[Federal Register Volume 77, Number 107 (Monday, June 4, 2012)]
[Notices]
[Pages 32943-32950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13468]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA289


Takes of Marine Mammals Incidental to Specified Activities; Pile 
Driving in the Columbia River, WA

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Port of Vancouver, USA 
(Port), allowing the take of small numbers of marine mammals, by Level 
B harassment only, incidental to pile driving during construction of 
the Terminal 5 Bulk Potash Handling Facility.

DATES: Effective November 1, 2012, through October 31, 2013.

ADDRESSES: A copy of the IHA, the application, and the Environmental 
Assessment are available by writing to Tammy Adams, Acting Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway Silver 
Spring, MD 20910-3225 or by telephoning the contact listed here (see 
FOR FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents 
cited in this notice may be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of 
Protected Resources, NMFS, (301) 427-8401.

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 specific 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 
published in the Federal Register and 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'' 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) further established 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 February 22, 2011, NMFS received an application from the Port of 
Vancouver, USA (Port), requesting an IHA for the take, by Level B 
harassment, of small numbers of Pacific harbor seals (Phoca vitulina 
richardii), California sea lions (Zalophus californianus), and Steller 
sea lions (Eumatopius jubatus)

[[Page 32944]]

incidental to pile driving activities conducted during the construction 
of the Terminal 5 Bulk Potash Handling Facility. In accordance with 
MMPA implementing regulations, NMFS issued a notice in the Federal 
Register on August 19, 2011 (76 FR 51947), requesting comments from the 
public on the proposed IHA.

Description of the Specified Activity

    A complete description of the specified activity may be found in 
NMFS' proposed IHA document in the Federal Register (76 FR 51947, 
August 19, 2011). A summary of that document, along with some minor 
project changes, is provided here. The project will involve 
construction of a potash handling facility at river mile 103.3 along 
the Columbia River in Vancouver, Washington. To support the new 
facility, a maximum of 195 (as opposed to the originally proposed 203) 
steel piles will be installed in the Columbia River at the project site 
(specifically, Terminal 5) using vibratory and impact pile driving. 
These piles are necessary for construction of a ship loading system and 
marine berthing facilities. The originally proposed installation of 
piles for stormwater outfall is no longer planned. A breakdown of pile 
size and associated activity are shown in Table 1.

            Table 1--Summary of Pile Installation Activities
------------------------------------------------------------------------
                                    Number of Piles
           Activity                    (maximum)            Location
------------------------------------------------------------------------
Installation of permanent       5, 54-in (1,372-mm)     River mile
 piles for ship loader and       and 95 48-in (1,220-    103.3.
 berth.                          mm) steel pipe piles.
-------------------------------------------------------
Installation and removal of     95, 18- to 24-in (457-
 temporary piles during          to 610-mm) steel pipe
 construction of ship loader     piles.
 and berth.
------------------------------------------------------------------------
Removal of old piles..........  177, 16-in wood piles,  River mile 105,
                                 31, 16-in wood piles.   River mile
                                                         103.3.
------------------------------------------------------------------------

    The 100 48-54-in (1,220-1,372-mm) steel pipe piles will be used for 
quadrant beams and pivot supports, the mooring dolphins and maintenance 
platform, access trestles, and as a contingency should additional piles 
be required. Approximately two piles will be installed per day over a 
four-month period. Although the exact duration of pile driving will 
vary depending on the installation procedures and geotechnical 
conditions, the applicant estimates that each permanent pile will 
require between two and three hours of vibratory installation and 
between one and two hours of impact driving to install. To the extent 
possible, all piles will be installed with an APE Model 200 (or 
similar) vibratory hammer; however, it may be necessary to seat a pile 
using an impact hammer. The temporary piles (18- to 24-in diameter) 
will be driven solely with a vibratory hammer. Should an impact hammer 
be necessary for finishing the installation of permanent piles, the 
Port will use a DELMAG D46-32 with 60-80 maximum blows per foot, a 
DELMAG D80 with 20-30 maximum blows per foot, or a similar model. Sound 
attenuation devices, such as a bubble curtain, will be used during any 
impact hammering.
    In addition to pile installation, a total of 303 piles will also be 
removed using vibratory extraction or a crane. These consist of the 95 
temporary piles and 31 existing wood piles at Terminal 5 and 177 old 
wood piles upstream of Terminal 5 (Table 1). The 177 wood piles are 
located at Terminal 2, about two miles upstream from Terminal 5, and do 
not have much structural capacity. A pneumatic underwater chainsaw may 
be used if a pile breaks in the process, but associated noise is 
expected to be negligible. Above-water work will also be necessary to 
complete construction of each project component. There could be barges 
in the water to support construction activities; however, these will be 
concentrated in the direct vicinity of Terminal 5. Because pile repair, 
pile removal, and use of barges do not release loud sounds into the 
environment, marine mammal harassment from these activities is not 
anticipated.

