[Federal Register Volume 81, Number 60 (Tuesday, March 29, 2016)]
[Notices]
[Pages 17439-17446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07078]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE234


Taking of Marine Mammals Incidental to Specified Activities; 
Coupeville Timber Towers Preservation Project

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

ACTION: Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA) as amended, notification is hereby given that 
NMFS has issued an Incidental Harassment Authorization (IHA) to the 
Washington State Department of Transportation (WSDOT) to take, by 
harassment, small numbers of 10 species of marine mammals incidental to 
construction activities for the Coupeville Timber Tower Preservation 
Project in Washington State, between July 15, 2016, and July 14, 2017.

DATES: This authorization is effective from July 15, 2016, through July 
14, 2017.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``. . . an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. Section 101(a)(5)(D) establishes a 45-day 
time limit for NMFS review of an application followed by a 30-day 
public notice and comment period on any proposed authorizations for the 
incidental harassment of marine mammals. Within 45 days of the close of 
the comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On June 9, 2015 WSDOT submitted a request to NOAA requesting an IHA 
for the possible harassment of small numbers of marine mammal species 
incidental to construction associated with the Coupeville Timber Towers 
Preservation Project at the Coupeville Ferry Terminal in Washington 
State, between July 15, 2016, and July 14, 2017. On September 22, WSDOT 
submitted a revised IHA application which incorporated rigorous 
monitoring and mitigation measures that would prevent the take of 
humpback whales and the Southern Resident killer whales, which are 
listed under the Endangered Species Act (ESA). The revised IHA 
application requests the take of small numbers of 10 marine mammal 
species incidental to the Coupeville Timber Towers Preservation 
Project. NMFS determined that the IHA application was complete on 
October 1, 2015. NMFS proposed to authorize the Level B harassment of 
the following marine mammal species/stocks: harbor seal, California sea 
lion, Steller sea lion (eastern Distinct Population Segment, or DPS), 
northern elephant seal, killer whale (West Coast transient stock), gray 
whale, minke whale, harbor porpoise, Dall's porpoise, and Pacific 
white-sided dolphin.

Description of the Specified Activity

    A detailed description of the WSDOT's Coupeville Timber Towers 
Preservation Project is provided in the Federal Register notice for the 
proposed IHA (81 FR 3378; January 21, 2016).
    WSDOT proposes to conduct Coupeville Timber Towers Preservation 
Project at the Washington Coupeville Ferry Terminal on Whidbey Island, 
Washington (Figure 1-2 of the IHA application), to upgrade the existing 
transfer span towers at the Coupeville Ferry Terminal. These activities 
include impact pile driving and vibratory pile removal.
    Eight 24-inch diameter hollow steel piles would be installed to 
support the towers, and concrete caps will be installed on top of the 
towers in order to support the headframe that houses the pulleys for 
the transfer span cables. Five to seven 12-inch timber piles would be 
removed to allow room for the new steel piles to be installed. The 
remaining tower timber piles would remain in place to help support the 
structure. Up to 6 temporary 24-inch

[[Page 17440]]

diameter hollow steel piles would be installed to support the transfer 
span and towers cable systems during construction. All pile 
installation would be using impact pile driving.
    Temporary steel piles would be removed with a vibratory hammer. 
Timber piles would be removed with a vibratory hammer or by direct pull 
using a chain wrapped around the pile. Although timber piles may be 
removed by means unlikely to result in harassment of marine mammals, we 
assume for purposes of this analysis that all timber piles would be 
removed with a vibratory hammer. The crane operator would 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 would use a clamshell to 
pull the piles from below the mudline. All work would occur in water 
depths between -10 and -20 feet mean lower-low water. It is expected to 
take 8 working days to complete the pile driving and removal 
activities.
    Since that time, no changes have been made to the proposed 
construction activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to WSDOT was published 
in the Federal Register on January 21, 2016. That notice described, in 
detail, WSDOT's activity, the marine mammal species that may be 
affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received 
comments only from the Marine Mammal Commission (Commission). Specific 
comments and responses are provided below.
    Comment 1: The Commission recommends that NMFS issue the requested 
incidental harassment authorization, subject to inclusion of the 
proposed mitigation, monitoring, and reporting measures.
    Response: NMFS concurs with the Commission's recommendation and has 
included the mitigation, monitoring, and reporting measures contained 
in the proposed authorization in the issued IHA.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction in the proposed 
construction area include Pacific harbor seal (Phoca vitulina 
richardsi), northern elephant seal (Mirounga angustirostris), 
California sea lion (Zalophus californianus), Steller sea lion 
(Eumetopias jubatus), killer whale (Orcinus orca) (transient and 
Southern Resident stocks), Eastern North Pacific gray whale 
(Eschrichtius robustus), humpback whale (Megaptera novaeangliae), minke 
whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena 
phocoena), Dall's porpoise (P. dalli), and Pacific white-sided dolphin 
(Lagenorhynchus obliquidens). The Western North Pacific gray whale has 
been observed off the Northwest Pacific; however, the occurrence of 
this gray whale population in the vicinity of the project area is very 
unlikely.

