, as summarized in Southall et al. (2007), pinnipeds 
are more sensitive to a broader range of sound frequencies underwater 
than in air. Underwater, pinnipeds can hear frequencies from 75 Hz to 
75 kHz. In air, the lower limit remains at 75 Hz but the highest 
audible frequencies are only around 30 kHz (Southall et al., 2007).

Potential Effects on Marine Mammals

    The WA DNR and other organizations, such as the Cascadia Research 
Collective, have been monitoring the behavior of harbor seals present 
within the action area since 1977. Past disturbance observations at 
Woodard Bay NRCA have shown that seal harassment occurs from non-
motorized boats (e.g., recreational kayaks and canoes), motorized 
vessels (e.g., fishing boats), and people walking by the haulout 
(Calambokidis and Leathery, 1991; Buettner et al., 2008). Calambokidis 
and Leathery (1991)

[[Page 48944]]

found that the mean distance that seals entered the water in response 
to any type of vessel was 56 m. Most commonly seals were disturbed when 
vessels were 26 to 50 m from the haulout; however, only above 125 m was 
there a sharp decrease in the proportion of groups disturbed. Seals 
entered the water in response to people on foot at up to 256 m 
although, on many occasions, people were able to pass less than 100 m 
from seals, while maintaining a low profile without causing disturbance 
(Calambokidis and Leathery, 1991). Furthermore, the distances that 
seals were disturbed varied significantly by vessel type; seals entered 
the water at a greater distance in response to kayaks and canoes 
compared to recreational motorboats and skiffs. It is hypothesized that 
because motor boats are more readily detectable than non-motorized 
boats, seals are more aware of their presence at greater distances and 
do not react (Buettner et al., 2008). Buettner et al. (2008) reported 
the research boat used during their study caused the greatest amount of 
harbor seal disturbance reactions with the second and third highest 
causes being canoes and kayaks, respectively. The scientists theorized 
the most plausible reason for this is that the boats used for research 
came within the closest distance to the seals, often within 1 m of the 
floats where seals were hauled out.
    Buettner et al. (2008) also noted the difference in vigilance of 
seals based on float location during pupping season. For example, seals 
on floats located on the outer edges of the log boom area, and thus 
subjected to greater amounts of vessel traffic, were indifferent to 
vessels unless they came right up to the log booms. Contrarily, seals 
on the floats located in the central area of the log booms, and hence 
not exposed to as much traffic, were more vigilant and more sensitive 
to disturbances. Not surprisingly, the inner floats contained the 
highest amount of pups. The DNR would conduct the habitat restoration 
project from November to February, well outside of the pupping (and 
molting) season; therefore no impacts to seals during these 
biologically important time periods.
    The two studies discussed above indicate that seals are susceptible 
to anthropogenic disturbance but also may habituate to such 
disturbances. During emergency maintenance operations on the haulout in 
2008, the seals present on the log booms flushed when the maintenance 
boat first entered the haulout area but quickly became accustomed to 
the contractor and the boat and would rest on the haulout during 
maintenance operations (pers. comm., Osborne-Zukerberg, 2008). 
Maintenance operations included bringing in log booms to restore 
habitat and included drilling through booms on a small barge. Seals 
initially flushed in response to onset of work but quickly acclimated 
to crew presence and would haulout on adjacent booms directly adjacent 
to the small barge used during maintenance (pers. comm., Zukerberg-
Daly, June, 2010). Furthermore, Suryan and Harvey (1991) found that 
harbor seals hauled-out at Puffin Island, WA, were more tolerant to 
subsequent harassments than they were to the initial harassment. 
However, sudden presence of a disturbance source (e.g., kayaker) can 
induce strong behavioral reactions.
    To avoid inducing strong reactions, the WA DNR would conduct 
activities such that the piles farthest from the hauled out seals would 
be removed first; thereby avoiding a sudden disturbance and allowing 
seals time to acclimate to human activity. This would maximize the 
initial distance between maintenance crews and seals. The DNR believes 
that throughout the day, seals will become accustomed to crew presence 
of construction activities, as seen in previous disturbance studies 
within the Woodard Bay NRCA and other harbor seal populations.
    In addition to crew and vessel presence, hammer operations may 
disturb seals in-water; however, it is anticipated that most seals 
would be disturbed initially by physical presence. As discussed above, 
the DNR and NMFS could not find information on sound levels produced by 
timber pile extraction using a vibratory hammer; however, it is 
reasonable to assume that extraction would not result in higher SPLs 
than vibratory hammering. That is, NMFS anticipates that source levels 
in water would not reach 155-165 dB (the average source SPL for driving 
12-24 inch steel piles). NMFS' general in-water harassment thresholds 
for pinnipeds exposed to non-pulse noise, such as those produced by 
vibratory pile extraction, are 190 dB rms re: 1 microPa as the 
potential onset of Level A (injurious) harassment and 120 dB rms re: 1 
microPa at the potential onset of Level B (behavioral) harassment. 
These levels are considered precautionary and NMFS is currently 
revising these thresholds to better reflect the most recent scientific 
data. Vibratory extraction would not result in sound levels near 190 dB 
re: 1 microPa; therefore, injury would not occur. However, noise from 
vibratory extraction would exceed 120 dB re: 1 microPa near the source 
and may induce responses in-water such as avoidance or alteration of 
behavioral states at time of exposure.
    There are limited data available on the effects of non-pulse noise 
on pinnipeds in-water; however, field and captive studies to date 
collectively suggest that pinnipeds do not strongly react to exposures 
between 90-140 dB re: 1 microPa; no data exist from exposures at higher 
levels (Southall et al., 2007). Jacobs and Terhune (2002) observed wild 
harbor seal reactions to high frequency acoustic harassment devices 
(ADH) around nine sites. Seals came within 44 m of the active ADH and 
failed to demonstrate any behavioral response when received SPLs were 
estimated at 120-130 dB re: 1 microPa. In a captive study (Kastelein, 
2006), a group of seals were collectively subjected to data collection 
and communication network (ACME) non-pulse sounds at 8-16 kHz. 
Exposures between 80-107 dB re: 1 microPa did not induce strong 
behavioral responses; however, a single observation at 100-110 dB re: 1 
microPa indicated an avoidance response at this level. The group 
returned to baseline conditions shortly following exposure. Southall et 
al. (2007) notes contextual differences between these two studies 
noting that the captive animals were not reinforced with food for 
remaining in the noise fields, whereas free-ranging subjects may have 
been more tolerant of exposures because of motivation to return to a 
safe location or approach enclosures holding prey items.