Dates of Activity

    The Washington Department of Fish and Wildlife's recommended in-
water work window for this area is November 1 through February 28. 
Timing restrictions such as this are used to avoid in-water work when 
listed species are most likely to be present. Proposed pile 
installation and removal activities are scheduled to occur between 
November 1, 2012, and February 28, 2013, with the possible exception of 
the five 54-in (1,372-mm) piles. These five piles may be installed 
outside of the in-water work window if they can be installed during low 
water periods under dry conditions.

Sound Propagation

    For background, sound is a mechanical disturbance consisting of 
minute vibrations that travel through a medium, such as air or water, 
and is generally characterized by several variables. Frequency 
describes the sound's pitch and is measured in hertz (Hz) or kilohertz 
(kHz), while sound level describes the sound's loudness and is measured 
in decibels (dB). Sound level increases or decreases exponentially with 
each dB of change. For example, 10 dB yields a sound level 10 times 
more intense than 1 dB, while a 20 dB level equates to 100 times more 
intense, and a 30 dB level is 1,000 times more intense. Sound levels 
are compared to a reference sound pressure (micro-Pascal) to identify 
the medium. For air and water, these reference pressures are ``re: 20 
[mu]Pa'' and ``re: 1 [mu]Pa,'' respectively. Root mean square (RMS) is 
the quadratic mean sound pressure over the duration of an impulse. RMS 
is calculated by squaring all of the sound amplitudes, averaging the 
squares, and then taking the square root of the average (Urick, 1975). 
RMS accounts for both positive and negative values; squaring the 
pressures makes all values positive so that they may be accounted for 
in the summation of pressure levels (Hastings and Popper, 2005). This 
measurement is often used in the context of discussing behavioral 
effects, in part because behavioral effects, which often result from 
auditory cues, may be better expressed through averaged units rather 
than by peak pressures.
    Data from a Washington State Department of Transportation (WSDOT) 
test pile project for the Columbia River Interstate 5 project (also 
known as the Columbia River Crossing project) was used for the impact 
and vibratory pile driving noise analysis for 48-in (1,220-mm) steel 
pipe piles (DEA, 2011). There is a lack of information related to sound 
levels for 54-in (1,372-mm) pile installations; therefore, noise levels 
recorded for and the installation of 60-

[[Page 32945]]

in (1,524-mm) piles (attenuated) at Port Townsend, Washington, using 
similar equipment were used to estimate sound levels (WSDOT, 2011). 
Based on the sound levels identified during this study, and a 10-dB 
reduction recommended by WSDOT for the use of a bubble curtain, it was 
determined that the estimated sound levels for a 60-in (1,524-mm) 
diameter pile in the dry during low water would be similar to the sound 
levels produced by a 48-in attenuated pile in the Columbia River for 
both impact and vibratory methods. Maximum sound levels for impact and 
vibratory pile driving are shown in Table 2. No reference underwater 
sound levels are available for this area, so 120 dB RMS (the lowest 
potential impact threshold for marine mammals) was used as a surrogate 
(WSDOT, 2010a). The Port applied a practical spreading loss model to 
calculate sound propagation, which assumes that noise attenuates at a 
rate of 4.5 dB per doubling distance, and this attenuation rate 
increases to 10 dB per doubling distance beyond 0.6 mile (1 km) (WSDOT, 
2010a). Using this model, the largest noise impact zone is expected to 
result from vibratory pile driving of 48-in (1,220-mm) steel pipe 
piles. It may take up to 7 miles (11 km) for underwater sound to 
attenuate to below 120 dB. Because of the project area's location on a 
river bend and across from Hayden Island, sound transmission will be 
stopped by land masses much earlier in certain directions. In-air sound 
from pile driving also has the potential to affect marine mammals. 
However, in-air sound is not a concern here because there are no 
pinniped haul-out sites near the project area.

