[Federal Register Volume 78, Number 78 (Tuesday, April 23, 2013)]
[Notices]
[Pages 23910-23915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09492]


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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; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Washington State 
Department of Transportation (WSDOT) to take, by harassment, small 
numbers of 11 species of marine mammals incidental to vibratory pile 
driving and pile removal activities at the Orcas Island and Friday 
Harbor ferry terminals in Washington State between September 2013 and 
February 2014.

DATES: Effective September 1, 2013, through August 31, 2014.

ADDRESSES: Requests for information on the incidental take 
authorization should be addressed to P. Michael Payne, Chief, Permits 
and Conservation Division, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910. A copy of the application containing a list of the references 
used in this document, NMFS' Environmental Assessment (EA), Finding of 
No Significant Impact (FONSI), and the IHA may be obtained by writing 
to the address specified above or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Documents cited in this notice may be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: 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 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

    Detailed description of the WSDOT's dolphin replacement work at the 
Orcas Island and Friday Harbor ferry terminals is provided in the 
Federal Register notice for the proposed IHA (78 FR 9373; February 8, 
2013). Since that time, no changes have been made to the dolphin 
replacement project at Orcas Island and Friday Harbor ferry terminals, 
except that WSDOT requested the incidental take coverage to be extended 
from February 28, 2014, through August 31, 2014, in case the project 
may be postponed. Nevertheless, the amount of activity and the duration 
of actual in-water construction has not changed. The potential change 
in work season will not affect marine mammal take estimates since the 
actual construction duration will not change and the initial 
calculation relied on marine mammal presence in the project area on 
annual basis.
    The details of WSDOT's dolphin replacement work at Orcas Island and 
Friday Harbor ferry terminals are provided in the Federal Register 
notice for the proposed IHA (78 FR 9373; February 8, 2013). Please 
refer to that Federal Register notice for the description of the 
specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to WSDOT was published 
in the Federal Register on February 8, 2013 (78 FR 9373). That notice 
described, in detail, WSDOT's activity, the marine mammal species that 
may be affected by

[[Page 23911]]

