[Federal Register Volume 81, Number 165 (Thursday, August 25, 2016)]
[Proposed Rules]
[Pages 58443-58466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20018]



[[Page 58443]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160405311-6664-01]
RIN 0648-BF95


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Rehabilitation of the Jetty System at the Mouth of the 
Columbia River: Jetty A, North Jetty, and South Jetty, in Washington 
and Oregon

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the U.S. Army Corps of 
Engineers, Portland District (Corps) for authorization to take marine 
mammals incidental to the rehabilitation of Jetty System at the mouth 
of the Columbia River (MCR): North Jetty, South Jetty, and Jetty A, in 
Washington and Oregon between May 1, 2017 and April 30, 2022. Pursuant 
to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments 
on its proposal to issue regulations and subsequent Letters of 
Authorization (LOA) to the Corps to incidentally harass marine mammals.

DATES: Comments and information must be received no later than 
September 26, 2016.

ADDRESSES: You may submit comments on this document, identified by 
NMFS-2014-0144, by either of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to: 
www.regulations.gov, enter NOAA-NMFS-2014-0144 in the ``Search'' box, 
click the ``Comment Now!'' icon, complete the required fields, and 
enter or attach your comments.
     Mail: Submit written comments to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910.

Comments regarding any aspect of the collection of information 
requirement contained in this proposed rule should be sent to NMFS via 
one of the means stated here and to the Office of Information and 
Regulatory Affairs, NEOB-10202, Office of Management and Budget (OMB), 
Attn: Desk Office, Washington, DC 20503, [email protected].
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information. 
NMFS will accept anonymous comments (enter N/A in the required fields 
if you wish to remain anonymous).
    An electronic copy of the application, containing a list of 
references used in this document, and the Environmental Assessment (EA) 
may be obtained by writing to the address specified above, telephoning 
the contact listed below (see FOR FURTHER INFORMATION CONTACT), or 
visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. To help NMFS process and review comments more 
efficiently, please use only one method to submit comments.

FOR FURTHER INFORMATION CONTACT: Rob Pauline, 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.
    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.''
    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 February 13, 2015, NMFS received an application from the Corps 
for the taking of marine mammals incidental to the rehabilitation of 
the Jetty System at the MCR in Washington and Oregon. On June 9, 2015, 
NMFS received a revised application. NMFS determined that the 
application was adequate and complete on June 12, 2015. NMFS issued an 
incidental harassment authorization (IHA) to the Corps on August 31, 
2015 (80 FR 53777, September 8, 2015) to cover pile installation at 
Jetty A which is valid from May 1, 2016 through April 30, 2017. The 
Corps proposes to conduct additional work under a Letter of 
Authorization (LOA) that may incidentally harass marine mammals. A 
notice of receipt was published in the Federal Register on October 26, 
2015 (80 FR 65214). Activities would include pile repairs and removal 
actions at Jetty A, pile installation at North Jetty, and pile 
installation and surveys at South Jetty. A revised application 
including an updated marine mammal monitoring plan was submitted by the 
Corps on January 15, 2016 and deemed acceptable on January 30, 2016.

Description of the Specified Activity

Overview

    The Corps is seeking a LOA for continuation of work begun on Jetty 
A under an IHA issued by NMFS that expires on April 30, 2017. Remaining 
work at Jetty A that may need to be completed under the LOA would 
include pile maintenance and pile removal of a barge offloading 
facility at that jetty. The following work on the North and South 
Jetties would be covered under the proposed LOA. The scheduled repair 
and head stabilization of the North Jetty would require pile 
installation, maintenance and removal for construction of a single 
barge offloading facility. The interim repair and head determination of 
the South

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Jetty would require pile installation and maintenance and removal of 
two offloading facilities, one near the tip of the South Jetty and 
another at a sandy plain southwest of the Columbia River and east of 
the South Jetty known as the Clatsop Spit.

Dates and Duration

    The current IHA, for which take has been authorized, is valid from 
May 1, 2016, through April 30, 2017. The LOA would be valid from May 1, 
2017, through April 30, 2022. The work season generally extends from 
April through October, with extensions, contractions, and additional 
work windows outside of the summer season varying by weather patterns. 
To avoid the presence of Southern Resident killer whales, the Corps 
will prohibit pile installation or removal for offloading facilities 
from October 1 until May1 because that is the killer whales' primary 
feeding season when they may be present at the MCR plume. Installation 
and removal would occur from May 1 to September 30 each year.

Specific Geographic Region

    This activity will take place at the three MCR jetties in Pacific 
County, Washington, and Clatsop County, Oregon. These are Jetty A, 
North Jetty and South Jetty. Work will also be conducted near the 
Clatsop Spit off of the South Jetty. See Figure 1 in the application 
for a map of the MCR Jetty system and surrounding areas.

Detailed Description of Activities

    There are a number of steps involved in the planned multi-year 
effort to rehabilitate the MCR Jetty System. This notice will focus 
only on those components of the project under the MMPA. Additional 
detailed information about the project in its entirety is contained in 
the application which may be found at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.
    Construction of a single offloading facility at Jetty A, a single 
facility at the North Jetty and two additional facilities at the South 
Jetty will be necessary to transport materials to these specific 
project locations. Jetty A pile installation is covered under the 
existing IHA. The proposed LOA will likely cover remaining pile 
installation, pile maintenance and pile removal at Jetty A depending on 
how much work is accomplished under the current IHA. The proposed LOA 
would cover pile installation and removal of one facility at North 
Jetty and two at South Jetty, including the Clatsop Spit location. In 
addition, all work related to pedestrian surveys of the South Jetty 
that could result in visual disturbance to pinnipeds will be covered 
under the proposed LOA.
    The scheduled program of repair and rehabilitation priorities are 
described in detail in Section 1 of the Corps' LOA application. The 
proposed sequence and timing for work under the LOA at the three MCR 
jetties includes:
    1. The Jetty A scheduled repairs and head stabilization task will 
be covered under the current IHA. This would include pile installation 
related to construction of an offloading facility as well as 
construction and stone placement. There will be at least one season of 
in-water work but two seasons are likely to be required to complete 
these activities. The second season of pile maintenance and removal 
would occur in 2017 and be covered under the proposed LOA.
    2. The North Jetty scheduled repair and head stabilization task 
would occur under the proposed LOA and include pile installation and 
removal at an offloading facility. Construction and placement would 
occur from 2017 through 2019 as this task will require three placement 
seasons.
    3. The South Jetty interim repair and head determination task would 
occur under the proposed LOA and would include pile installation and 
removal at two facilities with one being on the trunk near the head and 
the other at Clatsop Spit. This task would require four placement 
seasons running from 2018 through 2021.
    Installation and removal of piles with a vibratory hammer would 
introduce sound waves into the MCR area intermittently for up to 7 
years (depending on funding streams and construction sequences). In 
terms of actual on-the-ground work it is possible, but unlikely, that 
driving could occur at multiple facilities on the same day. For the 
purposes of this LOA, NMFS will be assuming that driving will occur 
only at a single facility on any given day.
    Construction of all four offloading facilities combined will 
require up to 96 wood or steel piles and up to 373 sections of Z-piles, 
H-piles, and sheet pile to retain rock fill. A vibratory hammer will be 
used for pile installation due to the soft sediments (sand) in the 
project area and only untreated wood will be used, where applicable. No 
impact driving will be necessary under this LOA. The piles will be 
located within 200 ft (60.96 m) of each jetty structure. The presence 
of relic stone may require locating the piling further from the jetties 
so that use of this method is not precluded by the existing stone. The 
dolphins, Z- and H-piles would be composed of either untreated timber 
or steel piles installed to a depth of approximately 15 to 25 ft (4.5--
7.6 m) below grade in order to withstand the needs of offloading barges 
and heavy construction equipment. Because vibratory hammers will be 
used in areas with velocities greater than 1.6 ft (0.49 m) per second, 
the need for hydroacoustic attenuation is not an anticipated issue.
    Pile installation is assumed to occur for about 10 hours a day, 
with a total of approximately 15 piles installed per day. Each 
offloading facility would have about 25 percent of the total piles 
mentioned. As noted above, up to 96 piles could be installed, and up to 
373 sections of sheet pile to retain rock fill. This is a total of 469 
initial installation and 469 removal events, over the span of about 67 
days. In order to round the math, NMFS has assumed 68 days, so that 
each of the four offloading facilities would take about 17 days total 
for installation and removal. The current IHA covers 17 days of work at 
Jetty A, which leaves 51 days of work for the three remaining 
offloading facilities at the North and South Jetties. However, a second 
season of work at the Jetty A facility is likely. Therefore, NMFS will 
assume that only ten days of Jetty A-related work will be completed 
under the existing IHA, resulting in seven days that will need to be 
covered under the proposed LOA. Additionally, pedestrian surveys on 
South Jetty outside of the construction seasons are expected to take 
six additional days. A total of 64 days of work will be required, 
consisting of 51 days associated with activities at the North and South 
Jetties, seven days of remaining work at Jetty A and six days of 
pedestrian surveys at South Jetty.
    Piles would be a maximum diameter of 24 inches and would only be 
installed by vibratory driving method. The possibility also exists that 
smaller diameter piles may be used but for this analysis it is assumed 
that 24 inch piles will be driven.