                                   Table 2--Maximum Sound Levels for Impact and Vibratory Installation of Steel Piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pile diameter                                            Sound level (single strike)\1\ with attenuation                     Sound level
                                                                                                                             (vibratory) \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
48- to 54-inch (1,220- to 1,372-mm).  199 dBPEAK.................  187 dBRMS..................  173 dBSEL..................  174 dBRMS
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ DEA, 2011.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on August 19, 2011 
(76 FR 51947). During the 30-day public comment period, the Marine 
Mammal Commission (Commission) provided the only comments.
    Comment 1: The Commission recommends that NMFS require the Port to 
measure in-situ sound propagation for driving and removing the various 
sizes and types of piles using the vibratory hammer, impact hammer, and 
both hammers concurrently at the beginning of the project and use that 
information to establish appropriate exclusion and buffer zones.
    Response: The Port intends to conduct hydroacoustic monitoring to 
record the sound generated during impact pile driving. Hydroacoustic 
monitoring will take place while the first five piles are installed 
using an impact hammer at the Terminal 5 location. Information gained 
from this monitoring effort will be used to verify the exclusion and 
harassment zones.
    Comment 2: The Commission recommends that NMFS require the presence 
of approved observers before, during, and after all soft-starts of pile 
driving activities, including when the vibratory hammer is used, to 
gather the data needed to determine the effectiveness of this technique 
as a mitigation measure.
    Response: NMFS disagrees that the Port needs to monitor for marine 
mammals before, during, and after all soft-starts. Protected species 
observers will be on-site and monitoring for marine mammals at least 20 
minutes prior to, during, and after all impact hammering (including 
during soft-starts) and at least two full days per week during all 
vibratory pile hammering. NMFS believes that monitoring for at least 
two pile driving days per week will allow for adequate interpretation 
of how marine mammals are behaving in response to pile hammering, 
including during soft-starts.
    Comment 3: The Commission recommends that NMFS require the Port to 
monitor the presence and behavior of marine mammals during all impact 
and vibratory pile driving and pile removal activities.
    Response: As stated in the proposed IHA, marine mammal monitoring 
will occur 20 minutes before, during, and 20 minutes after all impact 
pile driving activities. In addition, at least two protected species 
observers will conduct behavioral monitoring at least two days per week 
during vibratory pile driving to estimate take and evaluate the 
behavioral impacts that pile driving has on marine mammals. NMFS 
believes this is an adequate effort of monitoring because sounds from 
vibratory pile driving will not exceed the Level A harassment threshold 
and sounds from impact pile driving only exceed the Level A harassment 
threshold 21 m (70 ft) from the source.
    Comment 4: The Commission recommends that NMFS condition the IHA to 
require the Port to (1) immediately report all injured or dead marine 
mammals to NMFS and local stranding network and (2) suspend the 
construction activities if a marine mammal is seriously injured or 
killed and the injury or death could have been caused by those 
activities (e.g., a fresh carcass). If additional measures are not 
likely to reduce the risk of additional serious injuries or deaths to a 
very low level, the Commission recommends that NMFS require the Port to 
obtain the necessary authorization for such takings before resuming 
construction activities.
    Response: NMFS includes language in Incidental Take Authorizations 
(ITAs) that requires the applicant to immediately report any taking of 
a marine mammal in a manner prohibited by the authorization. The 
applicant is required to postpone activities until NMFS is able to 
review the circumstances of the take. Furthermore, if the applicant 
discovers an injured or dead marine mammal, but the cause of such 
injury or death is not related to the specified activities, the 
applicant must contact NMFS within 24 hours of the discovery.