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

    General information on the marine mammal species found in 
Washington coastal waters can be found in Caretta et al. (2015), which 
is available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/pacific_sars_2014_final_noaa_swfsc_tm_549.pdf. Refer to that 
document for information on these species. A list of marine mammals in 
the vicinity of the action and their status are provided in Table 1. 
Specific information concerning these species in the vicinity of the 
proposed action area is provided in detail in the WSDOT's IHA 
application. Currently, NMFS is conducting a review of the discrete 
population segments (DPS) of humpback whales for potential delisting, 
and the Northeast Pacific humpback whale could be delisted from the ESA 
list if the review determines that this population has recovered 
significantly.

Potential Effects of the Specified Activity on Marine Mammals

    The effects of underwater noise from in-water pile removal and pile 
driving associated with the Coupeville Timber Towers Preservation 
Project has the potential to result in behavioral harassment of marine 
mammal species and stocks in the vicinity of the action area. The 
Notice of Proposed IHA (81 FR 3378; January 21, 2016) included a 
discussion of the effects of anthropogenic noise on marine mammals, 
which is not repeated here. No instances of hearing threshold shifts 
(TS), injury, serious injury, or mortality are expected as a result of 
WSDOT's activities because the relatively low received levels from the 
sources. In addition, marine mammals are likely to avoid the immediate 
vicinity of the pile driving area to avoid TS.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammals and other marine 
species are associated with elevated sound levels, but the project may 
also result in additional effects to marine mammal prey species and 
short-term local water turbidity caused by in-water construction due to 
pile removal and

[[Page 17441]]

pile driving. These potential effects and the significance of any 
important marine mammal habitat are discussed in detail in the Federal 
Register notice for the proposed IHA and are not repeated here. The 
discussion provided previously indicates that any impacts to marine 
mammal habitat are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.

Mitigation Measures

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses.
    For WSDOT's proposed Coupeville Timber Towers Preservation Project, 
NMFS is requiring WSDOT to implement the following mitigation measures 
to minimize the potential impacts to marine mammals in the project 
vicinity as a result of the in-water construction activities.

Time Restriction

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between July 15, 2016, and 
February 15, 2017, to avoid impacts to spawning salmonids.

Underwater Noise Attenuation Device

    An air bubble curtain system or other noise attenuation device 
would be employed during impact installation or proofing of steel piles 
unless the piles are driven on dry areas.

