[Federal Register Volume 80, Number 141 (Thursday, July 23, 2015)]
[Notices]
[Pages 43720-43739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18020]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD977


Taking of Marine Mammals Incidental to Specified Activities: 
Mukilteo Multimodal Project Tank Farm Pier Removal

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

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

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SUMMARY: Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an authorization to WSF to 
incidentally take, by harassment, small numbers of marine mammals for a 
period of 1 year.

DATES: Comments and information must be received no later than August 
24, 2015.

ADDRESSES: Comments on the application should be addressed to Robert 
Pauline, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox 
address for providing email comments is [email protected]. NMFS is 
not responsible for email comments sent to addresses other than the one 
provided here. Comments sent via email, including all attachments, must 
not exceed a 25-megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application may be obtained by writing to the address 
specified above or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Documents cited in this notice 
may also be viewed, by appointment, during regular business hours, at 
the aforementioned address.

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

SUPPLEMENTARY INFORMATION: 

[[Page 43721]]

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 November 6, 2014, Washington State Department of Transportation 
Ferries System (WSF) submitted a request to NOAA requesting an IHA for 
the possible harassment of small numbers of eight marine mammal species 
incidental to construction work associated with the Mukilteo Ferry 
Terminal replacement project in Mukilteo, Snohomish County, Washington. 
The new terminal will be located to the east of the existing location 
at the site of the former U.S. Department of Defense Fuel Supply Point 
facility, known as the Tank Farm property, which includes a large pier 
extending into Possession Sound (Figure 1-2 and 1-3 of the WSF IHA 
application which may be found at URL: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm). Completion of the entire project 
will occur over 4 consecutive years. WSF plans to submit an IHA request 
for each consecutive year of construction. WSF previously received an 
IHA on July 25, 2014 (79 FR 43424) which was active from September 1, 
2014 through August 31, 2015. However, the project was delayed for one 
year. The IHA application currently under review would cover work from 
September 1, 2015 through August 31, 2016. All existing pile work will 
be done under these two successive permits. Due to NMFS, U.S. Fish and 
Wildlife Service (USFWS), and Washington State Department of Fish and 
Wildlife (WDFW) in-water work timing restrictions to protect salmonids 
listed under the Endangered Species Act (ESA), planned WSF in-water 
construction is limited each year to August 1 through February 15. For 
removal of the Tank Farm Pier, in-water construction is planned to take 
place between August 1, 2015 and February 15, 2016; and continue in 
August 1, 2016 to February 15, 2017 if pier removal and dredging is not 
completed during the 2015/16 work window. A new MMPA IHA application 
will be submitted for subsequent construction years for this project.
    The action discussed in this document is based on WSF's November 6, 
2014 IHA application. NMFS is proposing to authorize the Level B 
harassment of the following marine mammal species: 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), and humpback whale 
(Megaptera novaeangliae)

Specific Geographic Region

    The Mukilteo Tank Farm is located within the city limits of 
Mukilteo and Everett, Snohomish County, Washington. The property is 
located on the shore of Possession Sound, an embayment of the inland 
marine waters of Puget Sound (see Figures 1-1 and 1-2 in the 
Application).

Description of the Specified Activity

    The Mukilteo Tank Farm Pier, which has not been used for fuel 
transfers since the late 1970s, covers approximately 138,080 ft\2\ 
(3.17 acres) over-water and contains approximately 3,900 12-inch 
diameter creosote-treated piles. Demolition of the pier will remove 
approximately 7,300 tons of creosote-treated timber from the aquatic 
environment. Demolition will take approximately ten months over two in-
water work windows. Removal of the pier will occur from land and from a 
barge containing a derrick, crane and other necessary equipment.
    Piles will be removed with a vibratory hammer or by direct pull 
using a chain wrapped around the pile. The crane operator will take 
measures to reduce turbidity, such as vibrating the pile slightly to 
break the bond between the pile and surrounding soil, and removing the 
pile slowly; or if using direct pull, keep the rate at which piles are 
removed low enough to meet regulatory turbidity limit requirements. If 
piles are so deteriorated they cannot be removed using either the 
vibratory or direct pull method, the operator will use a clamshell to 
pull the piles from below the mudline, or cut at or just below the 
mudline (up to one foot) using a hydraulic saw.
    Pile removal and demolition of creosote-treated timber elements of 
the Tank Farm Pier will take place between August 1 and February 15. 
All work will occur in water depths between 0 and -30 feet mean lower-
low water.
    The first year of construction activities for the Mukilteo 
Multimodal Project is limited to removing the Tank Farm Pier. The noise 
produced by the proposed vibratory pile extraction may impact marine 
mammals. Direct pull and clamshell removal are not expected to exceed 
noise levels that would injure or harass marine mammals. These 
extraction methods are described below.

Vibratory Hammer Removal

    Vibratory hammer extraction is a common method for removing timber 
piling. A vibratory hammer is suspended by cable from a crane and 
derrick, and positioned on the top of a pile. The pile is then unseated 
from the sediments by engaging the hammer, creating a vibration that 
loosens the sediments binding the pile, and then slowly lifting up on 
the hammer with the aid of the crane. Once unseated, the crane 
continues to raise the hammer and pulls the pile from the sediment.
    When the pile is released from the sediment, the vibratory hammer 
is disengaged and the pile is pulled from the water and placed on a 
barge for transfer upland. Vibratory removal will take approximately 10 
to 15 minutes per pile, depending on sediment conditions.

[[Page 43722]]

Direct Pull and Clamshell Removal

    Older timber pilings are particularly prone to breaking at the 
mudline because of damage from marine borers and vessel impacts. In 
some cases, removal with a vibratory hammer is not possible if the pile 
is too fragile to withstand the hammer force. Broken or damaged piles 
may be removed by wrapping the piles with a cable and pulling them 
directly from the sediment with a crane. If the piles break below the 
waterline, the pile stubs will be removed with a clamshell bucket, a 
hinged steel apparatus that operates like a set of steel jaws. The 
bucket will be lowered from a crane and the jaws will grasp the pile 
stub as the crane pulled up. The broken piling and stubs will be loaded 
onto the barge for off-site disposal. Clamshell removal will be used 
only if necessary, as it will produce temporary, localized turbidity 
impacts. Turbidity will be kept within required regulatory limits. 
Direct pull and clamshell removal do not produce noise that could 
impact marine mammals.

Dates and Duration

    The subject IHA application addresses Year One and a first month of 
Year Two. The first month of the project is covered by the existing IHA 
permit (expiring in August 2015). The new IHA would be active from 
September 1, 2015 through August 31, 2016, which allows for one month 
of pier removal if necessary in Year Two. If the rate of pier removal 
in Year One is slow enough to suggest that pier removal will continue 
beyond the first month (August) of Year Two, an additional IHA request 
will be submitted to ensure that pier removal can be completed.
    The daily construction window for pile removal will begin no sooner 
than 30 minutes after sunrise to allow for initial marine mammal 
monitoring, and will end at sunset (or soon after), when visibility 
decreases to the point that effective marine mammal monitoring is not 
possible.
    Vibratory pile removal will take approximately 10 to 15 minutes per 
pile. Assuming the worst case of 15 minutes per pile (with no direct 
pull or clamshell removal), removal of 3,900 piles will take and 
estimated 675-975 hours over 140-180 days of pile removal (Table 2-2 in 
the Application). The estimate of 180 days provides for some shorter 
pile pulling days during winter, transition time to dig out broken 
piles, and removal of decking. The actual number of days may be closer 
to 140 for pile work.
    It is likely that the actual hours of vibratory pile removal will 
be less, as the duration conservatively assumes that every pile will be 
removed with a vibratory hammer. It is likely that many will be require 
direct pull or clamshell removal if necessary, both of which are 
quicker than vibratory extraction.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the proposed construction area include Pacific harbor seal 
(Phoca vitulina richardsi), California sea lion (Zalophus 
californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise 
(Phocoena phocoena), Dall's porpoise (P. dalli), killer whale (Orcinus 
orca), gray whale (Eschrichtius robustus), and humpback whale 
(Megaptera novaeangliae).
    General information on the marine mammal species found in 
California waters can be found in Carretta et al. (2013), which is 
available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/pacific2013_final.pdf and in Table 1 below. Refer to that document for 
information on these species. Specific information concerning these 
species in the vicinity of the proposed action area is provided below.

  Table 1--List of Marine Species Under NMFS Jurisdiction That Occur in the Vicinity of the Mukilteo Tank Farm
                                                  Pier Project
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                                                                               Timing of         Frequency of
             Species                  ESA Status          MMPA Status         occurrence          occurrence
----------------------------------------------------------------------------------------------------------------
Harbor Seal.....................  Unlisted..........  Non-depleted......  Year-round........  Common.
California Sea Lion.............  Unlisted..........  Non-depleted......  August-April......  Common.
Steller Sea Lion................  Delisted..........  Strategic/Depleted  October-May.......  Rare.
Harbor Porpoise.................  Unlisted..........  Non-depleted......  Year-round........  Occasional.
Dall's Porpoise.................  Unlisted..........  Non-depleted......  Year-round (more    Occasional.
                                                                           common in winter).
Killer Whale....................  Endangered........  Strategic/Depleted  October-March.....  Occasional.
(Southern Resident).............
Killer Whale....................  Unlisted..........  Strategic/Depleted  March-May           Occasional.
(Transient).....................                                           (intermittently
                                                                           year-round).
Gray Whale......................  Delisted..........  Non-depleted......  January-May.......  Occasional.
Humpback Whale..................  Endangered........  Strategic/Depleted  April-June........  Occasional.
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Harbor Seal

    Harbor seals are members of the true seal family (Phocidae). For 
management purposes, differences in mean pupping date (Temte 1986), 
movement patterns (Brown 1988), pollutant loads (Calambokidis et al. 
1985), and fishery interactions have led to the recognition of three 
separate harbor seal stocks along the west coast of the continental 
U.S. (Boveng 1988). The three distinct stocks are: (1) Inland waters of 
Washington State (including Hood Canal, Puget Sound, Georgia Basin and 
the Strait of Juan de Fuca out to Cape Flattery), (2) outer coast of 
Oregon and Washington, and (3) California (Carretta et al. 2011).
    The Washington Inland Waters stock (which includes Hood Canal, 
Puget Sound, Georgia Basin and the Strait of Juan de Fuca out to Cape 
Flattery) may be present near the project site. Pupping seasons vary by 
geographic region. For the northern Puget Sound region, pups are born 
from late June through August (WDFW 2012a). After October 1 all pups in 
the inland waters of Washington are weaned. Of the three pinniped 
species that commonly occur within the region of activity, harbor seals 
are the most numerous and the only one that breeds in the inland marine 
waters of Washington (Calambokidis and Baird, 1994).
    In 1999, Jeffries et al. (2003) recorded a mean count of 9,550 
harbor seals in Washington's inland marine waters, and estimated the 
total population to be approximately 14,612 animals (including the 
Strait of Juan de Fuca).