Description of Marine Mammals in the Area of the Specified Activity

    Marine mammals known to occur in the Pacific Ocean offshore at the 
MCR include whales, orcas, dolphins, porpoises, sea lions, and harbor 
seals. Most cetacean species observed by Green and others (1992) 
occurred in Pacific slope or offshore waters (600 to 6,000 feet in 
depth). Harbor porpoises (Phocoena phocoena) and gray whales 
(Eschrichtius robustus) were prevalent in shelf waters less than 600 ft 
(182 m) in depth. Killer whales (Orcinus orca) are known to feed on 
Chinook salmon at the MCR, and humpback whales

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(Megaptera novaeangliae) may transit through the area offshore of the 
jetties. The marine mammal species potentially present in the activity 
area are shown in Table 1.
    Pinniped species that occur in the vicinity of the jetties include 
Pacific harbor seals (Phoca vitulina richardsi), California sea lions 
(Zalophus californianus), and Steller sea lions (Eumetopias jubatus). A 
haulout used by all of these species is located on the open ocean side 
of the South Jetty.
    In the species accounts provided here, we offer a brief 
introduction to the species and relevant stock. We also provide 
available information regarding population trends and threats and 
describe any information regarding local occurrence.

                     Table 1--Marine Mammal Species Potentially Present in the Project Area
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                                      Stock(s)
             Species                  abundance         ESA* Status         MMPA** Status        Frequency of
                                    estimate \1\                                                occurrence \3\
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Killer Whale (Orcinus orca)                     82  Endangered.........  Depleted and         Infrequent/ Rare.
 Eastern N. Pacific, Southern                                             Strategic.
 Resident Stock.
Killer Whale (Orcinus orca)                    243  ...................  Non-depleted.......  Rare.
 Eastern N. Pacific, West Coast
 Transient Stock.
Gray Whale (Eschrichtius              20,990 (197)  Delisted/ Recovered  Non-depleted.......  Rare.
 robustus) Eastern North Pacific                     (1994).
 Stock, (Pacific Coast Feed
 Group).
Humpback Whale (Megaptera                     1918  Endangered.........  Depleted and         Rare.
 novaeangliae) California/Oregon/                                         Strategic.
 Washington Stock.
Harbor Porpoise (Phocoena                   21,487  ...................  Non-depleted.......  Likely.
 phocoena) Northern Oregon/
 Washington Coast Stock.
Steller Sea Lion (Eumetopias         60,131-74,448  Delisted/ Recovered  Depleted and         Likely.
 jubatus) Eastern U.S. Stock/                        (2013).              Strategic \2\.
 DPS***.
California Sea Lion (Zalophus              296,750  ...................  Non-depleted.......  Likely.
 californianus) U.S. Stock.
Harbor Seal (Phoca vitulina             \4\ 24,732  ...................  Non-depleted.......  Seasonal.
 richardii) Oregon and
 Washington Stock.
----------------------------------------------------------------------------------------------------------------
\1\ NOAA/NMFS 2015 marine mammal stock assessment reports at http://www.nmfs.noaa.gov/pr/sars/species.htm.
\2\ May be updated based on the recent delisting status.
\3\ Frequency defined here in the range of:
 Rare--Few confirmed sightings, or the distribution of the species is near enough to the area that the
  species could occur there.
 Infrequent--Confirmed, but irregular sightings.
 Likely--Confirmed and regular sightings of the species in the area year-round.
 Seasonal--Confirmed and regular sightings of the species in the area on a seasonal basis.
\4\ Data is 8 years old. No current abundance estimates exist.
* ESA = Endangered Species Act.
** MMPA = Marine Mammal Protection Act.
*** DPS = Distinct population segment.

Cetaceans

Killer Whale

    During construction of the project, it is possible that two killer 
whale stocks, the Eastern North Pacific Southern Resident and Eastern 
North Pacific West Coast transient stocks could be in the nearshore 
vicinity of the MCR. However, the Corps is limiting the installation 
work window to on or after May 1 in order to avoid exposure of Southern 
Resident killer whales (Orcinus orca) and will avoid installation or 
removal after September 30. As such, number of either West Coast 
transient or Southern Resident killer whales present in the project 
area will be decreased because the selected work window is not their 
primary feeding season.
    Since the first complete census of this stock in 1974, when 71 
animals were identified, the number of Southern Resident killer whales 
has fluctuated annually. Between 1974 and 1993 the Southern Resident 
stock increased approximately 35 percent, from 71 to 96 individuals 
(Ford et al., 1994), representing a net annual growth rate of 1.8 
percent during those years. Following the peak census count of 99 
animals in 1995, the population size has fluctuated and currently 
stands at 82 animals as of the 2013 census (Carretta et al., 2014).
    The Southern Resident killer whale population consists of three 
pods, designated J, K, and L pods, that reside from late spring to fall 
in the inland waterways of Washington State and British Columbia (NMFS 
2008a). During winter, pods have moved into Pacific coastal waters and 
are known to travel as far south as central California. Winter and 
early spring movements and distribution are largely unknown for the 
population. Sightings of members of K and L pods in Oregon (L pod at 
Depoe Bay in April 1999 and Yaquina Bay in March 2000, unidentified 
Southern Residents at Depoe Bay in April 2000, and members of K and L 
pods off of the Columbia River) and in California (17 members of L pod 
and four members of K pod at Monterey Bay in 2000; L pod members at 
Monterey Bay in March 2003; L pod members near the Farallon Islands in 
February 2005 and again off Pt. Reyes in January 2006) have 
considerably extended the southern limit of their known range (NMFS 
2008a). Sightings of Southern Resident killer whales off the coast of 
Washington, Oregon, and California indicate that they are utilizing 
resources in the California Current ecosystem in contrast to other 
North Pacific resident pods that exclusively use resources in the 
Alaskan gyre system (NMFS 2008a).
    During the 2011 Section 7 Endangered Species Act (ESA) consultation 
for Southern Resident killer whales, NMFS indicated these whales are 
known to feed on migrating Chinook salmon in the Columbia River plume 
during the peak salmon runs in March through April. Anecdotal evidence 
indicates that killer whales were historically regular visitors in the 
vicinity of the estuary but have been less common in current times 
(Wilson 2015). There is low likelihood of them being in close proximity 
to any of the pile installation locations because it is not their peak 
feeding season, and

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there would be minimal overlap of their presence during the peak summer 
construction season. To further avoid any overlap with Southern 
Resident killer whales' use during pile installation, the Corps would 
limit the pile installation window to start on or after May 1 and end 
on September 30 of each year to avoid peak adult salmon runs. Recent 
information, however, indicates that Southern Resident killer whales 
may be present in the area after May 1. Because it may prove difficult 
to differentiate Southern Resident from transient killer whales, the 
Corps has agreed to shut down operations any time killer whales are 
observed in the Level B harassment zone between May 1 and July 1. It is 
assumed that all killer whales observed after July 1 are transients and 
any takes will be recorded as such. Southern Resident killer whales 
were listed as endangered under the ESA in 2005, and, consequently, the 
stock is automatically considered as a ``strategic'' stock under the 
MMPA. This stock was considered ``depleted'' under the MMPA prior to 
its 2005 listing under the ESA.
    The West Coast transient stock ranges from Southeast Alaska to 
California. Preliminary analysis of photographic data resulted in the 
following minimum counts for transient killer whales belonging to the 
West Coast transient stock (NOAA 2013b). From 1975 to 2012, 521 
individual transient killer whales have been identified. Of these, 217 
are considered part of the poorly known ``outer coast'' subpopulation 
and 304 belong to the well-known ``inner coast'' population. However, 
of the 304, the number of whales currently alive is not certain. A 
recent mark-recapture estimate that does not include the outer coast 
subpopulation or whales from California for the west coast transient 
population resulted in an estimate of 243 in 2006. This estimate 
applies to the population of West Coast transient whales that occur in 
the inside waters of southeastern Alaska, British Columbia, and 
northern Washington. Given that the California transient numbers have 
not been updated since the publication of the catalogue in 1997, the 
total number of transient killer whales reported above should be 
considered as a minimum count for the West Coast transient stock (NOAA 
2014a).
    For this project, it is possible only the inner-coast species would 
be considered for potential exposure to acoustic effects. However, they 
are even less likely to be in the project area than Southern Resident 
killer whales, especially outside of the peak salmon runs. The Corps is 
avoiding pile installation work during potential peak feeding 
timeframes in order to further reduce the potential for acoustic 
exposure. It is possible, however, that West Coast transients come in 
to feed on the pinniped population hauled out on the South Jetty. The 
West Coast transient stock of killer whales is not designated as 
``depleted'' under the MMPA nor are they listed as ``threatened'' or 
``endangered'' under the ESA. Furthermore, this stock is not classified 
as a strategic stock under the MMPA.

