[Federal Register Volume 78, Number 27 (Friday, February 8, 2013)]
[Notices]
[Pages 9373-9386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02864]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC172


Taking of Marine Mammals Incidental to Specified Activities; 
Construction at Orcas Island and Friday Harbor Ferry Terminals

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

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

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SUMMARY: NMFS has received a request from the Washington State 
Department of Transportation (WSDOT) Ferries Division (WSF) for an 
incidental take authorization to take small numbers of 11 species of 
marine mammals, by Level B harassment, incidental to proposed 
construction activities for the replacement of dolphin structures at 
the Orcas Island and Friday Harbor ferry terminals in Washington State. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to issue an authorization to WSDOT to 
incidentally take, by harassment, small numbers of marine mammals for a 
period of 1 year.

DATES: Comments and information must be received no later than March 
11, 2013.

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-West 
Highway, Silver Spring, MD 20910-3225. The mailbox address for 
providing email comments is [email protected]. NMFS is not responsible 
for email comments sent to addresses other than the one provided here. 
Comments sent via email, 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 may be obtained by writing to the address 
specified above or visiting the internet at: 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.

FOR FURTHER INFORMATION CONTACT: Shane Guan, 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 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.
    An 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

[[Page 9374]]

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 U.S. can apply for a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. 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.

Summary of Request

    On May 25, 2012, WSDOT submitted a request to NOAA requesting an 
IHA for the possible harassment of small numbers of 11 marine mammal 
species incidental to construction associated with the replacement of 
dolphin structures at the Orcas Island and Friday Harbor ferry 
terminals in Washington State. On July 20, WSDOT submitted a revised 
IHA application. The action discussed in this document is based on 
WSDOT's July 20, 2012, IHA application.

Description of the Specified Activity

    Dolphins are structures located offshore that are used to guide the 
ferry into the terminal and hold it in place while docked. There are 
two types of dolphins common at WSF ferry terminals: Timber and steel. 
Timber dolphins are older structures, typically constructed of creosote 
treated pilings lashed together by galvanized steel rope, and 
reinforced as needed with 13'' plastic/steel core piles. WSF is 
systematically replacing timber dolphins with steel dolphins avoid 
future structure failures. Steel dolphins consist of reaction piles 
with a steel diaphragm, and larger fender piles with fender panels. 
Fender panels are made of ultra high molecular weight (UHMW) plastic, 
and act as rub surfaces for the ferry.
    The proposed project is to replace a single timber dolphin with a 
new dolphin at the Orcas Island and two timber dolphins with new steel 
dolphins at the Friday Harbor Ferry Terminal.

Overview of the Planned Activities

    The following construction activities are anticipated for the Orcas 
terminal:
     Remove one 69-pile dolphin (13-inch timber & plastic/
steel-core piles/106 tons of creosote-treated timber) with a vibratory 
hammer or by direct pull and clamshell removal;
     Vibratory pile drive four 24- or 30-inch (final size to be 
determined) hollow steel reaction piles and three 36-inch hollow steel 
fender piles;
     Place precast concrete diaphragm on new dolphin;
     Attach fender panels to new fender piles; and
     Reposition one floating dolphin anchor.
    The following construction activities are anticipated for the 
Friday Harbor terminal:
     Remove one 37-pile dolphin (13-inch timber piles/62 tons 
of creosote-treated timber) with a vibratory hammer or by direct pull 
and clamshell removal;
     Vibratory pile drive up to four 24- or 30-inch (final size 
to be determined) hollow steel reaction piles and one 36-inch hollow 
steel fender pile;
     Place precast concrete diaphragm on new dolphin;
     Attach fender panel to new fender pile;
     Remove one 102-pile dolphin (13-inch timber and plastic/
steel-core piles/166 tons of creosote-treated timber) with a vibratory 
hammer or by direct pull and clamshell removal;
     Vibratory pile drive up to four 24- or 30-inch (final size 
to be determined) hollow steel reaction piles and four 36-inch hollow 
steel fender piles;
     Place precast concrete diaphragm on new dolphin; and
     Attach fender panels to new fender piles.
    A total of 334 tons of creosote-treated timbers will be removed 
from the marine environment. The total mudline footprint of the 
existing dolphins is 256 square feet (ft\2\). The total mudline 
footprint of the new dolphin will be 95 ft\2\, a reduction of 161 
ft\2\. In addition, the footprint of the new steel dolphins will be 
more open, allowing fish movement between the piles. The new dolphins 
will have 20 piles, compared to the existing dolphins, which have 208 
tightly clustered piles with no space between them.
    In summary, the proposed project involves using a vibratory hammer 
to remove a total of 175 timber piles and using a vibratory hammer to 
install a total of 20 steel piles for the new dolphins.

Construction Activity Elements

1. Vibratory Hammer Removal
    Vibratory hammer extraction is a common method for removing timber 
piling. A vibratory hammer is a large mechanical device mostly 
constructed of steel (weighing 5 to 16 tons) that is suspended from a 
crane by a cable. It is attached to a derrick and positioned on the top 
of a pile. The pile is then unseated from the sediments by engaging the 
hammer, creating a vibration that loosens the sediments binding the 
pile, and then slowly lifting up on the hammer with the aid of the 
crane.
    Once unseated, the crane will continue to raise the hammer and pull 
the pile from the sediment. When the pile is released from the 
sediment, the vibratory hammer is disengaged and the pile is pulled 
from the water and placed on a barge for transfer upland. Vibratory 
removal will take approximately 10 to 15 minutes per pile.
2. Direct Pull and Clamshell Removal
    Older timber pilings are particularly prone to breaking at the 
mudline because of damage from marine borers and vessel impacts and 
must be removed because they can interfere with the installation of new 
pilings. In some cases, removal with a vibratory hammer is not possible 
if the pile is too fragile to withstand the hammer force. Broken or 
damaged piles may be removed by wrapping the piles with a cable and 
pulling them directly from the sediment with a crane. If the piles 
break below the waterline, the pile stubs will be removed with a 
clamshell bucket, a hinged steel apparatus that operates like a set of 
steel jaws. The bucket will be lowered from a crane and the jaws will 
grasp the pile stub as the crane pulled up. The broken piling and stubs 
will be loaded onto the barge for off-site disposal. Clamshell removal 
will be used only if necessary.
3. Vibratory Hammer Installation
    Vibratory hammers are also commonly used in steel pile installation 
where sediments allow and involve the same vibratory hammer used in 
pile extraction. The pile is placed into position using a choker and 
crane, and then vibrated between 1,200 and 2,400 vibrations per minute. 
The vibrations liquefy the sediment surrounding the pile allowing the 
pile to penetrate to the required seating depth. The type of vibratory 
hammer that will be used for the project will likely be an APE 400 King 
Kong (or equivalent) with a drive force of 361 tons.

[[Page 9375]]

Sound Levels from Proposed Construction Activity

    As mentioned earlier, the proposed construction project includes 
vibratory removal of 208, 13-inch timber and plastic-faced piles, and 
vibratory driving of 20 24-inch, 30-inch and 36-inch hollow steel 
piling.
    No sound level data is available for 13-inch timber and plastic-
faced piles. Based on in-water measurements at the WSF Port Townsend 
Ferry Terminal (Laughlin 2011a), removal of 12-inch timber piles 
generated 149 to 152 dB re 1 [mu]Pa (root-mean-square, or rms) with an 
overall average rms value of 150 dB re 1 [mu]Pa (rms) measured at 16 
meters. A worst-case noise level for vibratory removal of 13-inch 
timber and plastic-faced piles will be 152 dB re 1 [mu]Pa (rms) at 16 
m.
    Based on in-water measurements at the WSF Friday Harbor Ferry 
Terminal, vibratory pile driving of a 24-inch steel pile generated 162 
dB re 1 [mu]Pa (rms) measured at 10 meters (Laughlin 2010a).
    Based on in-water measurements during a vibratory test pile at the 
WSF Port Townsend Ferry Terminal, vibratory pile driving of a 30-inch 
steel pile generated 170 dB re 1 [mu]Pa (rms) (overall average), with 
the highest measured at 174 dB re 1 [mu]Pa (rms) measured at 10 meters 
(Laughlin 2010b). A worst-case noise level for vibratory driving of 30-
inch steel piles will be 174 dB re 1 [mu]Pa (rms) at 10 m.
    Based on in-water measurements at the Port Townsend ferry terminal, 
vibratory pile driving of a 36'' pile measured at 10 m generated 172 dB 
re 1 [mu]Pa (rms) (overall average), with the highest measured at 177 
dB re 1 [mu]Pa (rms) (Laughlin 2010b). A worst-case noise level for 
vibratory driving of 36'' steel piles will be 177 dB re 1 [mu]Pa (rms) 
at 10 m.
    While in-air sounds are not applicable to cetaceans, they are to 
pinnipeds, especially harbor seals when hauled out. No unweighted in-
air sound level data is available for 13-inch timber and plastic-faced 
pile removal, or for 24- or 36-inch vibratory pile driving. Unweighted 
in-air measurements of vibratory driving of a 30-inch steel pile 
collected during the 2010 Keystone Ferry Terminal Wingwalls Replacement 
Project ranged from 95-97.8 dB re 20 [mu]Pa (rms) at 50 ft. (Laughlin 
2010b). Removal of 13-inch pile in-air noise levels will be 
conservatively assumed to be the same as pile
    Using practical spreading model to calculate sound propagation 
loss, Table 1 provides the estimated distances where the received 
underwater sound levels drops to 120 dB re 1 [mu]Pa (rms), which is the 
threshold that currently used for determining Level B behavioral 
harassment (see below) from non-impulse noise sources based on 
measurements of different pile sizes.