Hearing Impairment

    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very loud sounds. Hearing impairment is 
measured in two forms: temporary threshold shift (TTS) and permanent 
threshold shift (PTS). PTS is considered injurious whereas TTS is not 
as it is temporary and hearing is fully recoverable. There are no 
empirical data for onset of PTS in any marine mammal; therefore, PTS-
onset must be estimated from TTS-onset measurements and from the rate 
of TTS growth with increasing exposure levels above the level eliciting 
TTS-onset. PTS is presumed to be likely if the hearing threshold is 
reduced by >= 40 dB (i.e., 40 dB of TTS). Due to the low source levels 
produced by vibratory extraction, NMFS does not expect that marine 
mammals will be exposed to levels that could elicit PTS; therefore, it 
will not be discussed further.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during

[[Page 48945]]

exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to, in cases of strong TTS, 
days. For sound exposures at or somewhat above the TTS-onset threshold, 
hearing sensitivity recovers rapidly after exposure to the noise ends. 
Few data on sound levels and durations necessary to elicit mild TTS 
have been obtained for marine mammals. Southall et al. (2007) considers 
a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient 
to be recognized as an unequivocal deviation and thus a sufficient 
definition of TTS-onset. Because it is non-injurious, NMFS considers 
TTS as Level B harassment that is mediated by physiological effects on 
the auditory system; however, NMFS does not consider onset TTS to be 
the lowest level at which Level B harassment may occur.
    Harbor seals within the action area are considered resident and may 
therefore be continually exposed to habitat restoration activities 
(however, recall that the vibratory hammer need only operate for 
approximately 1 minute to extract each pile). Sound exposures that 
elicit TTS in pinnipeds underwater have been measured in harbor seals, 
California sea lions, and northern elephant seals for broadband or 
octaveband (OBN) non-pulse noise ranging from approximately 12 minutes 
to several hours (Kastak and Schusterman, 1996; Finneran et al., 2003; 
Kastak et al., 1999; Kastak et al., 2005). Collectively, Kastak et al. 
(2005) analyzed these data to indicate that in the harbor seal, a TTS 
of ca. 6 dB occurred with 25 minute exposure to 2.5 kHz OBN with SPL of 
152 dB re:1 microPa; the California sea lion showed TTS-onset at 174 dB 
re: 1 microPa (as summarized in Southall et al., 2007). Source levels 
emitted by vibratory pile extraction are low, intermittent, and would 
occur for a total of only 30 minutes per day. Further, seals may leave 
the area upon onset on vibratory pile extraction thereby reducing 
exposure duration. For these reasons, NMFS does not anticipate TTS 
would be induced.
    In summary, it is anticipated that seals would be initially 
disturbed by crew and vessels associated with the habitat restoration 
project; however, given the short duration and low energy of vibratory 
extraction, PTS would not occur and TTS is not likely. Those animals 
hauled out on the log booms would likely flush into the water; however, 
DNR would start with removal of piles farthest from the haulout. This 
methodology is designed to minimize disturbance as seals would have 
ample time to become alerted to and habituated to crew and vessel 
presence. As demonstrated in 2008, seals initially flushed into the 
water upon maintenance crew presence; however, quickly became 
accustomed to the contractor and the boat and would rest on the haul-
out during maintenance operations. It is anticipated that harbor seals 
would react in a similar manner to pile and structure removal 
operations. For these reasons, harbor seals are not expected to abandon 
the haulout.