Establishment of Exclusion Zone and Level B Harassment Zones of 
Influence

    Before the commencement of in-water pile driving activities, WSDOT 
would establish Level A exclusion zones and Level B zones of influence 
(ZOIs). The received underwater sound pressure levels (SPLs) within the 
exclusion zone would be 190 dB (rms) re 1 [mu]Pa and above for 
pinnipeds and 180 dB (rms) re 1 [mu]Pa and above for cetaceans. The 
Level B ZOIs would encompass areas where received underwater SPLs are 
higher than 160 dB (rms) and 120 dB (rms) re 1 [mu]Pa for impulse noise 
sources (impact pile driving) and non-impulse noise sources (vibratory 
pile removal), respectively.
    Based on in-water measurements at the WSDOT Port Townsend Ferry 
Terminal (WSDOT 2011a), removal of 12-in timber piles generated 149 to 
152 dB (rms) re 1 [mu]Pa with an overall average value of 150 dB (rms) 
re 1 [mu]Pa measured at 16 m. A worst-case noise level for vibratory 
removal of 12-in timber piles would be 152 dB (rms) re 1 [mu]Pa at 16 
m.
    Based on in-water measurements at the WSDOT Port Townsend Ferry 
terminal, impact pile driving of 24-in steel piles ranged from 175 
to187 dB (rms) re 1 [mu]Pa measured at 10 m during the use of an air 
bubble curtain (WSDOT 2014a). An air bubble curtain would be used to 
attenuate steel pile impact driving noise during this project. A worst-
case noise level for impact driving of 24-in steel piles would be 187 
dB (rms) re 1 [mu]Pa at 10 m.
    Data for vibratory removal of 24-inch temporary steel piles is not 
available, so it is conservatively assumed to be the same as vibratory 
driving. Based on in-water measurements at the same location as the 
activity considered here (previously known as the WSDOT Keystone Ferry 
Terminal), vibratory driving of 24-in steel piles ranged from 164 to 
176 dB (rms) re 1 [mu]Pa with an overall average value of 171 dB (rms) 
re 1 [mu]Pa. Distances from hydrophone to pile ranged between 6 and 11 
m (WSDOT 2010a). A worst-case noise level for vibratory removal of 24-
in steel piles will be 176 dB (rms) re 1 [mu]Pa at 6 m.
    Using a simple practical spreading model (sound transmission loss 
of 4.5dB per doubling distance) to determine the distance where 
underwater sound will attenuate to the 120 dB (rms) re 1 [mu]Pa 
threshold, the ZOIs are calculated below:
     152 dB (rms) re 1 [mu]Pa at 16 m (12-in timber vibratory 
pile removal): ~2.3 km/1.4 mi
     176 dB (rms) re 1 [mu]Pa at 6 m (24-in steel vibratory 
pile removal): ~32 km/20 mi (land is reached at ~31 km/19 mi)
    The vibratory pile removal source levels do not exceed the Level A 
harassment criteria.
    Using 187 dB (rms) re 1 [mu]Pa at 10 m for 24-in impact pile 
driving and the practical spreading loss model, the distances to the 
thresholds are calculated:
     The 190 dB (rms) re 1 [mu]Pa pinniped Level A harassment 
exclusion zone is reached within 6.3 m/21 ft.
     The 180 dB (rms) re 1 [mu]Pa cetacean Level A harassment 
exclusion zone is reached within 29 m/95 ft.
     The 160 dB (rms) re 1 [mu]Pa Level B ZOI is reached within 
631 m/2,070 ft.
    The more conservative cetacean injury zone (29 m/95 ft.) will be 
used to set the 24-inch steel exclusion zone. Although there is no 
acoustic injury zone for vibratory pile removal and the use of other 
heavy machinery other than impact pile driving, WSDOT should establish 
an exclusion zone of 10 m (30 ft.) around the equipment.
    A summary of distances and areas of the exclusion zones for Level A 
harassment and of ZOI for Level B harassment is provided in Table 2 
below.

                  Table 2--Distances and Areas of Level A and Level B Harassment Zones for Vibratory and Impact Pile Driving Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Distance to      Distance to      Distance to      Distance to        ZOI size
                        Pile driving method                             190 dB (m)       180 dB (m)       160 dB (m)      120 dB (km)        (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory pile removal (12-in timber)..............................              NA               NA               NA              2.3              6.4
Vibratory pile removal (24-in steel)...............................              NA               NA               NA               32              140
Impact driving (24-in steel pile)..................................             6.3               29              631               NA             0.16
--------------------------------------------------------------------------------------------------------------------------------------------------------

Soft Start

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the pile driver reaches full power. Whenever 
there has been downtime of 30 minutes or more without pile driving, the 
contractor will initiate the driving with ramp-up procedures.
    For vibratory hammers, the contractor shall initiate the driving 
for 15 seconds at reduced energy, followed by a 1 minute waiting 
period. This procedure shall be repeated two additional times before 
continuous driving is started. This procedure shall also apply to 
vibratory pile removal.

