[Federal Register Volume 80, Number 228 (Friday, November 27, 2015)]
[Notices]
[Pages 74076-74085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30125]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE323


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Pier Maintenance Project

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
U.S. Navy (Navy) to incidentally harass, by Level B harassment only, 
three species of marine mammals during construction activities 
associated with a pier maintenance project at Naval Base Kitsap 
Bremerton, WA.

DATES: This authorization is effective from December 1, 2015, through 
November 30, 2016.

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

SUPPLEMENTARY INFORMATION:

Availability

    An electronic copy of the Navy's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. A memorandum describing our 
adoption of the Navy's Environmental Assessment (2015) and our 
associated Finding of No Significant Impact, prepared pursuant to the 
National Environmental Policy Act, are also available at the same site. 
In case of problems accessing these documents, please call the contact 
listed above (see FOR FURTHER INFORMATION CONTACT).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct

[[Page 74077]]

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.
    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 an authorization to 
incidentally take small numbers of marine mammals by harassment. 
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. Except with respect to certain 
activities not pertinent here, the MMPA defines ``harassment'' as ``any 
act of pursuit, torment, or annoyance which (i) has the potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''

Summary of Request

    On April 14, 2015, we received a request from the Navy for 
authorization to take marine mammals incidental to pile driving and 
removal associated with the Pier 4 maintenance project at Naval Base 
Kitsap Bremerton, WA (NBKB). The Navy submitted revised versions of the 
request on May 20 and June 12, 2015, the latter of which we deemed 
adequate and complete. The Navy submitted additional information 
related to a small amount of necessary maintenance work at the adjacent 
Pier 5 on November 18, 2015. The Navy plans to conduct this project, 
involving vibratory pile driving only, within the approved in-water 
work window. Hereafter, use of the generic term ``pile driving'' may 
refer to both pile installation and removal unless otherwise noted.
    The use of vibratory pile driving is expected to produce underwater 
sound at levels that have the potential to result in behavioral 
harassment of marine mammals. Species with the expected potential to be 
present during the in-water work window include the Steller sea lion 
(Eumetopias jubatus monteriensis), California sea lion (Zalophus 
californianus), and harbor seal (Phoca vitulina richardii). All of 
these species may be present throughout the period of validity for this 
IHA.

Description of the Specified Activity

Overview

    NBKB serves as the homeport for a nuclear aircraft carrier and 
other Navy vessels and as a shipyard capable of overhauling and 
repairing all types and sizes of ships. Other significant capabilities 
include alteration, construction, deactivation, and dry-docking of 
naval vessels. Pier 4 was completed in 1922 and requires substantial 
maintenance to maintain readiness. The Navy plans to remove up to 92 
deteriorating fender piles and to replace them with new steel fender 
piles.

Dates and Duration

    The allowable season for in-water work for this project is July 16 
through February 15, a window related to bull trout (Salvelinus 
confluentus) occurrence in the project area. Under the specified 
activity a maximum of thirty pile driving days would occur. Pile 
driving may occur only during daylight hours. The IHA is valid for one 
year, from December 1, 2015, through November 30, 2016. The Navy 
requested a one-year period of validity for this IHA due to uncertainty 
regarding the project start date. However, the in-water work would 
occur within only a single work window; i.e., would occur from December 
1, 2015, through February 15, 2016, or would occur from July 16, 2016, 
through November 30, 2016.

Specific Geographic Region

    NBKB is located on the north side of Sinclair Inlet in Puget Sound 
(see Figures 1-1 and 2-1 of the Navy's application). Sinclair Inlet, an 
estuary of Puget Sound extending 3.5 miles southwesterly from its 
connection with the Port Washington Narrows, connects to the main basin 
of Puget Sound through Port Washington Narrows and then Agate Pass to 
the north or Rich Passage to the east. Sinclair Inlet has been 
significantly modified by development activities. Fill associated with 
transportation, commercial, and residential development of NBKB, the 
City of Bremerton, and the local ports of Bremerton and Port Orchard 
has resulted in significant changes to the shoreline. The area 
surrounding Pier 4 is industrialized, armored and adjacent to railroads 
and highways. Sinclair Inlet is also the receiving body for a 
wastewater treatment plant located just west of NBKB. Sinclair Inlet is 
relatively shallow and does not flush fully despite freshwater stream 
inputs.

