[Federal Register Volume 80, Number 109 (Monday, June 8, 2015)]
[Notices]
[Pages 32357-32363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13890]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD644


Taking of Marine Mammals Incidental to Specified Activities; 
Vashon Seismic Retrofit Project

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 nine species of marine mammals incidental to construction 
activities for Vashon Seismic Retrofit Project in Vashon Island, 
Washington, between August 1, 2015, and July 31, 2016.

DATES: Effective August 1, 2015, through July 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

[[Page 32358]]

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 June 20, 2014, WSDOT submitted a request to NOAA requesting an 
IHA for the possible harassment of small numbers of nine marine mammal 
species incidental to construction associated with the Vashon Seismic 
Retrofit Project at the Vashon Ferry Terminal in Vashon Island, 
Washington between August 1, 2015, and February 15, 2016. On December 
15, 2014, WSDOT added a test pile drive and removal program to the 
Vashon Seismic Retrofit Project and submitted a revised IHA 
application. The information provided here is based on WSDOT's December 
15, 2014, IHA application.

Description of the Specified Activity

    A detailed description of the WSDOT's Vashon Seismic Retrofit 
Project is provided in the Federal Register notice for the proposed IHA 
(79 FR 78821; December 31, 2014). Since that time, no changes have been 
made to the proposed construction activities at the Vashon Seismic 
Retrofit Project. 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 December 31, 2014. 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). The Commission 
recommends NMFS issue the IHA to WSDOT, subject to inclusion of the 
proposed mitigation and monitoring measures described in the proposed 
IHA. NMFS agrees with the Commission's recommendation and issued the 
IHA with mitigation and monitoring measures described below.

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), 
Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena 
phocoena), Dall's porpoise (Phocoenoides dalli), killer whale (Orcinus 
orca), gray whale (Eschrichtius robustus), minke whale (Balaenoptera 
acutorostrata), and humpback whale (Megaptera novaeangliae).
    General information on the marine mammal species found in the 
vicinity of the project area in Washington 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. Specific information 
concerning these species in the vicinity of the action area is provided 
in the Federal Register notice for the proposed IHA 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 pile removal and pile 
driving associated with the Vashon Seismic Retrofit Project 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 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 Vashon Seismic Retrofit Project, NMFS is requiring 
WSDOT to

[[Page 32359]]

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.

Use of Noise Attenuation Devices

    Noise attenuation systems (i.e., bubble curtains) will be used 
during all impact pile driving of steel piles to dampen the acoustic 
pressure and reduce the impact on marine mammals. By reducing 
underwater sound pressure levels at the source, bubble curtains would 
reduce the area over which Level B harassment would occur, thereby 
potentially reducing the numbers of marine mammals affected. In 
addition, the bubble curtain system would reduce sound levels below the 
threshold for injury (Level A harassment) and thus eliminate the need 
for an exclusion zone for Level A harassment.

Time Restriction

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between August 1, 2015, and 
February 15, 2016.

Establishment of Exclusion Zone and Level B Harassment Zones of 
Influence

    Before the commencement of in-water pile driving activities, WSDOT 
shall establish Level B behavioral harassment ZOIs where received 
underwater sound pressure levels (SPLs) are higher than 160 dB (rms) 
and 120 dB (rms) re 1 [mu]Pa for impulse noise sources (impact pile 
driving) and non-impulses noise sources (vibratory pile driving and 
mechanic dismantling), respectively.
    For the test pile program, because glacial till soils will be 
harder to drive through, the assumed attenuation will be 8-10 dB, the 
same bubble-curtain attenuation used in the current consultation. Based 
on the 2009 Vashon Test Pile, source levels for impact driving of 30'' 
piles are 210 dB (peak), 181 dB (SEL), and 189 dB (rms) measured at 16 
m (Pile P-8 Unmitigated) (WSDOT 2010).
    The exclusion zones for Level A harassment and ZOIs for Level B 
harassment are modeled based on in-water measurements during the WSF 
Bainbridge Island Ferry Terminal and presented in Table 1 below.