Anticipated Effects on Habitat

    Marine mammal habitat would be temporarily ensonified by low sound 
levels resulting from habitat restoration effort. The piles designated 
to be removed have been treated with creosote, a wood preservative that 
is also toxic to the environment. Removing these piles will have 
beneficial impacts to the NRCA, including marine mammal habitat, by 
preventing the leaching of creosote chemicals, including polycyclic 
aromatic hydrocarbons, into the marine environment. No log booms would 
be removed; therefore, no impacts to the physical availability of 
haulout structure would occur.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for taking for certain subsistence uses.
    The DNR has proposed mitigation measures designed to minimize 
disturbance to harbor seals within the action area in consideration of 
timing, location, and equipment use. Foremost, pile and structure 
removal would only occur between November and February, well outside 
harbor seal pupping and molting seasons. Therefore, no impacts to pups 
from the specified activity during these sensitive time periods would 
occur. The DNR would approach the action area slowly to alert seals to 
their presence from a distance and would begin pulling piles at the 
farthest location from the log booms used as harbor seal haulout areas. 
The contractor would be required to survey the operational area for 
seals before initiating activities, including cutting and removing 
pilings and structures, and to wait until the seals are at a sufficient 
distance from the activity so as to minimize the risk of direct injury 
from the piling or structure breaking free or equipment. DNR would also 
require the contractor to initiate a vibratory hammer ``soft start'' at 
the beginning of each work day. The ``soft-start'' method includes a 
reduced energy vibration from the hammer for the first 15 seconds and 
then a one minute waiting period. This method would be repeated twice 
before commencing with regular energy operations. Finally, the 
vibratory hammer power pack would be outfitted with a muffler to reduce 
in-air noise levels.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures in the context of ensuring that NMFS prescribes the means of 
effecting the least practicable adverse impact on the affected marine 
mammal species and stocks and their habitat. Our evaluation of 
potential measures included consideration of the following factors in 
relation to one another: (1) The manner in which, and the degree to 
which, the successful implementation of the measure is expected to 
minimize adverse impacts to marine mammals; (2) the proven or likely 
efficacy of the specific measure to minimize adverse impacts as 
planned; and (3) the practicability of the measure for applicant 
implementation, including consideration of personnel safety, and 
practicality of implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS or recommended by the public, 
NMFS has preliminarily determined that the proposed mitigation measures 
provide the means of effecting the least practicable adverse impacts on 
marine mammals species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue an ITA 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 IHAs 
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.
    Seal monitoring and research has been occurring at Woodard Bay 
since the 1970s and has included seal

[[Page 48946]]

ecology, population dynamics and disturbance behavior (Newby, 1970; 
Calambokidis et al., 1991; Buettner et al., 2008; Lambourn et al., 
2009). DNR's proposed monitoring plan adheres to protocols already 
established for Woodard Bay to the maximum extent practical for the 
specified activity. Monitoring of both haul-outs would be performed by 
at least one NMFS approved protected species observer (PSO) the first 2 
days of project activities when the contractors are mobilizing and 
starting the vibratory hammer, during the 2 days when activities are 
occurring within 100 yards (91 m) of the haulout area, during five of 
the days of work on the Chapman Bay Pier, and for six other days during 
the 40-day work period to be decided when the project schedule is 
provided by the contractor. Therefore, there would be at least 15 days 
where a designated observer would be on site over the course of 40 days 
of work. The PSO would be onset prior to crew and vessel arrival to 
determine the number of seals present pre-disturbance. The PSO would 
maintain a low profile during this time to minimize disturbance from 
monitoring.
    Observational data collected would include monitoring dates, times 
and conditions, estimated number of take, which would be recorded as 
number of seals flushed from the haulout, and type of activity 
occurring at time of disturbance. This information would be determined 
by recording the number of seals using the haulout on each monitoring 
day prior to the start of restoration activities for that day and 
recording the number of seals that flush from the haulout or, for 
animals already in the water, display adverse behavioral reactions to 
vibratory extraction. A description of the disturbance source, the 
proximity in meters of the disturbance source, and reactions would also 
be noted. Within 30 days of the completion of the project, DNR would 
submit a monitoring report to NMFS that would include a summary of 
findings and copies of field data sheets and relevant daily logs from 
the contractor.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 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].