[[Page 17442]]

    For impact driving, an initial set of three strikes would be made 
by the hammer at 40-percent energy, followed by a 1-minute waiting 
period, then two subsequent three-strike sets at 40-percent energy, 
with 1-minute waiting periods, before initiating continuous driving.

Shutdown and Power-Down Measures

    WSDOT shall implement shutdown if a marine mammal is sighted within 
or approaching the Level A exclusion zone. In-water construction 
activities shall be suspended until the marine mammal is sighted moving 
away from the exclusion zone, or if a large cetacean is not sighted for 
30 minutes or if a small cetacean or pinniped is not sighted for 15 
minutes after the shutdown.
    In addition, WSDOT would implement shutdown measure when Southern 
Resident killer whales (as identified by Orca Network, NMFS, or other 
qualified source) or when humpback whales are detected or are notified 
by local marine mammal researchers to approach the ZOIs during pile 
removal and pile driving, therefore preventing Level B takes of 
Southern Resident killer whales and humpback whales.
    If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a Southern Resident killer 
whale or a transient killer whale, it shall be assumed to be a Southern 
Resident killer whale and WSDOT shall implement the shutdown measure.
    Finally, WSDOT would implement shutdown or measure to prevent Level 
B takes when the take of any other species or stock of marine mammal is 
approaching the limited take authorized under the IHA.

Coordination With Local Marine Mammal Research Network

    Prior to the start of daily 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. Daily sightings information can 
be found on the Orca Network Twitter site (https://twitter.com/orcanetwork), which would be checked several times a day.
    The Orca Sightings Network consists of a list of over 600 (and 
growing) residents, scientists, and government agency personnel in the 
U.S. and Canada. Sightings are called or emailed into the Orca Network 
and immediately distributed to other sighting networks including: the 
Northwest Fisheries Science Center of NMFS, the Center for Whale 
Research, Cascadia Research, the Whale Museum Hotline and the British 
Columbia Sightings Network.
    ``Sightings'' information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom-fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile driving.

Mitigation Conclusions

    NMFS has carefully evaluated the mitigation measures proposed by 
WSDOT in the context of ensuring that NMFS prescribes the means of 
effecting the least practicable impact on the affected marine mammal 
species and stocks and their habitat. NMFS does not believe any further 
mitigation measures are necessary to achieve this purpose. 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 and pile removal or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving and pile removal, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing the severity of harassment takes only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
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 incidental take authorization (ITA) for an 
activity, section 101(a)(5)(D) of the MMPA states that NMFS must set 
forth, ``requirements pertaining to the monitoring and reporting of 
such taking.'' The MMPA implementing regulations at 50 CFR 216.104 
(a)(13) indicate that requests for ITAs must include the suggested 
means of accomplishing the necessary monitoring and reporting that will 
result in increased knowledge of the species and of the level of taking 
or impacts on populations of marine mammals that are expected to be 
present in the proposed action area. WSDOT submitted a marine mammal 
monitoring plan as part of the IHA application. It can be found at

[[Page 17443]]