Description of Marine Mammals in the Area of the Specified Activity

    Three marine mammal species have known distribution ranges that 
include the proposed project area: Pacific harbor seal, California sea 
lion, and Steller sea lion. These species may use the proposed project 
area as a seasonal transit corridor to and from the Bonneville Dam. 
Information on these species was provided in the August 19, 2011, 
Federal Register document (76 FR 51947). Since that notice published, 
NMFS has proposed to delist the eastern distinct population segment of 
Steller sea lions after determining that this distinct population 
segment has recovered and no longer meets the definition of a 
threatened species under the ESA (77 FR 23209, April 18, 2012).

[[Page 32946]]

Potential Effects on Marine Mammals

    Pile driving and removal at the Terminal 5 site may temporarily 
impact marine mammal behavior within the action area due to elevated 
in-water noise levels. A detailed description of potential impacts to 
marine mammals can be found in NMFS' August 19, 2011, Federal Register 
document (76 FR 51947) and are summarized here.
    Marine mammals produce sounds in various contexts and use sound for 
various biological functions including, but not limited to, (1) social 
interactions; (2) foraging; (3) orientation; and (4) predator 
detection. Interference with producing or receiving these sounds may 
result in adverse impacts. Audible distance or received levels will 
depend on the sound source, ambient noise, and the sensitivity of the 
receptor (Richardson et al., 1995). Marine mammal reactions to sound 
may depend on sound frequency, ambient sound, what the animal is doing, 
and the animal's distance from the sound source (Southall et al., 
2007).

Hearing Impairment

    Marine mammals may experience temporary or permanent hearing 
impairment when exposed to loud sounds. Hearing impairment is 
classified by temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for when PTS first occurs in 
marine mammals; therefore, it must be estimated from when TTS first 
occurs and from the rate of TTS growth with increasing exposure levels. 
PTS is likely if the animal's hearing threshold is reduced by >= 40 dB 
of TTS. PTS is considered auditory injury (Southall et al., 2007) and 
occurs in a specific frequency range and amount. Due to proposed 
mitigation measures and source levels in the proposed project area, 
NMFS does not expect marine mammals to be exposed to PTS levels.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
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 days, occurs in specific 
frequency ranges (i.e., an animal might only have a temporary loss of 
hearing sensitivity between the frequencies of 1 and 10 kHz), and can 
occur to varying degrees (e.g., an animal's hearing sensitivity might 
be reduced by 6 dB or by 30 dB). For sound exposures at or somewhat 
above the TTS-onset threshold, hearing sensitivity recovers rapidly 
after exposure to the sound 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. Southall et al. (2007) summarizes 
underwater pinniped data from Kastak et al. (2005), indicating that a 
tested harbor seal showed a TTS of around 6 dB when exposed to a non-
pulse noise at SPL 152 dB re: 1 [mu]Pa for 25 minutes. In contrast, a 
tested sea lion exhibited TTS-onset at 174 dB re: 1 [mu]Pa under the 
same conditions as the harbor seal. Data from a single study on 
underwater pulses found no signs of TTS-onset in sea lions at exposures 
up to 183 dB re: 1 [mu]Pa (peak-to-peak) (Finneran et al., 2003).
    There are limited data available on the effects of non-pulse noise 
(for example, vibratory pile driving) on pinnipeds while underwater; 
however, field and captive studies to date collectively suggest that 
pinnipeds do not react strongly to exposures between 90 and 140 dB re: 
1 microPa; no data exist from exposures at higher levels. Jacobs and 
Terhune (2002) observed wild harbor seal reactions to high-frequency 
acoustic harassment devices around nine sites. Seals came within 44 m 
of the active acoustic harassment devices and failed to demonstrate any 
behavioral response when received SPLs were estimated at 120-130 dB. In 
a captive study (Kastelein, 2006), scientists subjected a group of 
seals to non-pulse sounds between 8 and 16 kHz. Exposures between 80 
and 107 dB did not induce strong behavioral responses; however, a 
single observation from 100 to 110 dB indicated an avoidance response. 
The seals returned to baseline conditions shortly following exposure. 
Southall et al. (2007) notes contextual differences between these two 
studies; the captive animals were not reinforced with food for 
remaining in the noise fields, whereas free-ranging animals may have 
been more tolerant of exposures because of motivation to return to a 
safe location or approach enclosures holding prey items. While most of 
the pile driving at the proposed project site would be vibratory, an 
impact hammer (pulse noise) may be used to complete installation and to 
verify the piles' strength. Vibratory and impact pile driving may 
result in anticipated hydroacoustic levels between 174 and 195 dB root 
mean square. Southall et al. (2007) reviewed relevant data from studies 
involving pinnipeds exposed to pulse noise and concluded that exposures 
to 150 to 180 dB generally have limited potential to induce avoidance 
behavior.
    Vibratory pile driving emits low-frequency broadband noise, which 
may be detectable by marine mammals within the proposed project area. 
The average value of 174 dB RMS from a Washington State Department of 
Transportation (WSDOT) monitoring project of vibratory installation of 
a 48-inch (1,220-mm) steel pipe pile for the Columbia River Crossing 
test pile project was used in the noise analysis for vibratory and 
impact pile installation (DEA, 2011). There is a lack of information 
for the 54-inch (1,372-mm) pile installations. However, available data 
from WSDOT suggests that noise levels from driving of 60-in (1,524-mm) 
steel piles (with 10-dB reduction for the use of attenuation for impact 
pile driving) in the dry will be similar to that for 48-in (1,220-mm) 
piles installed in the Columbia River for both impact and vibratory 
methods (WSDOT, 2011).
    No impacts to pinniped reproduction are anticipated because there 
are no known haul-outs or rookeries within the proposed project area. 
NMFS expects any impacts to marine mammal behavior to be temporary, 
Level B harassment, for two reasons: First, animals may avoid the area 
around the hammer, thereby reducing their exposure to elevated sound 
levels; and second, pile driving will not occur continuously throughout 
the day; the vibratory hammer will operate for about 2-3 hours per pile 
and the impact hammer will operate for about 1-2 hours per pile. Pile 
driving activities will only occur during daylight hours. The applicant 
anticipates an average of two pilings to be driven per day, resulting 
in a total of 6-10 hours of pile driving within a 24-hour period. 
Disturbance to marine mammal behavior may be in the form of temporary 
avoidance or alteration of transiting near the pile driving location. 
In addition, because a vibratory hammer will be used as much as 
possible, and the 190 dB isopleth for the impact hammer is 10 ft (3 m), 
marine mammal injury or mortality is not likely. Impact pile driving 
will cease if a marine mammal is observed nearing or within the 190 dB 
isopleth. For these reasons, NMFS expects any changes to marine