Detailed Description of Activities

    The Navy plans to remove eighty deteriorated 14-in timber fender 
piles at Pier 4 and replace them with eighty new 12 to 14-in steel 
fender piles. The Navy assumes a notional production rate of eight 
piles per day (removal) and four piles per day (installation) in 
determining the number of days of pile driving expected, and scheduling 
(as well as exposure analysis) is based on this assumption. All pile 
driving and removal would be accomplished with a vibratory driver 
(except where removal is accomplished by direct pull or other 
mechanical means, e.g., clamshell, cutting). Vibratory driving and/or 
removal could occur on any work day during the period of the IHA. Only 
one pile driving rig is planned for operation at any given time.
    Changes from the Notice of Proposed Authorization--The Navy 
requested an expansion of the specified activity to include additional 
maintenance work at the immediately adjacent Pier 5. This additional 
work will involve the removal and replacement of an additional twelve 
piles. The piles would be the same as those considered for Pier 4 (14-
in timber piles to be removed and replaced with 12- to 14-in steel 
piles) and all pile driving and removal would be accomplished with a 
vibratory driver. This work would require an additional five in-water 
work days, but would not involve use of any additional or concurrent 
pile driving. We have determined that this additional work represents 
an inconsequential increase to the scope of work considered in our 
notice of proposed authorization (July 24, 2015; 80 FR 44033).

[[Page 74078]]

Comments and Responses

    We published a notice of receipt of the Navy's application and 
proposed IHA in the Federal Register on July 24, 2015 (80 FR 44033). We 
received a letter from the Marine Mammal Commission, which concurred 
with our preliminary findings and recommended that we issue the 
requested IHA, subject to inclusion of the proposed mitigation and 
monitoring measures. All mitigation and monitoring measures described 
in our notice of proposed IHA have been included in the IHA as issued. 
The Commission also recommended that we ensure that the Navy is 
sufficiently aware of the requirements set forth in the authorization, 
and we agree with the recommendation.

Description of Marine Mammals in the Area of the Specified Activity

    There are five marine mammal species with records of occurrence in 
waters of Sinclair Inlet in the action area. These are the California 
sea lion, harbor seal, Steller sea lion, gray whale (Eschrichtius 
robustus), and killer whale (Orcinus orca). The harbor seal is a year-
round resident of Washington inland waters, including Puget Sound, 
while the sea lions are absent for portions of the summer. For the 
killer whale, both transient (west coast stock) and resident (southern 
stock) animals have occurred in the area. However, southern resident 
animals are known to have occurred only once, with the last confirmed 
sighting from 1997 in Dyes Inlet. A group of 19 whales from the L-25 
subpod entered and stayed in Dyes Inlet, which connects to Sinclair 
Inlet northeast of NBKB, for 30 days. Dyes Inlet may be reached only by 
traversing from Sinclair Inlet through the Port Washington Narrows, a 
narrow connecting body that is crossed by two bridges, and it was 
speculated at the time that the whales' long stay was the result of a 
reluctance to traverse back through the Narrows and under the two 
bridges. There is one other unconfirmed report of a single southern 
resident animal occurring in the project area, in January 2009. Of 
these stocks, the southern resident killer whale is listed (as 
endangered) under the Endangered Species Act (ESA).
    An additional seven species have confirmed occurrence in Puget 
Sound, but are considered rare to extralimital in Sinclair Inlet and 
the surrounding waters. These species--the humpback whale (Megaptera 
novaeangliae), minke whale (Balaenoptera acutorostrata scammoni), 
Pacific white-sided dolphin (Lagenorhynchus obliquidens), harbor 
porpoise (Phocoena phocoena vomerina), Dall's porpoise (Phocoenoides 
dalli dalli), and northern elephant seal (Mirounga angustirostris), 
along with the southern resident killer whale--are considered extremely 
unlikely to occur in the action area or to be affected by the specified 
activities, and are not considered further in this document. A review 
of sightings records available from the Orca Network 
(www.orcanetwork.org; accessed July 13, 2015) confirms that there are 
no recorded observations of these species in the action area (with the 
exception of the southern resident sightings described above).
    We have reviewed the Navy's detailed species descriptions, 
including life history information, for accuracy and completeness and 
refer the reader to Sections 3 and 4 of the Navy's application instead 
of reprinting the information here. Please also refer to NMFS' Web site 
(www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts 
and to the Navy's Marine Resource Assessment for the Pacific Northwest, 
which documents and describes the marine resources that occur in Navy 
operating areas of the Pacific Northwest, including Puget Sound (DoN, 
2006). The document is publicly available at www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html (accessed November 13, 2015). We 
provided additional information for marine mammals with potential for 
occurrence in the area of the specified activity in our Federal 
Register notice of proposed authorization (July 24, 2015; 80 FR 44033).
    Table 1 lists the marine mammal species with expected potential for 
occurrence in the vicinity of NBKB during the project timeframe and 
summarizes key information regarding stock status and abundance. 
Taxonomically, we follow Committee on Taxonomy (2014). Please see NMFS' 
Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, 
for more detailed accounts of these stocks' status and abundance. The 
harbor seal, California sea lion, and gray whale are addressed in the 
Pacific SARs (e.g., Carretta et al., 2015), while the Steller sea lion 
and transient killer whale are treated in the Alaska SARs (e.g., Allen 
and Angliss, 2015).