[[Page 43723]]

According to the 2014 Stock Assessment Report (SAR), the most recent 
estimate for the Washington Northern Inland Waters Stock is 11,036 
(Carretta et al. 2014). No minimum population estimate is available. 
However, there are an estimated 32,000 harbor seals in Washington 
today, and their population appears to have stabilized (Jeffries 2013), 
so the estimate of 11,036 may be low.
    Harbor seals are the most numerous marine mammal species in Puget 
Sound. Harbor seals are non-migratory; their local movements are 
associated with such factors as tides, weather, season, food 
availability and reproduction (Scheffer and Slipp 1944; Fisher 1952; 
Bigg 1969, 1981). They are not known to make extensive pelagic 
migrations, although some long-distance movements of tagged animals in 
Alaska (174 km) and along the U.S. west coast (up to 550 km) have been 
recorded (Pitcher and McAllister 1981; Brown and Mate 1983; Herder 
1983).
    Harbor seals haul out on rocks, reefs and beaches, and feed in 
marine, estuarine and occasionally fresh waters. Harbor seals display 
strong fidelity for haul-out sites (Pitcher and Calkins 1979; Pitcher 
and McAllister 1981). The closest documented harbor seal haul-out sites 
to the Tank Farm Pier are the Naval Station Everett floating security 
fence, and the Port Gardner log booms, both approximately 4.5 miles 
northeast of the project site. Harbor seals may also haul-out on 
undocumented sites in the area, such as beaches.
    Since June 2012, Naval Station Everett personnel have been 
conducting counts of the number of harbor seals that use the in-water 
security fence floats as haul-outs. As of April 18, 2013, the highest 
count was 343 seals observed during one day in October 2012 (U.S. Navy 
2013). The average number of seals hauled out for the 8 days of 
monitoring falling within the Tank Farm Pier removal work window (July 
15-February 15) was 117 (U.S. Navy 2013). However, given the distance 
from the haul-out to the Tank Farm Pier, the number of affected seals 
would be less.
    Since 2007, the Everett Community College Ocean Research College 
Academy (ORCA) has conducted quarterly cruises that include monitoring 
stations within the ZOI. Marine mammal sightings data were collected 
during these cruises. During 24 cruises within the ZOI falling within 
the Tank Farm Pier removal window (July 15-February 15), the highest 
count was 13 seals observed during one day in November of 2012. The 
average number of seals observed during these cruises was 2.4 (ORCA 
2013).
    According to the NMFS National Stranding Database (2007-2013), 
there were 7 confirmed harbor seal strandings within 0.5 miles of Tank 
Farm Pier (NMFS 2013b).

California Sea Lion

    Washington California sea lions are part of the U.S. stock, which 
begins at the U.S./Mexico border and extends northward into Canada. The 
U.S. stock was estimated at 296,750 in the 2012 Stock Assessment Report 
(SAR) and may be at carrying capacity, although more data are needed to 
verify that determination (Carretta et al. 2013). Some 3,000 to 5,000 
animals are estimated to move into northwest waters (both Washington 
and British Columbia) during the fall (September) and remain until the 
late spring (May) when most return to breeding rookeries in California 
and Mexico (Jeffries et al. 2000). Peak counts of over 1,000 animals 
have been made in Puget Sound (Jeffries et al. 2000).
    California sea lions breed on islands off Baja Mexico and southern 
California with primarily males migrating to feed in the northern 
waters (Everitt et al. 1980). Females remain in the waters near their 
breeding rookeries off California and Mexico. All age classes of males 
are seasonally present in Washington waters (WDFW 2000).
    California sea lions do not avoid areas with heavy or frequent 
human activity, but rather may approach certain areas to investigate. 
This species typically does not flush from a buoy or haulout if 
approached.
    California sea lions were unknown in Puget Sound until 
approximately 1979 (Steiger and Calambokidis 1986). Everitt et al. 
(1980) reported the initial occurrence of large numbers at Port 
Gardner, Everett (northern Puget Sound) in the spring of 1979. The 
number of California sea lions using the Everett haul-out at that time 
numbered around 1,000. Similar sightings and increases in numbers were 
documented throughout the region after the initial sighting in 1979 
(Steiger and Calambokidis 1986), including urbanized areas such as 
Elliot Bay near Seattle and heavily used areas of central Puget Sound 
(Gearin et al. 1986). In Washington, California sea lions use haul-out 
sites within all inland water regions (WDFW 2000). The movement of 
California sea lions into Puget Sound could be an expansion in range of 
a growing population (Steiger and Calambokidis 1986).
    The closest documented California sea lion haul-out sites to the 
Tank Farm Pier are the Everett Harbor navigation buoys (3.0/3.5 miles 
NE), and the Naval Station Everett floating security fence and Port 
Gardner log booms (both 4.5 miles NE).
    Since June 2012, Naval Station Everett personnel have been 
conducting counts of the number of sea lions that use the in-water 
security fence floats as haul-outs. As of April 18, 2013, the highest 
count has been 123 California sea lions observed during one day in 
November 2012. The average number of California sea lions hauled out 
for the 8 days of monitoring falling within the Tank Farm Pier removal 
work window (July 15-February 15) is 61 (U.S. Navy 2013). However, 
given the distance from the haul-out to the Tank Farm Pier, it is not 
expected that the same numbers would be present in the ZOI.
    Since 2007, the Everett Community College ORCA has conducted 
quarterly cruises that include monitoring stations within the ZOI. 
Marine mammal sightings data were collected during these cruises. 
During 10 cruises within the ZOI falling within the Tank Farm Pier 
removal window (July 15-February 15), the highest count was 6 
California sea lions observed during one day in October of 2008. The 
average number of sea lions observed during these cruises was 2.8 (ORCA 
2013).
    According to the NMFS National Stranding Database (2007-2013), 
there was one confirmed California sea lion stranding within 0.5 miles 
of the Tank Farm Pier (NMFS 2013b).

Steller Sea Lion

    The Eastern stock of Steller sea lion may be present near the 
project site. The eastern stock of Steller sea lions is estimated at 
63,160 with a Washington minimum population estimate of 1,749 (Carretta 
et al., 2013). For Washington inland waters, Steller sea lion 
abundances vary seasonally with a minimum estimate of 1,000 to 2000 
individuals present or passing through the Strait of Juan de Fuca in 
fall and winter months.
    Steller sea lion numbers in Washington State decline during the 
summer months, which correspond to the breeding season at Oregon and 
British Columbia rookeries (approximately late May to early June) and 
peak during the fall and winter months (WDFW 2000). A few Steller sea 
lions can be observed year-round in Puget Sound although most of the 
breeding age animals return to rookeries in the spring and summer.
    The eastern stock of Steller sea lions are ``depleted/strategic'' 
under the MMPA and were ``delisted'' as a distinct population segment 
under the ESA on November 4, 2013 (78 FR 66140). On August 27, 1993, 
NMFS published a final rule designating critical habitat for

[[Page 43724]]

the Steller sea lion associated with breeding and haul-out areas in 
Alaska, California, and Oregon (58 FR 45269). That critical habitat 
remains in effect for the western DPS of Steller sea lions, which 
remain listed under the ESA. No critical habitat has been designated in 
Washington.
    Breeding rookeries for the eastern stock are located along the 
California, Oregon, British Columbia, and southeast Alaska coasts, but 
not along the Washington coast or in inland Washington waters (Angliss 
and Outlaw 2007). Adult Steller sea lions congregate at rookeries in 
Oregon, California, and British Columbia for pupping and breeding from 
late May to early June (Gisiner 1985).
    Steller sea lions primarily use haul-out sites on the outer coast 
of Washington and in the Strait of Juan de Fuca along Vancouver Island 
in British Columbia. Only sub-adults or non-breeding adults may be 
found in the inland waters of Washington (Pitcher et al. 2007). 
However, the number of inland waters haul-out sites has increased in 
recent years.
    Since June 2012, Naval Station Everett personnel have been 
conducting counts of the number of sea lions that use the in-water 
security fence floats as haul-outs. No Steller sea lions have been 
observed using the security barrier floats haul-out to date (U.S Navy. 
2013).
    Since 2007, the Everett Community College ORCA has conducted 
quarterly cruises that include monitoring stations within the ZOI. No 
Steller sea lions have been observed in the ZOI during these cruises 
(ORCA 2013).
    The closest documented Steller Sea lion haul-outs to the Tank Farm 
Pier are the Orchard Rocks and Rich Passage buoys near S. Bainbridge 
Island (19 miles SW), and Craven Rock near Marrowstone Island (23 miles 
NW). Haul-outs are generally occupied from October through May, which 
overlaps with the in-water work window. Any Steller sea lions near the 
Tank Farm Pier would be transiting through the area.
    There is no data available on the number of Steller sea lions that 
use the Orchard Rocks. Up to 12 Steller sea lions have been observed 
using the Craven Rock haul-out off of Marrowstone Island in northern 
Puget Sound (WSF 2010). However, given the distance from this haul-out 
to the Tank Farm Pier, it is not expected that the same numbers would 
be present in the ZOI.

Harbor Porpoise

    The Washington Inland Waters Stock of harbor porpoise may be found 
near the project site. The Washington Inland Waters Stock occurs in 
waters east of Cape Flattery (Strait of Juan de Fuca, San Juan Island 
Region, and Puget Sound).
    The Washington Inland Waters Stock mean abundance estimate based on 
2002 and 2003 aerial surveys conducted in the Strait of Juan de Fuca, 
San Juan Islands, Gulf Islands, and Strait of Georgia is 10,682 harbor 
porpoises (Carretta et al. 2011). No minimum population estimate is 
available.
    No harbor porpoise were observed within Puget Sound proper during 
comprehensive harbor porpoise surveys (Osmek et al. 1994) or Puget 
Sound Ambient Monitoring Program (PSAMP) surveys conducted in the 1990s 
(WDFW 2008). Declines were attributed to gill-net fishing, increased 
vessel activity, contaminants, and competition with Dall's porpoise.
    However, populations appear to be rebounding with increased 
sightings in central Puget Sound (Carretta et al. 2007b) and southern 
Puget Sound (D. Nysewander pers. comm. 2008; WDFW 2008). Recent 
systematic boat surveys of the main basin indicate that at least 
several hundred and possibly as many as low thousands of harbor 
porpoise are now present. While the reasons for this recolonization are 
unclear, it is possible that changing conditions outside of Puget 
Sound, as evidenced by a tripling of the population in the adjacent 
waters of the Strait of Juan de Fuca and San Juan Islands since the 
early 1990s, and the recent higher number of harbor porpoise 
mortalities in coastal waters of Oregon and Washington, may have played 
a role in encouraging harbor porpoise to explore and shift into areas 
like Puget Sound (Hanson, et. al. 2011).
    The Washington Inland Waters Stock of harbor porpoise is ``non-
depleted'' under MMPA, and ``unlisted'' under the ESA.
    Harbor porpoises are common in the Strait of Juan de Fuca and south 
into Admiralty Inlet, especially during the winter, and are becoming 
more common south of Admiralty Inlet. Little information exists on 
harbor porpoise movements and stock structure near the Mukilteo area, 
although it is suspected that in some areas harbor porpoises migrate 
(based on seasonal shifts in distribution). For instance Hall (2004; 
pers. comm. 2008) found harbor porpoises off Canada's southern 
Vancouver Island to peak during late summer, while the Washington State 
Department of Fish and Wildlife's (WDFW) Puget Sound Ambient Monitoring 
Program (PSAMP) data show peaks in Washington waters to occur during 
the winter.
    Hall (2004) found that the frequency of sighting of harbor 
porpoises decreased with increasing depth beyond 150 m with the highest 
numbers observed at water depths ranging from 61 to 100 m. Although 
harbor porpoises have been spotted in deep water, they tend to remain 
in shallower shelf waters (<150 m) where they are most often observed 
in small groups of one to eight animals (Baird 2003). Water depths 
within the Tank Farm Pier ZOI range from 0 to 192 m.
    Since 2007, the Everett Community College Ocean Research College 
Academy (ORCA) has conducted quarterly cruises that include monitoring 
stations within the ZOI. No harbor porpoise have been observed within 
the ZOI during these cruises (ORCA 2013). According to the NMFS 
National Stranding Database, there was one confirmed harbor porpoise 
stranding within 0.5 miles of the Tank Farm Pier from 2007 to 2013 
(NMFS 2013b).