    During previous surveys, seal counts for the month of October, the 
last month that data is recorded each year, averaged 171 and ranged 
between 209 and 275 from 2006 to 2009 (Lambourn, 2010). Although the 
number of seals is expected to decline from October through February 
when restoration actions are scheduled to occur, there is no data for 
these months so the DNR considered a maximum of 275 seals could 
potentially be affected by the project per day. The DNR has proposed 
that Woodard Bay trestle removal operations are not expected to harass 
marine mammals as the trestle is located approximately 850 yards (777 
m) from the closest haulout and vibratory extraction does not emit loud 
noise into the marine environment. Therefore, days spent removing the 
trestle have been removed from take calculations. In addition, the DNR 
has proposed that removal of pilings located at greater than 100 yards 
(91 m) from the harbor seal haulout would not result in harassment as 
NMFS has indicated that people at Woodard Bay should remain 100 yards 
from the seals to prevent disturbance. Therefore, the DNR is estimating 
only nine days of pile removal would result in harassment to seals 
within the action area. Seals may be behaviorally disturbed due to crew 
presence of pile removal operations. Given the maximum of 275 animals 
on a haulout at any given day, the DNR is requesting authorization to 
take, by Level B harassment, 2,475 seals (275 x 9) during the habitat 
restoration project with the inference that the individual number of 
seals harassed will be low but may be taken multiple times. Although 
NMFS does not discount that harassment from pile structure removal 
could occur at distances greater than 100 yards from work location, the 
conservative estimate of 275 seals present on the haulout per day is 
ample buffer to consider the amount of requested take reasonable.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.'' In making a negligible impact determination, 
NMFS considers a number of factors associated with the proposed action 
and affected species and stocks including, but not limited to, the 
number of anticipated mortalities; number and nature of anticipated 
injuries; number, nature, intensity, and duration of Level B 
harassment; and temporal and spatial scale of the proposed action with 
respect to the ecology and life history of potentially affected marine 
mammals (e.g., would harassment occur on prime foraging grounds, during 
critical reproductive times, etc.).
    For reasons described above, there is no potential for injury or 
mortality to occur from the specified activity; therefore, none is 
anticipated. However, there is potential for seals to behaviorally 
react (e.g., as flush, avoid the area) in response to the presence of 
crew and equipment and vibratory extraction noise. The DNR would not 
conduct habitat restoration operations during the pupping and molting 
season; therefore, no pups would be affected by the proposed action and 
no impacts to any seals would occur as a result of the specified 
activity during these sensitive time periods. Harbor seals are not 
listed as endangered under the ESA or depleted under the MMPA (NMFS, 
2003).
    Mitigation measures (e.g. beginning work at the farthest distance 
to the haulout as possible, use of a muffler pack, etc.) would minimize 
onset of sudden, acute reactions and overall disturbance. In addition, 
it is not likely that seals at both haulouts would be disturbed 
simultaneously as work, for example, may affect the southern haulout 
but not the northern haulout based on location of the crew and barge. 
The DNR estimates work at any given location may take approximately 10 
days; therefore, seals on those haulouts may be taken for 10 
consecutive days or they may move to the other haulout farther from 
where work is taken place. Further, although seals may initially flush 
into the water, based on previous disturbance studies and maintenance 
activity at the haulouts, the DNR expects seals will quickly habituate 
to piling and structure removal operations. For these reasons no long 
term or permanent abandonment of the haulout is anticipated.
    The seals at Woodard Bay are considered resident and make small 
daily movements to forage; however, exactly how far they transit is 
unknown. The mean count of the localized seal population from 1977-2008 
was 315 animals during the pupping season with a maximum of 400 
individuals counted in 2008 during this time. However, as described 
above, these numbers drop over the late fall and winter. The DNR has 
scheduled the project to occur from November-February, a time outside 
of

[[Page 48947]]

sensitive reproductive periods and during a time seal numbers are 
lowest. The DNR is requesting to take approximately 275 seals multiple 
times; therefore, the proposed authorized amount of take can be 
considered small when compared to the stock size of harbor seals within 
Woodard Bay (14,612).
    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 mitigation and monitoring 
measures, NMFS preliminarily finds that piling and structure removal 
associated with the WA DNR's habitat restoration project will result in 
the incidental take of small numbers of marine mammals by Level B 
harassment only, and that the total taking from the specified activity 
would have a negligible impact on the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    No marine mammals listed under the ESA occur within the action 
area. Therefore, Section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    NMFS is currently preparing an Environmental Assessment analyzing 
environmental impacts associated with the issuance of an IHA to WA DNR 
authorizing the incidental take of marine mammals from pile and 
structure removal within the Woodard Bay NRCA. Because the EA is 
specific to NMFS' action of issuing an IHA, any comments received in 
response to this notice would also influence development of the EA. The 
EA would be finalized prior to issuing an IHA to the DNR.

    Dated: August 6, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-19953 Filed 8-11-10; 8:45 am]
BILLING CODE 3510-22-P