                                           Table 1--Marine Mammals Potentially Present in the Vicinity of NBKB
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                                                                                  Stock abundance                                    Relative occurrence
                                                           ESA/MMPA  status;      (CV, Nmin, most                     Annual  M/SI    in Sinclair Inlet;
             Species                       Stock         strategic  (Y/N) \1\    recent abundance        PBR \3\           \4\            season of
                                                                                    survey) \2\                                           occurrence
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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                                                                  Family Eschrichtiidae
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Gray whale.......................  Eastern North         -; N................  20,990 (0.05;                    624         132 \9\  Rare; year-round.
                                    Pacific.                                    20,125; 2010-11).
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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                                                                   Family Delphinidae
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Killer whale.....................  West coast transient  -; N................  243 (n/a; 2009).....             2.4               0  Rare; year-round.
                                    \5\.
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                                                         Order Carnivora--Superfamily Pinnipedia
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                                                      Family Otariidae (eared seals and sea lions)
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California sea lion..............  U.S.................  -; N................  296,750 (n/a;                  9,200             389  Common; year-round
                                                                                153,337; 2011).                                       (excluding July).

[[Page 74079]]

 
Steller sea lion.................  Eastern U.S.........  -; N \7\............  60,131-74,448 (n/a;            1,645            92.3  Occasional/
                                                                                36,551; 2008-13)                                      seasonal; Oct-May.
                                                                                \8\.
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                                                             Family Phocidae (earless seals)
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Harbor seal......................  Washington northern   -; N................  11,036 (0.15; 7,213;    undetermined            >2.8  Common; year-round.
                                    inland waters \6\.                          1999).
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see
  footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For killer whales, the
  abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated
  CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction
  factor derived from knowledge of the specie's (or similar species') life history to arrive at a best abundance estimate; therefore, there is no
  associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore. The most recent abundance survey that is
  reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value.
\5\ The abundance estimate for this stock includes only animals from the ``inner coast'' population occurring in inside waters of southeastern Alaska,
  British Columbia, and Washington--excluding animals from the ``outer coast'' subpopulation, including animals from California--and therefore should be
  considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now
  considered outdated, was 354.
\6\ Abundance estimates for these stocks are greater than eight years old and are therefore not considered current. PBR is considered undetermined for
  these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates
  and PBR values, as these represent the best available information for use in this document.
\7\ The eastern distinct population segment of the Steller sea lion, previously listed under the ESA as threatened, was delisted on December 4, 2013 (78
  FR 66140; November 4, 2013).
\8\ Best abundance is calculated as the product of pup counts and a factor based on the birth rate, sex and age structure, and growth rate of the
  population. A range is presented because the extrapolation factor varies depending on the vital rate parameter resulting in the growth rate (i.e.,
  high fecundity or low juvenile mortality).
\9\ Includes annual Russian harvest of 127 whales.

Potential Effects of the Specified Activity on Marine Mammals

    Our Federal Register notice of proposed authorization (July 24, 
2015; 80 FR 44033) provides a general background on sound relevant to 
the specified activity as well as a detailed description of marine 
mammal hearing and of the potential effects of these construction 
activities on marine mammals.

Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat in detail 
in our Federal Register notice of proposed authorization (July 24, 
2015; 80 FR 44033). In summary, we have determined that given the short 
daily duration of sound associated with individual pile driving events 
and the relatively small areas being affected, pile driving activities 
associated with the proposed action are not likely to have a permanent, 
adverse effect on any fish habitat, or populations of fish species. The 
area around NBKB, including the adjacent ferry terminal and nearby 
marinas, is heavily altered with significant levels of industrial and 
recreational activity, and is unlikely to harbor significant amounts of 
forage fish. Thus, any impacts to marine mammal habitat are not 
expected to cause significant or long-term consequences for individual 
marine mammals or their populations.

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.
    Measurements from similar pile driving events were coupled with 
practical spreading loss to estimate zones of influence (ZOI; see 
``Estimated Take by Incidental Harassment''); these values were used to 
develop mitigation measures for pile driving activities at NBKB. The 
ZOIs effectively represent the mitigation zone that would be 
established around each pile to prevent Level A harassment to marine 
mammals, while providing estimates of the areas within which Level B 
harassment might occur. In addition to the specific measures described 
later in this section, the Navy will conduct briefings between 
construction supervisors and crews, marine mammal monitoring team, and 
Navy staff prior to the start of all pile driving activity, and when 
new personnel join the work, in order to explain responsibilities, 
communication procedures, marine mammal monitoring protocol, and 
operational procedures.

Monitoring and Shutdown for Pile Driving

    The following measures apply to the Navy's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--For all pile driving activities, the Navy will 
establish a shutdown zone intended to contain the area in which SPLs 
equal or exceed the acoustic injury criteria for pinnipeds (190 dB root 
mean square [rms]). The purpose of a shutdown zone is to define an area 
within which shutdown of activity would occur upon sighting of a

[[Page 74080]]

marine mammal (or in anticipation of an animal entering the defined 
area), thus preventing injury of marine mammals (as described 
previously under ``Potential Effects of the Specified Activity on 
Marine Mammals'' in our notice of proposed authorization [July 24, 
2015; 80 FR 44033], serious injury or death are unlikely outcomes even 
in the absence of mitigation measures). Modeled radial distances for 
shutdown zones are shown in Table 2. Although no potential for injury 
is predicted, a minimum shutdown zone of 10 m will be established 
during all pile driving activities. This precautionary measure is 
intended to prevent the already unlikely possibility of physical 
interaction with construction equipment and to further reduce any 
possibility of acoustic injury.
    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 160 and 120 dB rms (for impulse and continuous sound, 
respectively). Disturbance zones 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 enables 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 
is for documenting incidents of Level B harassment; disturbance zone 
monitoring is discussed in greater detail later (see ``Monitoring and 
Reporting''). Nominal radial distances for disturbance zones are shown 
in Table 2.
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location, as well as the location of the pile being driven, 
is known from a GPS. The location of the animal is estimated as a 
distance from the observer, which is then compared to the location from 
the pile. It may then be estimated whether the animal was exposed to 
sound levels constituting incidental harassment on the basis of 
predicted distances to relevant thresholds in post-processing of 
observational and acoustic data, and a precise accounting of observed 
incidences of harassment created. This information may then be used to 
extrapolate observed takes to reach an approximate understanding of 
actual total takes.
    Monitoring Protocols--Monitoring will be conducted before, during, 
and after pile driving activities. In addition, observers shall record 
all incidents of marine mammal occurrence, regardless of distance from 
activity, and shall document any behavioral reactions in concert with 
distance from piles being driven. Observations made outside the 
shutdown zone will not result in shutdown; that pile segment would be 
completed without cessation, unless the animal approaches or enters the 
shutdown zone, at which point all pile driving activities must be 
halted. Monitoring will take place from fifteen minutes prior to 
initiation through thirty minutes post-completion of pile driving 
activities. Pile driving activities include the time to install or 
remove a single pile or series of piles, as long as the time elapsed 
between uses of the pile driving equipment is no more than thirty 
minutes. Please see the Monitoring Plan (Appendix C in the Navy's 
application), developed by the Navy in consultation with NMFS, for full 
details of the monitoring protocols.
    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by qualified observers, who will 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown/delay procedures when applicable 
by calling for the shutdown to the hammer operator. Qualified observers 
are trained biologists, with the following minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Advanced education in biological science or related field 
(undergraduate degree or higher required);
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     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.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for fifteen minutes to ensure that it is clear of 
marine mammals. Pile driving will only commence once observers have 
declared the shutdown zone clear of marine mammals; animals will be 
allowed to remain in the shutdown zone (i.e., must leave of their own 
volition) and their behavior will be monitored and documented. The 
shutdown zone may only be declared clear, and pile driving started, 
when the entire shutdown zone is visible (i.e., when not obscured by 
dark, rain, fog, etc.). In addition, if such conditions should arise 
during impact pile driving that is already underway, the activity must 
be halted.
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of pile driving operations, activity will be halted 
and delayed until either the animal has voluntarily left and been 
visually confirmed beyond the shutdown zone or fifteen minutes have 
passed without re-detection of the animal. Monitoring will be conducted 
throughout the time required to drive a pile.