Dall's Porpoise

    The California, Oregon, and Washington Stock of Dall's porpoise may 
be found near the project site. Dall's porpoise are high-frequency 
hearing range cetaceans (Southall et al. 2007).
    The most recent estimate of Dall's porpoise stock abundance is 
42,000, based on 2005 and 2008 summer/autumn vessel-based line transect 
surveys of California, Oregon, and Washington waters (Carretta et al. 
2011). Within the inland waters of Washington and British Columbia, 
this species is most abundant in the Strait of Juan de Fuca east to the 
San Juan Islands. The most recent Washington's inland waters estimate 
is 900 animals (Calambokidis et al. 1997). Prior to the 1940s, Dall's 
porpoises were not reported in Puget Sound.
    The California, Oregon, and Washington Stock of Dall's porpoise is 
``non-depleted'' under the MMPA, and ``unlisted'' under the ESA. Dall's 
porpoises are migratory and appear to have predictable seasonal 
movements driven by changes in oceanographic conditions (Green et al. 
1992, 1993), and are most abundant in Puget Sound during the winter 
(Nysewander et al. 2005; WDFW 2008). Despite their migrations, Dall's 
porpoises occur in all areas of inland Washington at all times of year 
(Calambokidis pers. comm. 2006), but with different distributions 
throughout Puget Sound from winter to summer. The average winter group 
size is three animals (WDFW 2008).
    Since 2007, the Everett Community College Ocean Research College

[[Page 43725]]

Academy (ORCA) has conducted quarterly cruises that include monitoring 
stations within the ZOI. No Dall's porpoise have been observed within 
the ZOI during these cruises (ORCA 2013). According to the NMFS 
National Stranding Database (2007-2013), there were no Dall's porpoise 
strandings in the area of the Tank Farm Pier (NMFS 2013b).

Killer Whale

    The Eastern North Pacific Southern Resident and West Coast 
Transient stocks of killer whale may be found near the project site.
A. Southern Resident Stock
    The Southern Residents live in three family groups known as the J, 
K and L pods. As of July 15, 2014, the stock collectively numbers 82 
individuals (Carretta et al. 2014).
    Southern Residents are documented in coastal waters ranging from 
central California to the Queen Charlotte Islands, British Columbia 
(NMFS 2008). They occur in all inland marine waters. SR killer whales 
generally spend more time in deeper water and only occasionally enter 
water less than 15 feet deep (Baird 2000). Distribution is strongly 
associated with areas of greatest salmon abundance, with heaviest 
foraging activity occurring over deep open water and in areas 
characterized by high-relief underwater topography, such as subsurface 
canyons, seamounts, ridges, and steep slopes (Wiles 2004).
    Sightings compiled by the Orca Network from 1990-2013 show that SR 
killer whale occurs most frequently in the general area of the Tank 
Farm Pier in the fall and winter, and are far less common from April 
through September (Osborne 2008; Orca Network 2013). Since 2007, the 
Everett Community College ORCA has conducted quarterly cruises that 
include monitoring stations within the ZOI. No killer whales have been 
observed within the ZOI during these cruises (ORCA 2013).
    Records from 1976 through 2013 document Southern Residents in the 
inland waters of Washington during the months of March through June and 
October through December, with the primary area of occurrence in inland 
waters north of Admiralty Inlet, located in north Puget Sound (Osborne 
2008; Orca Network 2013).
    Beginning in May or June and through the summer months, all three 
pods (J, K, and L) of Southern Residents are most often located in the 
protected inshore waters of Haro Strait (west of San Juan Island), in 
the Strait of Juan de Fuca, and Georgia Strait near the Fraser River.
    Historically, the J pod also occurred intermittently during this 
time in Puget Sound; however, records from 1997-2007 show that J pod 
did not enter Puget Sound south of the Strait of Juan de Fuca from 
approximately June through August (Osborne 2008).
    In fall, all three pods occur in areas where migrating salmon are 
concentrated such as the mouth of the Fraser River. They may also enter 
areas in Puget Sound where migrating chum and Chinook salmon are 
concentrated (Osborne 1999). In the winter months, the K and L pods 
spend progressively less time in inland marine waters and depart for 
coastal waters in January or February. The J pod is most likely to 
appear year-round near the San Juan Islands, and in the fall/winter, in 
the lower Puget Sound and in Georgia Strait at the mouth of the Fraser 
River.
    According to the NMFS National Stranding Database (2007-2013), 
there were no killer whale strandings in the area of the Tank Farm Pier 
(NMFS 2013b).
    The SR killer whale stock was declared ``depleted/strategic'' under 
the MMPA in May 2003 (68 FR 31980). On November 18, 2005, the SR stock 
was listed as ``endangered'' under the ESA (70 FR 69903). On November 
29, 2006, NMFS published a final rule designating critical habitat for 
the SR killer whale DPS. Both Puget Sound and the San Juan Islands are 
designated as core areas of critical habitat under the ESA, excluding 
areas less than 20 feet deep relative to extreme high water are not 
designated as critical habitat (71 FR 69054). A final recovery plan for 
Southern Residents was published in January of 2008 (NMFS 2008).
B. West Coast Transient Stock
    Transient killer whales generally occur in smaller (1-5 
individuals), less structured pods (Allen and Angliss. 2013). According 
to the Center for Whale Research (CWR 2014), they tend to travel in 
small groups of one to five individuals, staying close to shorelines, 
often near seal rookeries when pups are being weaned.
    The West Coast Transient stock, which includes individuals from 
California to southeastern Alaska, is estimated to have a minimum 
number of 243 (Allen and Angliss, 2013).
    The West Coast Transient stock occurs in California, Oregon, 
Washington, British Columbia, and southeastern Alaskan waters. Within 
the inland waters, they may frequent areas near seal rookeries when 
pups are weaned (Baird and Dill 1995).
    Sightings compiled by the Orca Network from 1990-2013 show that 
transient killer whale occurs most frequently in the general area of 
the Mukilteo Tank Farm Pier in the spring and summer, and are far less 
common from September through February (Orca Network 2013). However, 
transient killer whale occurrence is less predictable than SR killer 
whale occurrence, and they may be present at any time of the year. 
Since 2007, the Everett Community College ORCA has conducted quarterly 
cruises that include monitoring stations within the ZOI. No killer 
whales have been observed within the ZOI during these cruises (ORCA 
2013).

Gray Whale

    Gray whales are recorded in Washington waters during feeding 
migrations between late spring and autumn with occasional sightings 
during winter months (Calambokidis et al. 1994, 2002; Orca Network 
2013). The Eastern North Pacific stock of gray whale may be found near 
the project site. Gray whales are low-frequency hearing range cetaceans 
(Southall et al. 2007).
    The Eastern North Pacific stock of gray whales is ``non-depleted'' 
under the MMPA, and was ``delisted'' under the ESA in 1994 after a 5-
year review by NOAA Fisheries. In 2001 NOAA Fisheries received a 
petition to relist the stock under the ESA, but it was determined that 
there was not sufficient information to warrant the petition (Angliss 
and Outlaw 2007).
    Although typically seen during their annual migrations on the outer 
coast, a regular group of gray whales annually comes into the inland 
waters at Saratoga Passage and Port Susan (7.5 miles north) from March 
through May to feed on ghost shrimp (Weitkamp et al. 1992; Calambokidis 
pers. comm. 2006). During this time frame they are also seen in the 
Strait of Juan de Fuca, the San Juan Islands, and areas of Puget Sound, 
although the observations in Puget Sound are highly variable between 
years (Calambokidis et al. 1994). The average tenure within Washington 
inland waters is 47 days and the longest stay was 112 days (J. 
Calambokidis pers. comm. 2007).
    Sightings compiled by the Orca Network from 1990-2013 show that 
gray whales are most frequently in the general area of the Mukilteo 
Tank Farm Pier from January through May, and are far less common from 
June through September (Orca Network 2013). Table 3-6 in the 
Application presents total gray whale sightings (individual) per month 
in the area between 1990 and 2013. Sightings in Puget Sound are usually 
of a single individual, so Table

[[Page 43726]]

3-6 sightings are likely of the same individual or low number of 
individuals over a number of days that month.
    Since 2007, the Everett Community College Ocean Research College 
Academy (ORCA) has conducted quarterly cruises that include monitoring 
stations within the ZOI. No gray whales have been observed within the 
ZOI during these cruises (ORCA 2013).

Humpback Whale

    The California-Oregon-Washington (CA-OR-WA) stock of humpback whale 
may be found near the project site. Humpback whales are low-frequency 
hearing range cetaceans (Southall et al. 2007). The SAR abundance 
estimate is 1,918 individuals. (Carretta et al. 2014).
    The humpback whale was listed as ``endangered'' throughout its 
range under the Endangered Species Conservation Act of 1969. This 
protection was transferred to the ESA in 1973. A recovery plan was 
adopted in 1991 (NMFS 1991). The humpback whale is also listed as 
``depleted/strategic'' under the MMPA.
    Historically, humpback whales were common in inland waters of Puget 
Sound and the San Juan Islands (Calambokidis et al. 2004b). In the 
early part of this century, there was a productive commercial hunt for 
humpbacks in Georgia Strait that was probably responsible for their 
long disappearance from local waters (Osborne et al. 1988). Commercial 
hunts ended in the 1960's. Since the mid-1990s, sightings in Puget 
Sound have increased.
    This stock calves and mates in coastal Central America and Mexico 
and migrates up the coast from California to southern British Columbia 
in the summer and fall to feed (NMFS 1991; Marine Mammal Commission 
2003; Carretta et al. 2007b). Few humpback whales are seen in Puget 
Sound, but more frequent sightings occur in the Strait of Juan de Fuca 
and near the San Juan Islands. Most sightings are in spring and summer.
    Sightings compiled by the Orca Network from 1990-2013 show that 
humpback whales are most frequently in the general area of the Tank 
Farm Pier from April through June, and are far less common from July to 
March (Orca Network 2013). Table 3-7 presents total humpback whale 
sightings (individual) per month in the area between 1990 and 2013. 
Sightings in Puget Sound are usually of a single individual.
    Since 2007, the Everett Community College Ocean Research College 
Academy (ORCA) has conducted quarterly cruises that include monitoring 
stations within the ZOI. No humpback whales have been observed within 
the ZOI during these cruises (ORCA 2013).

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
stressors, (e.g. vibratory hammer pile extraction) and potential 
mitigation activities, associated with the Mukilteo Tank Farm Pier 
Removal project may impact marine mammals and their habitat. The 
``Estimated Take by Incidental Harassment'' section later in this 
document will include a quantitative analysis of the number of 
individuals that are expected to be taken by this activity. The 
``Negligible Impact Analysis'' section will include the analysis of how 
this specific activity will impact marine mammals and will consider the 
content of this section, the ``Estimated Take by Incidental 
Harassment'' section, and the ``Proposed Mitigation'' section to draw 
conclusions regarding the likely impacts of this activity on the 
reproductive success or survivorship of individuals and from that on 
the affected marine mammal populations or stocks. In the following 
discussion, we provide general background information on sound and 
marine mammal hearing before considering potential effects to marine 
mammals from sound produced by vibratory pile driving.