        Table 1--Modeled Maximum Level A and Level B Harassment Zones for Various Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                               Distance to                            Distance to
     Pile driving methods        190 dB *   Distance to  Distance to   121 ** dB       ZOI No.        ZOI size
                                   (m)       180 dB (m)   160 dB (m)      (m)                         (km\2\)
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving/                 NA           NA           NA        5,500  ZOI-1.........  44 km\2\
 removal (24-in steel pile).
Vibratory pile driving/                 NA           NA           NA        2,000  ZOI-2.........  5.6 km\2\
 removal (13-in timber pile).
Vibratory pile removal (30-in           NA           NA           NA       21,500  ZOI-3.........  151 km\2\
 steel pile).
Test impact pile driving               4.0           19          402           NA  ZOI-4.........  0.4 km\2\
 (assume 8 dB reduction w/
 attenuation devices).
Impact driving (24-in steel            3.0           12          251           NA  ZOI-5.........  0.07 km\2\
 pile).
Impact pile driving (13-in              NA           NA           46           NA  ZOI-6.........  1,769 m\2\
 timber).
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* SPLs are dB re 1 [mu]Pa rms.
** Since the median ambient noise level at the Project area is 121 dB re 1 [mu]Pa (rms), this level will be used
  as the threshold for vibratory pile driving and removal.

Soft Start

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the pile driver reaches full power. Whenever 
there has been downtime of 30 minutes or more without pile driving, the 
contractor will initiate the driving with ramp-up procedures described 
below.
    Soft start for vibratory hammers requires contractors to initiate 
hammer noise for 15 seconds at reduced energy followed by a 1-minute 
waiting period. The procedure will be repeated two additional times. 
Soft start for impact hammers requires contractors to provide an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a 1-minute waiting period, then two subsequent 
three-strike sets. Each day, WSDOT will use the soft-start technique at 
the beginning of pile driving or removal, or if pile driving or removal 
has ceased for more than one hour.

Shutdown Measures

    WSDOT shall implement shutdown measures if a marine mammal is 
sighted approaching the Level A exclusion zone. In-water construction 
activities shall be suspended until the marine mammal is sighted moving 
away from the exclusion zone, or if the animal is not sighted for 30 
minutes after the shutdown.
    In addition, 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 
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.

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

[[Page 32360]]

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.
    WSDOT shall employee NMFS-approved protected species observers 
(PSOs) to conduct marine mammal monitoring for its Vashon Seismic 
Retrofit 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 driving/removal 
methods and pile sizes, ZOIs corresponding to a specific pile driving/
removal methods listed in Table 1 will be monitored according to the 
following monitoring protocols at different locations.
     The required monitoring distances will be determined by 
using a range finder or hand-held global positioning system device.
     ZOI-1 will be monitored by one land-based biologist at the 
terminal work site, and one boat with a pilot and a biologist that will 
travel through the monitoring area.
     ZOI-2 will be monitored by one land-based biologist at the 
terminal work site, and one boat with a pilot and a biologist that will 
travel through the monitoring area.
     ZOI-3 will be monitored by five land-based biologists, and 
one boat with a pilot and a biologist that will travel through the 
monitoring area.
     ZOI-4 will be monitored by one land-based biologist at the 
terminal work site, and one boat with a pilot and a biologist that will 
travel through the monitoring area.
     ZOI-5 will be monitored by one land-based biologist at the 
terminal work site, and one boat with a pilot and a biologist that will 
travel through the monitoring area.
     ZOI-6 will be monitored by two land-based biologists from 
the terminal work site.
    The geographic location of each ZOI is provided in maps of WSDOT's 
marine mammal monitoring plan.
    WSDOT will contact the Orca Network and/or Center for Whale 
Research to find out the location of the nearest marine mammal 
sightings. In addition, WSDOT will utilize marine mammal occurrence 
information collected by the Orca Network using hydrophone systems to 
maximize marine mammal detection in the project vicinity.
    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.
    NMFS has determined that the monitoring measures described above 
are adequate, particularly as they relate to assessing the level of 
taking or impacts to affected species. The land-based PSOs are expected 
to be positioned in a location that will maximize their abilities to 
detect marine mammals and will also utilize binoculars to improve 
detection rates.

