[Federal Register Volume 80, Number 96 (Tuesday, May 19, 2015)]
[Notices]
[Pages 28582-28588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12097]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD741


Taking of Marine Mammals Incidental to Specified Activities; 
Anacortes Tie-Up Slips Dolphin and Wingwall Replacement

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 construction 
activities for a tie-up slips dolphin and wingwall replacement project 
in Anacortes, Washington State, between September 1, 2015, and August 
31, 2016.

DATES: Effective September 1, 2015, through August 31, 2016.

ADDRESSES: Requests for information on the incidental take 
authorization should be addressed to Jolie Harrison, 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/. 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 April 1, 2014, 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 Anacortes Tie-up 
Slips Dolphin and Wingwall Replacement in the city of Anacortes, on 
Fidalgo Island, adjacent to Guemes Channel, Skagit County, Washington, 
between September 1, 2015, and February 15, 2016. NMFS determined that 
the IHA application was complete on July 1, 2014.

Description of the Specified Activity

    A detailed description of the WSDOT's Anacortes tie-up slips 
dolphin and wingwall project is provided in the Federal Register notice 
for the proposed IHA (80 FR 11648; March 4, 2015). Since that time, no 
changes have been made to the proposed construction activities. 
Therefore, a detailed description is not provided here. Please refer to 
that Federal Register notice for the description of the specific 
activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to WSDOT was published 
in the Federal Register on March 4, 2015. That notice described, in 
detail, WSDOT's activity, the marine mammal species that may be 
affected by 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). Specific 
comments and responses are provided below.
    Comment 1: The Commission notes that the construction would be 
conducted in December and January, however, WSDOT's ambient noise 
measurements were conducted in March and showed that median ambient 
noise level at the proposed construction area is 123 dB re 1 [micro]Pa. 
The Commission states that the ambient noise levels would be lower in 
winter (December and January) than those were collected in March when 
vessel traffic is greater. Therefore, the Commission recommends that 
NMFS either (1) require WSDOT to measure ambient sound levels during 
winter and adjust the Level B harassment zones accordingly or (2) base 
the Level B harassment zones on the 120-dB re 1 [micro]Pa threshold and 
adjust

[[Page 28583]]

the zones to ensure adequate protection for southern resident killer 
whales.
    Response: NMFS worked with WSDOT and its acoustic consultant 
regarding the ambient noise levels in the vicinity of the construction 
area. In general, doubling the number of boats would only increase the 
background sound levels by about 3 decibels so adding or subtracting 
one boat will not have a substantial effect on the overall background 
sound levels. The ferry vessels dominate the sound levels in the areas 
around the terminals where WSDOT's measurement was collected. It is 
only expected a slight increase in sound levels in the summer months 
due to more recreational boats in the area. Both NMFS and WSDOT's 
acoustic consultant considers that sound levels between about September 
to May should be consistent from month to month and representative of 
the work period.
    Nevertheless, WSDOT agreed that modeled 120 dB isopleths to be used 
as the threshold for Level B takes for vibratory pile driving and pile 
removal activities and submitted a updated monitoring plan to encompass 
this larger zone of influence (ZOI). The updated monitoring measures 
are discussed in details below in the ``Mitigation Measure'' and 
``Monitoring and Reporting'' sections.
    In addition, WSDOT is considering getting new winter background 
data prior to the start of the project. If the measurement shows 
smaller ZOI, WSDOT will inform NMFS with another revised monitoring 
plan that reflects the updated ZOI based on onsite measurements.
    The revised ZOI does not change the number of marine mammals takes, 
because all animals within the general vicinity of the project are 
being considered for potential takes.

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), northern elephant seal (Mirounga 
angustirostris), California sea lion (Zalophus californianus), Steller 
sea lion (Eumetopias jubatus), killer whale (Orcinus orca) (transient 
and Southern Resident stocks), gray whale (Eschrichtius robustus), 
humpback whale (Megaptera novaeangliae), minke whale (Balaenoptera 
acutorostrata), harbor porpoise (Phocoena phocoena), Dall's porpoise 
(P. dali), and Pacific white-sided dolphin (Lagenorhynchus 
obliquidens). A list of the species and their status are provided in 
Table 1.