Description of Sound Sources

    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks of a sound wave; lower frequency sounds have 
longer wavelengths than higher frequency sounds and attenuate 
(decrease) more rapidly in shallower water. Amplitude is the height of 
the sound pressure wave or the `loudness' of a sound and is typically 
measured using the decibel (dB) scale. A dB is the ratio between a 
measured pressure (with sound) and a reference pressure (sound at a 
constant pressure, established by scientific standards). It is a 
logarithmic unit that accounts for large variations in amplitude; 
therefore, relatively small changes in dB ratings correspond to large 
changes in sound pressure. When referring to sound pressure levels 
(SPLs; the sound force per unit area), sound is referenced in the 
context of underwater sound pressure to 1 microPascal ([mu]Pa). One 
pascal is the pressure resulting from a force of one newton exerted 
over an area of one square meter. The source level (SL) represents the 
sound level at a distance of 1 m from the source (referenced to 1 
[mu]Pa). The received level is the sound level at the listener's 
position. Note that all underwater sound levels in this document are 
referenced to a pressure of 1 [mu]Pa and all airborne sound levels in 
this document are referenced to a pressure of 20 [mu]Pa.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Rms is calculated by squaring all of the 
sound amplitudes, averaging the squares, and then taking the square 
root of the average (Urick, 1983). Rms accounts for both positive and 
negative values; squaring the pressures makes all values positive so 
that they may be accounted for in the summation of pressure levels 
(Hastings and Popper, 2005). This measurement is often used in the 
context of discussing behavioral effects, in part because behavioral 
effects, which often result from auditory cues, may be better expressed 
through averaged units than by peak pressures.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in all 
directions away from the source (similar to ripples on the surface of a 
pond), except in cases where the source is directional. The 
compressions and decompressions associated with sound waves are 
detected as changes in pressure by aquatic life and man-made sound 
receptors such as hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound. Ambient 
sound is defined as environmental background sound levels lacking a 
single source or point (Richardson et al., 1995), and the sound level 
of a region is defined by the total acoustical energy being generated 
by known and unknown sources. These sources may include physical (e.g., 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
sound (e.g., vessels, dredging, aircraft, construction). A number of 
sources contribute to ambient sound, including the following 
(Richardson et al., 1995):
     Wind and waves: The complex interactions between wind and 
water surface, including processes such as breaking waves and wave-
induced bubble oscillations and cavitation, are a main source of 
naturally occurring

[[Page 43727]]

ambient noise for frequencies between 200 Hz and 50 kHz (Mitson, 1995). 
In general, ambient sound levels tend to increase with increasing wind 
speed and wave height. Surf noise becomes important near shore, with 
measurements collected at a distance of 8.5 km from shore showing an 
increase of 10 dB in the 100 to 700 Hz band during heavy surf 
conditions.
     Precipitation: Sound from rain and hail impacting the 
water surface can become an important component of total noise at 
frequencies above 500 Hz, and possibly down to 100 Hz during quiet 
times.
     Biological: Marine mammals can contribute significantly to 
ambient noise levels, as can some fish and shrimp. The frequency band 
for biological contributions is from approximately 12 Hz to over 100 
kHz.
     Anthropogenic: Sources of ambient noise related to human 
activity include transportation (surface vessels and aircraft), 
dredging and construction, oil and gas drilling and production, seismic 
surveys, sonar, explosions, and ocean acoustic studies. Shipping noise 
typically dominates the total ambient noise for frequencies between 20 
and 300 Hz. In general, the frequencies of anthropogenic sounds are 
below 1 kHz and, if higher frequency sound levels are created, they 
attenuate rapidly (Richardson et al., 1995). Sound from identifiable 
anthropogenic sources other than the activity of interest (e.g., a 
passing vessel) is sometimes termed background sound, as opposed to 
ambient sound.
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.

                          Table 2--Representative Sound Levels of Anthropogenic Sources
----------------------------------------------------------------------------------------------------------------
                                          Frequency range
              Sound source                      (Hz)          Underwater sound level           References
----------------------------------------------------------------------------------------------------------------
Small vessels..........................          250-1,000  151 dB rms at 1 m........  Richardson et al., 1995.
Tug docking gravel barge...............          200-1,000  149 dB rms at 100 m......  Blackwell and Greene,
                                                                                        2002.
Vibratory driving of 72-in steel pipe             10-1,500  180 dB rms at 10 m.......  Reyff, 2007.
 pile.
Impact driving of 36-in steel pipe pile           10-1,500  195 dB rms at 10 m.......  Laughlin, 2007.
Impact driving of 66-in cast-in-steel-            10-1,500  195 dB at rms 10 m.......  Reviewed in Hastings and
 shell (CISS) pile.                                                                     Popper, 2005.
----------------------------------------------------------------------------------------------------------------

    In-water construction activities associated with the project would 
consist mainly of vibratory pile extraction and direct pull of piles 
using a chain wrapped around the pile. The latter activity is not 
expected to produce sound that would approach Level B harassment. There 
are two general categories of sound types: Impulse and non-pulse 
(defined in the following). Vibratory pile driving is considered to be 
continuous or non-pulsed while impact pile driving is considered to be 
an impulse or pulsed sound type. The distinction between these two 
sound types is important because they have differing potential to cause 
physical effects, particularly with regard to hearing (Southall et al., 
2007). Please see Southall et al., (2007) for an in-depth discussion of 
these concepts.
    Pulsed sound sources (e.g., explosions, gunshots, sonic booms, 
impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986; Harris, 1998; NIOSH, 1998; ISO, 2003; ANSI, 2005) and 
occur either as isolated events or repeated in some succession. Pulsed 
sounds are all characterized by a relatively rapid rise from ambient 
pressure to a maximal pressure value followed by a rapid decay period 
that may include a period of diminishing, oscillating maximal and 
minimal pressures, and generally have an increased capacity to induce 
physical injury as compared with sounds that lack these features. Note 
that there is no impact driving planned as part of this project.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or non-continuous (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving and removal, and active sonar systems 
(such as those used by the U.S. Navy). The duration of such sounds, as 
received at a distance, can be greatly extended in a highly reverberant 
environment.
    The likely or possible impacts of the proposed vibratory hammer 
pile extraction at the MukilteoTank Farm Pier on marine mammals could 
involve both non-acoustic and acoustic stressors. Potential non-
acoustic stressors could result from the physical presence of the 
equipment and personnel. Any impacts to marine mammals, however, are 
expected to primarily be acoustic in nature.

Marine Mammal Hearing

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data, 
Southall et al. (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. The functional groups and the 
associated frequencies are indicated below (though animals are less 
sensitive to sounds at the outer edge of their functional range and 
most sensitive to sounds of frequencies within a smaller range 
somewhere in the middle of their functional hearing range):

[[Page 43728]]

     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 Hz and 
30 kHz;
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): Functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz;
     Phocid pinnipeds in Water: Functional hearing is estimated 
to occur between approximately 75 Hz and 100 kHz; and
     Otariid pinnipeds in Water: Functional hearing is 
estimated to occur between approximately 100 Hz and 40 kHz.
    As mentioned previously in this document, eight marine mammal 
species (seven cetacean and two pinniped) may occur in the Icy Strait 
project area. Of the five cetacean species likely to occur in the 
proposed project area and for which take is requested, two are 
classified as low-frequency cetaceans (i.e., humpback and gray whales), 
one is classified as a mid-frequency cetacean (i.e., killer whale), and 
two are classified as high-frequency cetaceans (i.e., harbor and Dall's 
porpoises) (Southall et al., 2007). Additionally, harbor seals are 
classified as members of the phocid pinnipeds in water functional 
hearing group while California and Stellar sea lions are grouped under 
the Otariid pinnipeds in water functional hearing group. A species' 
functional hearing group is a consideration when we analyze the effects 
of exposure to sound on marine mammals.

Acoustic Impacts

    Potential Effects of Pile Driving and Removal Sound--The effects of 
sounds from pile driving might result in one or more of the following: 
Temporary or permanent hearing impairment, non-auditory physical or 
physiological effects, behavioral disturbance, and masking (Richardson 
et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et 
al., 2007). The effects of pile driving and removal on marine mammals 
are dependent on several factors, including the size, type, and depth 
of the animal; the depth, intensity, and duration of the pile driving 
sound; the depth of the water column; the substrate of the habitat; the 
standoff distance between the pile and the animal; and the sound 
propagation properties of the environment. Impacts to marine mammals 
from pile driving and removal activities are expected to result 
primarily from acoustic pathways. As such, the degree of effect is 
intrinsically related to the received level and duration of the sound 
exposure, which are in turn influenced by the distance between the 
animal and the source. The further away from the source, the less 
intense the exposure should be. The substrate and depth of the habitat 
affect the sound propagation properties of the environment. Shallow 
environments are typically more structurally complex, which leads to 
rapid sound attenuation. In addition, substrates that are soft (e.g., 
sand) would absorb or attenuate the sound more readily than hard 
substrates (e.g., rock) which may reflect the acoustic wave. Soft 
porous substrates would also likely require less time to drive the 
pile, and possibly less forceful equipment, which would ultimately 
decrease the intensity of the acoustic source.
    In the absence of mitigation, impacts to marine species would be 
expected to result from physiological and behavioral responses to both 
the type and strength of the acoustic signature (Viada et al., 2008). 
The type and severity of behavioral impacts are more difficult to 
define due to limited studies addressing the behavioral effects of 
impulse sounds on marine mammals. Potential effects from impulse sound 
sources can range in severity from effects such as behavioral 
disturbance or tactile perception to physical discomfort, slight injury 
of the internal organs and the auditory system, or mortality (Yelverton 
et al., 1973).
    Hearing Impairment and Other Physical Effects--Marine mammals 
exposed to high intensity sound repeatedly or for prolonged periods can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt 
et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), 
in which case the loss of hearing sensitivity is not recoverable, or 
temporary (TTS), in which case the animal's hearing threshold would 
recover over time (Southall et al., 2007). Marine mammals depend on 
acoustic cues for vital biological functions, (e.g., orientation, 
communication, finding prey, avoiding predators); thus, TTS may result 
in reduced fitness in survival and reproduction. However, this depends 
on the frequency and duration of TTS, as well as the biological context 
in which it occurs. TTS of limited duration, occurring in a frequency 
range that does not coincide with that used for recognition of 
important acoustic cues, would have little to no effect on an animal's 
fitness. Repeated sound exposure that leads to TTS could cause PTS. The 
following subsections discuss in somewhat more detail the possibilities 
of TTS, PTS, and non-auditory physical effects.
    Temporary Threshold Shift--TTS is the mildest form of hearing 
impairment that can occur during exposure to a strong sound (Kryter, 
1985). While experiencing TTS, the hearing threshold rises, and a sound 
must be stronger in order to be heard. In terrestrial mammals, TTS can 
last from minutes or hours to days (in cases of strong TTS). For sound 
exposures at or somewhat above the TTS threshold, hearing sensitivity 
in both terrestrial and marine mammals recovers rapidly after exposure 
to the sound ends. Few data on sound levels and durations necessary to 
elicit mild TTS have been obtained for marine mammals, and none of the 
published data concern TTS elicited by exposure to multiple pulses of 
sound. Available data on TTS in marine mammals are summarized in 
Southall et al. (2007). TTS is not currently classified as an injury 
(Southall et al., 2007).
    Given the available data, the received level of a single pulse 
(with no frequency weighting) might need to be approximately 186 dB re 
1 [mu]Pa \2\-s (i.e., 186 dB sound exposure level [SEL] or 
approximately 221-226 dB p-p [peak]) in order to produce brief, mild 
TTS. Exposure to several strong pulses that each have received levels 
near 190 dB rms (175-180 dB SEL) might result in cumulative exposure of 
approximately 186 dB SEL and thus slight TTS in a small odontocete, 
assuming the TTS threshold is (to a first approximation) a function of 
the total received pulse energy.
    The above TTS information for odontocetes is derived from studies 
on the bottlenose dolphin (Tursiops truncatus) and beluga whale 
(Delphinapterus leucas). There is no published TTS information for 
other species of cetaceans. However, preliminary evidence from a harbor 
porpoise exposed to pulsed sound suggests that its TTS threshold may 
have been lower (Lucke et al., 2009). As summarized above, data that 
are now available imply that TTS is unlikely to occur unless 
odontocetes are exposed to pile driving pulses stronger than 180 dB re 
1 [mu]Pa rms.
    Permanent Threshold Shift--When PTS occurs, there is physical 
damage (injury) to the sound receptors in the ear. In severe cases, 
there can be total or