[[Page 32947]]

mammal behavior to be temporary and result in a negligible impact to 
affected species and stocks.

Anticipated Effects on Habitat

    A small area of shallow water habitat with silt/sand substrate will 
be shaded (possibly affecting if/how the area is used by marine mammal 
prey species) by the proposed structure, but this will be minimized by 
placing the structure at a height which will allow for some light 
penetration and by lessening the width of the structure. A deep water 
area and shallow water area with riprap substrate will also be shaded, 
but these habitats provide few functions and are plentiful in the 
surrounding ecosystem. Pile installation and removal will result in 
some disturbance of the river substrate; however, this disturbance is 
expected to be local and temporary. Pile driving activities (i.e., 
temporary ensonification) may impact prey species and marine mammals by 
resulting in avoidance or abandonment of the area; however these 
impacts are also expected to be local and temporary. Overall, the 
proposed activity is not expected to cause significant or long-term 
impacts on marine mammal habitat.
    The U.S. Army Corps of Engineers, Portland District, consulted with 
the NMFS Northwest Region on both Essential Fish Habitat and the 
Endangered Species Act (ESA). NMFS Northwest Region believes that the 
ESA Terms and Conditions are necessary and sufficient to avoid, 
mitigate, or offset the impact of the proposed actions on designated 
Essential Fish Habitat (EFH) for Pacific salmon.

Mitigation Measures

    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 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. There are no subsistence hunting 
grounds within the action area and since the activity will not result 
in marine mammal mortality, the availability of marine mammals for 
subsistence uses will not be impacted.

Temporal Restrictions

    The Washington Department of Fish and Wildlife recommends an in-
water work window of November 1 through February 28, annually. This 
work window was designed to protect fish species, particularly salmonid 
eggs and fry. However, by limiting pile driving activities to this 
period of time, the peak sea lion run to and from the Bonneville Dam is 
also avoided. The Port will install at least 95 of their 100 piles 
during this in-water work window. The remaining five piles may be 
installed outside of the in-water work window if they can be installed 
during low water periods under dry conditions.