Gray Whale

    During summer and fall, most gray whales in the Eastern North 
Pacific stock feed in the Chukchi, Beaufort and Northwestern Bering 
Seas. An exception is the relatively small number of whales 
(approximately 200) that summer and feed along the Pacific coast 
between Kodiak Island, Alaska and northern California (Carretta et al., 
2014), also known as the Pacific Coast Feeding Group. The minimum 
population estimate for the Eastern North Pacific stock using the 2006/
2007 abundance estimate of 19,126 and its associated coefficient of 
variation (CV) of 0.071 is 18,017 animals. In probability theory and 
statistics, the CV, also known as relative standard deviation (RSD), is 
a standardized measure of dispersion of a probability distribution or 
frequency distribution. The minimum population estimate for Pacific 
Coast Feeding Group gray whales is calculated as the lower 20th 
percentile of the log-normal distribution of the 2010 mark-recapture 
estimate, or 173 animals (Carretta et al., 2014). If gray whales were 
in the vicinity of MCR, the Pacific Coast Feeding Group would be the 
most likely visitor. Anecdotal evidence indicates they have been seen 
at MCR but are not a common visitor as they mostly remain in the 
vicinity of the offshore shelf-break (Griffith 2015). In 1994, the 
Eastern North Pacific stock of gray whales was removed from the 
Endangered Species List as it was no longer considered ``endangered'' 
or ``threatened'' under the ESA. NMFS has not designated gray whales as 
``depleted'' under the MMPA. The Eastern North Pacific gray whale stock 
is not classified as ``strategic'' under the MMPA.

Humpback Whale

    According to the 2013 Pacific Marine Mammal Stock Assessments 
Report (Appendix 3), the estimated population of the humpback whale 
California/Oregon/Washington stock is about 1,918 animals (NOAA 2014a). 
There are at least three separate stocks of humpback whales in the 
North Pacific, of which one population migrates and feeds along the 
west coast of the United States. This population winters in coastal 
waters of Mexico and Central America and migrates to areas ranging from 
the coast of California to southern British Columbia in summer/fall 
(Carretta et al., 2010). Within this stock, regional abundance 
estimates vary among the feeding areas. Average abundance estimates 
ranged from 200 to 400 individuals for southern British Columbia/
northern Washington, and 1,400 to 1,700 individuals for California/
Oregon (Calambokidis et al., 2012).
    There is a high degree of site fidelity in these feeding ranges 
with almost no interchange between these two feeding regions. Humpback 
whales forage on a variety of crustaceans, other invertebrates, and 
forage fish. In their summer foraging areas, humpback whales tend to 
occupy shallow, coastal waters. In contrast, during their winter 
migrations, humpback whales tend to occupy deeper waters further 
offshore and are less likely to occupy shallow, coastal waters.
    Humpback whales are sighted off the Washington and Oregon coasts 
regularly (Carretta et al., 2010, Lagerquist and Mate 2002, Oleson et 
al., 2009). Humpback whales are known to predictably forage an average 
of 22 mi (35.4 km) offshore of Grays Harbor, Washington during spring 
and summer months (Oleson et al., 2009). Grays Harbor is approximately 
45 mi (72.4 km) north of the project site. Oleson et al. (2009) 
documented 147 individual humpback whales foraging off Grays Harbor 
from 2004 to 2008, and foraging whales (1-19 whales sighted per day) 
were sighted on 50 percent of the days surveyed (22 of 44 survey days). 
Anecdotally, humpback whales are regularly spotted in areas about 15 
(22.14 km) to 20 miles (32.18 km) offshore of MCR (Griffith 2015).
    The Corps has limited fine-scale information about humpback whale 
foraging habits and space use along the Washington coast and does not 
have specific fine-scale information for the project area. Based on the 
available information, humpback whales may occur within 4.6 mi (7.4 km) 
of the MCR jetties or 8.6 mi (13.84 km) of shore (where in-water sound 
from pile driving activities may be audible) given both their general 
tendency to occupy shallow, coastal waters when foraging, and the 
available information on their fine-scale use of a proximate location.
    Note that in September 2015, humpback whales were spotted near the 
Astoria-Megler Bridge located 14 mi

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(22.53 km) from where the river meets the Pacific Ocean. This was 
thought to be an unusual occurrence. Their presence at that time may 
have been due to existing El Ni[ntilde]o conditions that drove whales 
closer to shore in search of food (Wilson 2015). As of March 2016, NOAA 
determined that El Ni[ntilde]o conditions are in decline (Becker 2016). 
As such, sightings that far up river are less likely to occur. Based on 
this information, humpback whales are likely to pass through and may 
forage intermittently in the project area offshore of the Jetty system.

Harbor Porpoise

    The harbor porpoise inhabits temporal, subarctic, and arctic 
waters. In the eastern North Pacific, harbor porpoises range from Point 
Barrow, Alaska, to Point Conception, California. Harbor porpoise 
primarily frequent coastal waters and occur most frequently in waters 
less than 328 ft (100 m) deep (Hobbs and Waite 2010). They may 
occasionally be found in deeper offshore waters.
    Harbor porpoise are known to occur year-round in the inland 
transboundary waters of Washington and British Columbia and along the 
Oregon/Washington coast. Aerial survey data from coastal Oregon and 
Washington, collected during all seasons, suggest that harbor porpoise 
distribution varies by depth. Although distinct seasonal changes in 
abundance along the west coast have been noted, and attributed to 
possible shifts in distribution to deeper offshore waters during late 
winter, seasonal movement patterns are not fully understood. Harbor 
porpoises are sighted regularly at the MCR (Griffith 2015, Carretta et 
al., 2014).
    According to the online database, Ocean Biogeographic Information 
System, Spatial Ecological Analysis of Megavertebrate Populations 
(Halpin et al., 2009), West Coast populations have more restricted 
movements and do not migrate as much as East Coast populations. Most 
harbor porpoise groups are small, generally consisting of less than 
five or six individuals, though for feeding or migration they may 
aggregate into large, loose groups of 50 to several hundred animals. 
Behavior tends to be inconspicuous, compared to most dolphins, and they 
feed by seizing prey which consists of a wide variety of fish and 
cephalopods, ranging from benthic or demersal.
    The Northern Oregon/Washington coast stock of harbor porpoise 
inhabits the waters near the proposed project area. The population 
estimate for this stock is calculated at 21,847 with a minimum 
population estimate of 15,123 (Carretta et al., 2014).
    Harbor porpoise are not listed as ``depleted'' under the MMPA, 
listed as ``threatened'' or ``endangered'' under the ESA, or classified 
as ``strategic.''

Pinnipeds

Steller Sea Lion

    The Steller sea lion is a pinniped and the largest of the eared 
seals. Steller sea lion populations that primarily occur east of 
144[deg] W (Cape Suckling, Alaska) comprise the Eastern Distinct 
Population Segment (DPS), which was de-listed and removed from the 
Endangered Species List on November 4, 2013 (78 FR 66140). This stock 
is found in the vicinity of MCR. The population west of 144[deg] W 
longitude comprises the Western DPS, which is listed as endangered, 
based largely on over-fishing of the seal's food supply.
    The range of the Steller sea lion includes the North Pacific Ocean 
rim from California to northern Japan. Steller sea lions forage in 
nearshore and pelagic waters where they are opportunistic predators. 
They feed primarily on a wide variety of fishes and cephalopods. 
Steller sea lions use terrestrial haulout sites to rest and take 
refuge. They also gather on well-defined, traditionally used rookeries 
to pup and breed. These habitats are typically gravel, rocky, or sand 
beaches; ledges, or rocky reefs (Allen and Angliss, 2013).
    The MCR South Jetty is used by Steller sea lions for hauling out 
and is not designated critical habitat. Use occurs chiefly at the 
concrete block structure at the terminus, or head of the jetty, and at 
the emergent rubble mound made up of the eroding jetty trunk near the 
terminus.
    Previous monthly averages between 1995 and 2004 for Steller sea 
lions hauled-out at the South Jetty head ranged from about 168 to 1,106 
animals. More recent data from Oregon Department of Fish and Wildlife 
(ODFW) from 2000-2014 reflects a lower frequency of surveys, and 
numbers ranged from zero animals to 606 Steller sea lions (ODFW 2014). 
More frequent surveys by the Washington Department of Fish and Wildlife 
(WDFW) for the same time frame (2000-2014) put the monthly range at 177 
to 1,663 animals throughout the year. According to ODFW (2014), most 
counts determined that animals remain at or near the jetty tip.
    Steller sea lions are present all year, in varying abundances, as 
is shown in the Corps application. Abundance is typically lower as the 
summer progresses when adults are at the breeding rookeries. Steller 
sea lions are most abundant in the vicinity during the winter months 
and tend to disperse elsewhere to rookeries during breeding season 
between May and July. Abundance increases following the breeding 
season. However, this is not always true as evidenced by a flyover 
count of the South Jetty on May 23, 2007, where 1,146 Steller sea lions 
were observed on the concrete block structure and none on the rubble 
mound (ODFW 2007). Those counts represent a high-use day on the South 
Jetty. According to ODFW (2014), during the summer months it is not 
uncommon to observe between 500-1,000 Steller sea lions present per 
day, the majority of which are immature males and females (no pups or 
pregnant females). All population age classes, and both males and 
females, use the South Jetty to haul out. Only non-breeding individuals 
are typically found on the jetty during May-July, and a greater 
percentage of juveniles are present. It is likely that there is 
turnover in sea lions using the jetty. That is, the 100 or so sea lions 
hauled out one week might not be the same individuals hauled out the 
following week. Recent ODFW and WDFW survey data continue to support 
these findings. The most recent estimate from 2007 put the populations 
between 63,160 and 78,198 (Allen and Angliss, 2013). The best available 
information indicates the eastern stock of Steller sea lion increased 
at a rate of 4.18 percent per year between 1979 and 2010 based on an 
analysis of pup counts in California, Oregon, British Columbia and 
Southeast Alaska (Allen and Angliss, 2013).