[[Page 43729]]

partial deafness, while in other cases the animal has an impaired 
ability to hear sounds in specific frequency ranges (Kryter, 1985). 
There is no specific evidence that exposure to pulses of sound can 
cause PTS in any marine mammal. However, given the possibility that 
mammals close to a sound source can incur TTS, it is possible that some 
individuals might incur PTS. Single or occasional occurrences of mild 
TTS are not indicative of permanent auditory damage, but repeated or 
(in some cases) single exposures to a level well above that causing TTS 
onset might elicit PTS.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals but are assumed to be similar to those in humans and 
other terrestrial mammals, based on anatomical similarities. PTS might 
occur at a received sound level at least several decibels above that 
inducing mild TTS if the animal were exposed to strong sound pulses 
with rapid rise time. Based on data from terrestrial mammals, a 
precautionary assumption is that the PTS threshold for impulse sounds 
(such as pile driving pulses as received close to the source) is at 
least 6 dB higher than the TTS threshold on a peak-pressure basis and 
probably greater than 6 dB (Southall et al., 2007). On an SEL basis, 
Southall et al. (2007) estimated that received levels would need to 
exceed the TTS threshold by at least 15 dB for there to be risk of PTS. 
Thus, for cetaceans, Southall et al. (2007) estimate that the PTS 
threshold might be an M-weighted SEL (for the sequence of received 
pulses) of approximately 198 dB re 1 [mu]Pa\2\-s (15 dB higher than the 
TTS threshold for an impulse). Given the higher level of sound 
necessary to cause PTS as compared with TTS, it is considerably less 
likely that PTS could occur.
    Measured source levels from impact pile driving can be as high as 
214 dB rms. Although no marine mammals have been shown to experience 
TTS or PTS as a result of being exposed to pile driving activities, 
captive bottlenose dolphins and beluga whales exhibited changes in 
behavior when exposed to strong pulsed sounds (Finneran et al., 2000, 
2002, 2005). The animals tolerated high received levels of sound before 
exhibiting aversive behaviors. Experiments on a beluga whale showed 
that exposure to a single watergun impulse at a received level of 207 
kPa (30 psi) p-p, which is equivalent to 228 dB p-p, resulted in a 7 
and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. 
Thresholds returned to within 2 dB of the pre-exposure level within 
four minutes of the exposure (Finneran et al., 2002). Although the 
source level of pile driving from one hammer strike is expected to be 
much lower than the single watergun impulse cited here, animals being 
exposed for a prolonged period to repeated hammer strikes could receive 
more sound exposure in terms of SEL than from the single watergun 
impulse (estimated at 188 dB re 1 [mu]Pa \2\-s) in the aforementioned 
experiment (Finneran et al., 2002). However, in order for marine 
mammals to experience TTS or PTS, the animals have to be close enough 
to be exposed to high intensity sound levels for a prolonged period of 
time. Based on the best scientific information available, these SPLs 
are far below the thresholds that could cause TTS or the onset of PTS.
    Non-auditory Physiological Effects--Non-auditory physiological 
effects or injuries that theoretically might occur in marine mammals 
exposed to strong underwater sound include stress, neurological 
effects, bubble formation, resonance effects, and other types of organ 
or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies 
examining such effects are limited. In general, little is known about 
the potential for pile driving to cause auditory impairment or other 
physical effects in marine mammals. Available data suggest that such 
effects, if they occur at all, would presumably be limited to short 
distances from the sound source and to activities that extend over a 
prolonged period. The available data do not allow identification of a 
specific exposure level above which non-auditory effects can be 
expected (Southall et al., 2007) or any meaningful quantitative 
predictions of the numbers (if any) of marine mammals that might be 
affected in those ways. Marine mammals that show behavioral avoidance 
of pile driving, including some odontocetes and some pinnipeds, are 
especially unlikely to incur auditory impairment or non-auditory 
physical effects.

Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes 
in behavior, more conspicuous changes in activities, and displacement. 
Behavioral responses to sound are highly variable and context-specific 
and reactions, if any, depend on species, state of maturity, 
experience, current activity, reproductive state, auditory sensitivity, 
time of day, and many other factors (Richardson et al., 1995; Wartzok 
et al., 2003; Southall et al., 2007).
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. Behavioral state may affect the type of response as well. For 
example, animals that are resting may show greater behavioral change in 
response to disturbing sound levels than animals that are highly 
motivated to remain in an area for feeding (Richardson et al., 1995; 
NRC, 2003; Wartzok et al., 2003).
    Controlled experiments with captive marine mammals showed 
pronounced behavioral reactions, including avoidance of loud sound 
sources (Ridgway et al., 1997; Finneran et al., 2003). Observed 
responses of wild marine mammals to loud pulsed sound sources 
(typically seismic guns or acoustic harassment devices, but also 
including pile driving) have been varied but often consist of avoidance 
behavior or other behavioral changes suggesting discomfort (Morton and 
Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; 
Wartzok et al., 2003; Nowacek et al., 2007). Responses to continuous 
sound, such as vibratory pile installation and removal, have not been 
documented as well as responses to pulsed sounds.
    With both types of pile driving, it is likely that the onset of 
pile driving could result in temporary, short term changes in an 
animal's typical behavior and/or avoidance of the affected area. These 
behavioral changes may include (Richardson et al., 1995): Changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities; 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where sound sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haul-outs or rookeries). Pinnipeds 
may increase their haul-out time, possibly to avoid in-water 
disturbance (Thorson and Reyff, 2006).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could include effects on growth, survival, or 
reproduction. Significant behavioral modifications that could 
potentially lead to effects on growth, survival, or reproduction 
include:

[[Page 43730]]

     Drastic changes in diving/surfacing patterns;
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cessation of feeding or social interaction.
    The onset of behavioral disturbance from anthropogenic sound 
depends on both external factors (characteristics of sound sources and 
their paths) and the specific characteristics of the receiving animals 
(hearing, motivation, experience, demography) and is difficult to 
predict (Southall et al., 2007).
    Auditory Masking--Natural and artificial sounds can disrupt 
behavior by masking, or interfering with, a marine mammal's ability to 
hear other sounds. Masking occurs when the receipt of a sound is 
interfered with by another coincident sound at similar frequencies and 
at similar or higher levels. Chronic exposure to excessive, though not 
high-intensity, sound could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions. 
Masking can interfere with detection of acoustic signals such as 
communication calls, echolocation sounds, and environmental sounds 
important to marine mammals. Therefore, under certain circumstances, 
marine mammals whose acoustical sensors or environment are being 
severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction. If the coincident 
(masking) sound were anthropogenic, it could be potentially harassing 
if it disrupted hearing-related behavior. It is important to 
distinguish TTS and PTS, which persist after the sound exposure, from 
masking, which occurs only during the sound exposure. Because masking 
(without resulting in TS) is not associated with abnormal physiological 
function, it is not considered a physiological effect, but rather a 
potential behavioral effect.
    Masking occurs at the frequency band which the animals utilize so 
the frequency range of the potentially masking sound is important in 
determining any potential behavioral impacts. Because sound generated 
from in-water vibratory pile driving and removal is mostly concentrated 
at low frequency ranges, it may have less effect on high frequency 
echolocation sounds made by porpoises. However, lower frequency man-
made sounds are more likely to affect detection of communication calls 
and other potentially important natural sounds such as surf and prey 
sound. It may also affect communication signals when they occur near 
the sound band and thus reduce the communication space of animals 
(e.g., Clark et al., 2009) and cause increased stress levels (e.g., 
Foote et al., 2004; Holt et al., 2009).
    Masking has the potential to impact species at the population or 
community levels as well as at individual levels. Masking affects both 
senders and receivers of the signals and can potentially have long-term 
chronic effects on marine mammal species and populations. Recent 
research suggests that low frequency ambient sound levels have 
increased by as much as 20 dB (more than three times in terms of SPL) 
in the world's ocean from pre-industrial periods, and that most of 
these increases are from distant shipping (Hildebrand, 2009). All 
anthropogenic sound sources, such as those from vessel traffic, pile 
driving, and dredging activities, contribute to the elevated ambient 
sound levels, thus intensifying masking.
    Vibratory pile driving and removal is relatively short-term, with 
rapid oscillations occurring for 10 to 30 minutes per installed or 
removed pile. It is possible that vibratory driving and removal 
resulting from this proposed action may mask acoustic signals important 
to the behavior and survival of marine mammal species, but the short-
term duration and limited affected area would result in insignificant 
impacts from masking. Any masking event that could possibly rise to 
Level B harassment under the MMPA would occur concurrently within the 
zones of behavioral harassment already estimated for vibratory pile 
driving, and which have already been taken into account in the exposure 
analysis.
    Acoustic Effects, Airborne--Marine mammals that occur in the 
project area could be exposed to airborne sounds associated with pile 
removal that have the potential to cause harassment, depending on their 
distance from pile driving activities. Airborne pile removal sound 
would have less impact on cetaceans than pinnipeds because sound from 
atmospheric sources does not transmit well underwater (Richardson et 
al., 1995); thus, airborne sound would only be an issue for pinnipeds 
either hauled-out or looking with heads above water in the project 
area. Most likely, airborne sound would cause behavioral responses 
similar to those discussed above in relation to underwater sound. For 
instance, anthropogenic sound could cause hauled-out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to temporarily abandon their habitat and 
move further from the source. Studies by Blackwell et al. (2004) and 
Moulton et al. (2005) indicate a tolerance or lack of response to 
unweighted airborne sounds as high as 112 dB peak and 96 dB rm.

Vessel Interaction

    Besides being susceptible to vessel strikes, cetacean and pinniped 
responses to vessels may result in behavioral changes, including 
greater variability in the dive, surfacing, and respiration patterns; 
changes in vocalizations; and changes in swimming speed or direction 
(NRC 2003). There will be a temporary and localized increase in vessel 
traffic during construction. At least one work barge will be present at 
any time during the in-water and over water work.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by vibratory pile 
removal. However, other potential impacts to the surrounding habitat 
from physical disturbance are also possible.
    Potential Pile Driving and Removal Effects on Prey--With regard to 
fish as a prey source for cetaceans and pinnipeds, fish are known to 
hear and react to sounds and to use sound to communicate (Tavolga et 
al., 1981) and possibly avoid predators (Wilson and Dill, 2002). 
Experiments have shown that fish can sense both the strength and 
direction of sound (Hawkins, 1981). Primary factors determining whether 
a fish can sense a sound signal, and potentially react to it, are the 
frequency of the signal and the strength of the signal in relation to 
the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB; however, the response threshold can depend 
on the time of year and the fish's physiological condition (Engas et 
al., 1996). In general, fish react more strongly to pulses of sound 
rather than non-pulse signals (such as noise from vessels) (Blaxter et 
al., 1981), and a quicker alarm response is elicited when the sound 
signal intensity rises rapidly compared to sound rising more slowly to 
the same level.
    Further, during the coastal construction only a small fraction of 
the available habitat would be ensonified at any given time. 
Disturbance to fish species would be short-term and fish would return 
to their pre-disturbance behavior once the pile driving activity 
ceases. Thus, the proposed construction would have little, if any, 
impact on the

[[Page 43731]]

abilities of marine mammals to feed in the area where construction work 
is planned.
    Finally, the time of the proposed construction activity would avoid 
the spawning season of the ESA-listed salmonid species.
    Effects to Foraging Habitat--Short-term turbidity is a water 
quality effect of most in-water work, including pile removal. WSF must 
comply with state water quality standards during these operations by 
limiting the extent of turbidity to the immediate project area. Roni 
and Weitkamp (1996) monitored water quality parameters during a pier 
replacement project in Manchester, Washington. The study measured water 
quality before, during and after pile removal and driving. The study 
found that construction activity at the site had ``little or no effect 
on dissolved oxygen, water temperature and salinity'', and turbidity 
(measured in nephelometric turbidity units [NTU]) at all depths nearest 
the construction activity was typically less than 1 NTU higher than 
stations farther from the project area throughout construction.
    Similar results were recorded during pile removal operations at two 
WSF ferry facilities. At the Friday Harbor terminal, localized 
turbidity levels within the regulatory compliance radius of 150 feet 
(from three timber pile removal events) were generally less than 0.5 
NTU higher than background levels and never exceeded 1 NTU. At the 
Eagle Harbor maintenance facility, within 150 feet, local turbidity 
levels (from removal of timber and steel piles) did not exceed 0.2 NTU 
above background levels (WSF 2012). In general, turbidity associated 
with pile installation is localized to about a 25-foot radius around 
the pile (Everitt et al., 1980).
    Cetaceans are not expected to be close enough to the Tank Farm Pier 
to experience turbidity, and any pinnipeds will be transiting the area 
and could avoid localized turbidity. Therefore, the impact from 
increased turbidity levels is expected to be discountable to marine 
mammals.
    Removal of the Tank Farm Pier will result in 3,900 creosote-treated 
piles (~7,300 tons) removed from the marine environment. This will 
result in temporary and localized sediment re-suspension of some of the 
contaminants associated with creosote, such as polycyclic aromatic 
hydrocarbons.
    However, the removal of the creosote-treated wood piles from the 
marine environment will result in a long-term improvement in water and 
sediment quality, meeting the goals of WSF's Creosote Removal 
Initiative started in 2000. The net impact is a benefit to marine 
organisms, especially toothed whales and pinnipeds that are high on the 
food chain and bioaccumulate these toxins. This is especially a concern 
for long-lived species that spend much of their life in Puget Sound, 
such as Southern Resident killer whales (NMFS 2008).