Limited Use of an Impact Hammer

    To the extent possible, a vibratory hammer will be used to drive 
all piles. In the event that an impact hammer is necessary, a bubble 
curtain or similar noise attenuation method will be used as an 
attenuation device to reduce hydroacoustic sound levels to avoid the 
potential for injury.

Establishment of an Exclusion Zone

    During all in-water impact pile driving, the Port will establish a 
preliminary marine mammal exclusion zone of 10 ft (3 m) around each 
pile to avoid exposure to sounds at or above 190 dB. The exclusion zone 
will be monitored during all impact pile driving to ensure that no 
marine mammals enter the 10 ft (3 m) radius. The purpose of this area 
is to prevent Level A harassment (injury) of any marine mammal species. 
An exclusion zone for vibratory pile driving is unnecessary to prevent 
Level A harassment as source levels will not exceed the Level A 
harassment threshold. The exclusion zone will be increased if 
hydroacoustic monitoring at the beginning of installation shows that 
the 190 dB isopleth is farther than 10 ft (3 m).

Pile Driving Shut Down and Delay Procedures

    If a protected species observer sees a marine mammal within or 
approaching the exclusion zone prior to start of impact pile driving, 
the observer will notify the on-site construction manager (or other 
authorized individual), who will then be required to delay pile driving 
until the marine mammal has moved outside of the exclusion zone or if 
the animal has not been resighted within 15 minutes. If a marine mammal 
is sighted within or on a path toward the exclusion zone during pile 
driving, pile driving will cease until that animal has cleared and is 
on a path away from the exclusion zone or 15 minutes has lapsed since 
the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique will be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before the pile hammer reaches full energy. For 
vibratory pile driving, the soft-start procedure requires contractors 
to initiate noise from the vibratory hammer for 15 seconds at 40-60 
percent reduced energy followed by a 1-minute waiting period. The 
procedure will be repeated two additional times before full energy may 
be achieved. For impact hammering, contractors will be required to 
provide an initial set of three strikes from the impact hammer at 40 
percent energy, followed by a 1-minute waiting period, then two 
subsequent three-strike sets. The soft-start procedure will be 
conducted prior to driving each pile if vibratory hammering ceases for 
more than 30 minutes.
    NMFS has carefully evaluated the above mitigation measures and 
considered a range of other 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 and 
the Commission's comments, NMFS has determined that the above 
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.

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 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.
    The Port must designate at least one biologically-trained, on-site 
individual, approved in advance by NMFS, to monitor the area for marine 
mammals

[[Page 32948]]

20 minutes before, during, and 20 minutes after all impact pile driving 
activities and call for shut down if any marine mammal is observed 
within or approaching the designated exclusion zone (preliminarily set 
at 10 ft [3 m]). In addition, at least two NMFS-approved protected 
species observers will conduct behavioral monitoring at least 2 days 
per week to estimate take and evaluate the behavioral impacts pile 
driving has on marine mammals out to the Level B harassment isopleths. 
Note that for impact hammering, this distance is about 2,070 ft (631 
m). For vibratory hammering, this estimated distance is about 7 mi (11 
km); however, sound will dissipate before then (in about 6 mi [9.7 km]) 
due to the shape and configuration of the river. Protected species 
observers will be provided with the equipment necessary to effectively 
monitor for marine mammals (for example, high-quality binoculars, 
spotting scopes, compass, and range-finder) in order to determine if 
animals have entered into the exclusion zone or Level B harassment 
isopleth and to record species, behaviors, and responses to pile 
driving. In addition to visual monitoring, the Port will conduct 
hydroacoustic monitoring during impact hammering of the first five 
piles at the Terminal 5 location. This information will be used to 
verify the Level A exclusion zone as well as the Level B harassment 
isopleths.
    Protected species observers will be required to submit a report to 
NMFS within 120 days of expiration of the IHA or completion of pile 
driving, whichever comes first. The report will include data from 
marine mammal sightings (such as species, group size, and behavior), 
any observed reactions to construction, distance to operating pile 
hammer, and construction activities occurring at time of sighting. 
Furthermore, the report will include data from the hydroacoustic 
monitoring program to help NMFS accurately analyze future pile driving 
activities.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as an injury (Level A harassment), serious injury, or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), the Port 
shall immediately cease the specified activities and report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [email protected] and the 
Northwest Regional Stranding Coordinator at 206-526-6550 
([email protected]). The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and 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 will work with the Port to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Port may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the Port 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 (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
the Port will immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
at 301-427-8401 and/or by email to [email protected] and 
[email protected] and the Northwest Regional Stranding 
Coordinator at 206-526-6550 ([email protected]). The report must 
include the same information identified in the paragraph above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with the Port to determine whether 
modifications in the activities are appropriate.
    In the event that the Port discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Port will report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, at 301-427-8401 and/or by email to 
[email protected] and [email protected] and the 
Northwest Regional Stranding Coordinator at 206-526-6550 
([email protected]), within 24 hours of the discovery. The Port 
will provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS.