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

Monitoring Measures

    WSDOT shall employ NMFS-approved protected species observers (PSOs) 
to conduct marine mammal monitoring for its Coupeville timber towers 
preservation project. During pile removal and installation, land-based 
and vessel-based PSOs would monitor the area from the best observation 
points available. The number of PSOs will be based on the sizes of 
ensonified zones and on the number necessary to ensure that the entire 
zones are monitored.
    [ssquf] During 24-inch steel impact pile driving, two land-based 
PSOs monitors will monitor the exclusion zone and ZOI. Pile driving 
will be paused if any marine mammal approaches the exclusion zone, 
which equate to the 29-m Level A harassment zone for those species for 
which take is authorized and to the larger Level B harassment zone for 
all other species.
    [ssquf] During in-water construction using other heavy machinery 
(including vibratory pile removal), construction activities should be 
paused if any marine mammal approaches the 10-m exclusion zone 
surrounding the heavy equipment.
    [ssquf] During vibratory timber pile removal, two land-based PSOs 
will monitor the ZOI, as shown in Figure 2 of WSDOT's Marine Mammal 
Monitoring Plan.
    [ssquf] During 24-inch vibratory pile removal, 7 land-based PSOs 
and one monitoring boat with a PSO and boat operator will monitor the 
ZOI, as shown in Figure 3 of WSDOT's Marine Mammal Monitoring Plan.
    [ssquf] If weather prevents safe use of the boat in the main 
channel of the ZOI, the boat will be used in other areas of the ZOI 
that are safe, such as the southwest corner of the ZOI, and where lack 
of public access prevents stationing a land-based PSO.
    The PSOs would observe and collect data on marine mammals in and 
around the project area for 30 minutes before, during, and for 30 
minutes after all pile removal and pile installation work. If a PSO 
observes a marine mammal within or approaching the exclusion zone, the 
PSO would notify the work crew to initiate shutdown measures. 
Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
To verify the required monitoring distance, the exclusion zones and 
ZOIs will be determined by using a range finder or hand-held global 
positioning system device.
    During the project, in-water measurements of vibratory pile removal 
and impact pile driving noises may be taken to determine if the ZOIs 
need to be modified.

Reporting Measures

    WSDOT shall submit a final monitoring report within 90 days after 
completion of the construction work or the expiration of the IHA, 
whichever comes earlier. This report would detail the monitoring 
protocol, summarize the data recorded during monitoring, and estimate 
the number of marine mammals that may have been harassed. NMFS would 
have an opportunity to provide comments on the report, and if NMFS has 
comments, WSDOT would address the comments and submit a final report to 
NMFS within 30 days.
    In addition, NMFS requires WSDOT to notify NMFS' Office of 
Protected Resources and NMFS' Stranding Network within 48 hours of 
sighting an injured or dead marine mammal in the vicinity of the 
construction site. WSDOT shall provide NMFS with the species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition, if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    In the event that WSDOT finds an injured or dead marine mammal that 
is not in the vicinity of the construction area, WSDOT would report the 
same information as listed above to NMFS as soon as operationally 
feasible.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    In-water pile removal and pile driving (vibratory and impact) 
generate loud noises that could potentially harass marine mammals in 
the vicinity of WSDOT's proposed Coupeville timber tower preservation 
project.
    Currently NMFS uses 120 dB re 1 [mu]Pa and 160 dB re 1 [mu]Pa at 
the received levels for the onset of Level B harassment from non-
impulse (vibratory pile driving and removal) and impulse sources 
(impact pile driving) underwater, respectively. Table 3 summarizes the 
current NMFS marine mammal take criteria.

[[Page 17444]]