Reporting Measures

    WSF will provide NMFS with a draft monitoring report within 90 days 
of the conclusion of the proposed construction work, or within 90 days 
after the expiration of this IHA, whichever comes first. 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 West Coast 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 Permits and Conservation Division, Office of Protected Resources, 
NMFS, and the West Coast 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 Permits and 
Conservation Division, Office of Protected Resources, NMFS, and the 
West Coast 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 Permits and Conservation Division, Office of Protected Resources, 
NMFS, and the West Coast Regional Stranding Coordinators, within 24 
hours of the

[[Page 32361]]

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 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 Vashon Seismic 
Retrofit Project.
    Currently, NMFS uses 120 dB re 1 [mu]Pa and 160 dB re 1 [mu]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 2 summarizes the 
current NMFS marine mammal take criteria.

                 Table 2--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
----------------------------------------------------------------------------------------------------------------
             Criterion                 Criterion definition                         Threshold
----------------------------------------------------------------------------------------------------------------
Level A Harassment (Injury).......  Permanent Threshold Shift   180 dB re 1 [mu]Pa (cetaceans).
                                     (PTS) (Any level above     190 dB re 1 [mu]Pa (pinnipeds).
                                     that which is known to     root mean square (rms).
                                     cause TTS).
Level B Harassment................  Behavioral Disruption (for  160 dB re 1 [mu]Pa (rms).
                                     impulse noises).
Level B Harassment................  Behavioral Disruption (for  120 dB re 1 [mu]Pa (rms).
                                     non-impulse noise).
----------------------------------------------------------------------------------------------------------------

    As explained above, ZOIs will be established that encompass the 
areas where received underwater sound pressure levels exceed the 
applicable thresholds for Level B harassment. There will not be a zone 
for Level A harassment in this case, because the bubble curtain system 
will keep all underwater noise below the threshold for Level A 
harassment.

Sound Levels From Proposed Construction Activity

    As mentioned earlier, the project includes impact driving and 
proofing of 24-inch hollow steel piling, impact driving of 13-inch 
timber piling, and impact driving of 30-inch steel test piles.
    Based on in-water measurements during the WSF Bainbridge Island 
Ferry Terminal, impact pile driving of a 24-inch steel pile generated 
170 dB RMS (overall average), with the highest measured at 189 dB RMS 
measured at 10 meters (Laughlin 2005). A bubble curtain will be used to 
attenuate steel pile impact driving noise.
    For the test pile program, the more conservative cetacean injury 
zone (19 m/62 ft) will be used to set the 30-inch steel test pile 
exclusion zone.
    In-water measurements for impact driving of 13-inch timber piling 
are not available. Impact driving of 12-inch timber piling generated 
170 dB RMS (WSF 2014). The source level for 13-inch timber piles shall 
be assumed to be the same as 12-inch timber piles. A bubble curtain 
will not be used during impact driving of timber piles.
    Using practical spreading model to calculate sound propagation 
loss, Table 2 provides the estimated maximum distances for a variety of 
harassment zones.
    As explained above, exclusion zones and ZOIs will be established 
that encompass the areas where received underwater SPLs exceed the 
applicable thresholds for Level A and Level B harassment, respectively.
    Incidental take for each species is estimated by determining the 
likelihood of a marine mammal being present within a ZOI during pile 
removal and pile driving. Expected marine mammal presence is determined 
by past observations and general abundance near the Vashon Ferry 
Terminal during the construction window. Typically, 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 mammals. As a 
result, the take requests were estimated using local marine mammal data 
sets (e.g., Orca Network, state and federal agencies), opinions from 
state and federal agencies, and observations from Navy biologists.
    Based on the estimates, approximately 1,919 Pacific harbor seals, 
1,919 California sea lions, 644 Steller sea lions, 438 harbor 
porpoises, 146 Dall's porpoises, 54 killer whales (50 transient, 4 
Southern Resident killer whales), 71 gray whales, 36 humpback whales, 
and 36 minke whales could be exposed to received sound levels that 
could result in takes from the proposed Vashon Seismic Retrofit 
Project. A summary of the estimated takes is presented in Table 3.