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, ``and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking'' for certain 
subsistence uses. For the proposed project, WSF worked with NMFS and 
proposed the following mitigation measures to minimize the potential 
impacts to marine mammals in the project vicinity. The primary purposes 
of these mitigation measures are to minimize sound levels from the 
activities, and to monitor marine mammals within designated zones of 
influence corresponding to NMFS' current Level A and B harassment 
thresholds which are depicted in Table 3 found later in the Estimated 
Take by Incidental Harassment section.

Monitoring and Shutdown for Pile Driving

    The following measures would apply to WSF's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--For all pile driving activities, WSF will establish 
a shutdown zone. Shutdown zones are typically used to contain the area 
in which SPLs equal or exceed the 180/190 dB rms acoustic injury 
criteria for cetaceans and pinnipeds, respectively, with the purpose 
being to define an area within which shutdown of activity would occur 
upon sighting of a marine mammal (or in anticipation of an animal 
entering the defined area), thus preventing injury of marine mammals. 
For vibratory driving, WSF's activities are not expected to produce 
sound at or above the 180 dB rms injury criterion (see ``Estimated Take 
by Incidental Harassment''). WSF would, however, implement a minimum 
shutdown zone of 10 m radius for all marine mammals around all 
vibratory extraction activity. This precautionary measure is intended 
to further reduce the unlikely possibility of injury from direct 
physical interaction with construction operations.
    Disturbance Zone Monitoring--WSF will establish disturbance zones 
corresponding to the areas in which SPLs equal or exceed 122 dB rms 
(Level B harassment threshold for continuous sound) for pile driving 
installation and removal. The disturbance zones will provide utility 
for monitoring conducted for mitigation purposes (i.e., shutdown zone 
monitoring) by establishing monitoring protocols for areas adjacent to 
the shutdown zones. Monitoring of disturbance zones will enable 
observers to be aware of and communicate the presence of marine mammals 
in the project area but outside the shutdown zone and thus prepare for 
potential shutdowns of activity. However, the primary purpose of 
disturbance zone monitoring will be to document incidents of Level B 
harassment; disturbance zone monitoring is discussed in greater detail 
later (see ``Proposed Monitoring and Reporting
    Ramp Up (Soft Start)--Vibratory hammer use for pile removal and 
pile driving shall be initiated at reduced power for 15 seconds with a 
1 minute interval, and be repeated with this procedure for an 
additional two times. This will allow marine mammals to move away from 
the sound source.
    Time Restrictions--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; and continue in August 1, 2016 until IHA 
expires on August 31, 2016.
    Southern Resident Killer Whale--The following steps will be 
implemented for southern resident killer whales to avoid or minimize 
take (see Appendix B of the application--Monitoring Plan):
    [ssquf] If Southern Residents approach the zone of influence (ZOI) 
during vibratory pile removal, work will be paused until the Southern 
Residents exit the ZOI. The ZOI is the area co-extensive with the Level 
A and Level B harassment zones.
    [ssquf] If killer whales approach the ZOI during vibratory pile 
removal, and it is unknown whether they are Southern Resident killer 
whales or transients, it shall be assumed they are Southern Residents 
and work will be paused until the whales exit the ZOI.
    [ssquf] If Southern Residents enter the ZOI before they are 
detected, work will be paused until the Southern Residents exit the ZOI 
to avoid further Level B harassment take.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation in 
the context of ensuring that NMFS

[[Page 43732]]

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 
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, 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 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 applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the proposed action area.

Proposed Monitoring Measures

    The monitoring plan proposed by WSF can be found in its IHA 
application. The plan may be modified or supplemented based on comments 
or new information received from the public during the public comment 
period. A summary of the primary components of the plan follows.
(1) Marine Mammal Monitoring Coordination
    WSF would conduct briefings between the construction supervisors 
and the crew and protected species observers (PSOs) prior to the start 
of pile-driving activity, marine mammal monitoring protocol and 
operational procedures.
    Prior to the start of pile driving, the Orca Network and/or Center 
for Whale Research would 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 NMFS Northwest Fisheries Science 
Center, the Center for Whale Research, Cascadia Research, the Whale 
Museum Hotline and the British Columbia Sightings Network.
    Sighting 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 
killer whale 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, WSF will 
be able to get real-time information on the presence or absence of 
whales before starting any pile removal or driving.
(2) Protected Species Observers (PSOs)
    WSF will employ qualified PSOs to monitor the 122 dBrms 
re 1 [mu]Pa 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 
will be necessary to correctly identify the target.
     Advanced education in biological science, wildlife 
management, mammalogy or related fields (Bachelor's 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-

[[Page 43733]]

water construction activities were conducted; and dates and times when 
marine mammals were present at or within the defined ZOI.
(3) Monitoring Protocols
    PSOs would 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 would be recorded.
    WSF proposes the following methodology to estimate marine mammals 
that were taken as a result of the proposed Mukilteo Multimodal Tank 
Farm Pier removal project:
     During vibratory pile removal, two land-based biologists 
will monitor the area from the best observation points available. If 
weather conditions prevent adequate land-based observations, boat-based 
monitoring may be implemented.
     To verify the required monitoring distance, the vibratory 
Level B behavioral harassment ZOI will be determined by using a range 
finder or hand-held global positioning system device.
     The vibratory Level B acoustical harassment ZOI will be 
monitored for the presence of marine mammals 30 minutes before, during, 
and 30 minutes after any pile removal activity.
     Monitoring will be continuous unless the contractor takes 
a significant break, in which case, monitoring will be required 30 
minutes prior to restarting pile removal.
     If marine mammals are observed, their location within the 
ZOI, and their reaction (if any) to pile-driving activities will be 
documented.
    NMFS has reviewed the WSF's proposed marine mammal monitoring 
protocol, and has preliminarily determined the applicant's monitoring 
program is adequate, particularly as it relates to assessing the level 
of taking or impacts to affected species. The land-based PSO is 
expected to be positioned in a location that will maximize his/her 
ability to detect marine mammals and will also utilize binoculars to 
improve detection rates. NMFS has reviewed the WSF's proposed marine 
mammal monitoring protocol, and has determined the applicant's 
monitoring program is adequate, particularly as it relates to assessing 
the level of taking or impacts to affected species. The land-based PSO 
is expected to be positioned in a location that will maximize his/her 
ability to detect marine mammals and will also utilize binoculars to 
improve detection rates.

Proposed Reporting Measures

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

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of 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].''
    All anticipated takes would be by Level B harassment resulting from 
vibratory pile removal and are likely to involve temporary changes in 
behavior. Injurious or lethal takes are not expected due to the 
expected source levels and sound source characteristics associated with 
the activity, and the proposed mitigation and monitoring measures are 
expected to further minimize the possibility of such take.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given 
the many uncertainties in predicting the quantity and types of impacts 
of sound on marine mammals, it is common practice to estimate how many 
animals are likely to be present within a particular distance of a 
given activity, or exposed to a particular level of sound.
    WSF has requested authorization for the incidental taking of small 
numbers of humpback whale, Steller sea lion, California sea lion, 
Dall's porpoise, gray whale, harbor porpoise and killer whale near the 
Mukilteo Tank Farm Pier that may result from vibratory pile extraction 
activities.
    In order to estimate the potential incidents of take that may occur 
incidental to the specified activity, we must first estimate the extent 
of the sound field that may be produced by the activity and then 
consider in combination with information about marine mammal density or 
abundance in the project area. We first provide information on 
applicable sound thresholds for determining effects to marine mammals 
before describing the information used in estimating the sound fields, 
the available marine mammal density or abundance information, and the 
method of estimating potential incidences of take.

Sound Thresholds

    We use generic sound exposure thresholds to determine when an 
activity that produces sound might result in impacts to a marine mammal 
such that a take by harassment might occur. To date, no studies have 
been conducted that explicitly examine impacts to marine mammals from 
pile driving sounds or from which empirical sound thresholds have been 
established. These thresholds (Table 3) are used to estimate when 
harassment may occur (i.e., when an animal is exposed to levels equal 
to or exceeding the relevant criterion) in specific contexts; however, 
useful contextual information that may inform our assessment of 
behavioral effects is typically lacking and we consider these 
thresholds as step functions. NMFS is working to revise these acoustic 
guidelines; for more information on that process, please visit 
www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

[[Page 43734]]



             Table 3--Underwater Injury and Disturbance Threshold Decibel Levels for Marine Mammals
----------------------------------------------------------------------------------------------------------------
               Criterion                          Criterion definition                       Threshold
----------------------------------------------------------------------------------------------------------------
Level A harassment....................  PTS (injury) conservatively based on TTS  190 dB RMS for pinnipeds. 180
                                                                                   dB RMS for cetaceans.
Level B harassment....................  Behavioral disruption for impulse noise   160 dB RMS.
                                         (e.g., impact pile driving).
Level B harassment....................  Behavioral disruption for non-pulse       120 dB RMS.
                                         noise (e.g., vibratory pile driving,
                                         drilling).
----------------------------------------------------------------------------------------------------------------