                    Table 1--Marine Mammal Species Potentially Present in Region of Activity
----------------------------------------------------------------------------------------------------------------
              Species                         ESA status                MMPA status             Occurrence
----------------------------------------------------------------------------------------------------------------
Harbor Seal........................  Not listed.................  Non-depleted..........  Frequent.
California Sea Lion................  Not listed.................  Non-depleted..........  Frequent.
Northern Elephant Seal.............  Not listed.................  Non-depleted..........  Occasional.
Steller Sea Lion (eastern DPS).....  Not listed.................  Under review..........  Rare.
Harbor Porpoise....................  Not listed.................  Non-depleted..........  Frequent.
Dall's Porpoise....................  Not listed.................  Non-depleted..........  Occasional.
Pacific White-sided dolphin........  Not listed.................  Non-depleted..........  Occasional.
Killer Whale.......................  Endangered (S. Resident)...  Depleted..............  Occasional.
Gray Whale.........................  Delisted...................  Unclassified..........  Occasional.
Humpback Whale.....................  Endangered.................  Depleted..............  Rare.
Minke Whale........................  Not listed.................  Non-depleted..........  Rare.
----------------------------------------------------------------------------------------------------------------

    General information on the marine mammal species found in 
Washington coastal waters can be found in Caretta et al. (2014), which 
is available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/po2013.pdf. Refer to that document for information on these 
species. A list of marine mammals in the vicinity of the action and 
their status are provided in Table 3. Specific information concerning 
these species in the vicinity of the proposed action area is provided 
in detail in the WSDOT's IHA application.

Potential Effects of the Specified Activity on Marine Mammals

    The effects of underwater noise from in-water pile removal and pile 
driving associated with the construction activities for a tie-up slips 
dolphin and wingwall replacement project in Anacortes 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 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.

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 and are not 
repeated here.

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 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 proposed Anacortes tie-up slips dolphin and wingwall 
replacement project, 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.

No Impact Pile Driving

    To avoid potential injury to marine mammals, only vibratory pile 
hammer will be used for pile removal and pile driving.

Time Restriction

    Work would occur only during daylight hours, when visual monitoring

[[Page 28584]]

of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between September 1, 2015, 
and February 15, 2016.

Establishment of Level B Harassment Zones of Influence

    Because WSDOT will not use impact pile driving for the proposed 
construction work, no Level A exclusion zone exists for marine mammals. 
NMFS currently uses received level of 120 dB as the onset of Level B 
harassment from non-impulse sources such as vibratory pile driving and 
pile removal. Although ambient measurement during March at the vicinity 
of Anacortes Ferry Terminal showed that the median ambient noise level 
is at 123 dB re 1 [micro]Pa, WSDOT will use 120 dB re 1 [micro]Pa as 
the isopleths for modeling its Level B harassment zone. WSDOT is 
considering collecting ambient noise data before in-water construction 
and adjust the Level B behavioral harassment zone based on 
measurements.
    The 120-dB Level B harassment ZOIs from in-water vibratory pile 
removal and pile driving are modeled based on in-water measurements at 
the WSDOT Port Townsend Ferry Terminal (Laughlin 2011) and Friday 
Harbor Ferry Terminal (Laughlin 2010) constructions. These modeled 
results are presented in Table 2 below.