California Sea Lion

    California sea lions are found along the west coast from the 
southern tip of Baja California to southeast Alaska. They breed mainly 
on offshore islands from Southern California's Channel Islands south to 
Mexico. Non-breeding males often roam north in spring foraging for 
food. Since the mid-1980s, increasing numbers of California sea lions 
have been documented feeding on fish along the Washington coast and--
more recently--in the Columbia River as far upstream as Bonneville Dam, 
145 mi (233 km) from the river mouth. The population size of the U.S. 
stock of California sea lions is estimated at 296,750 animals (Carretta 
et al., 2014). As with Steller sea lions, according to ODFW (2014) most 
counts of California sea lions are also concentrated near the tip of 
the jetty, although animals sometimes haul out about halfway down

[[Page 58448]]

the jetty. Survey information (2007 and 2014) from ODFW indicates that 
California sea lions are relatively less prevalent in the Pacific 
Northwest during June and July; though in the months just before and 
after their absence several hundred may be observed using the South 
Jetty. More frequent WDFW surveys (2014) indicate greater numbers in 
the summer, and use remains concentrated to fall and winter months. 
Nearly all California sea lions in the Pacific Northwest are sub-adult 
and adult males (females and young generally stay in California). 
Again, turnover of sea lions using the jetty is likely (ODFW 2014).
    California sea lions in the United States are not listed as 
``endangered'' or ``threatened'' under the Endangered Species Act, 
classified as ``depleted'' under the MMPA, or listed as ``strategic'' 
under the MMPA.

Harbor Seal

    Harbor seals range from Baja California, north along the western 
coasts of the United States, British Columbia and southeast Alaska, 
west through the Gulf of Alaska, Prince William Sound, and the Aleutian 
Islands, and north in the Bering Sea to Cape Newenham and the Pribilof 
Islands. They haul out on rocks, reefs, beaches, and drifting glacial 
ice and feed in marine, estuarine, and occasionally fresh waters. 
Harbor seals generally are non-migratory, with local movements 
associated with tides, weather, season, food availability, and 
reproduction. Harbor seals do not make extensive pelagic migrations, 
though some long distance movement of tagged animals in Alaska (559mi/
900 km) and along the west coast of the United States (up to 341 mi/550 
km) have been recorded. Harbor seals have also displayed strong 
fidelity to haulout sites (Carretta et al., 2014).
    The 1999 harbor seal population estimate for the Oregon/Washington 
Coast stock was about 24,732 animals. However, the data used was over 
eight years old; and therefore, there are no current abundance 
estimates. Harbor seals are not considered to be ``depleted'' under the 
MMPA or listed as ``threatened'' or ``endangered'' under the ESA. The 
Oregon/Washington coast stock of harbor seals is not classified as a 
``strategic'' stock under the MMPA (Carretta et al., 2014).
    Further information on the biology and local distribution of these 
species can be found in the Corps application available online at: 
http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm and the 
NMFS Marine Mammal Stock Assessment Reports, which may be found at: 
http://www.nmfs.noaa.gov/pr/species/.

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

    This section includes a summary and discussion of the ways that 
stressors, (e.g. pile driving) and potential mitigation activities, 
associated with the MCR jetty rehabilitation project, may impact marine 
mammals and their habitat. The Estimated Take by Incidental Harassment 
section will include an analysis of the number of individuals that are 
expected to be taken by this activity. The Estimated Take by Incidental 
Harassment section, together with the Proposed Mitigation section will 
also draw conclusions regarding the likely impacts of this activity on 
the reproductive success or survivorship of individuals and, from that, 
on the affected marine mammal populations or stocks. The Negligible 
Impact Analysis section will include the analysis of how this specific 
activity will impact marine mammals. In this section, we provide 
general background information on sound and marine mammal hearing 
before considering potential effects to marine mammals from sound 
produced by vibratory pile driving.
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz (Hz) or cycles per second. Wavelength is the 
distance between two peaks of a sound wave; lower frequency sounds have 
longer wavelengths than higher frequency sounds and attenuate 
(decrease) more rapidly in shallower water. Amplitude is the height of 
the sound pressure wave or ``loudness'' of a sound and is typically 
measured using the decibel (dB) scale. A dB is the ratio between a 
measured pressure (with sound) and a reference pressure (sound at a 
constant pressure, established by scientific standards). It is a 
logarithmic unit that accounts for large variations in amplitude; 
therefore, relatively small changes in dB ratings correspond to large 
changes in sound pressure. When referring to sound pressure levels 
(SPLs; the sound force per unit area), sound is referenced in the 
context of underwater sound pressure to 1 microPascal ([mu]Pa). One 
pascal is the pressure resulting from a force of one newton exerted 
over an area of one square meter. The source level (SL) represents the 
sound level at a distance of 1 m from the source (referenced to 1 
[mu]Pa). The received level is the sound level at the listener's 
position. Note that all underwater sound levels in this document are 
referenced to a pressure of 1 [mu]Pa, and all airborne sound levels in 
this document are referenced to a pressure of 20 [mu]Pa.
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Rms is calculated by squaring all of the 
sound amplitudes, averaging the squares, and then taking the square 
root of the average (Urick 1983). Rms accounts for both positive and 
negative values; squaring the pressures makes all values positive so 
that they may be accounted for in the summation of pressure levels 
(Hastings and Popper, 2005). This measurement is often used in the 
context of discussing behavioral effects, in part because behavioral 
effects, which often result from auditory cues, may be better expressed 
through averaged units than by peak pressures.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in all 
directions away from the source (similar to ripples on the surface of a 
pond), except in cases where the source is directional. The 
compressions and decompressions associated with sound waves are 
detected as changes in pressure by aquatic life and man-made sound 
receptors such as hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound. Ambient 
sound is defined as environmental background sound levels lacking a 
single source or point (Richardson et al., 1995), and the sound level 
of a region is defined by the total acoustical energy being generated 
by known and unknown sources. These sources may include physical (e.g., 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
sound (e.g., vessels, dredging, aircraft, construction). A number of 
sources contribute to ambient sound, including the following 
(Richardson et al., 1995):
     Wind and waves: The complex interactions between wind and 
water surface, including processes such as breaking waves and wave-
induced bubble oscillations and cavitation, are a main source of 
naturally occurring ambient noise for frequencies between 200 Hz and 50 
kHz (Mitson 1995). In general, ambient sound levels tend to increase 
with increasing wind speed and wave height. Surf noise becomes 
important near shore, with measurements collected at a distance of

[[Page 58449]]

5.2 mi (8.5 km) from shore showing an increase of 10 dB in the 100 to 
700 Hz band during heavy surf conditions.
     Precipitation: Sound from rain and hail impacting the 
water surface can become an important component of total noise at 
frequencies above 500 Hz, and possibly down to 100 Hz during quiet 
times.
     Biological: Marine mammals can contribute significantly to 
ambient noise levels, as can some fish and shrimp. The frequency band 
for biological contributions is from approximately 12 Hz to over 100 
kHz.
     Anthropogenic: Sources of ambient noise related to human 
activity include transportation (surface vessels and aircraft), 
dredging and construction, oil and gas drilling and production, seismic 
surveys, sonar, explosions, and ocean acoustic studies. Shipping noise 
typically dominates the total ambient noise for frequencies between 20 
and 300 Hz. In general, the frequencies of anthropogenic sounds are 
below 1 kHz and, if higher frequency sound levels are created, they 
attenuate rapidly (Richardson et al., 1995). Sound from identifiable 
anthropogenic sources other than the activity of interest (e.g., a 
passing vessel) is sometimes termed background sound, as opposed to 
ambient sound. Representative levels of anthropogenic sound are 
displayed in Table 2.

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

    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10-20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.

Marine Mammal Hearing

    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data. 
Southall et al. (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. The functional groups and the 
associated frequencies are indicated below (though animals are less 
sensitive to sounds at the outer edge of their functional range and 
most sensitive to sounds of frequencies within a smaller range 
somewhere in the middle of their functional hearing range):
     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 Hz and 
25 kHz;
     Mid-frequency cetaceans (32 species of dolphins, 6 species 
of larger toothed whales, and 19 species of beaked and bottlenose 
whales): Functional hearing is estimated to occur between approximately 
150 Hz and 160 kHz;
     High frequency cetaceans (8 species of true porpoises, 6 
species of river dolphins, Kogia, the franciscana, and four species of 
cephalorhynchids): Functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz;
     Phocid pinnipeds in water: Functional hearing is estimated 
to occur between approximately 75 Hz and 100 kHz; and
     Otariid pinnipeds in water: Functional hearing is 
estimated to occur between approximately 100 Hz and 48 kHz.
    Of the four cetacean species likely to occur in the proposed 
project area, one is classified as low-frequency cetaceans (i.e., 
humpback, gray whales), one is classified as a mid-frequency cetacean 
(i.e., killer whale), and one is classified as a high-frequency 
cetacean (i.e., harbor porpoise) (Southall et al., 2007). Additionally, 
harbor seals are classified as members of the phocid pinnipeds in water 
functional hearing group while Steller sea lions and California sea 
lions are grouped under the otariid pinnipeds in water functional 
hearing group. A species' functional hearing group is a consideration 
when we analyze the effects of exposure to sound on marine mammals.