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].
    Based on the Port's application and subsequent analysis, the impact 
of the described pile driving operations may result in, at most, short-
term modification of behavior by small numbers of marine mammals within 
the action area. Marine mammals may avoid the area or temporarily alter 
their behavior at time of exposure.
    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic noise is that in order to avoid the potential for injury 
(PTS), cetaceans and pinnipeds should not be exposed to impulsive 
sounds of 180 and 190 dB or above, respectively. This level is 
considered precautionary as it is likely that more intense sounds would 
be required before injury would actually occur (Southall et al., 2007). 
Potential for behavioral harassment (Level B) is considered to have 
occurred when marine mammals are exposed to sounds at or above 160 dB 
for impulse sounds (such as impact pile driving) and 120 dB for non-
pulse noise (such as vibratory pile driving), but below the 
aforementioned thresholds. These levels are also considered 
precautionary.
    Based on empirical measurements taken by WSDOT and Caltrans (which 
are presented in the Description of Specified Activities section 
above), estimated distances to NMFS' current threshold sound levels 
from pile driving during the proposed construction activities are 
presented in Table 3. Effects from the removal of the 177 wood piles 
upstream from the main construction site are included in the 6-mi (9.7 
km) Level B isopleth (based at Terminal 5) due to the river bend. The 
10-ft (3-m) distance to the Level A harassment threshold provides 
protected species observers plenty of

[[Page 32949]]

time and adequate visibility to prevent marine mammals from entering 
the area during impact pile driving. This will prevent marine mammals 
from being exposed to sound levels that reach the Level A harassment 
threshold.

            Table 3--Modeled Underwater Distances to NMFS' Marine Mammal Harassment Threshold Levels
----------------------------------------------------------------------------------------------------------------
                                                              Level B  harassment (160  Level B  harassment (120
                                      Level A (190/180 dB)               dB)                       dB)
----------------------------------------------------------------------------------------------------------------
Impact hammering with attenuation  10 ft (3 m)..............  2,070 ft (631 m)........  n/a.
Vibratory hammering (no            n/a......................  n/a.....................  7 mi (11 km).
 attenuation).
----------------------------------------------------------------------------------------------------------------