the activity, and the anticipated effects on marine mammals. During the 
30-day public comment period, NMFS received comments from the Marine 
Mammal Commission (Commission) and the Aquatic Research and Monitoring 
(ARM). The Commission recommends NMFS issue the IHA to WSDOT, but has 
asked NMFS to condition the IHA in certain respects. Specific comments 
and responses are provided below.
    Comment 1: The Commission requests that NMFS justify its conclusion 
that the taking will involve only a small number of southern resident 
killer whales (SRKWs) and work with the Fish and Wildlife Service and 
the Commission to develop a policy that sets forth the criteria and/or 
thresholds for determining what constitutes ``small numbers'' and 
``negligible impact'' for the purpose of authorizing incidental takes 
of marine mammals
    Response: As stated in the Federal Register for the proposed IHA, 
WSDOT is required to implement power-down and/or shutdown measures if 
the combined Level B takes of SRKWs reach to a total of 16 at both 
Orcas Island and Friday Harbor ferry terminals, which is equivalent to 
approximately 19% of the SRKW population. Historical sighting data of 
SRKWs in and around the action area reveals that relatively few animals 
are likely to be within the immediate vicinity of the terminals; thus, 
NMFS expects that actual take of SRKWs by Level B harassment will be 
lower than the modeled estimate of 16 animals (WSDOT 2012). In 
addition, we expect marine mammals will avoid areas of high intensity 
noise, thereby supporting our conclusion that the take of 19% of this 
population is unlikely. Further, as discussed in the Federal Register 
notice for the proposed IHA (78 FR 9373; February 8, 2013) and later in 
this document, the anticipated take would be low-intensity noise 
exposure for a brief time period during vibratory pile driving and pile 
removal. Any animals exposed to sound from the construction activities 
would exhibit no more than low-level behavioral disturbances and vacate 
the area temporarily. As we have done in the past, NMFS will continue 
to collaborate with the Commission and Fish and Wildlife Service on a 
variety of MMPA issues, including small numbers and negligible impact, 
to strengthen our collective understanding of how activities affect 
marine mammal species and stocks.
    Comment 2: The Commission requests NMFS require WSDOT to monitor 
the Level B harassment zone at least 30 minutes before, during, and 30 
minutes after the pile-removal and -driving activities to ensure that 
those activities are not having an unintended effect on marine mammals 
in or near the zone.
    Response: NMFS agrees with the Commission and will require the 
WSDOT to monitor the Level B harassment zone for 30 minutes before, 
during, and 30 minutes after the pile driving and pile removal 
activities.
    Comment 3: The Commission requests NMFS specify in its 
authorization that, after a delay, power down, or shutdown, the Ferries 
Division would not resume activities until the marine mammal (1) is 
observed to have left the Level B harassment zone or (2) has not been 
seen or otherwise detected within the Level B harassment zone for 15 
minutes for small odontocetes and 30 minutes for mysticetes and large 
odontocetes, including killer whales.
    Response: As described in detail in the Federal Register notice in 
the proposed IHA (78 FR 9373; February 8, 2013), WSDOT's dolphin 
replacement projects at Orcas Island and Friday Harbor ferry terminals 
will only use vibratory pile hammer for pile driving. Marine mammals 
are not expected to be injured (Level A harassment) by WSDOT's use of 
vibratory pile hammers, thereby obviating the need for an exclusion 
zone for this activity. Nevertheless, for initiation of pile driving 
and pile removal activities, WSDOT is required to monitor the Level B 
harassment zone for 30 minutes before, during, and 30 minutes after in-
water construction, and to ramp up vibratory hammer for pile removal 
and pile driving, which will effectively reduce any startle behavior of 
marine mammals in the vicinity at the commencement of the piling 
activity.
    However, WSDOT will be required to power down or shutdown when the 
potential takes of SRKWs is approaching to the allotted take limit. 
Therefore, under such circumstances, NMFS requires that WSDOT not 
resume activities until the killer whale (1) is observed to have left 
the Level B harassment zone or (2) has not been seen or otherwise 
detected within the Level B harassment zone 30 minutes after a power 
down or shutdown.
    Comment 4: ARM comments that vessels used in marine mammal 
monitoring need to be of large size and have an observation platform 
that sit at least 8-10 ft off the water, and ideally there should be 
two vessels for monitoring, one at each end of the channel. And this 
two vessel scenario can replace the need for a land-based PSO.
    Response: Although the commenter raises a good point, it is 
worthwhile to note that large vessels and the use of multiple vessels 
produce higher underwater sound levels than a single small vessel. In 
this particular situation, where the ZOI is not particularly big, there 
would be no added benefit to introducing multiple and larger vessels to 
facilitate marine mammal observation and it could result in unintended 
consequences, e.g., there would be more disturbances to marine life as 
larger and more vessels will contribute more noise underwater. Thus, we 
have determined that one small vessel and one land-based PSO will be 
able to monitor the zones effectively.
Description of Marine Mammals in the Area of the Specified Activity
    The marine mammal species under NMFS jurisdiction most likely to 
occur in the construction area include 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).
    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/po2011.pdf. Specific information concerning these species in the 
vicinity of the action area is provided in the Federal Register notice 
for the proposed IHA (78 FR 9373; February 8, 2013) and in WSDOT's IHA 
application. Therefore, it is not repeated here.