Special Conditions

    The Navy did not request the authorization of incidental take for 
killer whales or gray whales (see discussion below in ``Estimated Take 
by Incidental Harassment''). Therefore, shutdown will be implemented in 
the event that either of these species is observed in the vicinity, 
prior to entering the defined disturbance zone. As described later in 
this document, we believe that occurrence of these species during the 
in-water work window would be uncommon and that the occurrence of an 
individual or group would likely be highly noticeable and would attract 
significant attention in local media and with local whale watchers and 
interested citizens. Prior to the start of pile driving on any day, the 
Navy will contact and/or review the latest sightings data from the Orca 
Network and/or Center for Whale Research to determine the location of 
the nearest marine mammal sightings. The Orca Sightings Network 
consists of a list of over 600 residents, scientists, and government 
agency personnel in the U.S. and Canada, and includes passive acoustic 
detections. The presence of a killer whale or gray whale in the

[[Page 74081]]

southern reaches of Puget Sound would be a notable event, drawing 
public attention and media scrutiny. With this level of coordination in 
the region of activity, the Navy should be able to effectively receive 
real-time information on the presence or absence of whales, sufficient 
to inform the day's activities. Pile driving will not occur if there 
was the risk of incidental harassment of a species for which incidental 
take was not authorized.
    One land-based observer will be positioned at the pier work site. 
Additionally, one vessel-based observer will travel through the 
monitoring area, completing an entire loop approximately every thirty 
minutes (please see Figure 1 of Appendix C in the Navy's applications). 
If any killer whales or gray whales are detected, activity would not 
begin or would shut down.

Timing Restrictions

    In the project area, designated timing restrictions exist to avoid 
in-water work when salmonids and other spawning forage fish are likely 
to be present. The in-water work window is July 16-February 15. All in-
water construction activities will occur only during daylight hours 
(sunrise to sunset).

Soft Start

    The use of a soft start procedure is believed to provide additional 
protection to marine mammals by warning or providing a chance to leave 
the area prior to the hammer operating at full capacity, and typically 
involves a requirement to initiate sound from the hammer at reduced 
energy followed by a waiting period. This procedure is repeated two 
additional times. It is difficult to specify the reduction in energy 
for any given hammer because of variation across drivers. The pier 
maintenance project will utilize soft start techniques, which require 
the Navy to initiate sound from vibratory hammers for fifteen seconds 
at reduced energy followed by a thirty-second waiting period, with the 
procedure repeated two additional times. Soft start will be required at 
the beginning of each day's pile driving work and at any time following 
a cessation of pile driving of thirty minutes or longer.
    We have carefully evaluated the Navy's proposed mitigation measures 
and considered their effectiveness in past implementation to determine 
whether they are likely to effect 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: (1) The manner in which, 
and the degree to which, the successful implementation of the measure 
is expected to minimize adverse impacts to marine mammals, (2) the 
proven or likely efficacy of the specific measure to minimize adverse 
impacts as planned; and (3) the practicability of the measure for 
applicant implementation.
    Any mitigation measure(s) we prescribe 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 number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary 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 Navy's proposed measures, as well as 
any other potential measures that may be relevant to the specified 
activity, we have determined that the proposed mitigation measures 
provide the means of effecting the least practicable impact on marine 
mammal species or stocks and their habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA 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 
incidental take authorizations 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.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
Affected species (e.g., life history, dive patterns); (3) Co-occurrence 
of marine mammal species with the action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    The Navy marine mammal monitoring plan can be found as Appendix C 
of the Navy's application, on the Internet at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Visual Marine Mammal Observations