    The estimated number of marine mammals that could be harassed is 
based on the Army Corps of Engineers' evaluation of pinniped predation 
on fish near the Bonneville Dam in 2010. Based on the 2010 Steller sea 
lion counts at Bonneville Dam, the Port requested a total take of 50 
Steller sea lions. This number was reached based on the estimated 75 
individuals that passed through the action area in 2010 during their 
migration to and from Bonneville Dam, for a total of 150 individual 
trips through the action area. Since almost all pile installation would 
occur between November 1 and February 28, the peak of the run in April 
and May will be avoided. The only piles that may be installed outside 
of this window would be installed in the dry at low water. Steller sea 
lion presence at the dam in January and February 2010 represented 
(conservatively) less than a third of the total run for the year. 
Therefore, the Port estimated that no more than one-third of the total 
run of Steller sea lions (approximately 25 individuals) could be 
exposed to Level B harassment. Since each individual could potentially 
be exposed on both the upstream and downstream trip, a total of 50 
takes of Steller sea lions could occur. Upon further consultation with 
NMFS Northwest Regional Office, and in consideration of steadily 
increasing numbers of Steller sea lions since 2008, NMFS is increasing 
the number of Steller sea lions that could be exposed to Level B 
harassment. This is based on the fact that abundance estimates 
increased three-fold between 2009 and 2010, and may continue. 
Therefore, it is reasonable to assume that 2,025 individuals may make 
the trip to and from the dam during the proposed activity (based on a 
conservative three-fold increase in 2011, 2012, and again in 2013). 
Considering the avoidance of the peak run and potential exposure during 
the upstream and downstream migration, NMFS is authorizing the 
incidental take by Level B harassment only of 1,350 Steller sea lion 
exposures (accounting for one-third of the total run--about 675 
animals--traveling to and from the dam). In addition, the Port 
requested take of 60 California sea lions (based on the same analysis 
that was applied for Steller sea lions) and six harbor seals (the 
maximum number of harbor seals documented at Bonneville Dam since 
2002). These numbers take the proposed mitigation measures into 
consideration, but are conservative and represent the maximum number of 
animals expected to occur within the Level B harassment isopleth. The 
actual number of animals that may be harassed is likely to be 
significantly less.

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 which include, but are not limited 
to, number of anticipated injuries or mortalities (none of which would 
be authorized here), number, nature, intensity, and duration of Level B 
harassment, and the context in which takes occur.
    As described above, marine mammals will not be exposed to 
activities or sound levels which would result in injury (PTS), serious 
injury, or mortality. Pile driving will occur in shallow coastal waters 
of the Columbia River. The action area (waters around Terminal 5) is 
not considered significant habitat for pinnipeds. The closest haul-out 
is 50 mi (80 km) away, which is outside the project area's largest 
harassment zone. Marine mammals approaching the action area will likely 
be traveling or opportunistically foraging. The amount of take the Port 
requested for each species, and NMFS is authorizing, is considered 
small (less than five percent) relative to the estimated populations of 
22,380 Pacific harbor seals, 238,000 California sea lions, and 30,403 
Steller sea lions. Marine mammals may be temporarily impacted by pile 
driving noise. However, marine mammals are expected to avoid the area, 
thereby reducing exposure and impacts. Pile driving activities are 
expected to occur for approximately 101 days. Furthermore, this section 
of the Columbia River is a highly industrialized area, so animals are 
likely tolerant or habituated to anthropogenic disturbance, including 
low level vibratory pile driving operations, and noise from other 
anthropogenic sources (such as vessels) may mask construction related 
sounds. There is no anticipated effect on annual rates of recruitment 
or survival of affected marine mammals.
    Based on the analysis contained in this notice, the proposed IHA 
document (76 FR 51947, August 19, 2011), and the IHA application, and 
taking into consideration the implementation of the mitigation and 
monitoring measures, NMFS has determined that pile driving in the 
project area will result in the incidental take of small numbers of 
marine mammals by Level B harassment only and that the total taking 
will 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)

    The Steller sea lion is listed as endangered under the ESA with 
confirmed occurrence within the action area. However, on April 18, 
2012, NMFS published a proposed rule to delist the eastern distinct 
population segment of Steller sea lions (77 FR 23209). A public comment 
period is open until June 18, 2012. The U.S. Army Corps of Engineers 
initiated Essential Fish Habitat and section 7 consultations with the 
NMFS Northwest Region. NMFS also consulted internally on the issuance 
of an IHA under section 101(a)(5)(A) of the MMPA for the take of 
Steller sea lions incidental to the proposed activity. The NMFS 
Northwest Region concluded that the action is not likely to jeopardize 
the continued existence of Steller sea lions

[[Page 32950]]

or result in the destruction or adverse modification of critical 
habitat.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS released an Environmental 
Assessment and Finding of No Significant Impact (FONSI) for the 
Terminal 5 project. NMFS determined that issuance of the IHA will not 
significantly impact the quality of the human environment and that 
preparation of an Environmental Impact Statement is not required.

    Dated: May 29, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-13468 Filed 6-1-12; 8:45 am]
BILLING CODE 3510-22-P