    Table 2--Modeled ZOI Distances to Level B Behavioral Harassment From the Pile Driving and Pile Removal at
                                         WSDOT's Anacortes Project Area
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                                                                                   In-water ZOI
        Vibratory pile type/method                       Threshold                     (km)       In-air ZOI (m)
----------------------------------------------------------------------------------------------------------------
12-inch timber removal...................  120 dBRMS re 1 [micro]Pa                          2.3  ..............
24-inch steel removal/driving............  120 dBRMS re 1 [micro]Pa                          6.3  ..............
30-inch steel driving....................  120 dBRMS re 1 [micro]Pa                         39.8  ..............
36-inch steel driving....................  120 dBRMS re 1 [micro]Pa                         63.1  ..............
All piles/in-air (harbor seals)..........  90 dBRMS re 20 [micro]Pa               ..............              30
All piles/in-air (other pinnipeds).......  100 dBRMS re 20 [micro]Pa              ..............              10
----------------------------------------------------------------------------------------------------------------

Soft Start

    WSDOT will implement ``soft start'' (or ramp up) to reduce 
potential startling behavioral responses from marine mammals. Soft 
start requires contractors to initiate noise from the vibratory hammer 
for 15 seconds at reduced energy followed by a 1-minute waiting period. 
The procedure will be repeated two additional times. Each day, WSDOT 
will use the soft-start technique at the beginning of pile driving, or 
if pile driving has ceased for more than one hour.

Shutdown Measures

    WSDOT shall implement shutdown measures if southern resident killer 
whales are sighted within the vicinity of the project area and are 
approaching the Level B harassment zone (zone of influence, or ZOI) 
during in-water construction activities.
    If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a Southern Resident killer 
whale or a transient killer whale, it shall be assumed to be a Southern 
Resident killer whale and WSDOT shall implement the shutdown measure.
    If a Southern Resident killer whale or an unidentified killer whale 
enters the ZOI undetected, in-water pile driving or pile removal shall 
be suspended until the whale exits the ZOI to avoid further level B 
harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
any allotted marine mammal takes reaches the limit under the IHA (if 
issued), if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone during in-
water construction activities.

Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving, the Orca Network and/or Center 
for Whale Research will be contacted to find out the location of the 
nearest marine mammal sightings. The Orca Sightings Network consists of 
a list of over 600 (and growing) residents, scientists, and government 
agency personnel in the U.S. and Canada. 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.
    `Sightings' information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile driving.

Mitigation Conclusions

    NMFS has carefully evaluated the mitigation measures and considered 
a range of other measures in the context of ensuring that NMFS 
prescribes the means of effecting the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals

[[Page 28585]]

wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving and pile removal or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving and pile removal, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing the severity of harassment takes only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    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

    In order to issue an incidental take authorization (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. WSDOT submitted a marine 
mammal monitoring plan as part of the IHA application, and updated the 
plan based on comments received from the Commission. The updated 
monitoring plan can be found at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be modified or supplemented based on 
comments or new information received from the public during the public 
comment period.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    (4) An increased knowledge of the affected species; and
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.

Monitoring Measures

    WSDOT shall employ NMFS-approved protected species observers (PSOs) 
to conduct marine mammal monitoring for its Anacortes tie-up dolphins 
and wingwall replacement project. The PSOs will observe and collect 
data on marine mammals in and around the project area for 30 minutes 
before, during, and for 30 minutes after all pile removal and pile 
installation work. If a PSO observes a marine mammal within a ZOI that 
appears to be disturbed by the work activity, the PSO will notify the 
work crew to initiate shutdown measures.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of ZOIs from different pile sizes, two 
different ZOIs and monitoring protocols corresponding to a specific 
pile size will be established. Specifically, during vibratory timber 
removal, and 24'' steel vibratory pile driving and removal, one land-
based PSO will monitor the area from the terminal work site, and one 
boat with a driver and a PSO will travel through the monitoring area. 
During 30/36'' vibratory pile driving, one land-based PSO will monitor 
the area from the terminal work site, and two boats with two drivers 
and two PSOs will travel through the monitoring area (see Figures 2 and 
3 in WSDOT's updated Marine Mammal Monitoring Plan).
    Data collection during marine mammal monitoring will consist of a 
count of all marine mammals by species, a description of behavior (if 
possible), location, direction of movement, type of construction that 
is occurring, time that pile replacement work begins and ends, any 
acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as weather, visibility, temperature, tide 
level, current, and sea state would also be recorded.