    The Navy will collect sighting data and behavioral responses to 
construction for marine mammal species observed in the region of 
activity during the period of activity. All observers will be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. The 
Navy will monitor the shutdown zone and disturbance zone before, 
during, and

[[Page 74082]]

after pile driving, with observers located at the best practicable 
vantage points. Based on our requirements, the Navy would implement the 
following procedures for pile driving:
     MMOs will be located at the best vantage point(s) in order 
to properly see the entire shutdown zone and as much of the disturbance 
zone as possible.
     During all observation periods, observers will use 
binoculars and the naked eye to search continuously for marine mammals.
     If the shutdown zones are obscured by fog or poor lighting 
conditions, pile driving at that location will not be initiated until 
that zone is visible. Should such conditions arise while impact driving 
is underway, the activity must be halted.
     The shutdown and disturbance zones around the pile will be 
monitored for the presence of marine mammals before, during, and after 
any pile driving or removal activity.
    Two observers will be deployed as described under Mitigation, 
including one land-based observer and one-vessel-based observer 
traversing the extent of the Level B harassment zone. Individuals 
implementing the monitoring protocol will assess its effectiveness 
using an adaptive approach. Monitoring biologists will use their best 
professional judgment throughout implementation and seek improvements 
to these methods when deemed appropriate. Any modifications to protocol 
will be coordinated between NMFS and the Navy.

Data Collection

    We require that observers use approved data forms. Among other 
pieces of information, the Navy will record detailed information about 
any implementation of shutdowns, including the distance of animals to 
the pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, the Navy will attempt to 
distinguish between the number of individual animals taken and the 
number of incidents of take. We require that, at a minimum, the 
following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Description of implementation of mitigation measures 
(e.g., shutdown or delay);
     Locations of all marine mammal observations; and
     Other human activity in the area.

Reporting

    A draft report will be submitted to NMFS within 45 days of the 
completion of marine mammal monitoring, or sixty days prior to the 
issuance of any subsequent IHA for this project, whichever comes first. 
The report will include marine mammal observations pre-activity, 
during-activity, and post-activity during pile driving days, and will 
also provide descriptions of any behavioral responses to construction 
activities by marine mammals and a complete description of all 
mitigation shutdowns and the results of those actions and an 
extrapolated total take estimate based on the number of marine mammals 
observed during the course of construction. A final report must be 
submitted within thirty days following resolution of comments on the 
draft 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 and impact pile driving and involving temporary changes in 
behavior. The planned mitigation and monitoring measures are expected 
to minimize the possibility of injurious or lethal takes such that take 
by Level A harassment, serious injury, or mortality is considered 
extremely unlikely. However, it is unlikely that injurious or lethal 
takes would occur even in the absence of the planned mitigation and 
monitoring measures.
    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. In practice, 
depending on the amount of information available to characterize daily 
and seasonal movement and distribution of affected marine mammals, it 
can be difficult to distinguish between the number of individuals 
harassed and the instances of harassment and, when duration of the 
activity is considered, it can result in a take estimate that 
overestimates the number of individuals harassed. In particular, for 
stationary activities, it is more likely that some smaller number of 
individuals may accrue a number of incidences of harassment per 
individual than for each incidence to accrue to a new individual, 
especially if those individuals display some degree of residency or 
site fidelity and the impetus to use the site (e.g., because of 
foraging opportunities) is stronger than the deterrence presented by 
the harassing activity.
    The project area is not believed to be particularly important 
habitat for marine mammals, nor is it considered an area frequented by 
marine mammals, although harbor seals may be present year-round and sea 
lions are known to haul-out on man-made objects at the NBKB waterfront. 
Sightings of other species are rare. Therefore, behavioral disturbances 
that could result from anthropogenic sound associated with these 
activities are expected to affect only a relatively small number of 
individual marine mammals, although those effects could be recurring 
over the life of the project if the same individuals remain in the 
project vicinity.
    The Navy requested authorization for the incidental taking of small 
numbers of Steller sea lions, California sea lions, and harbor seals in 
Sinclair Inlet and nearby waters that may result from pile driving 
during construction activities associated with the pier maintenance 
project described previously in this document. In order to estimate the