Table 1--Estimated Distances Where Vibratory Pile Driving Received Sound
  Levels Drop to 120 dB re 1 [mu]Pa Based on Measurements of Different
                               Pile Sizes
------------------------------------------------------------------------
                                                         Distance to 120
                                                             dB re 1
       Pile size (inch)         Measured source levels   [micro]Pa (rms)
                                                              (km)
------------------------------------------------------------------------
13............................  152 dB re 1 [mu]Pa                   2.2
                                 (rms) @ 16 m.
24............................  162 dB re 1 [mu]Pa                   6.3
                                 (rms) @ 10 m.
30............................  174 dB re 1 [mu]Pa                  39.8
                                 (rms) @ 10 m.
36............................  177 dB re 1 [mu]Pa                  63.1
                                 (rms) @ 10 m.
------------------------------------------------------------------------

    However, land mass is intersected before these distances are 
reached, except for vibratory pile removal. For the Orcas terminal, 
land is intersected at a maximum of 3.5 km (2.2 miles). For the Friday 
Harbor terminal, land is intersected at a maximum of 4.7 km (2.9 
miles).
    For airborne noise, currently NMFS uses an in-air noise disturbance 
threshold of 90 dB re 20 [mu]Pa (rms) (unweighted) for harbor seals, 
and 100 dB re 20 [mu]Pa (rms) (unweighted) for all other pinnipeds. 
Using the above aforementioned measurement of 97.8 dB re 20 [mu]Pa 
(rms) @ 50 ft, and attenuating at 6 dBA per doubling distance, in-air 
noise from vibratory pile removal and driving will attenuate to the 90 
dB re 20 [mu]Pa (rms) within approximately 37 m, and the 100 dB re 20 
[mu]Pa (rms) within approximately 12 m.

Dates, Duration, and Region of Activity

    In-water construction is planned to take place between September 1, 
2013, and February 15, 2014. The on-site work will last approximately 8 
weeks with actual pile removal and driving activities taking place 
approximately 25% of that time.
    The number of days it will take to remove and install the pilings 
largely depends on the condition of the piles being removed and the 
difficulty in penetrating the substrate during pile installation. 
Duration estimates of each of the pile removal and pile driving 
elements follow:
     The daily construction window for pile removal or driving 
will begin no sooner than 30 minutes after sunrise to allow for initial 
marine mammal monitoring, and will end at sunset (or soon after), when 
visibility decreases to the point that effective marine mammal 
monitoring is not possible.
     Vibratory pile removal of the existing timber/plastic-
faced piles will take approximately 10 to 15 minutes per pile. 
Vibratory removal will take less time than driving, because piles are 
vibrated to loosen them from the soil, and then pulled out with the 
vibratory hammer turned off. Assuming the worst case of 15 minutes per 
pile (with no direct pull or clamshell removal), removal of 69 piles at 
the Orcas terminal will take 17.2 hours over three days of pile 
removal. Removal of 139 piles at the Friday Harbor terminal will take 
34.75 hours over five days of pile removal.
     Vibratory pile driving of the steel piles will take 
approximately 20 minutes per pile, with three to five piles installed 
per day. Assuming 20 minutes per pile, and three piles per day, driving 
of 7 piles at the Orcas terminal will take 2.3 hours over 2 days. 
Driving of 13 piles at the Friday Harbor terminal will take 4.3 hours 
over 5 days.
    The total worst-case time for pile removal is 7 days, and for pile 
installation 10 days. The actual number of pile-driving days is 
expected to be less.
    All work at the Orcas terminal will occur in water depths between -
24.6 and -31.6 feet MLLW. At the Friday Harbor terminal all work will 
occur between -30 and -34 feet MLLW.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the proposed construction area include Pacific harbor seal 
(Phoca vitulina richardsi), California sea lion (Zalophus 
californianus), northern elephant seal (Mirounga angustirostris),

[[Page 9376]]

Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena 
phocoena), Dall's porpoise (Phocoenoides dalli), Pacific white-sided 
dolphin (Lagenorhynchus obliquidens), killer whale (Orcinus orca), gray 
whale (Eschrichtius robustus), humpback whale (Megaptera novaeangliae), 
and minke whale (Balaenoptera acutorostra).
    General information on the marine mammal species found in 
California waters can be found in Caretta et al. (2011), which is 
available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2010.pdf. Refer to that document for information on these species. 
Specific information concerning these species in the vicinity of the 
proposed action area is provided below.

Harbor Seal

    Harbor seals are members of the true seal family (Phocidae). For 
management purposes, three separate harbor seal stocks are recognized 
along the west coast of the continental U.S. (Boveng 1988): (1) Inland 
waters of Washington State (including Hood Canal, Puget Sound, Georgia 
Basin and the Strait of Juan de Fuca out to Cape Flattery), (2) outer 
coast of Oregon and Washington, and (3) California (Carretta et al. 
2007a). Pupping seasons vary by geographic region. For the San Juan 
Island region, pups are born from June through August, and in southern 
Puget Sound pups are born from mid-July through September (Jeffries et 
al. 2000). However, recent observations by the Washington Department of 
Fish and Wildlife (WDFW) biologists reveal that harbor seal pupping 
seasons in San Juan Island and Georgia Basin extend from June 1 to 
October 1 (WSDOT 2012). After October 1 all pups in the inland waters 
of Washington are weaned.
    Of the four pinniped species that occur within the region of 
activity, harbor seals are the most numerous and the only one that 
breeds in the inland marine waters of Washington (Calambokidis and 
Baird 1994). In 1999, Jeffries et al. (2003) recorded a mean count of 
9,550 harbor seals in Washington's inland marine waters, and estimated 
the total population to be approximately 14,600 animals (including the 
Strait of Juan de Fuca). The population across Washington increased at 
an average annual rate of 10 percent between 1991 and 1996 (Jeffries et 
al. 1997) and is thought to be stable (Jeffries et al. 2003). The Whale 
Museum/Marine Mammal Stranding Network estimates that approximately 
4,000 seals are present in the San Juan Islands (Whale Museum 2012a).
    Within the inland waters of Washington, there are numerous harbor 
seal haulout sites located on intertidal rocks, reefs, and islands. The 
nearest known haulout sites to the Orcas Island ferry terminal are 
Blind Island Rocks and Blind Island (approximately 1.2 and 1.4 km south 
of the Orcas terminal) and Bell Island (approximately 2.7 km west of 
the Orcas terminal). The nearest known haulout sites to the Friday 
Harbor ferry terminal are the intertidal rocks NE of Point George on 
Shaw Island (approximately 4 km and 4.7 km NE of the Friday Harbor 
terminal) offshore of Shaw Island (Figure 3-2). The number of harbor 
seals using these haulouts is less than 100 per haulout (WDFW 2000). 
The level of use of this haulout during the fall and winter is unknown, 
but is expected to be much less as air temperatures become colder than 
water temperatures resulting in seals in general hauling out less 
(WSDOT 2012).
    Harbor seals are not considered to be ``depleted'' under the MMPA 
or listed as ``threatened'' or ``endangered'' under the ESA. The stock 
is also considered within its Optimum Sustainable Population level 
(Jeffries et al. 2003).

California Sea Lion

    NMFS recognizes three stocks of California sea lion based on their 
geographic distribution: (1) The U.S. stock begins at the U.S./Mexico 
border and extends northward into Canada; (2) the Western Baja 
California stock extends from the U.S./Mexico border to the southern 
tip of the Baja California Peninsula; and (3) the Gulf of California 
stock, which includes the Gulf of California from the southern tip of 
the Baja California peninsula and across to the mainland and extends to 
southern Mexico (Lowry et al. 1992). California sea lions in the 
Washington State belong to the U.S. stock.
    The U.S. stock was estimated at 238,000 in the 2010 Stock 
Assessment Report (SAR) and may be at carrying capacity, although more 
data are needed to verify that determination (Carretta et al. 2007a). 
The number of California sea lions in the San Juan Islands and the 
adjacent Strait of Juan de Fuca totaled fewer than 3,000 in the mid-
1980s (Bigg 1985; Gearin et al. 1986). In 1994, it was reported that 
the number of sea lions had stabilized or decreased in some areas 
(Gearin et al. 1988; Calambokidis and Baird 1994). More recently, 3,000 
to 5,000 animals are estimated to move into northwest waters (both 
Washington and British Columbia) during the fall (September) and remain 
until the late spring (May) when most return to breeding rookeries in 
California and Mexico (Jeffries et al. 2000; WSDOT 2012). Peak counts 
of over 1,000 animals have been made in Puget Sound (Jeffries et al. 
2000).
    In Washington, California sea lions use haulout sites within all 
inland water regions (Jeffries et al. 2000). The nearest documented 
California sea lion haulout sites to the Orcas and Friday Harbor 
terminals are intertidal rocks and reef areas around Trial Island and 
Race Rocks near Victoria, B.C. (approximately 32/24 km west of the 
Orcas/Friday Harbor terminals, respectively). The number of California 
sea lions using these haulouts is less than 100 per haulout (WDFW 
2000). Small numbers of sea lions may occasionally use navigation buoys 
in the San Juan Islands (WDFW 2000).
    California sea lions were unknown in Puget Sound until 
approximately 1979 (Steiger and Calambokidis 1986). Everitt et al. 
(1980) reported the initial occurrence of large numbers at Port 
Gardner, just north of Everett (in northern Puget Sound), in the spring 
of 1979. The number of California sea lions using this area today 
number around 1,000 (WSDOT 2012). This haulout remains the largest in 
the state for sea lions in general and for California sea lions 
specifically (WSDOT 2012). Similar sightings and increases in numbers 
were documented throughout the region after the initial sighting in 
1979 (Steiger and Calambokidis 1986), including urbanized areas such as 
Elliot Bay near Seattle and heavily used areas of central Puget Sound 
(Gearin et al. 1986). The movement of California sea lions into Puget 
Sound could be an expansion in range of a growing population (Steiger 
and Calambokidis 1986).
    California sea lions do not avoid areas with heavy or frequent 
human activity, but rather may approach certain areas to investigate. 
This species typically does not flush from a buoy or haulout if 
approached.
    California sea lions are not listed as endangered or threatened 
under the ESA or as depleted under the MMPA. They are not considered a 
strategic stock under the MMPA.