Acoustic Impacts

    Potential Effects of Pile Driving Sound--The effects of sounds from 
pile driving might result in one or more of the following: Temporary or 
permanent hearing impairment, non-auditory physical or physiological 
effects, behavioral disturbance, and masking (Richardson et al., 1995; 
Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). The 
effects of pile driving on marine mammals are dependent on several 
factors, including the size, type, and depth of the animal; the depth, 
intensity, and duration of the pile driving sound; the depth of the 
water column; the substrate of the habitat; the standoff distance 
between the pile and the animal; and the sound propagation properties 
of the environment. Impacts to marine mammals from pile driving 
activities are expected to result primarily from acoustic pathways. As 
such, the degree of effect is intrinsically related to the received 
level and duration of the sound exposure, which are in turn influenced 
by the distance between the animal and the source. The further away 
from the source, the less intense the exposure should be. The substrate 
and depth of the habitat affect the sound propagation properties of the 
environment. Shallow environments are

[[Page 58450]]

typically more structurally complex, which leads to rapid sound 
attenuation. In addition, substrates that are soft (e.g., sand) would 
absorb or attenuate the sound more readily than hard substrates (e.g., 
rock) which may reflect the acoustic wave. Soft porous substrates would 
also likely require less time to drive the pile, and possibly less 
forceful equipment, which would ultimately decrease the intensity of 
the acoustic source.
    In the absence of mitigation, impacts to marine species would be 
expected to result from physiological and behavioral responses to both 
the type and strength of the acoustic signature (Viada et al., 2008). 
The type and severity of behavioral impacts are more difficult to 
define due to limited studies addressing the behavioral effects of 
impulse sounds on marine mammals. Potential effects from impulse sound 
sources can range in severity from effects such as behavioral 
disturbance or tactile perception to physical discomfort, slight injury 
of the internal organs and the auditory system, or mortality (Yelverton 
et al., 1973).
    Hearing Impairment and Other Physical Effects--Marine mammals 
exposed to high intensity sound repeatedly or for prolonged periods can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt 
et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), 
in which case the loss of hearing sensitivity is not recoverable, or 
temporary (TTS), in which case the animal's hearing threshold would 
recover over time (Southall et al., 2007). Marine mammals depend on 
acoustic cues for vital biological functions, (e.g., orientation, 
communication, finding prey, avoiding predators); thus, TTS may result 
in reduced fitness in survival and reproduction. However, this depends 
on the frequency and duration of TTS, as well as the biological context 
in which it occurs. TTS of limited duration, occurring in a frequency 
range that does not coincide with that used for recognition of 
important acoustic cues, would have little to no effect on an animal's 
fitness. Repeated sound exposure that leads to TTS could cause PTS. PTS 
constitutes injury, but TTS does not (Southall et al., 2007). The 
following subsections discuss in somewhat more detail the possibilities 
of TTS, PTS, and non-auditory physical effects.
    Temporary Threshold Shift--TTS is the mildest form of hearing 
impairment that can occur during exposure to a strong sound (Kryter 
1985). While experiencing TTS, the hearing threshold rises, and a sound 
must be stronger in order to be heard. In terrestrial mammals, TTS can 
last from minutes or hours to days (in cases of strong TTS). For sound 
exposures at or somewhat above the TTS threshold, hearing sensitivity 
in both terrestrial and marine mammals recovers rapidly after exposure 
to the sound ends. Few data on sound levels and durations necessary to 
elicit mild TTS have been obtained for marine mammals, and none of the 
published data concern TTS elicited by exposure to multiple pulses of 
sound. Available data on TTS in marine mammals are summarized in 
Southall et al. (2007).
    Given the available data, the received level of a single pulse 
(with no frequency weighting) might need to be approximately 186 dB re 
1 [mu]Pa\2\-s (i.e., 186 dB sound exposure level (SEL) or approximately 
221-226 dB p-p (peak)) in order to produce brief, mild TTS. Exposure to 
several strong pulses that each have received levels near 190 dB rms 
(175-180 dB SEL) might result in cumulative exposure of approximately 
186 dB SEL and thus slight TTS in a small odontocete, assuming the TTS 
threshold is (to a first approximation) a function of the total 
received pulse energy.
    The above TTS information for odontocetes is derived from studies 
on the bottlenose dolphin (Tursiops truncatus) and beluga whale 
(Delphinapterus leucas). There is no published TTS information for 
other species of cetaceans. However, preliminary evidence from a harbor 
porpoise exposed to pulsed sound suggests that its TTS threshold may 
have been lower (Lucke et al., 2009). As summarized above, data that 
are now available imply that TTS is unlikely to occur unless 
odontocetes are exposed to pile driving pulses stronger than 180 dB re 
1 [mu]Pa (rms).
    Permanent Threshold Shift--When PTS occurs, there is physical 
damage to the sound receptors in the ear. In severe cases, there can be 
total or partial deafness, while in other cases the animal has an 
impaired ability to hear sounds in specific frequency ranges (Kryter 
1985). There is no specific evidence that exposure to pulses of sound 
can cause PTS in any marine mammal. However, given the possibility that 
mammals close to a sound source can incur TTS, it is possible that some 
individuals might incur PTS. Single or occasional occurrences of mild 
TTS are not indicative of permanent auditory damage, but repeated or 
(in some cases) single exposures to a level well above that causing TTS 
onset might elicit PTS.
    Relationships between TTS and PTS thresholds have not been studied 
in marine mammals but are assumed to be similar to those in humans and 
other terrestrial mammals, based on anatomical similarities. PTS might 
occur at a received sound level at least several decibels above that 
inducing mild TTS if the animal were exposed to strong sound pulses 
with rapid rise time. Based on data from terrestrial mammals, a 
precautionary assumption is that the PTS threshold for impulse sounds 
(such as pile driving pulses as received close to the source) is at 
least six dB higher than the TTS threshold on a peak-pressure basis and 
probably greater than six dB (Southall et al., 2007). On an SEL basis, 
Southall et al. (2007) estimated that received levels would need to 
exceed the TTS threshold by at least 15 dB for there to be risk of PTS. 
Thus, for cetaceans, Southall et al. (2007) estimate that the PTS 
threshold might be an M-weighted SEL (for the sequence of received 
pulses) of approximately 198 dB re 1 [mu]Pa\2\-s (15 dB higher than the 
TTS threshold for an impulse). Given the higher level of sound 
necessary to cause PTS as compared with TTS, it is considerably less 
likely that PTS could occur.
    Measured source levels from impact pile driving can be as high as 
214 dB rms. Although no marine mammals have been shown to experience 
TTS or PTS as a result of being exposed to pile driving activities, 
captive bottlenose dolphins and beluga whales exhibited changes in 
behavior when exposed to strong pulsed sounds (Finneran et al., 2000, 
2005). The animals tolerated high received levels of sound before 
exhibiting aversive behaviors. Experiments on a beluga whale showed 
that exposure to a single watergun impulse at a received level of 207 
kPa (30 psi) p-p, which is equivalent to 228 dB p-p, resulted in a 7 
and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. 
Thresholds returned to within 2 dB of the pre-exposure level within 
four minutes of the exposure (Finneran et al., 2002). Although the 
source level of pile driving from one hammer strike is expected to be 
much lower than the single watergun impulse cited here, animals being 
exposed for a prolonged period to repeated hammer strikes could receive 
more sound exposure in terms of SEL than from the single watergun 
impulse (estimated at 188 dB re 1 [mu]Pa\2\-s) in the aforementioned 
experiment (Finneran et al., 2002). However, in order for marine 
mammals to experience TTS or PTS, the animals have to be close enough 
to be exposed to high intensity sound levels

[[Page 58451]]

for a prolonged period of time. Based on the best scientific 
information available, these SPLs are far below the thresholds that 
could cause TTS or the onset of PTS.
    Non-auditory Physiological Effects--Non-auditory physiological 
effects or injuries that theoretically might occur in marine mammals 
exposed to strong underwater sound include stress, neurological 
effects, bubble formation, resonance effects, and other types of organ 
or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies 
examining such effects are limited. In general, little is known about 
the potential for pile driving to cause auditory impairment or other 
physical effects in marine mammals. Available data suggest that such 
effects, if they occur at all, would presumably be limited to short 
distances from the sound source and to activities that extend over a 
prolonged period. The available data do not allow identification of a 
specific exposure level above which non-auditory effects can be 
expected (Southall et al., 2007) or any meaningful quantitative 
predictions of the numbers (if any) of marine mammals that might be 
affected in those ways. Marine mammals that show behavioral avoidance 
of pile driving, including some odontocetes and some pinnipeds, are 
especially unlikely to incur auditory impairment or non-auditory 
physical effects.

Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes 
in behavior, more conspicuous changes in activities, and displacement. 
Behavioral responses to sound are highly variable and context-specific 
and reactions, if any, depend on species, state of maturity, 
experience, current activity, reproductive state, auditory sensitivity, 
time of day, and many other factors (Richardson et al., 1995; Wartzok 
et al., 2003; Southall et al., 2007).
    Habituation can occur when an animal's response to a stimulus wanes 
with repeated exposure, usually in the absence of unpleasant associated 
events (Wartzok et al., 2003). Animals are most likely to habituate to 
sounds that are predictable and unvarying. The opposite process is 
sensitization, when an unpleasant experience leads to subsequent 
responses, often in the form of avoidance, at a lower level of 
exposure. Behavioral state may affect the type of response as well. For 
example, animals that are resting may show greater behavioral change in 
response to disturbing sound levels than animals that are highly 
motivated to remain in an area for feeding (Richardson et al., 1995; 
NRC, 2003; Wartzok et al., 2003).
    Controlled experiments with captive marine mammals showed 
pronounced behavioral reactions, including avoidance of loud sound 
sources (Ridgway et al., 1997; Finneran et al., 2000). Observed 
responses of wild marine mammals to loud pulsed sound sources 
(typically seismic guns or acoustic harassment devices, but also 
including pile driving) have been varied but often consist of avoidance 
behavior or other behavioral changes suggesting discomfort (Morton and 
Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; 
Wartzok et al., 2003; Nowacek et al., 2007). Responses to continuous 
sound, such as vibratory pile installation, have not been documented as 
well as responses to pulsed sounds.
    With both types of pile driving, it is likely that the onset of 
pile driving could result in temporary, short term changes in an 
animal's typical behavior and/or avoidance of the affected area. These 
behavioral changes may include (Richardson et al., 1995): Changing 
durations of surfacing and dives; number of blows per surfacing; moving 
direction and/or speed; reduced/increased vocal activities; changing/
cessation of certain behavioral activities (such as socializing or 
feeding); visible startle response or aggressive behavior (such as 
tail/fluke slapping or jaw clapping); avoidance of areas where sound 
sources are located; and/or flight responses (e.g., pinnipeds flushing 
into water from haul-outs or rookeries). Pinnipeds may increase their 
haul-out time, possibly to avoid in-water disturbance (Thorson and 
Reyff, 2006).
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, or reproduction. Significant 
behavioral modifications that could potentially lead to effects on 
growth, survival, or reproduction include:
     Drastic changes in diving/surfacing patterns (such as 
those thought to cause beaked whale stranding due to exposure to 
military mid-frequency tactical sonar);
     Habitat abandonment due to loss of desirable acoustic 
environment; and
     Cessation of feeding or social interaction.
    The onset of behavioral disturbance from anthropogenic sound 
depends on both external factors (characteristics of sound sources and 
their paths) and the specific characteristics of the receiving animals 
(hearing, motivation, experience, demography) and is difficult to 
predict (Southall et al., 2007).
    Auditory Masking--Natural and artificial sounds can disrupt 
behavior by masking, or interfering with, a marine mammal's ability to 
hear other sounds. Masking occurs when the receipt of a sound is 
interfered with by another coincident sound at similar frequencies and 
at similar or higher levels. Chronic exposure to excessive, though not 
high-intensity, sound could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions. 
Masking can interfere with detection of acoustic signals such as 
communication calls, echolocation sounds, and environmental sounds 
important to marine mammals. Therefore, under certain circumstances, 
marine mammals whose acoustical sensors or environment are being 
severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction. If the coincident 
(masking) sound were anthropogenic, it could be potentially harassing 
if it disrupted hearing-related behavior. It is important to 
distinguish TTS and PTS, which persist after the sound exposure, from 
masking, which occurs only during the sound exposure. Because masking 
(without resulting in TS) is not associated with abnormal physiological 
function, it is not considered a physiological effect, but rather a 
potential behavioral effect.
    Masking occurs at the frequency band which the animals utilize so 
the frequency range of the potentially masking sound is important in 
determining any potential behavioral impacts. Because sound generated 
from in-water vibratory pile driving is mostly concentrated at low 
frequency ranges, it may have less effect on high frequency 
echolocation sounds made by porpoises. However, lower frequency man-
made sounds are more likely to affect detection of communication calls 
and other potentially important natural sounds such as surf and prey 
sound. It may also affect communication signals when they occur near 
the sound band and thus reduce the communication space of animals 
(Clark et al., 2009) and cause increased stress levels (Foote et al., 
2004; Holt et al., 2009).
    Masking has the potential to impact species at the population or 
community levels as well as at individual levels. Masking affects both 
senders and receivers of the signals and can potentially have long-term 
chronic effects on marine mammal species and populations. Recent 
research suggests

[[Page 58452]]

that low frequency ambient sound levels have increased by as much as 20 
dB (more than three times in terms of SPL) in the world's ocean from 
pre-industrial periods, and that most of these increases are from 
distant shipping (Hildebrand, 2009). All anthropogenic sound sources, 
such as those from vessel traffic, pile driving, and dredging 
activities, contribute to the elevated ambient sound levels, thus 
intensifying masking.
    Vibratory pile driving is relatively short-term, with rapid 
oscillations occurring for 10 to 30 minutes per installed pile. It is 
possible that vibratory pile driving resulting from this proposed 
action may mask acoustic signals important to the behavior and survival 
of marine mammal species, but the short-term duration and limited 
affected area would result in insignificant impacts from masking. Any 
masking event that could possibly rise to Level B harassment under the 
MMPA would occur concurrently within the zones of behavioral harassment 
already estimated for vibratory pile driving, and which have already 
been taken into account in the exposure analysis.
    Acoustic Effects, Airborne--Marine mammals that occur in the 
project area could be exposed to airborne sounds associated with pile 
driving that have the potential to cause harassment, depending on their 
distance from pile driving activities. Airborne pile driving sound 
would have less impact on cetaceans than pinnipeds because sound from 
atmospheric sources does not transmit well underwater (Richardson et 
al., 1995); thus, airborne sound would only be an issue for pinnipeds 
either hauled-out or looking with heads above water in the project 
area. Most likely, airborne sound would cause behavioral responses 
similar to those discussed above in relation to underwater sound. For 
instance, anthropogenic sound could cause hauled-out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to temporarily abandon their habitat and 
move further from the source. Studies by Blackwell et al. (2002) and 
Moulton et al. (2005) indicate a tolerance or lack of response to 
unweighted airborne sounds as high as 112 dB peak and 96 dB rms.

Vessel Interaction

    Besides being susceptible to vessel strikes, cetacean and pinniped 
responses to vessels may result in behavioral changes, including 
greater variability in the dive, surfacing, and respiration patterns; 
changes in vocalizations; and changes in swimming speed or direction 
(NRC 2003). There will be a temporary and localized increase in vessel 
traffic during construction. A maximum of three work barges will be 
present at any time during the in-water and over water work. The barges 
will be located in close proximity to each other near the construction 
site.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by vibratory and impact 
pile driving and removal in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.
    Potential Pile Driving Effects on Prey--Construction activities 
would produce continuous (i.e., vibratory pile driving) sounds. Fish 
react to sounds that are especially strong and/or intermittent low-
frequency sounds. Short duration, sharp sounds can cause overt or 
subtle changes in fish behavior and local distribution. Hastings and 
Popper (2005) identified several studies that suggest fish may relocate 
to avoid certain areas of sound energy. Additional studies have 
documented effects of pile driving on fish, although several are based 
on studies in support of large, multiyear bridge construction projects 
(e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound 
pulses at received levels of 160 dB may cause subtle changes in fish 
behavior. SPLs of 180 dB may cause noticeable changes in behavior 
(Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient 
strength have been known to cause injury to fish and fish mortality. 
The most likely impact to fish from pile driving activities at the 
project area would be temporary behavioral avoidance of the area. The 
duration of fish avoidance of this area after pile driving stops is 
unknown, but a rapid return to normal recruitment, distribution, and 
behavior is anticipated. Additionally, NMFS developed a Biological 
Opinion in 2011 which indicated that no adverse effects were 
anticipated for critical habitat of prey species for marine mammals. In 
general, impacts to marine mammal prey species are expected to be minor 
and temporary due to the short timeframe for the project.
    Effects to Foraging Habitat--Pile installation may temporarily 
increase turbidity resulting from suspended sediments. Any increases 
would be temporary, localized, and minimal. The Corps must comply with 
state water quality standards during these operations by limiting the 
extent of turbidity to the immediate project area. In general, 
turbidity associated with pile installation is localized to about a 25-
ft (7.62 m) radius around the pile (Everitt et al., 1980). Cetaceans 
are not expected to be close enough to the project pile driving areas 
to experience effects of turbidity, and any pinnipeds will be 
transiting the terminal area and could avoid localized areas of 
turbidity. Therefore, the impact from increased turbidity levels is 
expected to be discountable to marine mammals. Furthermore, pile 
driving and removal at the project site will not obstruct movements or 
migration of marine mammals.
    Natural tidal currents and flow patterns in MCR waters routinely 
disturb sediments. High volume tidal events can result in hydraulic 
forces that re-suspend benthic sediments, temporarily elevating 
turbidity locally. Any temporary increase in turbidity as a result of 
the proposed action is not anticipated to measurably exceed levels 
caused by these normal, natural periods.