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

    As explained above, exclusion zones and ZOIs will be established 
that encompass the areas where received underwater sound pressure 
levels (SPLs) exceed the applicable thresholds for Level A and Level B 
harassments, respectively.
    With the exception of harbor seals, Steller sea lion, and harbor 
porpoise, it is anticipated that all of the marine mammals that enter 
the Level B acoustical harassment ZOIs will be exposed to pile driving 
and removal noise only as they are transiting the area. Only harbor 
seals, Steller sea lion, and harbor porpoise are expected to forage and 
haulout in the Coupeville ZOIs with any frequency and could be exposed 
multiple times during a project.
    As mentioned earlier, the distances to NMFS threshold for Level B 
(harassment) take for impact pile driving and vibratory pile removal 
were estimated as follows:
     ZOI-1: the 160 dB (rms) impact pile driving harassment 
threshold for 24'' steel = 631 m/1,523 ft.
     ZOI-2: the 120 dB (rms) vibratory harassment threshold for 
12-inch timber vibratory pile removal: = ~2.3 km/1.4 mi.
     ZOI-3: the 120 dB (rms) vibratory harassment threshold for 
24-inch steel vibratory pile removal: = ~32 km/20 mi (land is reached 
at ~31 km/19 mi).
    Airborne noises can affect pinnipeds, especially resting seals 
hauled out on rocks or sand spits. The 90 dB (rms) re 20 [mu]Pa harbor 
seal threshold was estimated at 126 ft/38 m, and the 100 dB (rms) re 20 
[mu]Pa sea lion threshold at 40 ft/12 m.
    The closest documented harbor seal haulout is the Rat Island/
Kilisut Harbor Spit haulout in Port Townsend Bay, 5.5 miles southwest. 
The closest documented California sea lion haulout is a channel marker 
buoy located off Whidbey Island's Bush Point, 9 miles south. The 
closest documented Steller sea lion haulout is Craven Rock haulout, 
east of Marrowstone Island 5.5 miles south of the ferry terminal. 
Therefore, in-air disturbance could occur only to those pinnipeds 
moving on the surface through the immediate pier area, within 
approximately 126 ft/38 m and 40 ft/12 m of pile removal and driving. 
However, these individuals would also likely be exposed to underwater 
sound produced by the project. We do not consider potential effects 
from airborne noise further in this analysis.
    No Level A take is expected due to implementing monitoring and 
mitigation measures such as installing air bubble curtain device for 
all impact pile driving and implementing shut-down measures for marine 
mammals about to enter the exclusion zones.
    Incidental take for each species is estimated by determining the 
likelihood of a marine mammal being present within a ZOI during active 
pile driving or removal. Expected marine mammal presence is determined 
by past observations and general abundance near the project site during 
the construction window. Typically, potential take is estimated by 
multiplying the area of the ZOI by the local animal density. This 
provides an estimate of the number of animals that might occupy the ZOI 
at any given moment. However, there are no density estimates for any 
Puget Sound population of marine mammal. As a result, the take requests 
were estimated using local marine mammal data sets (e.g., The Whale 
Museum, Orca Network, state and federal agencies), opinions from state 
and federal agencies, and observations from WSDOT biologists.
    The calculation for marine mammal exposures is estimated by:
    Exposure estimate = N x days of pile driving/removal, where:

N = # of animals based on long-term observations by local 
researchers.

    Specifically, daily marine mammal occurrence (N) for harbor seal, 
Steller sea lion, and harbor porpoise are based on the observation data 
from the Orca Network (WSDOT 2015). Daily marine mammal occurrence for 
Dall's porpoise, transient killer whale, gray whale, and minke whale 
are based on the observation data from the Whale Museum (WSDOT 2015). 
The occurrence of the rest of the marine mammal species which do not 
frequently occur in the proposed project area are based on limited 
sighting occurrences over the years (WSDOT 2015).
    Using this approach, a summary of estimated takes of marine mammals 
incidental to WSDOT's Coupeville Timber Towers Preservation Project are 
provided in Table 4.

Table 4--Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Could Cause Level
                                             B Behavioral Harassment
----------------------------------------------------------------------------------------------------------------
                                                                  Estimated
                           Species                              marine  mammal     Abundance        Percentage
                                                                    takes
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal..........................................              256           11,036              2.3
California sea lion..........................................               16          296,750             0.01
Steller sea lion.............................................              328           63,160              0.6
Northern elephant seal.......................................               16           74,913             0.02
Harbor porpoise..............................................              440           10,682              4.1
Dall's porpoise..............................................               24           42,000             0.06
Killer whale, transient......................................               48              243             19.7
Pacific white-sided dolphin..................................               16           29,930             0.05
Gray whale...................................................                8           19,126             0.04
Minke whale..................................................               16              202              7.9
----------------------------------------------------------------------------------------------------------------


[[Page 17445]]