Northern Elephant Seal

    Northern elephant seals are the largest pinniped found in 
Washington marine waters. Populations of northern elephant seals in the 
U.S. and Mexico are the result of a few hundred survivors remaining 
after hunting nearly led to the species' extinction (Stewart et al. 
1994). Elephant seals present in the region of activity are considered 
part of the California breeding stock (Carretta et al. 2007a). Northern 
elephant seals breed

[[Page 9377]]

and give birth primarily on islands off of California and Mexico from 
December through March (Stewart and Huber 1993; Carretta et al. 2007a). 
Typically, juveniles form new colonies and one or more females join to 
result in new haulout and rookery sites (Bonnell et al. 1991).
    Northern elephant seal abundance estimates for inland Washington 
waters are not available due to the infrequency of sightings and the 
low numbers encountered (WSDOT 2012). Rough estimates suggest less than 
100 individuals use the area annually (WSDOT 2012). Breeding rookeries 
are located on beaches and islands in California and Mexico (Jeffries 
et al. 2000). Historically, after their winter breeding season and 
annual molt cycles, individuals dispersed northward along the Oregon 
and Washington coasts and were present only on a seasonal basis. 
However, a few individuals are now found in Washington inland waters 
year-round.
    Haulout areas are not as predictable as for the other species of 
pinnipeds. In total, WDFW has identified seven haulout sites in inland 
Washington waters used by this species. A few individuals use beaches 
at Protection Island (52/46 km south of the Orcas/Friday Harbor 
terminals, respectively) and Smith/Minor Islands (32/27 km south of the 
Orcas/Friday Harbor terminals) (WDFW 2000). Typically these sites have 
only two to ten adult males and females, but pupping has occurred at 
all of these sites over the past ten years (WSDOT 2012). A single 
individual has been observed hauled out at American Camp on San Juan 
Island (NPS 2012), and at Shaw Island County Park on Shaw Island 
(Miller 2012).
    Northern elephant seals are not listed as endangered or threatened 
under the ESA or as depleted under the MMPA.

Steller Sea Lion

    Steller sea lions comprise two recognized management stocks 
(eastern and western), separated at 144[deg] W longitude (Loughlin 
1997). Only the eastern stock is considered here because the western 
stock occurs outside of the geographic area of the proposed activity. 
Breeding rookeries for the eastern stock are located along the 
California, Oregon, British Columbia, and southeast Alaska coasts, but 
not along the Washington coast or in inland Washington waters (Angliss 
and Outlaw 2007). Steller sea lions primarily use haulout sites on the 
outer coast of Washington and in the Strait of Juan de Fuca along 
Vancouver Island in British Columbia. Only sub-adults or non-breeding 
adults may be found in the inland waters of Washington (Pitcher et al. 
2007).
    The eastern stock of Steller sea lions is estimated to be between 
48,519 and 54,989 individuals based on 2002 through 2005 pup counts 
(Angliss and Outlaw 2007). Washington's estimate including the outer 
coast is 651 individuals (non-pups only) (Pitcher et al. 2007). 
However, recent estimates are that 1,000 to 2,000 individuals enter the 
Strait of Juan de Fuca during the fall and winter months (WSDOT 2012).
    Steller sea lions in Washington State decline during the summer 
months, which correspond to the breeding season at Oregon and British 
Columbia rookeries (approximately late May to early June) and peak 
during the fall and winter months (Jeffries et al. 2000). A few Steller 
sea lions can be observed year-round in Puget Sound/Georgia Basin 
although most of the breeding age animals return to rookeries in the 
spring and summer.
    For Washington inland waters, Steller sea lion abundances vary 
seasonally with a minimum estimate of 1,000 to 2,000 individuals 
present or passing through the Strait of Juan de Fuca in fall and 
winter months (WSDOT 2012, citing S. Jeffries pers. comm. 2008). 
However, the number of haulout sites has increased in recent years. 
Haulouts in the San Juan Islands include Green Point on Speiden Island 
(12/13 km northwest of the Orcas/Friday Harbor terminals, 
respectively), North Peapod Rock (15/23 km northeast of the Orcas/
Friday Harbor terminals, respectively), Bird Rocks (18/19 km southeast 
of the Orcas/Friday Harbor terminals, respectively) and Whale Rock (17/
11 km south of the Orcas/Friday Harbor terminals, respectively) (NMFS 
2012).
    Steller sea lions were listed as threatened range-wide under the 
ESA on November 26, 1990 (55 FR 49204). After division into two stocks, 
the western stock was listed as endangered under the ESA on May 4, 1997 
and the eastern stock remained classified as threatened (62 FR 24345). 
In 2006 the NMFS Steller sea lion recovery team proposed removal of the 
eastern stock from listing under the ESA based on its annual rate of 
increase of approximately 3% since the mid-1970s.
    On August 27, 1993, NMFS published a final rule designating 
critical habitat for the Steller sea lion (NMFS 1993). No critical 
habitat has been designated in Washington (NMFS 1993). Critical habitat 
is associated with breeding and haulout areas in Alaska, California, 
and Oregon (NMFS 1993).
    Steller sea lions are listed as depleted under the MMPA. Both 
stocks are thus classified as strategic.

Harbor Porpoise

    In the Northwest U.S., harbor porpoises are divided into two 
stocks: (1) The Washington Inland Waters Stock, and (2) the Oregon/
Washington Coast Stock (Carretta et al. 2007b). The Washington Inland 
Waters Stock occurs in waters east of Cape Flattery (Strait of Juan de 
Fuca, San Juan Island Region, and Puget Sound). The Oregon/Washington 
Coast Stock extends from Cape Flattery, Washington south to Cape 
Blanco, Oregon. Although harbor porpoises have been spotted in deep 
water, they tend to remain in shallower shelf waters (<150 m) where 
they are most often observed in small groups of one to eight animals 
(Baird 2003).
    Little information regarding food habits of the harbor porpoise is 
available for British Columbia or inland Washington waters (Hall 2004). 
What prey species have been documented include juvenile blackbelly 
eelpout, opal squid, Pacific herring, walleye pollock, Pacific hake, 
eulachon, and Pacific sanddab (Walker et al. 1998). Based on the 
results from Walker et al. (1998) and Hall (2004), harbor porpoises in 
British Columbia and Washington are opportunistic feeders, with prey 
species varying based on seasonal abundance. They also likely alter 
their spatial and temporal distributions based on prey availability.
    The Washington Inland Waters Stock mean abundance estimate based on 
2002 and 2003 aerial surveys conducted in the Strait of Juan de Fuca, 
San Juan Islands, Gulf Islands, and Strait of Georgia is 10,682 harbor 
porpoises (Carretta et al. 2007b). Abundance estimates of harbor 
porpoises for the Strait of Juan de Fuca and the San Juan Islands in 
1991 were approximately 3,300 animals (Calambokidis et al. 1993). 
Harbor porpoises were once considered common in southern Puget Sound 
(Scheffer and Slipp 1948); however, there has been a significant 
decline in sightings within southern Puget Sound since the 1940s 
(Everitt et al. 1980; Calambokidis et al. 1985, 1992; Carretta et al. 
2007b).
    Virtually no data are available to assess population trends in 
Puget Sound (Scheffer and Slipp 1948; Everitt et al. 1980; Calambokidis 
et al. 1985, 1992; Calambokidis and Baird 1994). No harbor porpoises 
were observed within Puget Sound proper during comprehensive harbor 
porpoise surveys (Osmek et al. 1994) or Puget Sound Ambient Monitoring 
Program (PSAMP) surveys conducted in the 1990s. Declines were 
attributed to gill-net fishing, increased vessel activity, 
contaminants, and competition with

[[Page 9378]]

Dall's porpoise. However, Puget Sound populations appear to be 
rebounding with increased sightings in central (Carretta et al. 2007b) 
and southern (WDFW 2008) Puget Sound.
    Harbor porpoises are common in the Strait of Juan de Fuca and south 
into Admiralty Inlet, especially during the winter, but are not at all 
common south of Admiralty Inlet. Harbor porpoises occur year-round and 
breed in the waters around the San Juan Archipelago and north into 
Canadian waters (Calambokidis and Baird 1994). Little information 
exists on harbor porpoise movements and stock structure near the Orcas 
and Friday Harbor terminals, although it is suspected that in some 
areas harbor porpoises migrate (based on seasonal shifts in 
distribution). For instance Hall (WSDOT 2012) found harbor porpoises 
off Canada's southern Vancouver Island to peak during late summer, 
while WDFW's PSAMP data show peaks in Washington water to occur during 
the winter. Still, no additional evidence exists for migrations in the 
inland waters of Washington or British Columbia (Calambokidis and Baird 
1994; Rosel et al. 1995). Hall (WSDOT 2012) found that the frequency of 
sighting of harbor porpoises decreased with increasing depth beyond 150 
m with the highest numbers observed at water depths ranging from 61 to 
100 m.
    The harbor porpoise is not listed under the ESA and is classified 
as non-depleted under the MMPA.