[[Page 74083]]

potential incidents of take that may occur incidental to the specified 
activity, we first estimated the extent of the sound field that may be 
produced by the activity and then considered that in combination with 
information about marine mammal density or abundance in the project 
area. We provided detailed information on applicable sound thresholds 
for determining effects to marine mammals as well as describing the 
information used in estimating the sound fields, the available marine 
mammal density or abundance information, and the method of estimating 
potential incidents of take, in our Federal Register notice of proposed 
authorization (July 24, 2015; 80 FR 44033). The only change to that 
information is the addition of five days of in-water pile driving to 
account for the additional work to be conducted at the adjacent Pier 5, 
increasing the total in-water work days from thirty to 35. Our take 
estimates were calculated in the same manner and on the basis of the 
same information as what was described in the Federal Register notice. 
Modeled distances to relevant thresholds are shown in Table 2 and total 
estimated incidents of take are shown in Table 3. Please see our 
Federal Register notice of proposed authorization (July 24, 2015; 80 FR 
44033) for full details of the process and information used in 
estimating potential incidents of take.

             Table 2--Distances to Relevant Sound Thresholds and Areas of Ensonification, Underwater
----------------------------------------------------------------------------------------------------------------
                                                         Distance to threshold (m) and associated area of
                                                                    ensonification (km\2\) \1\
                   Description                   ---------------------------------------------------------------
                                                      190 dB          180 dB          160 dB          120 dB
----------------------------------------------------------------------------------------------------------------
Steel piles, vibratory..........................               0               0             n/a  2,154 \2\, 7.5
Timber piles, vibratory.........................               0               0             n/a      1,585; 5.0
----------------------------------------------------------------------------------------------------------------
\1\ SPLs used for calculations were: 170 dB for vibratory removal of steel piles, and 168 dB for vibratory
  removal of timber piles.
\2\ Areas presented take into account attenuation and/or shadowing by land. Please see Appendix B in the Navy's
  applications.

    Sinclair Inlet does not represent open water, or free field, 
conditions. Therefore, sounds would attenuate according to the 
shoreline topography. Distances shown in Table 2 are estimated for 
free-field conditions, but areas are calculated per the actual 
conditions of the action area. See Appendix B of the Navy's application 
for a depiction of areas in which each underwater sound threshold is 
predicted to occur at the project area due to pile driving.
    The additional five days of pile driving work result in an increase 
in the estimated take numbers from what was considered in our notice of 
proposed authorization. The total numbers of authorized takes shown in 
Table 3 represent an increase of approximately seventeen percent for 
each species.

                              Table 3--Calculations for Incidental Take Estimation
----------------------------------------------------------------------------------------------------------------
                                                                n * ZOI                       Total  authorized
              Species                 n (animals/km\2\)    (vibratory steel     Abundance    takes  (% of total
                                             \1\           pile removal) \2\       \3\             stock)
----------------------------------------------------------------------------------------------------------------
California sea lion...............  0.1266..............                   1            48           1,680 (0.6)
Steller sea lion..................  0.0368..............                   0             1             35 (0.06)
Harbor seal.......................  1.219 \4\...........                   9            11             385 (3.5)
Killer whale (transient)..........  0.0024 (fall).......                   0           n/a                     0
Gray whale........................  0.0005 (winter).....                   0           n/a                     0
----------------------------------------------------------------------------------------------------------------
\1\ Best available species- and season-specific density estimate, with season noted in parentheses where
  applicable (Hanser et al., 2015).
\2\ Product of density and largest ZOI (7.5 km\2\) rounded to nearest whole number; presented for reference
  only.
\3\ Best abundance numbers multiplied by expected days of activity (35) to produce take estimate.
\4\ Uncorrected density; presented for reference only.