Reporting Measures

    WSDOT is required to submit a final monitoring report within 90 
days after completion of the construction work or the expiration of the 
IHA (if issued), whichever comes earlier. 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. NMFS 
shall have an opportunity to provide comments on the report, and if 
NMFS has comments, WSDOT shall address the comments and submit a final 
report to NMFS within 30 days.
    In addition, NMFS requires WSDOT to notify NMFS' Office of 
Protected Resources and NMFS' Stranding Network within 48 hours of 
sighting an injured or dead marine mammal in the vicinity of the 
construction site. WSDOT shall provide NMFS with the species or 
description of the animal(s),

[[Page 28586]]

the condition of the animal(s) (including carcass condition, if the 
animal is dead), location, time of first discovery, observed behaviors 
(if alive), and photo or video (if available).
    In the event that WSDOT finds an injured or dead marine mammal that 
is not in the vicinity of the construction area, WSDOT would report the 
same information as listed above to NMFS as soon as operationally 
feasible.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    As discussed above, in-water pile removal and pile driving 
(vibratory and impact) generate loud noises that could potentially 
harass marine mammals in the vicinity of WSDOT's proposed Anacortes 
Ferry Terminal tie-up slip dolphin and wingwall replacement project.
    As mentioned earlier in this document, currently NMFS uses 120 dB 
re 1 [micro]Pa and 160 dB re 1 [micro]Pa at the received levels for the 
onset of Level B harassment from non-impulse (vibratory pile driving 
and removal) and impulse sources (impact pile driving) underwater, 
respectively. Table 3 summarizes the current NMFS marine mammal take 
criteria.

   Table 3--Current Acoustic Exposure Criteria for Non-explosive Sound
                               Underwater
------------------------------------------------------------------------
                                       Criterion
            Criterion                 definition           Threshold
------------------------------------------------------------------------
Level A Harassment (Injury).....  Permanent           180 dB re 1
                                   Threshold Shift     [micro]Pa
                                   (PTS) (Any level    (cetaceans).
                                   above that which   190 dB re 1
                                   is known to cause   [micro]Pa
                                   TTS).               (pinnipeds)
                                                      root mean square
                                                       (rms).
Level B Harassment..............  Behavioral          160 dB re 1
                                   Disruption (for     [micro]Pa (rms).
                                   impulse noises).
Level B Harassment..............  Behavioral          120 dB re 1
                                   Disruption (for     [micro]Pa (rms).
                                   non-impulse
                                   noise).
------------------------------------------------------------------------

    As explained above, ZOIs will be established that encompass the 
areas where received underwater sound pressure levels (SPLs) exceed the 
applicable thresholds for Level B harassment. In the case of WSDOT's 
proposed Anacortes construction project, the Level B harassment ZOI for 
non-impulse noise sources will be at the received level at 120 dB. This 
level may be revised and the Level B ZOI reestablished if WSDOT conduct 
an ambient noise measurement during the time of construction. There 
will not be a zone for Level A harassment in this case, because source 
levels from vibratory hammer do not exceed the threshold for Level A 
harassment, and no impact hammer will be used in the proposed project.