Analysis and Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    WSDOT's proposed Coupeville timber tower preservation project would 
involve vibratory pile removal and impact pile driving activities. 
Elevated underwater noises are expected to be generated as a result of 
these activities; however, these noises are expected to result in no 
mortality or Level A harassment and limited Level B harassment of 
marine mammals. WSDOT would employ an attenuation device (e.g., air 
bubble curtain) during impact pile driving, thus eliminating the 
potential for injury (including PTS) and TTS from noise impact. For 
vibratory pile removal, noise levels are not expected to reach the 
level that may cause TTS, injury (including PTS), or mortality to 
marine mammals. Therefore, NMFS does not expect that any animals would 
experience Level A harassment (including injury or PTS) or Level B 
harassment in the form of TTS from being exposed to in-water pile 
removal and pile driving associated with WSDOT's construction project.
    Additionally, the sum of noise from WSDOT's proposed Coupeville 
timber tower preservation construction activities is confined to a 
limited area by surrounding landmasses; therefore, the noise generated 
is not expected to contribute to increased ocean ambient noise. In 
addition, due to shallow water depths in the project area, underwater 
sound propagation of low-frequency sound (which is the major noise 
source from pile driving) is expected to be poor and the area affected 
by underwater sound may be smaller than is assumed here.
    In addition, WSDOT's proposed activities are localized and of short 
duration. The entire project area is limited to WSDOT's Coupeville 
timber towers preservation construction work. The entire project 
duration for the construction would involve 12 hours in 8 days. These 
low-intensity, localized, and short-term noise exposures may cause 
brief startle reactions or short-term behavioral modification by the 
animals. These reactions and behavioral changes are expected to subside 
quickly when the exposures cease. Moreover, the required mitigation and 
monitoring measures are expected to reduce potential exposures and 
behavioral modifications even further. WSDOT would implement rigorous 
monitoring and mitigation measures to prevent takes of ESA-listed 
species (Southern Resident killer whales and humpback whales). 
Additionally, no important feeding and/or reproductive areas for marine 
mammals are known to be near the proposed action area (Calambokidis et 
al. 2015). Therefore, the take resulting from the proposed Coupeville 
timber tower preservation work is not reasonably expected to, and is 
not reasonably likely to, adversely affect the marine mammal species or 
stocks through effects on annual rates of recruitment or survival.
    The proposed project area is not a prime habitat for marine 
mammals, nor is it considered an area frequented by marine mammals. 
Therefore, behavioral disturbances that could result from anthropogenic 
noise associated with WSDOT's construction activities are expected to 
affect marine mammals on an infrequent and limited basis.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
WSDOT's Coupeville timber tower preservation project will have a 
negligible impact on the affected marine mammal species or stocks.

Small Number

    Based on analyses provided above, it is estimated that 
approximately 256 harbor seals, 16 California sea lions, 328 Steller 
sea lions, 16 northern elephant seals, 440 harbor porpoises, 24 Dall's 
porpoises, 48 transient killer whales, 16 Pacific white-sided dolphins, 
8 gray whales, and 16 minke whales could be exposed to received noise 
levels that could cause Level B behavioral harassment from the proposed 
construction work at the Coupeville Ferry Terminal in Washington State. 
These numbers represent approximately 0.02% to 19.7% of the populations 
of these species that could be affected by Level B behavioral 
harassment, respectively (see Table 4 above), which are small 
percentages relative to the total populations of the affected species 
or stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, which are expected to reduce the number of marine mammals 
potentially affected by the proposed action, NMFS finds that small 
numbers of marine mammals will be taken relative to the populations of 
the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Endangered Species Act (ESA)

    The humpback whale and the Southern Resident stock of killer whale 
are the only marine mammal species currently listed under the ESA that 
could occur in the vicinity of WSDOT's proposed construction projects. 
WSDOT would implement rigorous monitoring and mitigation measures to 
prevent takes of these ESA-listed species. NMFS' Permits and 
Conservation Division coordinated with NMFS West Coast Regional Office 
(WCRO) and

[[Page 17446]]

reviewed the WSDOT's proposed monitoring and mitigation measures and 
determined that with the implementation of these measures, ESA-listed 
species would not be affected. Therefore, WCRO concurs that section 7 
consultation under the ESA is not warranted for the issuance of the 
IHA.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) and analyzed the 
potential impacts to marine mammals that would result from WSDOT's 
Coupeville Timber Tower preservation project. A Finding of No 
Significant Impact (FONSI) was signed in March 2016. A copy of the EA 
and FONSI is available on the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/ (see ADDRESSES).

Authorization

    As a result of these determinations, NMFS has issued an IHA to 
WSDOT for the harassment of small numbers of 10 marine mammal species 
incidental to the construction work associated to the Coupeville Timber 
Tower preservation project in Washington State, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: March 24, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-07078 Filed 3-28-16; 8:45 am]
 BILLING CODE 3510-22-P