Dall's Porpoise

    Dall's porpoise occur in the North Pacific Ocean and is divided 
into two stocks: (1) California, Oregon, and Washington; and (2) Alaska 
(Carretta et al. 2007b). The segment of the population within 
Washington's inland waters was last assessed in 1996 by aerial surveys 
(Calambokidis et al. 1997). During a ship line-transect survey 
conducted in 2005, Dall's porpoise was the most abundant cetacean 
species off the Oregon and Washington coast (Forney 2007). Dall's 
porpoises are migratory and appear to have predictable seasonal 
movements driven by changes in oceanographic conditions (Green et al. 
1992, 1993). This species is commonly seen in shelf, slope, and 
offshore waters (Carretta et al. 2007b).
    The California, Oregon, and Washington stock mean abundance 
estimate of Dall's porpoises based on 2001 and 2005 ship surveys is 
57,549 (Barlow 2003; Forney 2007). Within the inland waters of 
Washington and British Columbia, this species is most abundant in the 
Strait of Juan de Fuca east to the San Juan Islands. In 1994, 
Calambokidis and Baird (1994) estimated the Juan de Fuca population at 
3,015 animals and the San Juan Island population at about 133 animals. 
Calambokidis et al. (1997) estimated that 900 animals annually 
inhabited Washington's inland waters. Prior to the 1940s, Dall's 
porpoises were not reported in Puget Sound.
    Dall's porpoises are migratory and appear to have predictable 
seasonal movements driven by changes in oceanographic conditions (Green 
et al. 1992, 1993), and are most abundant in Puget Sound during the 
winter (Nysewander et al. 2005; WDFW 2008). Despite their migrations, 
Dall's porpoises occur in all areas of inland Washington at all times 
of year (WSDOT 2012 citing J. Calambokidis pers. comm. 2006), but with 
different distributions throughout Puget Sound from winter to summer.
    Dall's porpoise are not listed under the ESA and is classified as 
non-depleted under the MMPA.

Pacific White-Sided Dolphin

    Pacific white-sided dolphins are occasionally seen in the 
northernmost part of the Strait of Georgia and in western Strait of 
Juan de Fuca, but are generally only rare visitors to this area 
(Calambokidis and Baird 1994). This species is rarely seen in Puget 
Sound. Pacific white-sided dolphins have been documented primarily in 
deep, off-shore areas (Green et al. 1992, 1993; Calambokidis et al. 
2004a).
    The California, Oregon, and Washington stock mean abundance 
estimate based on the two most recent ship surveys is 25,233 Pacific 
white-sided dolphins (Forney 2007). This abundance estimate is based on 
two summer/autumn shipboard surveys conducted within 300 nautical miles 
of the coasts of California, Oregon, and Washington in 2001 and 2005 
(Barlow 2003, Forney 2007). Surveys in Oregon and Washington coastal 
waters resulted in an estimated abundance of 7,645 animals (Forney 
2007).
    Fine-scale surveys in Olympic Coast slope waters and the Olympic 
Coast National Marine Sanctuary resulted in an estimated abundance of 
1,196 and 1,432 animals, respectively (Forney 2007), but there are no 
population estimates for Washington's inland waters. During aerial 
surveys of Washington inland waters conducted under WDFW's PSAMP 
program between 1992 and 2008, only a single group of three Pacific 
white-sided dolphins was observed (summer 1995 in the Strait of Juan de 
Fuca), although Osborne et al. (1988) states they are regularly 
reported in the Strait of Juan de Fuca and Haro Strait. There are few 
records for Puget Sound.
    Pacific white-sided dolphins have been reported to be regular 
summer and fall inhabitants of the Strait of Juan de Fuca and San Juan 
Islands (specifically Haro Strait) (Osborne et al. 1988), but extremely 
rare in Puget Sound.
    Pacific white-sided dolphins are not listed under the ESA and are 
classified as non-depleted under the MMPA.

Killer Whale

    Two sympatric ecotypes of killer whales are found within the 
proposed activity area: transient and resident. These types vary in 
diet, distribution, acoustic calls, behavior, morphology, and 
coloration (Baird 2000; Ford et al. 2000). The ranges of transient and 
resident killer whales overlap; however, little interaction and high 
reproductive isolation occurs among the two ecotypes (Barrett-Lennard 
2000; Barrett-Lennard and Ellis 2001; Hoelzel et al. 2002). Resident 
killer whales are primarily piscivorous, whereas transients primarily 
feed on marine mammals, especially harbor seals (Baird and Dill 1996). 
Resident killer whales also tend to occur in larger (10 to 60 
individuals), stable family groups known as pods, whereas transients 
occur in smaller (less than 10 individuals), less structured pods.
    One stock of transient killer whale, the West Coast Transient 
stock, occurs in Washington State. West Coast transients primarily 
forage on harbor seals (Ford and Ellis 1999), but other species such as 
porpoises and sea lions are also taken (NMFS 2008a).
    Two stocks of resident killer whales occur in Washington State: the 
Southern Resident and Northern Resident stocks. Southern Residents 
occur within the activity area, in the Strait of Juan de Fuca, Strait 
of Georgia, and in coastal waters off Washington and Vancouver Island, 
British Columbia (Ford et al. 2000). Northern Residents occur primarily 
in inland and coastal British Columbia and Southeast Alaska waters and 
rarely venture into Washington State waters. Little interaction (Ford 
et al. 2000) or gene flow (Barrett-Lennard 2000; Barrett-Lennard and 
Ellis 2001; Hoelzel et al. 2004) is known to occur between the two 
resident stocks.
    The West Coast Transient stock, which includes individuals from 
California to southeastern Alaska, was estimated to have a minimum 
number of 354 (NMFS 2010b). Trends in abundance for the West Coast 
Transients were unavailable in the most recent stock assessment report 
(Angliss and Outlaw 2007).

[[Page 9379]]

    The Southern Resident stock was first recorded in a census in 1974, 
at which time the population comprised 71 whales. This population 
peaked at 97 animals in 1996, declined to 79 by 2001 (Center for Whale 
Research 2011), and then increased to 89 animals by 2006 (Carretta et 
al. 2007a). As of 2012, the population collectively numbers 84 
individuals (Whale Museum 2012b).
    Both West Coast Transient and the Southern Resident stocks are 
found within Washington inland waters. Individuals of both forms have 
long-ranging movements and thus regularly leave the inland waters 
(Calambokidis and Baird 1994).
    Killer whales are protected under the MMPA of 1972. The West Coast 
Transient stock is not designated as depleted under the MMPA or listed 
as ``threatened or ``endangered'' under the ESA. The Southern Resident 
stock is listed as an endangered distinct population segment (DPS) 
under the ESA. On November 29, 2006, NMFS published a final rule 
designating critical habitat for the Southern Resident killer whale DPS 
(71 FR 69054). Both Puget Sound and the San Juan Islands are designated 
as core areas of critical habitat under the ESA, but areas less than 20 
feet deep relative to extreme high water are not designated as critical 
habitat (71 FR 69054). A final recovery plan for southern residents was 
published in January of 2008 (NMFS 2008a).

Gray Whale

    Gray whales are recorded in Washington waters during feeding 
migrations between late spring and autumn with occasional sightings 
during winter months (Calambokidis et al. 1994, 2002; Orca Network 
2011).
    Early in the 20th century, it is believed that commercial hunting 
for gray whales reduced population numbers to below 2,000 individuals 
(Calambokidis and Baird 1994). After listing of the species under the 
ESA in 1970, the number of gray whales increased dramatically resulting 
in their delisting in 1994. Population surveys since the delisting 
estimate that the population fluctuates at or just below the carrying 
capacity of the species (~26,000 individuals) (Rugh et al. 1999; 
Calambokidis et al. 1994; Angliss and Outlaw 2007).
    Within Washington waters, gray whale sightings reported to Cascadia 
Research and the Whale Museum between 1990 and 1993 totaled over 1,100 
(Calambokidis et al. 1994). Forty-eight individual gray whales were 
observed in Puget Sound and Hood Canal in 2004 and 2005 (Calambokidis 
2007). Abundance estimates calculated for the small regional area 
between Oregon and southern Vancouver Island, including the San Juan 
Area and Puget Sound, suggest there were 137 to 153 individual gray 
whales from 2001 through 2003 (Calambokidis et al. 2004b).
    Gray whales migrate within 5 to 43 km of the coast of Washington 
during their annual north/south migrations (Green et al. 1995). Gray 
whales migrate south to Baja California where they calve in November 
and December, and then migrate north to Alaska from March through May 
(Rice et al. 1984; Rugh et al. 2001) to summer and feed. A very few 
gray whales are observed in Washington inland waters between the months 
of September and January, with peak numbers of individuals from March 
through May (WSDOT 2012 citing J. Calambokidis pers. comm. 2007). Peak 
months of gray whale observations in the area of activity occur outside 
the proposed work window of September through February. The average 
tenure within Washington inland waters is 47 days and the longest stay 
was 112 days (WSDOT 2012 citing J. Calambokidis pers. comm. 2007).
    Although typically seen during their annual migrations on the outer 
coast, a regular group of gray whales annually comes into the inland 
waters at Saratoga Passage and Port Susan from March through May to 
feed on ghost shrimp (Weitkamp et al. 1992). During this time frame 
they are also seen in the Strait of Juan de Fuca, the San Juan Islands, 
and areas of Puget Sound, although the observations in Puget Sound are 
highly variable between years (Calambokidis et al. 1994, 2002). In 
northern Puget Sound between Admiralty Inlet and the Edmonds/Kingston 
Ferry route, sightings of gray whales are more common and regular 
(Calambokidis et al. 1994, Orca Network 2011), although most all these 
sightings occur between March and May. Between January 2005 and 
February 2012, the Orca Network logged 13 sightings of gray whales in 
the September to February window proposed for the Orcas and Friday 
Harbor Ferry Terminal projects.
    The Eastern North Pacific stock of gray whales was removed from 
listing under the ESA in 1994 after a 5-year review by NOAA Fisheries 
(Angliss and Outlaw 2007). In 2001 NOAA Fisheries received a petition 
to relist the stock under the ESA, but it was determined that there was 
not sufficient information to warrant the petition (Angliss and Outlaw 
2007).