Proposed Mitigation

    In order to issue an LOA under section 101(a)(5)(A) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, ``and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking'' for certain 
subsistence uses.
    For the proposed mitigation measures, the Corps listed the 
following protocols to be implemented during its proposed jetty 
rehabilitation program at MCR.
1. Briefings With Construction Crew, Marine Mammal Monitoring Team and 
Corps Staff
    The Corps will conduct briefings between construction supervisors 
and crews, the marine mammal monitoring team, and Corps staff prior to 
the start of all pile driving activity in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures.
2. Vibratory Hammer
    All pile driving and removal activities will be conducted only 
using a vibratory hammer.
3. Shutdown and Disturbance Zones
    The shutdown zone will include all areas where the underwater SPLs 
are anticipated to equal or exceed the Level A (injury) criteria for 
marine mammals

[[Page 58453]]

(180 dB isopleth for cetaceans; 190 dB isopleth for pinnipeds). The 
shutdown zone will always be a minimum of 66 ft (20 m) to prevent 
injury from physical interaction of marine mammals with construction 
equipment. The Level B harassment zone would extend 4.6 mi (7.4 km) 
from the sound source. The Level A and B harassment thresholds are 
depicted in Table 4 found later in the Estimated Take by Incidental 
Harassment section.
    For in-water heavy machinery work other than pile driving (using, 
e.g., standard barges, tug boats, barge-mounted excavators, or 
clamshell equipment used to place or remove material), if a marine 
mammal comes within 66 ft (20 m), operations shall cease and vessels 
shall reduce speed to the minimum level required to maintain steerage 
and safe working conditions. This type of work could include the 
following activities: (1) Movement of the barge to the pile location or 
(2) positioning of the pile on the substrate via a crane (i.e., 
stabbing the pile).
    If the shutdown zone is obscured by fog or poor lighting 
conditions, pile driving will not be initiated until the entire 
shutdown zone is visible.
    A monitoring plan will be implemented as described in Sections 13 
and 16 of the Application. This plan includes shutdown zones and 
specific procedures in the event a mammal is encountered.
    If a marine mammal approaches or enters the injury zone during pile 
driving, work will be halted and delayed until either the animal's 
voluntary departure has been visually confirmed beyond the disturbance 
zone, or 15 minutes for pinnipeds or 30 minutes for cetaceans have 
passed without re-detection of the animal.
    Marine Mammal Observers (MMO) will scan the waters for 30 minutes 
before and during all pile driving. If any species for which take is 
not authorized are observed within the area of potential sound effects 
during or 30 minutes before pile driving, the observer(s) will 
immediately notify the on-site supervisor or inspector, and require 
that pile driving either not initiate or temporarily cease until the 
animals have moved outside of the area of potential sound effects.
    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In order to minimize impact to 
Southern Resident killer whales, in-water work will not be conducted 
during their primary feeding season extending from October 1 until May 
1. Installation could occur from May 1 through September 30 each year.
    If between May 1 and July 1 any killer whales are observed within 
the area of zone of influence (ZOI), comprising the Level A and Level B 
thresholds, the Corps will immediately shut down all pile installation, 
removal, or maintenance activities. Operations will either remain 
shutdown or will not be initiated until all killer whales have moved 
outside of the area of the ZOI. In order to avoid take of endangered 
Southern Resident killer whales, which may be indistinguishable from 
transient whales, after July 1 until September 30 all killer whales 
will be assumed to be transients. No shutdown is required for killer 
whales observed after July 1 until September 30 in the Level B 
harassment zone, but animals must be recorded as Level B takes in the 
approved monitoring forms.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of affecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation,
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    1. Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal);
    2. A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to 1, above, or to 
reducing harassment takes only);
    3. A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving, or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only);
    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; and
    6. For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an 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. The Corps submitted information 
regarding marine mammal monitoring to be conducted during pile driving 
and removal operations as part of the proposed rule application. That 
information can be found in sections 13 and 16 of the application. The 
monitoring measures may be modified or supplemented based on comments 
or new information received from the public during the public comment 
period.
    Monitoring measures proposed by the applicant or prescribed by NMFS

[[Page 58454]]

should contribute to or accomplish one or more of the following top-
level goals:
    1. An increase in our understanding of the likely occurrence of 
marine mammal species in the vicinity of the action, i.e., presence, 
abundance, distribution, and/or density of species.
    2. An increase in our understanding of the nature, scope, or 
context of the likely exposure of marine mammal species to any of the 
potential stressor(s) associated with the action (e.g., sound or visual 
stimuli), through better understanding of one or more of the following: 
The action itself and its environment (e.g., sound source 
characterization, propagation, and ambient noise levels); the affected 
species (e.g., life history or dive pattern); the likely co-occurrence 
of marine mammal species with the action (in whole or part) associated 
with specific adverse effects; and/or the likely biological or 
behavioral context of exposure to the stressor for the marine mammal 
(e.g., age class of exposed animals or known pupping, calving or 
feeding areas).
    3. An increase in our understanding of how individual marine 
mammals respond (behaviorally or physiologically) to the specific 
stressors associated with the action (in specific contexts, where 
possible, e.g., at what distance or received level).
    4. An increase in our understanding of how anticipated individual 
responses, to individual stressors or anticipated combinations of 
stressors, may impact either: The long-term fitness and survival of an 
individual; or the population, species, or stock (e.g., through effects 
on annual rates of recruitment or survival).
    5. An increase in our understanding of how the activity affects 
marine mammal habitat, such as through effects on prey sources or 
acoustic habitat (e.g., through characterization of longer-term 
contributions of multiple sound sources to rising ambient noise levels 
and assessment of the potential chronic effects on marine mammals).
    6. An increase in understanding of the impacts of the activity on 
marine mammals in combination with the impacts of other anthropogenic 
activities or natural factors occurring in the region.
    7. An increase in our understanding of the effectiveness of 
mitigation and monitoring measures.
    8. An increase in the probability of detecting marine mammals 
(through improved technology or methodology), both specifically within 
the safety zone (thus allowing for more effective implementation of the 
mitigation) and in general, to better achieve the above goals.

Proposed Monitoring Measures

1. Visual Vessel-Based Monitoring
    The Corps will employ one or two vessels to monitor shutdown and 
disturbance zones for pile-driving and removal activities at the North 
Jetty and South Jetty offloading facilities. Section 16 of the 
Application indicates roughly where these vessels will be located. 
These vessels will be traversing across the delineated disturbance 
zones associated with the site at which active pile driving is 
occurring.
2. Visual Shore-Based Monitoring
     Visual monitoring will be conducted by qualified, trained 
MMOs. Visual monitoring will be implemented during all pile 
installation activities at all jetties. An observer must meet the 
qualifications stated in the application, have prior training and 
experience conducting marine mammal monitoring or surveys, and have the 
ability to identify marine mammal species and describe relevant 
behaviors that may occur in proximity to in-water construction 
activities.
     MMOs must be approved in advanced by NMFS.
     Trained MMOs will be placed at the best vantage points 
practicable (e.g., at the pile location on construction barges, on 
shore, or aboard vessels, etc. as noted in the figures) to monitor for 
marine mammals and implement shutdown/delay procedures when applicable 
by calling for the shutdown to the hammer operator. Likely shore-based 
MMO locations are described in section 16 of the Application.
     During pedestrian surveys, personnel will avoid as much as 
possible direct approach towards pinnipeds that are hauled out. If it 
is absolutely necessary to make movements towards pinnipeds, approach 
in a slow and steady manner to reduce the behavioral harassment to the 
animals as much as possible.
     Use a hand-held or boat-mounted GPS device and rangefinder 
to verify the required monitoring distance from the project site. MMOs 
will use range finders to determine distance to marine mammals, boats, 
buoys, and construction equipment.
     MMOs will be equipped with camera and video capable of 
recording any necessary take information, including data required in 
the event of an unauthorized Level A take.
     Scan the waters within the area of potential sound effects 
using high-quality binoculars (e.g., Zeiss 10x42, or similar) or 
spotting scopes (20-60 zoom or equivalent), and by making visual 
observations.
     MMOs shall be equipped with radios or cell phones for 
maintaining immediate contact with other observers, Corps engineers, 
and personnel operating pile equipment.
     Monitoring would be conducted before, during, and after 
pile driving and removal 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 would be halted. Monitoring will take place from 30 minutes 
prior to initiation through 30 minutes post-completion of pile driving 
activities. Pile driving activities include the time to 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 30 minutes.
3. Hydroacoustic Monitoring
    A hydroacoustic monitoring plan shall be employed using an 
appropriate method reviewed and approved by NMFS to ensure that the 
harassment isopleths are not extending past the initial distances 
established.