Sound Levels From Proposed Construction Activity

    As mentioned earlier, the revised 120-dB Level B harassment ZOIs 
are modeled based on in-water measurements at the WSDOT Port Townsend 
Ferry Terminal (Laughlin 2011) and Friday Harbor Ferry Terminal 
(Laughlin 2010) constructions (Table 2). Incidental take is calculated 
for each species by estimating the likelihood of a marine mammal being 
present within a ZOI during active pile removal/driving. Expected 
marine mammal presence is determined by past observations and general 
abundance near the Anacortes ferry terminal during the construction 
window. Ideally, potential take is estimated by multiplying the area of 
the ZOI by the local animal density. This provides an estimate of the 
number of animals that might occupy the ZOI at any given moment. 
However, there are no density estimates for any Puget Sound population 
of marine mammal.
    As a result, the take requests were estimated using local marine 
mammal data sets, and information from state and federal agencies. All 
haulout and observation data available are summarized in Section 3 of 
WSDOT's IHA application. Project duration is presented in Section 2 of 
WSDOT's IHA application.
    The calculation for marine mammal exposures is estimated by:
    Exposure estimate = N (number of animals in the area) * Number of 
days of pile removal/driving activity.
    Estimates include Level B acoustical harassment during vibratory 
pile removal and driving. All estimates are conservative, as pile 
removal/driving will not be continuous during the work day. Using this 
approach, a summary of estimated takes of marine mammals incidental to 
WSDOT's Anacortes Ferry Terminal tip-up dolphins and wingwall 
replacement work are provided in Table 4.

Table 4--Estimated Numbers of Marine Mammals That May Be Exposed to Received Pile Removal Levels Above 120 dB re
                                                 1 [mu]Pa (rms)
----------------------------------------------------------------------------------------------------------------
                                                          Estimated marine
                        Species                             mammal takes        Abundance          Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal....................................                900             14,612                6.0
California sea lion....................................                180            296,750               0.06
Steller sea lion.......................................                360             52,847                0.7
Northern elephant seal.................................                 72            124,000               0.06
Harbor porpoise........................................                612             10,682                5.7
Dall's porpoise........................................                108             42,000                0.3
Killer whale, transient................................                 70                354                 20
Killer whale, Southern Resident........................                  4                 81                5.0
Pacific white-sided dolphin............................                360             25,233                1.4
Gray whale.............................................                 36             18,017                0.2
Humpback whale.........................................                 30              2,043                1.5

[[Page 28587]]

 
Minke whale............................................                 10            202-600              1.7-5
----------------------------------------------------------------------------------------------------------------

Analysis and Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of 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 must consider 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 harassment takes, 
the number of estimated mortalities, and effects on habitat.
    WSDOT's Anacortes Ferry Terminal tie-up dolphins and wingwall 
replacement project would involve vibratory pile removal and pile 
driving activities. Elevated underwater noises are expected to be 
generated as a result of these activities; however, these noises are 
expected to result in no mortality or Level A harassment and limited 
Level B harassment of marine mammals. WSDOT will not use impact hammer 
for pile driving, thus eliminating the potential for injury (including 
PTS) and TTS from noise impact. For vibratory pile removal and pile 
driving, noise levels are not expected to reach the level that may 
cause TTS, injury (including PTS), or mortality to marine mammals. 
Therefore, NMFS does not expect that any animals would experience Level 
A harassment (including injury or PTS) or Level B harassment in the 
form of TTS from being exposed to in-water pile removal and pile 
driving associated with WSDOT's construction project.
    Additionally, the sum of noise from WSDOT's proposed Anacortes 
Ferry Terminal tie-up dolphins and wingwall replacement construction 
activities is confined to a limited area by surrounding landmasses; 
therefore, the noise generated is not expected to contribute to 
increased ocean ambient noise. In addition, due to shallow water depths 
in the project area, underwater sound propagation of low-frequency 
sound (which is the major noise source from pile driving) is expected 
to be poor.
    In addition, WSDOT's proposed activities are localized and of short 
duration. The entire project area is limited to WSDOT's Anacortes Ferry 
Terminal construction work. The entire project would involve the 
removal of 272 existing piles and installation of 81 piles. The 
duration for the construction would involve 68 hours in 9 days for pile 
removal and 27 hours in 27 days for pile installation. These low-
intensity, localized, and short-term noise exposures may cause brief 
startle reactions or short-term behavioral modification by the animals. 
These reactions and behavioral changes are expected to subside quickly 
when the exposures cease. Moreover, the proposed mitigation and 
monitoring measures are expected to reduce potential exposures and 
behavioral modifications even further. Additionally, no important 
feeding and/or reproductive areas for marine mammals are known to be 
near the proposed action area. Therefore, the take resulting from the 
proposed Anacortes Ferry Terminal tie-up dolphins and wingwall 
replacement work is not reasonably expected to, and is not reasonably 
likely to, adversely affect the marine mammal species or stocks through 
effects on annual rates of recruitment or survival.
    The project area is not a prime habitat for marine mammals, nor is 
it considered an area frequented by marine mammals. Therefore, 
behavioral disturbances that could result from anthropogenic noise 
associated with WSDOT's construction activities are expected to affect 
only a small number of marine mammals on an infrequent and limited 
basis.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
WSDOT's Anacortes Ferry Terminal tie-up dolphins and wingwall 
replacement project will have a negligible impact on the affected 
marine mammal species or stocks.