Humpback Whale

    Few humpback whales have been seen in Puget Sound, but more 
frequent sightings occur in the Strait of Juan de Fuca and near the San 
Juan Islands. Most sightings are in spring and summer. Historically, 
humpback whales were common in inland waters of Puget Sound and the San 
Juan Islands (Calambokidis et al. 2002). In the early part of this 
century, there was a productive commercial hunt for humpbacks in 
Georgia Strait that was probably responsible for their long 
disappearance from local waters (Osborne et al. 1988). Since the mid-
1990s, sightings in Puget Sound have increased. Between 1996 and 2001, 
Calambokidis et al. (2002) recorded only six individuals south of 
Admiralty Inlet. Between January 2005 and February 2012, the Orca 
Network logged 19 sightings of humpbacks in the September to February 
window proposed for the Orcas and Friday Harbor Ferry Terminal 
projects.
    Humpback whales are listed as endangered under the ESA and depleted 
under the MMPA.

Minke Whale

    The California/Oregon/Washington stock of minke whale is considered 
a resident stock, which is unlike the other Northern Pacific stocks of 
this species (NMFS 2008b). This stock includes minke whales within the 
inland Washington waters of Puget Sound and the San Juan Islands 
(Dorsey et al. 1990; Carretta et al. 2007b).
    The number of minke whales in the California/Oregon/Washington 
stock is estimated between 500 and 1,015 individuals (Barlow 2003; 
Carretta et al. 2007b; NMFS 2008b). Over a 10-year period, 30 
individuals were photographically identified in the transboundary area 
around the San Juan Islands and demonstrated high site fidelity (Dorsey 
et al. 1990; Calambokidis and Baird 1994). In a single year, up to 19 
individuals were photographically identified from around the San Juan 
Islands (Dorsey et al. 1990).
    Minke whales are reported in Washington inland waters year-round, 
although few are reported in the winter (Calambokidis and Baird 1994). 
Minke whales are relatively common in the San Juan Islands and Strait 
of Juan de Fuca (especially around several of the banks in both the 
central and eastern Strait), but are relatively rare in Puget Sound. 
Infrequent observations occur in Puget Sound south of Admiralty Inlet 
(Orca Network 2011). Between January 2005 and February 2012, the Orca

[[Page 9380]]

Network logged 42 sightings of minke in the September to February 
window proposed for the Orcas and Friday Harbor Ferry Terminal 
projects.
    Minke whales are not listed under the ESA and are classified as 
non-depleted under the MMPA.

Potential Effects of the Specified Activity on Marine Mammals

    WSDOT and NMFS determine that open-water pile driving and pile 
removal associated with the construction activities at Orcas Island and 
Friday Harbor Ferry Terminal has the potential to result in behavioral 
harassment of marine mammal species and stocks in the vicinity of the 
proposed activity.
    Marine mammals exposed to high intensity sound repeatedly or for 
prolonged periods can experience hearing threshold shift (TS), which is 
the loss of hearing sensitivity at certain frequency ranges (Kastak et 
al. 1999; Schlundt et al. 2000; Finneran et al. 2002; 2005). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is 
unrecoverable, or temporary (TTS), in which case the animal's hearing 
threshold will recover over time (Southall et al. 2007). Since marine 
mammals depend on acoustic cues for vital biological functions, such as 
orientation, communication, finding prey, and avoiding predators, 
marine mammals that suffer from PTS or TTS will have reduced fitness in 
survival and reproduction, either permanently or temporarily. Repeated 
noise exposure that leads to TTS could cause PTS.
    Experiments on a bottlenose dolphin (Tursiops truncates) and beluga 
whale (Delphinapterus leucas) showed that exposure to a single watergun 
impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p), 
which is equivalent to 228 dB (p-p) re 1 [mu]Pa, resulted in a 7 and 6 
dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds 
returned to within 2 dB of the pre-exposure level within 4 minutes of 
the exposure (Finneran et al. 2002). No TTS was observed in the 
bottlenose dolphin. Although the source level of pile driving from one 
hammer strike is expected to be much lower than the single watergun 
impulse cited here, animals being exposed for a prolonged period to 
repeated hammer strikes could receive more noise exposure in terms of 
SEL than from the single watergun impulse (estimated at 188 dB re 1 
[mu]Pa\2\-s) in the aforementioned experiment (Finneran et al. 2002).
    Currently, NMFS considers that repeated exposure to received noise 
levels at 180 dB and 190 dB re 1 [mu]Pa (rms) could lead to TTS in 
cetaceans and pinnipeds, respectively. For the proposed dolphin 
replacement work at Orcas Island and Friday Harbor Ferry Terminal, only 
vibratory pile driving would be used. Noise levels measured near the 
source of vibratory hammers (10 m and 16 m from the source, see above) 
are much lower than the 180 dB re 1 [mu]Pa (rms). Therefore, it is very 
unlikely that any marine mammals would experience TTS or PTS as a 
result of noise exposure to WSDOT's proposed construction activities at 
Orcas Island and Friday Harbor Ferry Terminal.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions (Clark 
et al. 2009). Masking can interfere with detection of acoustic signals 
such as communication calls, echolocation sounds, and environmental 
sounds important to marine mammals. Therefore, under certain 
circumstances, marine mammals whose acoustical sensors or environment 
are being severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction.
    Masking occurs at the frequency band which the animals utilize. 
Therefore, since noise generated from in-water vibratory pile driving 
and removal is mostly concentrated at low frequency ranges, it may have 
less effect on high frequency echolocation sounds by odontocetes 
(toothed whales). However, lower frequency man-made noises are more 
likely to affect detection of communication calls and other potentially 
important natural sounds such as surf and prey noise. It may also 
affect communication signals when they occur near the noise band and 
thus reduce the communication space of animals (e.g., Clark et al. 
2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt 
et al. 2009).
    Unlike TS, masking can potentially impact the species at 
population, community, or even ecosystem levels, as well as individual 
levels. Masking affects both senders and receivers of the signals and 
could have long-term chronic effects on marine mammal species and 
populations. Recent science suggests that low frequency ambient sound 
levels have increased by as much as 20 dB (more than 3 times in terms 
of SPL) in the world's ocean from pre-industrial periods, and most of 
these increases are from distant shipping (Hildebrand 2009). All 
anthropogenic noise sources, such as those from vessels traffic, pile 
driving, dredging, and dismantling existing bridge by mechanic means, 
contribute to the elevated ambient noise levels, thus intensify 
masking.
    Nevertheless, the sum of noise from the proposed WSDOT construction 
activities is confined in an area that is bounded by landmass, 
therefore, the noise generated is not expected to contribute to 
increased ocean ambient noise. Due to shallow water depth near the 
ferry terminals, underwater sound propagation for low-frequency sound 
(which is the major noise source from pile driving) is expected to be 
poor.
    Finally, exposure of marine mammals to certain sounds could lead to 
behavioral disturbance (Richardson et al. 1995), such as: Changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities, 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping), avoidance of 
areas where noise sources are located, and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, and reproduction. Some of these 
significant behavioral modifications include:
     Drastic change in diving/surfacing patterns (such as those 
thought to be causing beaked whale stranding due to exposure to 
military mid-frequency tactical sonar);
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cease feeding or social interaction.
    For example, at the Guerreo Negro Lagoon in Baja California, 
Mexico, which is one of the important breeding grounds for Pacific gray 
whales, shipping and dredging associated with a salt works may have 
induced gray whales to abandon the area through most of the 1960s 
(Bryant et al. 1984). After these activities stopped, the lagoon was 
reoccupied, first by single whales and later by cow-calf pairs.
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al. 2007).
    The proposed project area is not believed to be a prime habitat for 
marine mammals, nor is it considered an area

[[Page 9381]]

frequented by marine mammals. Therefore, behavioral disturbances that 
could result from anthropogenic noise associated with SF-OBB 
construction activities are expected to affect only a small number of 
marine mammals on an infrequent basis.
    Currently NMFS uses 160 dB re 1 [mu]Pa (rms) at received level for 
impulse noises (such as impact pile driving, mechanic splitting and 
pulverizing) as the onset of marine mammal behavioral harassment, and 
120 dB re 1 [mu]Pa (rms) for non-impulse noises (vibratory pile 
driving, saw cutting, drilling, and dredging). For the WSDOT's proposed 
Orcas Island and Friday Harbor ferry terminal dolphin replacement 
construction projects, only the 120 dB re 1 [mu]Pa (rms) threshold is 
considered because only vibratory pile removal and pile driving would 
be used.
    As far as airborne noise is concerned, the estimated in-air source 
level from vibratory pile driving a 30-in steel pile is estimated at 
97.8 dB re 1 [mu]Pa at 15 m (50 feet) from the pile (Laughlin 2010b). 
Using the spreading loss of 6 dB per doubling of distance, it is 
estimated that the distances to the 90 dB and 100 dB thresholds were 
estimated at 37 m and 12 m, respectively. The nearest pinniped haulout 
is 1 km away south of the Orcas Island terminal and 4 km northeast of 
the Friday Harbor ferry terminal offshore of Shaw Island.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammals habitat are 
associated with elevated sound levels produced by vibratory pile 
removal and pile driving in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.