Potential Effects of the Specified Activity on Marine Mammals

    The effects of underwater noise from in-water vibratory pile 
driving and pile removal associated with the construction activities at 
Orcas Island and Friday Harbor ferry terminals has the potential to 
result in behavioral harassment of marine mammal species and stocks in 
the vicinity of the action area. The Notice of Proposed IHA (78 FR 
9373; February 8, 2013) included a discussion of the effects of 
anthropogenic noise on marine mammals, which is not repeated here. No 
instances of hearing threshold shifts, injury, serious injury, or 
mortality are expected as a result of WSDOT's activities given the 
strong likelihood that marine mammals would avoid the immediate 
vicinity of the pile driving area.

[[Page 23912]]

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammals and other marine 
species are associated with elevated sound levels, but the project may 
also result in additional effects to marine mammal prey species and 
short-term local water turbidity caused by in-water construction due to 
pile removal and pile driving. These potential effects are discussed in 
detail in the Federal Register notice for the proposed IHA (78 FR 9373; 
February 8, 2013) and are not repeated here.

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

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

Mitigation Measures

    In order to issue an incidental take authorization under Section 
101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses.
    For WSDOT's dolphin replacement work at Orcas Island and Friday 
Harbor ferry terminals, NMFS is requiring WSDOT to implement the 
following mitigation measures to minimize the potential impacts to 
marine mammals in the project vicinity as a result of the in-water 
construction 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 will be established, and there will be no 
required power-down and shutdown measures except when take of SRKWs 
approaches to the limit authorized (see below). Instead, WSDOT is 
required to establish and monitor the 120 dB re 1 [mu]Pa (rms) zone of 
influence (ZOI, see below Monitoring and Reporting section).
    One major mitigation measure for WSDOT's pile removal and pile 
driving activities is ramping up, or soft start, of vibratory pile 
hammers. The purpose of this procedure is to prevent the startling 
behavior of marine mammals in the vicinity of the 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 
30 minutes before, during and 30 minutes after pile driving to document 
marine mammal occurrence and responses before, during and after the 
pile driving and pile removal activities (see Monitoring and Reporting 
section below).
    Further, if the number of allotted SRKW takes (see Estimated Take 
by Incidental Harassment section below) reaches the limit under the 
IHA, WSDOT will implement shutdown and power down measures if such 
species/stock of animal approaches the 120 dB Level B harassment zone.
    Finally, to avoid exceeding its SRKW take limit, NMFS has required 
WSDOT to not resume activities until any SRKW (1) is observed to have 
left the Level B harassment zone or (2) has not been seen or otherwise 
detected within the Level B harassment zone 30 minutes.

Mitigation Conclusions

    Based on our evaluation of the prescribed mitigation measures, NMFS 
has determined the measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

Monitoring Measures

    Any ITA issued under Section 101(a)(5)(D) of the MMPA is required 
to prescribe, where applicable, ``requirements pertaining to the 
monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) state 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 action area.
(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.
    The following protocols will be used for marine mammal monitoring 
during 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 
period will be required before the first pile driving or pile removal 
of the day. A 30-minute post-construction marine mammal monitoring 
period will be required after the last pile driving or pile removal of 
the day. If the construction personnel 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.

[[Page 23913]]

     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 determine 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 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.
     Finally, after a delay, power down, or shutdown, each of 
which is designed to prevent WSDOT from exceeding its SRKW take limits, 
WSDOT will not resume activities until the SRKW (1) is observed to have 
left the Level B harassment zone or (2) has not been seen or otherwise 
detected within the Level B harassment zone 30 minutes.
    NMFS has determined that these monitoring measures are 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.

Reporting Measures

    WSDOT will provide NMFS with a draft monitoring report within 90 
days of the conclusion of the 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.