Distance to Sound Thresholds

    WSF and NMFS have determined that open-water vibratory pile 
extraction during the Mukilteo Tank Farm Pier Removal project has the 
potential to result in behavioral harassment of marine mammal species 
and stocks in the vicinity of the proposed activity.
    As Table 3 shows, under current NMFS guidelines, the received 
exposure level for Level A harassment is defined at >=180 dB (rms) re 1 
[mu]Pa for cetaceans and >=190 dB (rms) re 1 [mu]Pa for pinnipeds. The 
measured source levels from vibratory removal of 12-inch timber piles 
are between 149 and 152 dB (rms) re 1 [mu]Pa at 16 m from the hammer 
(Laughlin 2011a). Therefore, the proposed Mukilteo Tank Farm Pier 
Removal construction project is not expected to cause Level A 
harassment or TTS to marine mammals.
    Masking affects both senders and receivers of the signals and 
therefore can have consequences at the population level. Recent science 
suggests that low frequency ambient sound levels have increased by as 
much as 20 dB (more than 3 times in terms of SPL) in the world's ocean 
from pre-industrial periods, and most of these increases are from 
distant shipping (Hildebrand 2009). All anthropogenic noise sources, 
such as those from vessel traffic, pile driving, dredging, and 
dismantling existing bridge by mechanic means, contribute to the 
elevated ambient noise levels, thus intensify masking.
    Nevertheless, the levels of noise from the proposed WSF 
construction activities are relatively low and are blocked by landmass 
southward. Therefore, the noise generated is not expected to contribute 
to increased ocean ambient noise in a manner that will notably increase 
the ability of marine mammals in the vicinity to detect critical 
acoustic cues. Due to shallow water depths near the ferry terminals, 
underwater sound propagation for low-frequency sound (which is the 
major noise source from pile driving) is expected to be poor.
    Currently NMFS uses 120 dBrms re 1 [mu]Pa received level 
for non-impulse noises (such as vibratory pile driving, saw cutting, 
drilling, and dredging) for the onset of marine mammal Level B 
behavioral harassment. However, since the ambient noise level at the 
vicinity of the proposed project area is between 122 to 124 dB re 1 
[mu]Pa, depending on marine mammal functional hearing groups (Laughlin 
2011b), the received level of 120 dB re 1 [mu]Pa would be below the 
ambient level. Therefore, for this proposed project, 122 dB re 1 [mu]Pa 
is used as the threshold for Level B behavioral harassment. The 
distance to the 122 dB contour Level B acoustical harassment threshold 
due to vibratory pile removal extends a maximum of 1.6 km as is shown 
in Figure 1-5 in the Application.
    As far as airborne noise is concerned, the estimated in-air source 
level from vibratory pile driving a 30-in steel pile is estimated at 
97.8 dB re 1 [mu]Pa at 15 m (50 feet) from the pile (Laughlin 2010b). 
Using the spreading loss of 6 dB per doubling of distance, it is 
estimated that the distances to the 90 dB and 100 dB thresholds were 
estimated at 37 m and 12 m, respectively.
    The closest documented harbor seal haul-out is the Naval Station 
Everett floating security fence, and the Port Gardner log booms, both 
approximately 4.5 miles to the northeast of the project site). The 
closest documented California sea lion haul out site are the Everett 
Harbor navigation buoys, located approximately 3 miles to the northeast 
of the project site (Figure 3-1). In-air disturbance will be limited to 
those animals moving on the surface through the immediate pier area, 
within approximately 37 meters (123 feet) for harbor seals and within 
12 meters (39 feet) for other pinnipeds of vibratory pile removal 
(Figure 1-6 in Application).
    Incidental take is estimated for each species by estimating the 
likelihood of a marine mammal being present within a ZOI during active 
pile removal or driving. Expected marine mammal presence is determined 
by past observations and general abundance near the Tank Farm Pier 
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, in some cases 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.

Harbor Seal

    Based on the ORCA monitoring, NMFS' analysis uses a conservative 
estimate of 13 harbor seals per day potentially within the ZOI. For 
Year One pile removal, the duration estimate is 975 hours over 140 
days. For the exposure estimate, it will be conservatively assumed that 
13 harbor seals may be present within the ZOI and be exposed multiple 
times during the project. The calculation for marine mammal exposures 
is estimated by:

Exposure estimate = N * 140 days of vibratory pile removal activity,

where:
N = # of animals (13)
Exposure estimate = 13 * 140 days = 1,820

    NMFS is proposing the authorization for Level B acoustical 
harassment of 1,820 harbor seals. However, many of these takes are 
likely to be repeated exposures of individual animals.

California Sea Lion

    Based on the ORCA monitoring this analysis uses a conservative 
estimate of 6 California sea lions per day potentially within the ZOI.

Exposure estimate = 6 * 140 days = 840

    NMFS is proposing the authorization for Level B acoustical 
harassment take of 840 California sea lions. Many of these takes are 
likely to be repeated exposures of individual animals.

Steller Sea Lion

    Based on the observation data from Craven Rock, this analysis uses 
a conservative estimate of 12 Steller sea lions per day potentially 
near the ZOI. However, given the distance from this haul-out to the 
Tank Farm Pier, it is not expected that the same numbers would be 
present in the ZOI. For the exposure estimate, it will be 
conservatively assumed that \1/6\th of the Steller sea lions observed 
at Craven Rock (2

[[Page 43735]]

animals) may be present within the ZOI and be exposed multiple times 
during the project for total of 2 animals

Exposure estimate = 2 * 140 days = 280

    NMFS is proposing the authorization for Level B acoustical 
harassment take of 280 Steller sea lions. It is likely that many of 
these takes are likely to be repeated exposures of individual animals..

Harbor Porpoise

    Based on the water depth within the ZOI and group size, this 
analysis uses a conservative estimate of 8 harbor porpoises per day 
potentially near the ZOI.

Exposure estimate = 8 * 140 days = 1,120

    WSF is requesting authorization for Level B acoustical harassment 
take of 1,120 Harbor porpoise. Note that many of these takes are likely 
to be repeated exposures of individual animals.

Dall's Porpoise

    Based on the average winter group size, as described in Section 3.0 
of the Application, this analysis uses a conservative estimate of 3 
Dall's porpoises per day potentially near the ZOI.

Exposure estimate = 3 * 140 days = 420

    NMFS is proposing authorization for Level B acoustical harassment 
take of 420 Dall's porpoise. A number of these anticipated takes are 
likely to be repeated exposures of individual animals.

Killer Whale

    Southern Resident Killer Whale--In order to estimate anticipated 
take, NMFS used Southern Resident killer whale density data from the 
Pacific Marine Species Density Database (US Navy 2014) that measured 
density per km\2\ per season in the waters in the vicinity of the 
Mukilteo Tank Farm Pier. Data was provided as a range by the Navy. NMFS 
took the high end of the range for the summer, fall, and winter seasons 
to estimate density and multiplied that figure by the ensonified area 
(~5 km\2\.)

Exposure estimate = (0.00090 [summer] + 0.000482 [fall] + 0.000250 
[winter]) * 5 km\2\ = 0.0258 Southern Resident killer whales.

    Note that pod size of Southern Resident killer whales can range 
from 3-50. NMFS will assume that one pod of 15 whales will be sighted 
during this authorization period and proposes to authorize that amount. 
However, it is possible that a larger group may be observed. In order 
to limit the take of southern resident killer whales NMFS proposes to 
require additional steps applicable to killer whales. These steps are 
described below and in Appendix B of the Application.
    Transient Killer Whale--NMFS estimated the take of transient killer 
whales by applying the same methodology used to estimate Southern 
Resident killer whale.

Exposure estimate = (0.001582 [summer] + 0.002373 [fall] + 0.002373 
[winter]) * 5 km\2\ = 0.03163 transient killer whales.

    Note that pod size of transients can range from 1-5. NMFS will 
assume that two pods of 5 whales will be sighted during this 
authorization period. Therefore, NMFS is proposing 10 takes of 
transient killer whales.

Gray Whale

    Based on the frequency of sightings during the in-water work 
window, this analysis uses a conservative estimate of 3 gray whales per 
day potentially near the ZOI.
    It is assumed that Gray whales will not enter the ZOI each day of 
the project, but may be present in the ZOI for 5 days per month as they 
forage in the area, for a total of 30 days. For the exposure estimate, 
it will be conservatively assumed that up to 3 animals may be present 
within the ZOI and be exposed multiple times during the project.

Exposure estimate = 3 * 30 days = 90

    NMFS is proposing authorization for Level B acoustical harassment 
take of 90 Gray whales. It is assumed that this number will include 
multiple harassments of a single individual animal.

Humpback Whale

    Based on the frequency of sightings during the in-water work 
window, this analysis uses a conservative estimate of 2 humpback whales 
potentially near the ZOI.
    It is assumed that humpback whales will not enter the ZOI each day 
of the project, but may be present in the ZOI for 3 days per month as 
they forage in the area, for a total of 18 days. For the exposure 
estimate, it will be conservatively assumed that up to 2 animals may be 
present within the ZOI and be exposed multiple times during the 
project.

Exposure estimate = 2 * 18 days = 36

    NMFS is proposing authorization for Level B acoustical harassment 
take of 36 humpback whales. It is assumed that this number will include 
multiple harassments of the same individuals.
    Based on the estimates, approximately 1,820 Pacific harbor seals, 
840 California sea lions, 280 Steller sea lions, 1,120 Harbor porpoise, 
420 Dall's porpoise, 94 killer whales (10 transient, 15 Southern 
Resident killer whales), 90 gray whales, and 36 humpback whales could 
be exposed to received sound levels above 122 dB re 1 [mu]Pa (rms) from 
the proposed Mukilteo Tank Farm Pier Removal project. A summary of the 
estimated takes is presented in Table 4.

   Table 4--Estimated Numbers of Marine Mammals That May Be Exposed to
         Vibratory Hammer Sound Levels Above 122 dB re 1 [mu]Pa
                                  [rms]
------------------------------------------------------------------------
                                                              Percentage
                                                   Estimated       of
                     Species                        marine      species
                                                    mammal     or stock
                                                    takes *       (%)
------------------------------------------------------------------------
Pacific harbor seal.............................       1,820        16.5
California sea lion.............................         840         0.3
Steller sea lion................................         280         0.4
Harbor porpoise.................................       1,120        10.5
Dall's porpoise.................................         420         1.0
Killer whale, transient.........................          10         4.1
Killer whale, Southern Resident.................          15        18.2
Gray whale......................................          90         0.5
Humpback whale..................................          36         2.0
------------------------------------------------------------------------
* Represents maximum estimate of animals due to likelihood that some
  individuals will be taken more than once

Analysis and Preliminary Determinations

Negligible Impact Analysis

    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

[[Page 43736]]

estimated mortalities, effects on habitat, and the status of the 
species.
    To avoid repetition, the following discussion applies to the 
affected stocks of harbor seals, California sea lions, Steller sea 
lions, harbor porpoises, Dall's porpoises, gray whales and humpback 
whales, except where a separate discussion is provided for killer 
whales, as the best available information indicates that effects of the 
specified activity on individuals of those stocks will be similar, and 
there is no information about the population size, status, structure, 
or habitat use of the areas to warrant separate discussion.
    Pile removal activities associated with the Mukilteo Tank Farm 
removal project, as outlined previously, have the potential to disturb 
or displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) only, from underwater sounds generated from pile 
extraction. Potential takes could occur if individuals of these species 
are present in the ensonified zone when pile driving is happening.
    No injury, serious injury, or mortality is anticipated given the 
nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. The potential for these 
outcomes is minimized through the construction method and the 
implementation of the planned mitigation measures. Specifically, 
vibratory hammers will be the primary method of extraction and no 
impact driving will occurs. Vibratory driving and removal does not have 
significant potential to cause injury to marine mammals due to the 
relatively low source levels produced (site-specific acoustic 
monitoring data show no source level measurements above 180 dB rms) and 
the lack of potentially injurious source characteristics. Given 
sufficient ``notice'' through use of soft start, marine mammals are 
expected to move away from a sound source. The likelihood that marine 
mammal detection ability by trained observers is high under the 
environmental conditions described for waters around the Mukilteo Tank 
Farm further enables the implementation of shutdowns if animals come 
within 10 meters of operational activity to avoid injury, serious 
injury, or mortality.
    WSF proposed activities are localized and of relatively short 
duration. The entire project area is limited to water in close 
proximity to the tank farm. The project will require the extraction of 
3,900 piles and will require 675-975 hours over 140-180 days. These 
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.