Potential Impacts on Prey Species

    With regard to fish as a prey source for cetaceans and pinnipeds, 
fish are known to hear and react to sounds and to use sound to 
communicate (Tavolga et al. 1981) and possibly avoid predators (Wilson 
and Dill 2002). Experiments have shown that fish can sense both the 
strength and direction of sound (Hawkins 1981). Primary factors 
determining whether a fish can sense a sound signal, and potentially 
react to it, are the frequency of the signal and the strength of the 
signal in relation to the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al. 1993). In general, fish react more strongly to pulses of 
sound rather than non-pulse signals (such as noise from vessels) 
(Blaxter et al. 1981), and a quicker alarm response is elicited when 
the sound signal intensity rises rapidly compared to sound rising more 
slowly to the same level.
    Further, during the coastal construction only a small fraction of 
the available habitat would be ensonified at any given time. 
Disturbance to fish species would be short-term and fish would return 
to their pre-disturbance behavior once the pile driving activity 
ceases. Thus, the proposed construction would have little, if any, 
impact on the abilities of marine mammals to feed in the area where 
construction work is planned.
    Finally, the time of the proposed construction activity would avoid 
the spawning season of the ESA-listed salmonid species.

Water and Sediment Quality

    Short-term turbidity is a water quality effect of most in-water 
work, including removing and installing piles. WSF will comply with 
state water quality standards during these operations by limiting the 
extent of turbidity to the immediate project area.
    Roni and Weitkamp (1996) monitored water quality parameters during 
a pier replacement project in Manchester, Washington. The study 
measured water quality before, during, and after pile removal and pile 
replacement. The study found that construction activity at the site had 
``little or no effect on dissolved oxygen, water temperature, and 
salinity'', and turbidity (measured in nephelometric turbidity units 
[NTU]) at all depths nearest the construction activity was typically 
less than 1 NTU higher than stations farther from the construction area 
throughout construction. Similar results were recorded during pile 
removal operations at two WSF ferry facilities. At the Friday Harbor 
terminal, localized turbidity levels (from three timber pile removal 
events) were generally less than 0.5 NTU higher than background levels 
and never exceeded 1 NTU. At the Eagle Harbor maintenance facility, 
local turbidity levels (from removal of timber and steel piles) did not 
exceed 0.2 NTU above background levels. In September 2004, water 
quality monitoring conducted at the Friday Harbor Ferry Terminal during 
three pile-removal events showed turbidity levels did not exceed 1 NTU 
over background conditions and were generally less than 0.5 NTU over 
background levels. In general, turbidity associated with pile 
installation is localized to about a 25-foot radius around the pile 
(Everitt et al. 1980).
    Cetaceans are not expected to be close enough to the Orcas Island 
and Friday Harbor ferry terminals to experience turbidity, and any 
pinnipeds will be transiting the terminal areas and could avoid the 
localized areas of turbidity. Therefore, the impact from increased 
turbidity levels is expected to be discountable to marine mammals. 
Removal of the timber dolphins at Orcas Island and Friday Harbor ferry 
terminal will result in 197 creosote-treated piles (334 tons) removed 
from the marine environment. This will result in the potential, 
temporary and localized sediment re-suspension of some of the 
contaminants associated with creosote, such as polycyclic aromatic 
hydrocarbons. However, the actual removal of the creosote-treated wood 
piles from the marine environment will result in a long-term 
improvement in water and sediment quality, meeting the goals of WSF's 
Creosote Removal Initiative started in 2000. The net impact is a 
benefit to marine organisms, especially toothed whales and pinnipeds 
that are high in the food chain and bioaccumulate these toxins. This is 
especially a concern for long-lived species that spend their entire 
life in Puget Sound, such as Southern Resident killer whales (NMFS 
2008a).

Passage Obstructions

    Pile removal and installation operations at the Orcas Island and 
Friday Harbor ferry terminals will not obstruct movements of marine 
mammals. The operations at Orcas Island will occur within 75 m of the 
shoreline leaving 1 km of the channel for marine mammals to pass. At 
Friday Harbor, operations will occur within 160 m of the shoreline 
leaving 0.4 km of the harbor for marine mammals to pass. Further, a 
construction barge will be used to remove and install the pilings.

Potential Impacts on Availability of Affected Species or Stock for 
Taking for Subsistence Uses

    No subsistence harvest of marine mammals occur in the proposed 
action area.

Proposed Mitigation Measures

    In order to issue an incidental take authorization 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

[[Page 9382]]

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.
    For the proposed Orcas Island and Friday Harbor ferry terminals 
dolphin replacement construction work, WSDOT proposed the following 
mitigation measures to minimize the potential impacts to marine mammals 
in the project vicinity. These mitigation measures would be employed 
during all pile removal and installation activities at the Orcas Island 
and Friday Harbor ferry terminals. The language in monitoring measures 
would be included in the Contract Plans and Specifications and must be 
agreed upon by the contractor prior to any pile activities.
    Since the measured source levels (at 10 and 16 m) of the vibratory 
hammer involved in pile removal and pile driving are below NMFS current 
thresholds for Level A takes, i.e., below 180 dB re 1 [mu]Pa (rms), no 
exclusion zone would be established, and there would be no required 
power-down and shutdown measures. Instead, WSDOT would establish and 
monitor the 120 dB re 1 [mu]Pa (rms) zone of influence (ZOI, see below 
Proposed Monitoring and Reporting section).
    One major mitigation measure for WSDOT's proposed pile removal and 
pile driving activities is ramping up, or soft start, of vibratory pile 
hammers. The purpose of this procedure is to reduce the startling 
behavior of marine mammals in the vicinity of the proposed construction 
activity from sudden loud noise.
    Soft start requires contractors to initiate the vibratory hammer at 
reduced power for 15 seconds with a 1 minute interval, and repeat such 
procedures for an additional two times.
    In addition, monitoring for marine mammal presence will take place 
20 minutes before, during and 30 minutes after pile driving to ensure 
that marine mammals are not injured by the proposed construction 
activities (see Proposed Monitoring and Reporting section below).
    Finally, if the number of any allotted marine mammal takes (see 
Estimated Take by Incidental Harassment section below) reaches the 
limit under the IHA (if issued), WSDOT will implement shutdown and 
power down measures if such species/stock of animal approaches the 120 
dB Level B harassment zone.

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 ITAs 
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 in the proposed action area.

Proposed Monitoring Measures

    The monitoring plan proposed by WSDOT can be found in its IHA 
application. The plan may be modified or supplemented based on comments 
or new information received from the public during the public comment 
period. A summary of the primary components of the plan follows.
(1) Protected Species Observers (PSOs)
    WSDOT will employ qualified protected species observers (PSOs) to 
monitor the 120 dB re 1 [mu]Pa (rms) for marine mammals. Qualifications 
for marine mammal observers include:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance. Use of binoculars 
may be necessary to correctly identify the target.
     Advanced education in biological science, wildlife 
management, mammalogy or related fields (Bachelors degree or higher is 
preferred), but not required.
     Experience or training in the field identification of 
marine mammals (cetaceans and pinnipeds).
     Sufficient training, orientation or experience with the 
construction operation to provide for personal safety during 
observations.
     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.
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
     Writing skills sufficient to prepare a report of 
observations that would include such information as the number and type 
of marine mammals observed; the behavior of marine mammals in the 
project area during construction, dates and times when observations 
were conducted; dates and times when in-water construction activities 
were conducted; and dates and times when marine mammals were present at 
or within the defined ZOI.
(2) Monitoring Protocols
    PSOs will be present on site at all times during pile removal and 
driving. Marine mammal behavior, overall numbers of individuals 
observed, frequency of observation, and the time corresponding to the 
daily tidal cycle will be recorded.
    WSF proposes the following methodology to estimate marine mammals 
that were taken as a result of the proposed Orcas Island and Friday 
Harbor ferry terminal construction work:
     A range finder or hand-held global positioning system 
device will be used to ensure that the 120 dB re 1 [mu]Pa (rms) Level B 
behavioral harassment ZOI is monitored.
     A 20-minute pre-construction marine mammal monitoring will 
be required before the first pile driving or pile removal of the day. A 
30-minute post-construction marine mammal monitoring will be required 
after the last pile driving or pile removal of the day. If the 
constructors take a break between subsequent pile driving or pile 
removal for more than 30 minutes, then additional pre-construction 
marine mammal monitoring will be required before the next start-up of 
pile driving or pile removal.
     If marine mammals are observed, the following information 
will be document:
    [ssquf] Species of observed marine mammals;
    [ssquf] Number of observed marine mammal individuals;
    [ssquf] Behavioral of observed marine mammals;
    [ssquf] Location within the ZOI; and
    [ssquf] Animals' reaction (if any) to pile-driving activities.
     During vibratory pile removal and driving, one land-based 
biologist will monitor the area from the terminal work site, and one 
boat with a qualified PSO shall navigate the ZOI in a circular path.
     In addition, WSDOT will contact the Orca Network and/or 
Center for Whale Research to find out the location of the nearest 
marine mammal sightings. Sightings are called or emailed into the Orca 
Network and immediately distributed to other sighting networks 
including: The Northwest Fisheries Science Center of NOAA Fisheries, 
the Center for Whale Research, Cascadia Research, the Whale Museum 
Hotline, and the British Columbia Sightings Network.
     Marine mammal occurrence information collected by the Orca 
Network also includes detection by the