Analyses and Determinations

Negligible Impact Analysis

    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.'' 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, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Pile driving activities associated with the pier maintenance 
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 driving. 
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, piles 
will be installed and removed via vibratory means, an activity that 
does not have the potential to cause injury to

[[Page 74084]]

marine mammals due to the relatively low source levels produced (less 
than 180 dB) and the lack of potentially injurious source 
characteristics. Environmental conditions in Sinclair Inlet are 
expected to generally be good, with calm sea states, although Sinclair 
Inlet waters may be more turbid than waters further north in Puget 
Sound or in Hood Canal. Nevertheless, we expect conditions in Sinclair 
Inlet will allow a high marine mammal detection capability for the 
trained observers required, enabling a high rate of success in 
implementation of shutdowns. In addition, the topography of Sinclair 
Inlet should allow for placement of observers sufficient to detect 
cetaceans, should any occur (see Figure 1 of Appendix C in the Navy's 
application).
    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; HDR, 2012). 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. The pile driving activities 
analyzed here are similar to, or less impactful than, numerous other 
construction activities conducted in San Francisco Bay and in the Puget 
Sound region, 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 viability 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 area while the activity is occurring.
    We preliminarily determined in our notice of proposed authorization 
that the effects of the specified activity would represent a negligible 
impact on the affected marine mammal stocks. Here, we have added an 
additional five days of in-water pile driving (of the same size and 
type of piles, by the same methods, and adhering to the same mitigation 
and monitoring requirements) and determine that the likely total 
impacts to the affected marine mammal stocks, considering the 
additional activity, remains within the scope of analysis provided in 
our notice of proposed authorization.
    In summary, this negligible impact analysis is founded on 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 within the project area, including rookeries, significant haul-
outs, or known areas or features of special significance for foraging 
or reproduction; (4) the presumed efficacy of the planned mitigation 
measures in reducing the effects of the specified activity to the level 
of least practicable impact. In addition, these stocks are not listed 
under the ESA or considered depleted under the MMPA. 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 specified activity is not expected to impact rates of 
recruitment or survival and will therefore not result in population-
level impacts. 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 planned 
monitoring and mitigation measures, we find that the total marine 
mammal take from Navy's pier maintenance activities will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers Analysis

    The number of incidents of take authorized for these stocks would 
be considered small relative to the relevant stocks or populations 
(less than one percent for both sea lion stocks and three percent for 
harbor seals; Table 3) even if each estimated taking occurred to a new 
individual. This is an extremely unlikely scenario as, for pinnipeds in 
estuarine/inland waters, there is likely to be some overlap in 
individuals present day-to-day.
    We preliminarily determined in our notice of proposed authorization 
that the total taking proposed for authorization would be small 
relative to the populations of the affected species or stocks. The 
additional takes authorized due to the addition of five in-water pile 
driving days result in slight increases for each species (0.5 percent 
to 0.6 percent for California sea lions; 0.05 percent to 0.06 percent 
for Steller sea lions; 3.0 percent to 3.5 percent for harbor seals). 
These increases do not affect the preliminary small numbers 
determination.
    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 populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, we have determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be 
affected by these activities. Therefore, we have determined that a 
section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In compliance with the NEPA of 1969 (42 U.S.C. 4321 et seq.), as 
implemented by the regulations published by the Council on 
Environmental Quality (CEQ; 40 CFR parts 1500-1508), the Navy prepared 
an Environmental Assessment (EA) to consider the direct, indirect and 
cumulative effects to the human environment resulting from the pier 
maintenance project. We made the Navy's EA available to the public for 
review and comment, in relation to its suitability for adoption in 
order to assess the impacts to the human environment of issuance of an 
IHA to the Navy. In compliance with NEPA, the CEQ regulations, and NOAA 
Administrative Order 216-6, we subsequently adopted that EA and signed 
a Finding of No Significant Impact (FONSI) on November 5, 2015. The 
2015 NEPA documents are available for review at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

[[Page 74085]]

    We considered the addition of five days of in-water pile driving 
work at the same location and time, involving the same size and type of 
piles and conducted by the same means (i.e., vibratory hammer), and 
determined that the addition of this activity remains within the scope 
of analysis provided by the Navy's EA and considered in our adoption 
memorandum and FONSI. Therefore, we do not need to conduct additional 
analysis under NEPA.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Navy for conducting the described pier maintenance activities in 
Sinclair Inlet, from December 1, 2015, through November 30, 2016, 
provided the previously described mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: November 20, 2015.
Perry F. Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2015-30125 Filed 11-25-15; 8:45 am]
 BILLING CODE 3510-22-P