Table 3--Estimated Numbers of Marine Mammals That May Be Exposed to Received Pile Removal Levels Above 121 dB re
                                                 1 [mu]Pa (rms)
----------------------------------------------------------------------------------------------------------------
                                                         Estimated marine
                        Species                            mammal takes        Abundance          Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal...................................              1,919             14,612                13
California sea lion...................................              1,919            296,750                 0.7
Steller sea lion......................................                644             63,160                 1.0
Harbor porpoise.......................................                438             10,682                 4.0
Dall's porpoise *.....................................                146             42,000                 0.3
Killer whale, transient...............................                 50                521                 9.6
Killer whale, Southern Resident.......................                  4                 85                 4.7
Gray whale............................................                 71             19,126                 0.4
Humpback whale........................................                 36              1,918                 1.9
Minke whale...........................................                 36                478                 7.5
----------------------------------------------------------------------------------------------------------------
* The Federal Register notice for the proposed IHA erroneously stated that the estimated takes for Dall's
  porpoise to be 136 individuals. It is corrected in this document as 146 individuals. The results of the
  analysis and the percentage of the take by its population remain the same.


[[Page 32362]]

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 Vashon Seismic Retrofit Project would involve 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, 
if any, Level B harassment of marine mammals. WSDOT would use noise 
attenuation devices (i.e., bubble curtains) during the impact pile 
driving of steel piles, thus eliminating the potential for injury 
(including PTS) and TTS from impact driving. For vibratory pile removal 
and pile driving and impact pile driving of timber piles, 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.
    In addition, WSDOT's activities are localized and of short 
duration. The entire project area is limited to WSDOT's Vashon ferry 
terminal in Vashon Island. The entire project would involve the removal 
of 106 existing timber piles and installation of 119 steel piles. In 
addition, 96 temporary piles will be installed and then removed during 
the project. The duration for pile driving and removal lasts for about 
10 to 120 minutes per pile, depending on the type and dimension of the 
pile. 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 Vashon Seismic Retrofit Project 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 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 Vashon Seismic Retrofit 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 1,919 harbor seals, 1,919 California sea lions, 644 
Steller sea lions, 438 harbor porpoises, 136 Dall's porpoises, 50 
transient killer whales, 4 Southern Resident killer whales, 71 gray 
whales, 36 humpback whales, and 36 minke whales could be exposed to 
received noise levels that could cause Level B behavioral harassment 
from the proposed construction work at the Vashon ferry terminal in 
Washington State. These numbers represent approximately 0.3% to 14% of 
the populations of these species that could be affected by Level B 
behavioral harassment, respectively (see Table 2 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 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 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 Vashon Seismic Retrofit Project. 
Under section 7 of the ESA, the Federal Transit Administration (FTA) 
and WSDOT have consulted with NMFS West Coast Regional Office (WCRO) on 
the proposed WSDOT Vashon Seismic Retrofit Project. WCRO issued a 
Biological Opinion in May 2015, which concludes that the proposed 
Vashon Seismic Retrofit 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 FTA 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 FTA in May 2015, 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

[[Page 32363]]

species apart from those that were considered in the consultation on 
FTA'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 
Vashon Seismic Retrofit 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 nine marine mammal species incidental to the Vashon 
Seismic Retrofit Project in Washington State, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: June 2, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-13890 Filed 6-5-15; 8:45 am]
BILLING CODE 3510-22-P