[[Page 9383]]

following hydrophone systems: (1) The SeaSound Remote Sensing Network, 
a system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study 
killer whale communication, underwater noise, bottomfish ecology, and 
local climatic conditions, and (2) A hydrophone at the Port Townsend 
Marine Science Center that measures average underwater sound levels and 
automatically detects unusual sounds.
    NMFS has reviewed the WSDOT's proposed marine mammal monitoring 
protocol, and has determined the applicant's monitoring program is 
adequate, particularly as it relates to assessing the level of taking 
or impacts to affected species. The land-based PSO is expected to be 
positioned in a location that will maximize his/her ability to detect 
marine mammals and will also utilize binoculars to improve detection 
rates. In addition, the boat-based PSO will cruise within the 120 dB 
ZOI, which is not a particularly large zone, thereby allowing him/her 
to conduct additional monitoring with binoculars. With respect to 
WSDOT's take limits, NMFS is primarily concerned that WSDOT could reach 
its Southern Resident killer whale limit. However, killer whales have 
large dorsal fins and can be easily spotted from great distances. 
Further, Southern Resident killer whales typically move in groups which 
makes visual detection much easier. In addition, added underwater 
acoustic monitoring by Orca Network in the region would further provide 
additional detection, since resident killer whales are very vocal.

Proposed Reporting Measures

    WSF will provide NMFS with a draft monitoring report within 90 days 
of the conclusion of the proposed construction work. This report will 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    If comments are received from the NMFS Northwest Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report will be submitted to NMFS within 30 days 
thereafter. If no comments are received from NMFS, the draft report 
will be considered to be the final report.

Estimated Take by Incidental Harassment

    As mentioned earlier in this document, a worst-case scenario for 
the Orcas Island ferry terminal project assumes that it may take 3 days 
to remove the existing piles and 2 days to install the new piles. The 
maximum total number of hours of pile removal activity is about 17.2 
hours, and pile-driving activity is about 2.3 hours (averaging about 
3.9 hours of active pile removal/driving for each construction day).
    A worst-case scenario for the Friday Harbor ferry terminal project 
assumes that it may take 5 days to remove the existing piles and 5 days 
to install the new piles. The maximum total number of hours of pile 
removal activity is about 34.75 hours, and pile-driving activity is 
about 4.3 hours (averaging about 3.9 hours of active pile removal/
driving for each construction day).
    Also, as described earlier, for non-impulse noise, NMFS uses 120 dB 
re 1 [mu]Pa (rms) as the threshold for Level B behavioral harassment. 
The distance to the 120 dB re 1 [mu]Pa (rms) isopleth due to vibratory 
pile driving for the Orcas Island ferry terminal project extends a 
maximum of 3.5 km (2.2 miles) before land is intersected. For the 
Friday Harbor ferry terminal project, land is intersected at a maximum 
of 4.7 km (2.9 miles). To simplify the establishment of the 120 dB re 1 
[mu]Pa (rms) zone of influence (ZOI) for monitoring, vibratory timber 
pile removal will conservatively be assumed to extend the same 
distances as vibratory pile driving. Both of these areas will be 
monitored during construction to estimate actual harassment take of 
marine mammals (see below).
    Airborne noises can affect pinnipeds, especially resting seals 
hauled out on rocks or sand spits. The airborne 90 dB re 20 [mu]Pa 
Level B threshold for hauled out harbor seals was estimated at 37 m, 
and the airborne 100 dB Level B re 10 [mu]Pa threshold for all other 
pinnipeds is estimated at 12 m. This is much closer than the distance 
to the nearest harbor seal haulout site for the Orcas Island ferry 
terminal (1 km) and Friday Harbor ferry terminal (4 km).
    Incidental take is estimated for each species by estimating the 
likelihood of a marine mammal being present within a ZOI during active 
pile driving and removal. Expected marine mammal presence is determined 
by past observations and general abundance near the Orcas Island and 
Friday Harbor ferry terminals during the construction window. 
Typically, potential take is estimated by multiplying the number of 
animals likely to be present in the action area by the estimated number 
of days pile removal and pile driving would be conducted. Since there 
are no density estimates for any Puget Sound population of marine 
mammal, numbers of marine mammal presence are estimated using local 
marine mammal data sets (e.g., Orca Network, state and federal 
agencies), opinions from state and federal agencies, incidental 
observations from WSF biologists, and the duration for the proposed 
vibratory pile removal and pile driving activities. Based on the 
estimates, approximately 150 Pacific harbor seals, 25 California sea 
lions, 15 northern elephant seals, 25 Steller sea lions, 50 harbor 
porpoises, 15 Dall's porpoises, 15 Pacific white-sided dolphins, 32 
killer whales (24 transient, 8 Southern Resident killer whales), 4 gray 
whales, 4 humpback whales, and 10 minke whales could be exposed to 
received noise levels above 120 dB re 1 [mu]Pa (rms) from the proposed 
dolphin replacement work at the Orcas Island ferry terminal. In 
addition, approximately 200 Pacific harbor seals, 50 California sea 
lions, 30 northern elephant seals, 50 Steller sea lions, 100 harbor 
porpoises, 30 Dall's porpoises, 30 Pacific white-sided dolphins, 32 
killer whales (24 transient, 8 Southern Resident killer whales), 4 gray 
whales, 4 humpback whales, and 10 minke whales could be exposure to 
received noise levels above 120 dB re 1 [mu]Pa (rms) from the proposed 
dolphin replacement work at the Friday Harbor ferry terminal. A summary 
of the estimated takes is presented in Table 2.

   Table 2--Estimated Numbers of Marine Mammals That May Be Exposed to Received Pile Driving and Pile Removal
                                      Levels Above 120 dB re 1 [mu]Pa (rms)
----------------------------------------------------------------------------------------------------------------
                                                                   Orcas Island    Friday Harbor
                             Species                              ferry terminal  ferry terminal       Total
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.............................................             150             200             350
California sea lion.............................................              25              50              75
Northern elephant seal..........................................              15              30              45
Steller sea lion................................................              25              50              75
Harbor porpoise.................................................              50             100             150

[[Page 9384]]

 
Dall's porpoise.................................................              15              30              45
Pacific white-sided dolphin.....................................              15              30              45
Killer whale, transient.........................................              24              24              48
Killer whale, Southern Resident.................................               8               8              16
Gray whale......................................................               4               4               8
Humpback whale..................................................               4               4               8
Minke whale.....................................................              10              10              20
----------------------------------------------------------------------------------------------------------------

    The requested takes represent 2.4% of the Inland Washington stock 
harbor seals (estimated at 14,612), 0.03% of the U.S. stock California 
sea lion (estimated at 238,000), 0.04% of the California stock northern 
elephant seal (estimated at 124,000), 0.15% of the eastern stock 
Steller sea lion (estimated at 48,519), 1.4% of the Washington Inland 
waters stock harbor porpoise (estimated at 10,682), 0.08% of the 
California, Oregon, and Washington stock Dall's porpoise (estimated at 
57,549), 0.18% of the California, Oregon, and Washington stock Pacific 
white-sided dolphin (estimated at 25,233), 13.6% of the West Coast 
transient killer whale (estimated at 354), 19.0% of Southern Resident 
killer whale (estimated at 84), 0.02% of the Eastern North Pacific 
stock gray whale (estimated at 26,000), 0.7% of the Eastern North 
Pacific stock humpback whale (estimated at 1,100), and 4% of the 
California/Oregon/Washington stock minke whale (estimated at 500).