Southern Resident Killer Whale

    Critical habitat for Southern Resident killer whales has been 
identified in the area and may be impacted. The proposed action will 
have short-term adverse effects on Chinook salmon, the primary prey of 
Southern Resident killer whales. However, the Puget Sound Chinook 
salmon ESU comprises a small percentage of the Southern Resident killer 
whale diet. Hanson et al. (2010) found only six to 14 percent of 
Chinook salmon eaten in the summer were from Puget Sound. Therefore, 
NMFS concludes that both the short-term adverse effects and the long-
term beneficial effects on Southern Resident killer whale prey quantity 
and quality will be insignificant. Also, the sound from vibratory pile 
driving and removal may interfere with whale passage. For example, 
exposed killer whales are likely to redirect around the sound instead 
of passing through the area. However, the effect of the additional 
distance traveled is unlikely to cause a measureable increase in an 
individual's energy budget, and the effects would therefore be 
temporary and insignificant. Additionally, WSF will employ additional 
mitigation measures to avoid or minimize impacts to Southern Residents. 
These measures were described previously in the section Monitoring and 
Shutdown for Pile Driving.
    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. 
Furthermore, no important feeding and/or reproductive areas for other 
marine mammals are known to be near the proposed action area.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; Lerma, 2014). Most likely, individuals will simply move away from 
the sound source and be temporarily displaced from the areas of pile 
driving, although even this reaction has been observed primarily only 
in association with impact pile driving. In response to vibratory 
driving and removal, pinnipeds (which may become somewhat habituated to 
human activity in industrial or urban waterways) have been observed to 
orient towards and sometimes move towards the sound. The pile removal 
activities analyzed here are similar to, or less impactful than, 
numerous construction activities conducted in other similar locations, 
which have taken place with no reported injuries or mortality to marine 
mammals, and no known long-term adverse consequences from behavioral 
harassment. Repeated exposures of individuals to levels of sound that 
may cause Level B harassment are unlikely to result in hearing 
impairment or to significantly disrupt foraging behavior. Thus, even 
repeated Level B harassment of some small subset of the overall stock 
is unlikely to result in any significant realized decrease in fitness 
for the affected individuals, and thus would not result in any adverse 
impact to the stock as a whole. Level B harassment will be reduced to 
the level of least practicable impact through use of mitigation 
measures described herein and, if sound produced by project activities 
is sufficiently disturbing, animals are likely to simply avoid the 
project area while the activity is occurring.
    In summary, we considered the following factors: (1) The 
possibility of injury, serious injury, or mortality may reasonably be 
considered discountable; (2) the anticipated incidents of Level B 
harassment consist of, at worst, temporary modifications in behavior; 
(3) the absence of any significant habitat, other than identified 
critical habitat for Southern Resident killer whales within the project 
area, including rookeries, significant haul-outs, or known areas or 
features of special significance for foraging or reproduction; (4) the 
expected efficacy of the proposed mitigation measures in minimizing the 
effects of the specified activity on the affected species or stocks and 
their

[[Page 43737]]

habitat to the level of least practicable impact. In combination, we 
believe that these factors, as well as the available body of evidence 
from other similar activities, demonstrate that the potential effects 
of the specified activity will have only short-term effects on 
individuals. The take resulting from the proposed WSF Mukilteo 
Multimodal Project Tank Farm Pier Removal 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.
    Therefore, 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 preliminarily finds that the 
total marine mammal take from WSF's Mukilteo Multimodal Project Tank 
Farm Pier Removal project will have a negligible impact on the affected 
marine mammal species or stocks.

Small Numbers Analysis

    Based on long-term marine mammal monitoring and studies in the 
vicinity of the proposed construction areas, it is estimated that 
approximately 1,820 Pacific harbor seals, 840 California sea lions, 280 
Steller sea lions, 1,120 harbor porpoises, 420 Dall's porpoises, 10 
transient killer whales, 15 Southern Resident killer whales, 90 gray 
whales, and 36 humpback whales could be exposed to received noise 
levels above 122 dBrms re 1 [mu]Pa from the proposed construction work 
at the Mukilteo Multimodal Ferry Terminal. These numbers represent 
approximately 0.3%-18.2% of the stocks and populations of these species 
that could be affected by Level B behavioral harassment.
    The numbers of animals authorized to be taken for all species would 
be considered small relative to the relevant stocks or populations even 
if each estimated taking occurred to a new individual--an extremely 
unlikely scenario. 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, we find that small numbers of marine mammals will 
be taken relative to the population sizes 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 Puget Sound or 
the San Juan Islands relevant to section 101(a)(5)(D).

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 WSF's proposed construction projects. 
NMFS issued a Biological Opinion that covers the proposed action on 
July 31, 2013, and concluded that the proposed action is not likely to 
jeopardize the continued existence of Southern Resident killer whales 
or humpback whales, and is not likely to destroy or adversely modify 
Southern Resident killer whales critical habitat.

National Environmental Policy Act (NEPA)

    NMFS re-affirms the document titled Final Environmental Assessment 
Issuance of Marine Mammal Incidental Take Authorizations to the 
Washington State Department of Transportation to Take Marine Mammals 
which was issued in February 2014. A Finding of No Significant Impact 
(FONSI) was signed on February 28, 2014. In the FONSI NMFS determined 
that the issuance of IHAs for the take, by harassment, of small numbers 
of marine mammals incidental to the WSF's Mukilteo Ferry Terminal 
replacement project in Washington State, will not significantly impact 
the quality of the human environment, as described in this document and 
in the Mukilteo EA. These documents are found at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Proposed Authorization

    For the reasons discussed in this document, NMFS has preliminarily 
determined that the vibratory pile removal associated with the Mukilteo 
Tank Farm Pier Removal Project would result, at worst, in the Level B 
harassment of small numbers of eight marine mammal species that inhabit 
or visit the area. While behavioral modifications, including 
temporarily vacating the area around the project 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 preliminarily determine that this 
action will have a negligible impact on these species in the vicinity 
of the proposed project 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.
    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to WSF for conducting the Mukilteo Tank Farm removal 
project, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated. The proposed IHA language is 
provided next.
    This section contains a draft of the IHA itself. The wording 
contained in this section is proposed for inclusion in the IHA (if 
issued).
    1. This Authorization is valid from September 1, 2015, through 
August 31, 2016.
    2. This Authorization is valid only for activities associated with 
in-water construction work at the Mukilteo Multimodal Ferry Terminals 
in the State of Washington.
    3. (a) The species authorized for incidental harassment takings, 
Level B harassment only, are: Pacific harbor seal (Phoca vitulina 
richardsi), California sea lion (Zalophus californianus), Steller sea 
lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's 
porpoise (Phocoenoides dalli), transient and Southern Resident killer 
whales (Orcinus orca), gray whale (Eschrichtius robustus), and humpback 
whale (Megaptera novaeangliae).
    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
    (i) Vibratory pile removal; and
    (ii) Work associated with pile removal activities.
    (c) The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported within 24 hours of the taking to 
the Northwest Regional Administrator (206-526-6150), National Marine 
Fisheries Service (NMFS) and the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, at (301) 427-8401.
    4. The holder of this Authorization must notify Monica DeAngelis of 
the West Coast Regional Office (phone: (562) 980-3232) at least 24 
hours prior to starting activities.
    5. Prohibitions:
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 3 of this Federal Register notice. The taking by Level A 
harassment,

[[Page 43738]]

injury or death of these species or the taking by harassment, injury or 
death of any other species of marine mammal is prohibited and may 
result in the modification, suspension, or revocation of this 
Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
7(a), are not present in conformance with condition 7(a) of this 
Authorization.
    6. Mitigation:
    (a) Ramp Up (Soft Start): Vibratory hammer for pile removal and 
pile driving shall be initiated at reduced power for 15 seconds with a 
1 minute interval, and be repeated with this procedure for an 
additional two times.
    (b) Marine Mammal Monitoring: Monitoring for marine mammal presence 
shall take place 30 minutes before, during and 30 minutes after pile 
driving.
    (c) Power Down and Shutdown Measures:
    (i) A shutdown zone of 10 m radius for all marine mammals will be 
established around all vibratory extraction activity.
    (ii) WSF shall implement shutdown measures if Southern Resident 
killer whales (SRKWs) 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.
    (iii) If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a SRKW or a transient killer 
whale, it shall be assumed to be a SRKW and WSF shall implement the 
shutdown measure identified in 6(c)(i).
    (iv) If a SRKW enters the ZOI undetected, in-water pile driving or 
pile removal shall be suspended until the SRKW exits the ZOI to avoid 
further level B harassment.
    (d) Time Restrictions--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; and August 1, 2016 until IHA expires on 
August 31, 2016.
    7. Monitoring:
    (a) Protected Species Observers: WSF shall employ qualified 
protected species observers (PSOs) to monitor the 122 dBrms re 1 [mu]Pa 
(nominal ambient level) zone of influence (ZOI) for marine mammals. 
Qualifications for marine mammal observers include:
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance. Use of binoculars 
will be required to correctly identify the target.
    (ii) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds).
    (iii) Sufficient training, orientation or experience with the 
construction operation to provide for personal safety during 
observations.
    (iv) 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.
    (v) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
    (vi) Writing skills sufficient to prepare a report of observations 
that would include such information as the number and type of marine 
mammals observed; the behavior of marine mammals in the project area 
during construction, dates and times when observations were conducted; 
dates and times when in-water construction activities were conducted; 
and dates and times when marine mammals were present at or within the 
defined ZOI.
    (b) Monitoring Protocols: PSOs shall be present on site at all 
times during pile removal.
    (i) During vibratory pile removal, two land-based biologists will 
monitor the area from the best observation points available. If weather 
conditions prevent adequate land-based observations, boat-based 
monitoring shall be implemented.
    (ii) The vibratory Level B acoustical harassment ZOI shall be 
monitored for the presence of marine mammals 30 minutes before, during, 
and 30 minutes after any pile removal activity.
    (iii) Monitoring shall be continuous unless the contractor takes a 
significant break, in which case, monitoring shall be required 30 
minutes prior to restarting pile removal.
    (iv) A range finder or hand-held global positioning system device 
shall be used to ensure that the 122 dBrms re 1 [mu]Pa Level B 
behavioral harassment ZOI is monitored.
    (v) If marine mammals are observed, the following information will 
be documented:
    (A) Species of observed marine mammals;
    (B) Number of observed marine mammal individuals;
    (C) Behavioral of observed marine mammals;
    (D) Location within the ZOI; and
    (E) Animals' reaction (if any) to pile-driving activities
    8. Reporting:
    (a) WSDOT shall provide NMFS with a draft monitoring report within 
90 days of the conclusion of the construction work. This report shall 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    (b) If comments are received from the NMFS Northwest Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report shall be submitted to NMFS within 30 days 
thereafter. If no comments are received from NMFS, the draft report 
will be considered to be the final report.
    (c) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization (if issued), such as an injury, serious injury or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
WSF shall immediately cease all operations and immediately report the 
incident to the Chief Incidental Take Program, Permits and Conservation 
Division, Office of Protected Resources, NMFS, at 301-427-8401and/or be 
email to [email protected] and [email protected] and the 
West Coast Regional Stranding Coordinator Brent Norberg 
([email protected]). 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 WSF to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. WSF may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (d) In the event that WSF 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), 
WSF will immediately report the

[[Page 43739]]

incident to the Chief Incidental Take Program, Permits and Conservation 
Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or 
be email to [email protected] and [email protected] and the 
West Coast Regional Stranding Coordinator Brent Norberg 
([email protected]).
    The report must include the same information identified above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with WSF to determine whether modifications in 
the activities are appropriate.
    (e) In the event that WSF 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), WSF shall report the incident to 
the Chief, Incidental Take Program, Permits and Conservation Division, 
Office of Protected Resources, NMFS, at 301-427-8401and/or be email to 
[email protected] and [email protected] and the West Coast 
Regional Stranding Coordinator Brent Norberg ([email protected]) 
within 24 hours of the discovery. WSF shall provide photographs or 
video footage (if available) or other documentation of the stranded 
animal sighting to NMFS and the Marine Mammal Stranding Network. WSF 
can continue its operations under such a case.
    9. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals, or if there is an 
unmitigable adverse impact on the availability of such species or 
stocks for subsistence uses.
    10. A copy of this Authorization and the Incidental Take Statement 
must be in the possession of each contractor who performs the 
construction work at Mukilteo Multimodal Ferry Terminals.
    11. WSF is required to comply with the Terms and Conditions of the 
Incidental Take Statement corresponding to NMFS' Biological Opinion.

Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization, and 
any other aspect of the Notice of Proposed IHA for WSF's Mukilteo Tank 
Farm removal project. Please include with your comments any supporting 
data or literature citations to help inform our final decision on WSF's 
request for an MMPA authorization.

    Dated: July 16, 2015.
Perry Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2015-18020 Filed 7-22-15; 8:45 am]
 BILLING CODE 3510-22-P