Small Number

    Based on analyses provided above, it is estimated that 
approximately 900 harbor seals, 180 California sea lions, 360 Steller 
sea lions, 72 northern elephant seals, 612 harbor porpoises, 108 Dall's 
porpoises, 70 transient killer whales, 4 Southern Resident killer 
whales, 360 Pacific white-sided dolphins, 36 gray whales, 30 humpback 
whales, and 10 minke whales could be exposed to received noise levels 
that could cause Level B behavioral harassment from the proposed 
construction work at the Anacortes Ferry Terminal in Washington State. 
These numbers represent approximately 0.06% to 20% of the populations 
of these species that could be affected by Level B behavioral 
harassment, respectively (see Table 5 above), which are small 
percentages relative to the total populations of the affected species 
or stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, which are expected to reduce the number of marine mammals 
potentially affected by the proposed action, NMFS finds that small 
numbers of marine mammals will be taken relative to the

[[Page 28588]]

populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no subsistence uses of marine mammals in the proposed 
project area; and, thus, no subsistence uses impacted by this action. 
Therefore, NMFS has determined that the total taking of affected 
species or stocks would not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    The humpback whale and the Southern Resident stock of killer whale 
are the only marine mammal species currently listed under the ESA that 
could occur in the vicinity of WSDOT's proposed construction projects. 
Under section 7 of the ESA, the Federal Highway Administration (FHWA) 
and WSDOT have consulted with NMFS West Coast Regional Office (WCRO) on 
the proposed WSDOT Anacortes Ferry Terminal tie-up slip dolphins and 
wingwall replacement project. WCRO issued a Biological Opinion on July 
15, 2014, which concludes that the proposed Anacortes Ferry Terminal 
tie-up slip dolphins and wingwall replacement project may affect, but 
is not likely to adversely affect the listed marine mammal species and 
stocks.
    The issuance of an IHA to WSDOT constitutes an agency action that 
authorizes an activity that may affect ESA-listed species and, 
therefore, is subject to section 7 of the ESA. As the effects of the 
activities on listed marine mammals were analyzed during a formal 
consultation between the FHWA and NMFS, and as the underlying action 
has not changed from that considered in the consultation, the 
discussion of effects that are contained in the Biological Opinion and 
accompanying memo issued to the FHWA on July 15, 2014, pertains also to 
this action. Therefore, NMFS has determined that issuance of an IHA for 
this activity would not lead to any effects to listed marine mammal 
species apart from those that were considered in the consultation on 
FHWA's action.

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 
Anacortes Ferry Terminal tie-up slip dolphins and wingwall replacement 
project. A Finding of No Significant Impact (FONSI) was signed in May 
2015. A copy of the EA and FONSI is available upon request (see 
ADDRESSES).

Authorization

    NMFS has issued an IHA to WSDOT for the potential harassment of 
small numbers of 11 marine mammal species incidental to the Anacortes 
Ferry Terminal tie-up slip dolphins and wingwall replacement 
construction in Washington State, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: May 12, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-12097 Filed 5-18-15; 8:45 am]
 BILLING CODE 3510-22-P