Negligible Impact and Small Numbers Analysis and Preliminary 
Determination

    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the take resulting from the 
activity will have a ``negligible impact'' on the species or stock. 
Level B (behavioral) harassment occurs at the level of the 
individual(s) and does not assume any resulting population-level 
consequences, though there are known avenues through which behavioral 
disturbance of individuals can result in population-level effects. 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 Level B harassment 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 behavioral harassment, NMFS 
considers other factors, such as the likely nature of any responses 
(their intensity, duration, etc.), the context of any responses 
(critical reproductive time or location, migration, etc.), as well as 
the number and nature of estimated Level A takes, the number of 
estimated mortalities, and effects on habitat.
    The WSDOT's proposed Orcas Island and Friday Harbor ferry terminal 
construction projects would conduct vibratory pile removal and pile 
driving to replace dolphin structures. Elevated underwater noises are 
expected to be generated as a result of pile removal and pile driving 
activities. However, noise levels from the machinery and activities are 
not expected to reach to the level that may cause TTS, injury (PTS 
included), or mortality to marine mammals. Therefore, NMFS does not 
expect that any animals would experience Level A (including injury) 
harassment or Level B harassment in the form of TTS from being exposed 
to in-water pile driving and pile removal associated with WSDOT 
construction project.
    Based on long-term marine mammal monitoring and studies in the 
vicinity of the proposed construction areas, it is estimated that 
approximately 350 Pacific harbor seals, 75 California sea lions, 45 
northern elephant seals, 75 Steller sea lions, 150 harbor porpoises, 45 
Dall's porpoises, 45 Pacific white-sided dolphins, 64 killer whales, 8 
gray whales, 8 humpback whales, and 20 minke whales could be exposed to 
received noise levels above 120 dB re 1 [mu]Pa (rms) from the proposed 
construction work at Orcas Island and Friday Harbor ferry terminals. 
These numbers represent approximately 0.03%--19.0% of the stocks and 
populations of these species could be affected by Level B behavioral 
harassment. As mentioned earlier in this document, the worst case 
scenario for the proposed construction work would only take a total of 
5 days at Orcas Island ferry terminal and 10 days at the Friday Harbor 
ferry terminal.
    In addition, these low intensity, localized, and short-term noise 
exposures (i.e., 120 dB re 1 [mu]Pa (rms) from vibratory pile removal 
and pile driving for a total of 15 days) are expected to cause brief 
startle reactions or short-term behavioral modification by the animals. 
These brief reactions and behavioral changes are expected to disappear 
when the exposures cease. In addition, no important feeding and/or 
reproductive areas of marine mammals is known to be near the proposed 
action area. Therefore, these levels of received underwater 
construction noise from the proposed Orcas Island and Friday Harbor 
ferry terminal construction projects are not expected to affect marine 
mammal annual rates of recruitment or survival. The maximum estimated 
120 dB maximum isopleths from vibratory pile driving is approximately 
3.5 km at Orcas Island and 4.7 km at Friday Harbor from the pile before 
being blocked by landmass, respectively.
    The nearest known haulout site to the Orcas Island ferry terminal 
is 1 km away south of the terminal offshore of Shaw Island, and 4 km 
northeast of the Friday Harbor ferry terminal offshore of Shaw Island. 
However, it is estimated that airborne noise from pile driving and 
removal would fall below 90 dB and 100 dB re 1 20 [mu]Pa at 37 m and 12 
m from the pile, respectively. Therefore, pinnipeds hauled out on Shaw 
Island will not be affected.
    For the reasons discussed in this document, NMFS has preliminarily 
determined that the impact of vibratory pile removal and pile driving 
associated with dolphin replacements at Orcas Island and Friday Harbor 
ferry terminals would result, at worst, in the Level B harassment of 
small numbers of 11 marine mammals that inhabit or visit the area. 
While behavioral modifications, including temporarily vacating the area 
around the construction site, may be made by these

[[Page 9385]]

species to avoid the resultant visual and acoustic disturbance, the 
availability of alternate areas within Washington coastal waters and 
haul-out sites has led NMFS to preliminarily determine that this action 
will have a negligible impact on these species in the vicinity of the 
proposed construction area.
    In addition, no take by TTS, Level A harassment (injury) or death 
is anticipated and harassment takes should be at the lowest level 
practicable due to incorporation of the mitigation and monitoring 
measures mentioned previously in this document.

Proposed Incidental Harassment Authorization

    This section contains a draft of the IHA itself. The wording 
contained in this section is proposed for inclusion in the IHA (if 
issued).
    1. This Authorization is valid from May 1, 2013, through February 
15, 2014.
    2. This Authorization is valid only for activities associated in-
water construction work at Orcas Island and Friday Harbor ferry 
terminals in the State of Washington.
    3.(a) The species authorized for incidental harassment takings, 
Level B harassment only, are: Pacific harbor seal (Phoca vitulina 
richardsi), California sea lion (Zalophus californianus), northern 
elephant seal (Mirounga angustirostris), Steller sea lion (Eumetopias 
jubatus), harbor porpoise (Phocoena phocoena), Dall's porpoise 
(Phocoenoides dalli), Pacific white-sided dolphin (Lagenorhynchus 
obliquidens), killer whale (Orcinus orca), gray whale (Eschrichtius 
robustus), humpback whale (Megaptera novaeangliae), and minke whale 
(Balaenoptera acutorostra).
    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
    (i) Vibratory pile removal; and
    (ii) Vibratory pile driving.
    (c) The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported within 24 hours of the taking to 
the Northwest Regional Administrator (206-526-6150), National Marine 
Fisheries Service (NMFS) and the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, at (301) 427-8401, or 
his designee (301-427-8418).
    4. The holder of this Authorization must notify the Chief of the 
Permits and Conservation Division, Office of Protected Resources, at 
least 48 hours prior to the start of activities identified in 3(b) 
(unless constrained by the date of issuance of this Authorization in 
which case notification shall be made as soon as possible).
    5. Prohibitions:
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 2. The taking by Level A harassment, injury or death of these 
species or the taking by harassment, injury or death of any other 
species of marine mammal is prohibited and may result in the 
modification, suspension, or revocation of this Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
7(a), are not present in conformance with condition 7(a) of this 
Authorization.
    6. Mitigation:
    (a) Ramp Up (Soft Start):
    Vibratory hammer for pile removal and pile driving shall be 
initiated at reduced power for 15 seconds with a 1 minute interval, and 
be repeated with this procedure for an additional two times.
    (b) Marine Mammal Monitoring:
    Monitoring for marine mammal presence shall take place 20 minutes 
before, during and 30 minutes after pile driving to ensure that marine 
mammals are not injured by the construction activities.
    (c) Power Down and Shutdown Measures:
    If the number of any allotted marine mammal takes reaches the limit 
under the IHA (if issued), WSDOT shall implement shutdown and power 
down measures if such species/stock of animal approaches the Level B 
harassment zone.
    7. Monitoring:
    (a) Protected Species Observers: WSDOT shall employ qualified 
protected species observers (PSOs) to monitor the 120 dB re 1 [mu]Pa 
(rms) zone of influence (ZOI) for marine mammals. Qualifications for 
marine mammal observers include:
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance. Use of binoculars 
may be necessary to correctly identify the target.
    (ii) Advanced education in biological science, wildlife management, 
mammalogy or related fields (bachelors degree or higher is preferred), 
but not required.
    (iii) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds).
    (iv) Sufficient training, orientation or experience with the 
construction operation to provide for personal safety during 
observations.
    (v) 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.
    (vi) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
    (vii) Writing skills sufficient to prepare a report of observations 
that would include such information as the number and type of marine 
mammals observed; the behavior of marine mammals in the project area 
during construction, dates and times when observations were conducted; 
dates and times when in-water construction activities were conducted; 
and dates and times when marine mammals were present at or within the 
defined ZOI.
    (b) Monitoring Protocols: PSOs shall be present on site at all 
times during pile removal and driving.
    (i) A range finder or hand-held global positioning system device 
will be used to ensure that the 120 dB re 1 [mu]Pa (rms) Level B 
behavioral harassment ZOI is monitored.
    (ii) A 20-minute pre-construction marine mammal monitoring will be 
required before the first pile driving or pile removal of the day. A 
30-minute post-construction marine mammal monitoring will be required 
after the last pile driving or pile removal of the day. If the 
constructors take a break between subsequent pile driving or pile 
removal for more than 30 minutes, then additional pre-construction 
marine mammal monitoring will be required before the next start-up of 
pile driving or pile removal.
    (iii) If marine mammals are observed, the following information 
will be document:
    (A) Species of observed marine mammals;
    (B) Number of observed marine mammal individuals;
    (C) Behavioral of observed marine mammals;
    (D) Location within the ZOI; and
    (E) Animals' reaction (if any) to pile-driving activities
    (iv) During vibratory pile removal and driving, one land-based 
biologist will monitor the area from the terminal work site, and one 
boat with a qualified PSO shall navigate the ZOI in a circular path.
    (v) WSDOT shall contact the Orca Network and/or Center for Whale 
Research to find out the location of the nearest marine mammal 
sightings.
    (vi) WSDOT shall also utilize marine mammal occurrence information 
collected by the Orca Network using

[[Page 9386]]

hydrophone systems to maximize marine mammal detection in the project 
vicinity.
    8. Reporting:
    (a) WSF shall provide NMFS with a draft monitoring report within 90 
days of the conclusion of the construction work. This report shall 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    (b) If comments are received from the NMFS Northwest Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report shall be submitted to NMFS within 30 days 
thereafter. If no comments are received from NMFS, the draft report 
will be considered to be the final report.
    9. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals, or if there is an 
unmitigable adverse impact on the availability of such species or 
stocks for subsistence uses.
    10. A copy of this Authorization and the Incidental Take Statement 
must be in the possession of each contractor who performs the 
construction work at Orcas Island and Friday Harbor ferry terminals.
    11. WSDOT is required to comply with the Terms and Conditions of 
the Incidental Take Statement corresponding to NMFS' Biological 
Opinion.

National Environmental Policy Act (NEPA)

    NMFS is currently preparing an Environmental Assessment, pursuant 
to NEPA, to determine whether or not this proposed activity may have a 
significant effect on the human environment. This analysis will be 
completed prior to the issuance or denial of the IHA.

Endangered Species Act (ESA)

    The humpback whale, Southern Resident stock of killer whale, and 
the eastern population of Steller sea lions, are the only marine mammal 
species currently listed under the ESA that could occur in the vicinity 
of WSDOT's proposed construction projects. NMFS' Permits and 
Conservation Division has initiated consultation with NMFS' Protected 
Resources Division under section 7 of the ESA on the issuance of an IHA 
to WSDOT under section 101(a)(5)(D) of the MMPA for this activity. 
Consultation will be concluded prior to a determination on the issuance 
of an IHA.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
authorize the take of marine mammals incidental to WSDOT's Orcas Island 
and Friday Harbor ferry terminal construction projects, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: February 5, 2013.
Helen M Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-02864 Filed 2-7-13; 8:45 am]
BILLING CODE 3510-22-P