Notification of Injured or Dead Marine Mammals

    In addition to the reporting measures listed above, NMFS will 
require that WSDOT notify NMFS' Office of Protected Resources and NMFS' 
Stranding Network of sighting an injured or dead marine mammal in the 
vicinity of marine operations. Depending on the circumstance of the 
incident, WSDOT shall take one of the following reporting protocols 
when an injured or dead marine mammal is discovered in the vicinity of 
the action area.
    (a) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization, such as an injury, serious injury or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), WSDOT shall 
immediately cease all operations and immediately report the incident to 
the Supervisor of Incidental Take Program, Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Northwest 
Regional Stranding Coordinators. The report must include the following 
information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) description of the incident;
    (iii) status of all sound source use in the 24 hours preceding the 
incident;
    (iv) environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility, and water depth);
    (v) description of marine mammal observations in the 24 hours 
preceding the incident;
    (vi) species identification or description of the animal(s) 
involved;
    (vii) the fate of the animal(s); and
    (viii) photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with WSDOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. WSDOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (b) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
WSDOT will immediately report the incident to the Supervisor of the 
Incidental Take Program, Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the Northwest Regional Stranding 
Coordinators. The report must include the same information identified 
above. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS will work with WSDOT to determine whether 
modifications in the activities are appropriate.
    (c) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), WSDOT shall report the incident to 
the Supervisor of the Incidental Take Program, Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Northwest 
Regional Stranding Coordinators, within 24 hours of the discovery. 
WSDOT shall provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to NMFS and the 
Marine Mammal Stranding Network. WSDOT can continue its operations 
under such a case.

Estimated Take by Incidental Harassment

    As mentioned in the Federal Register notice for the proposed IHA 
(78 FR 9373; February 8, 2013), a worst-case

[[Page 23914]]

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 in the Federal Register notice for the proposed 
IHA (78 FR 9373; February 8, 2013), 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 is 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, the number of marine mammals present is estimated using local 
marine mammal data sets (e.g., Orca Network, state and federal 
agencies), opinions from state and federal agencies, incidental 
observations from WSDOT biologists, and the duration for the 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 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 dolphin replacement work at the Friday 
Harbor ferry terminal. A summary of the estimated takes is presented in 
Table 1.

   Table 1--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
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 takes represent 2.4% of the Inland Washington stock of harbor 
seals (estimated at 14,612), 0.03% of the U.S. stock California sea 
lion (estimated at 296,750), 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 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

[[Page 23915]]

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 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 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. 
Although the construction window has been extended to August 31, 2014 
to allow for possible delays in work, the actual duration of in-water 
construction will remain the same. In addition, marine mammal 
occurrence, behavior, and distribution patterns have been factored 
within the initial analyses, therefore there will be no change in the 
effects during the six months window.
    Based on long-term marine mammal monitoring and studies in the 
vicinity of the construction areas, it is estimated that a total of 
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 exposure 
to received noise levels above 120 dB re 1 [mu]Pa (rms) from the 
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 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 action 
area. Therefore, these levels of received underwater construction noise 
from the 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 [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 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 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 determine that this action will have a negligible impact on 
these species in the vicinity of the 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.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) and analyzed the 
potential impacts to marine mammals that would result from WSDOT's 
dolphin replacement work at Orcas Island and Friday Harbor ferry 
terminals. A Finding of No Significant Impact (FONSI) was signed on 
April 16, 2013. A copy of the EA and FONSI is available upon request 
(see ADDRESSES).

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 construction projects. NMFS' Permits and Conservation 
Division consulted with NMFS' Northwest Regional Office Division of 
Protected Resources 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. 
A Biological Opinion was issued on February 13, 2013, which concludes 
that issuance of the IHA is not likely to jeopardize the continued 
existence of the ESA-listed marine mammal species. NMFS will issue an 
Incidental Take Statement under this Biological Opinion which contains 
reasonable and prudent measures with implementing terms and conditions 
to minimize the effects of take of listed species.

Authorization

    NMFS has issued an IHA to WSDOT for the potential harassment of 
small numbers of 11 marine mammal species incidental to dolphin 
replacement construction activities at the Orcas Island and Friday 
Harbor ferry terminals in Washington State, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: April 18, 2013.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-09492 Filed 4-22-13; 8:45 am]
BILLING CODE 3510-22-P