Data Collection

    We require that observers use approved data forms. Among other 
pieces of information, the Corps 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 Corps 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,

[[Page 58455]]

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;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Proposed Reporting Measures

    The Corps would submit an annual report to NMFS's Permits and 
Conservation Division within 90 days of the end of every operating 
season (October 1) during the five-year authorization period. The 
annual report would detail the monitoring protocol, summarize the data 
recorded during monitoring, and estimate the number of marine mammals 
that may have been harassed. If no comments are received from NMFS 
within 30 days, the draft final report will become final. If comments 
are received, a final report must be submitted up to 30 days after 
receipt of comments. Reports shall contain the following information:
     Summaries of monitoring effort (e.g., total hours, total 
distances, and marine mammal distribution through the study period, 
accounting for sea state and other factors affecting visibility and 
detectability of marine mammals);
     Analyses of the effects of various factors influencing 
detectability of marine mammals (e.g., sea state, number of observers, 
and fog/glare);
     Species composition, occurrence, and distribution of 
marine mammal sightings, including date, numbers, age/size/gender 
categories (if determinable), and group sizes;
     Observed behavioral responses to pile driving including 
bearing and direction of travel and distance from pile driving 
activity; and
     Results of hydroacoustic monitoring program.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the LOA 
(if issued), such as an injury (Level A harassment), serious injury or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
the Corps would immediately cease the specified activities and 
immediately report the incident to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, and the 
West Coast Regional Stranding Coordinator. The report would include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved (if applicable);
     Vessel's speed during and leading up to the incident (if 
applicable);
     Description of the incident;
     Status of all sound source used in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with the Corps to 
determine necessary actions to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Corps would not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the Corps discovers an injured or dead marine 
mammal, and the lead MMO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
the Corps would immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator.
    The report would include the same information identified in the 
section above. Activities would be able to continue while NMFS reviews 
the circumstances of the incident. NMFS would work with the Corps to 
determine whether modifications in the activities are appropriate.
    In the event that the Corps discovers an injured or dead marine 
mammal, and the lead MMO determines that the injury or death is not 
associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Corps would report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the NMFS West Coast 
Stranding Hotline or West Coast Regional Stranding Coordinator, within 
24 hours of the discovery. The Corps would provide photographs or video 
footage (if available) or other documentation of the stranded animal 
sighting to NMFS and the Marine Mammal Stranding Network. Pile driving 
activities would be permitted to continue.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: ``. . . any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild [Level A harassment]; 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering [Level B harassment].''
    All anticipated takes would be by Level B harassment resulting from 
vibratory pile driving and removal and may result in temporary changes 
in behavior. Injurious or lethal takes are not expected due to the 
expected source levels and sound source characteristics associated with 
the activity, and the proposed mitigation and monitoring measures are 
expected to further minimize the possibility of such take.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder 2007; Weilgart 2007). Given 
the many uncertainties in predicting the quantity and types of impacts 
of sound on marine mammals, it is common practice to estimate how many 
animals are likely to be present within a particular distance of a 
given activity, or exposed to a particular level of sound, and to use 
those values to estimate take.
    Upland work can generate airborne sound and create visual 
disturbance that could potentially result in disturbance to marine 
mammals (specifically, pinnipeds) that are hauled out or at the water's 
surface with heads above the water. Because there are regular haul-outs 
in close proximity to South Jetty, we believe that incidents of 
incidental take may occur. Furthermore, the Corps will also be 
conducting pedestrian

[[Page 58456]]

surveys on each of the jetties during the summer lasting about two days 
for each survey. During the life of this proposed action, about six 
days of surveys over three seasons would occur at the South Jetty, 
which is the only jetty survey with the potential to impact pinnipeds.
    The Corps requested authorization for the incidental taking of 
small numbers of killer whale, gray whale, humpback whale, harbor 
porpoise, Steller sea lion, California sea lion, and harbor seal near 
the MCR project area that may result from vibratory pile driving and 
removal during construction activities associated with the 
rehabilitation of the Jetty system at the MCR. In order to estimate the 
potential incidents of take that may occur incidental to the specified 
activity, we must first estimate the extent of the sound field that may 
be produced by the activity and then consider that in combination with 
information about marine mammal density or abundance in the project 
area. We first provide information on applicable sound thresholds for 
determining effects to marine mammals before describing the information 
used in estimating the sound fields, the available marine mammal 
density or abundance information, and the method of estimating 
potential incidences of take.

Sound Thresholds

    We use generic sound exposure thresholds to determine when an 
activity that produces sound might result in impacts to a marine mammal 
such that a take by harassment might occur. These thresholds below 
(Table 3) are used to estimate when harassment may occur (i.e., when an 
animal is exposed to levels equal to or exceeding the relevant 
criterion). NMFS is working to revise these acoustic guidelines; for 
more information on that process, please visit www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

 Table 3--Underwater Injury and Disturbance Threshold Decibel Levels for
                             Marine Mammals
------------------------------------------------------------------------
          Criterion           Criterion definition       Threshold*
------------------------------------------------------------------------
Level A harassment..........  PTS (injury)          190 dB RMS for
                               conservatively        pinnipeds
                               based on TTS**.      180 dB RMS for
                                                     cetaceans.
Level B harassment..........  Behavioral            160 dB RMS.
                               disruption for
                               impulse noise
                               (e.g., impact pile
                               driving).
Level B harassment..........  Behavioral            120 dB RMS.
                               disruption for non-
                               pulse noise (e.g.,
                               vibratory pile
                               driving, drilling).
------------------------------------------------------------------------
* All decibel levels referenced to 1 micropascal (re: 1 [mu]Pa). Note
  all thresholds are based off root mean square (RMS) levels.
** PTS = Permanent Threshold Shift; TTS = Temporary Threshold Shift.

Distance to Sound Thresholds

    Underwater Sound Propagation Formula--Pile driving generates 
underwater noise that can potentially result in disturbance to marine 
mammals in the project area. Transmission loss (TL) is the decrease in 
acoustic intensity as an acoustic pressure wave propagates out from a 
source. TL parameters vary with frequency, temperature, sea conditions, 
current, source and receiver depth, water depth, water chemistry, and 
bottom composition and topography. The general formula for underwater 
TL is:

TL = B * log10 (R1/R2), where
TL = transmission loss in dB
B = wave mode coefficient
R1= the distance of the modeled SPL from the driven pile, 
and
R2= the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log[range]). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log[range]). A 
practical spreading value of fifteen is often used under conditions 
where water increases with depth as the receiver moves away from the 
shoreline, resulting in an expected propagation environment that would 
lie between spherical and cylindrical spreading loss conditions. 
Practical spreading loss ((15*log[range]) with a 4.5 dB reduction in 
sound level for each doubling of distance is assumed here.
    The Corps does not have information or modeling results related to 
pile installation activities. However, some features of the proposed 
action are similar to those recently proposed by the Navy, the 
Washington State Department of Transportation (WSDOT), and other 
entities which were issued IHA/LOAs. For these reasons, NMFS considered 
some of the results from previous, representative monitoring efforts. 
Though the MCR navigation channel is a major commercial thoroughfare, 
there are no ports or piers in the immediate proximity of the jetties, 
as the seas are too dangerous. The locations and settings of the MCR 
jetties are far more dynamic than a naval pier setting in the Puget 
Sound, the substrate is mostly sand, and the natural background noise 
is likely to be much higher with the large, breaking wave sets, dynamic 
currents, and high winds. The Corps project is also in the immediate 
proximity of the open ocean, with less opportunity for sound 
attenuation by land.
    NMFS considered representative results from underwater monitoring 
for concrete, steel, and wood piles that were installed via both impact 
and vibratory hammers in water depths from 5 to 15 meters (Illingworth 
and Rodkin 2007, WSDOT 2011 cited in Naval Base Kitsap 2014, Navy 2014, 
and NMFS 2011b). Transmission loss and propagation estimates are 
affected by the size and depth of the piles, the type of hammer and 
installation method, frequency, temperature, sea conditions, currents, 
source and receiver depth, water depth, water chemistry, and bottom 
composition and topography. NMFS reviewed several documents that 
included relevant monitoring results for radial distances and proxy 
sound levels encompassed by underwater pile driving noise. These 
distances for vibratory driving for 24-in steel piles were summarized 
previously in Table 16 in the Application.
    Because no site-specific, in-water noise attenuation data is 
available, the practical spreading model described and used by NMFS was 
used to determine

[[Page 58457]]

transmission loss and the distances at which impact and vibratory pile 
driving or removal source levels are expected to attenuate down to the 
pertinent acoustic thresholds. The underwater practical spreading model 
is provided below:

R2 = R1 * 10[supcaret] ((dBat R1 - 
dBacoustic threshold)/15)

Where:

R1 = distance of a known or measured sound level
R2 = estimated distance required for sound to attenuate 
to a prescribed acoustic threshold

    NMFS used representative sound levels from different studies to 
determine appropriate proxy sound levels and to model estimated 
distances until pertinent thresholds (R1 and dB at 
R1). Studies which met the following parameters were 
considered: Pile materials comprised of wood, concrete, and steel pipe 
piles; pile sizes from 24- to 30-inches diameter, and pile driver type 
of either vibratory and impact hammers. These types and sizes of piles 
were considered in order to evaluate a representative range of sound 
levels that may result from the proposed action. In some cases, 
becausee there was little or no data specific to 24-inch piles, NMFS 
analyzed 30-inch piles as the next larger pile size with available 
data. The Corps will include a maximum pile size of 24-inches as a 
constraint in its construction contracts, though it will consult with 
NMFS regarding the originally proposed size.
    Results of the practical spreading model provided the distance of 
the radii that were used to establish a ZOI or area affected by the 
noise criteria. At the MCR, the channel is about 3 miles across between 
the South and North Jetty. These jetties, as well as Jetty A, could 
attenuate noise, but the flanking sides on two of the jetties are open 
ocean, and Jetty A is slightly further interior in the estuary. Clatsop 
Spit, Cape Disappointment, Hammond Point, as well as the Sand Islands, 
are also land features that would attenuate noise. Therefore, as a 
conservative estimate, NMFS is using (and showing on ZOI maps) the 
maximum distance and area but has indicated jetty attenuation in the 
ZOI area maps (See Figures 18, 19, 20, and 21 in the Application).
    NMFS selected proxy values for impact installation methods and 
calculated distances to acoustic thresholds for comparison and 
contextual purposes. NMFS ultimately relied most heavily on the proxy 
values developed by the Navy (2014).
    For vibratory pile driving source level installation, NMFS proposes 
to use a figure of 163 dB re 1 [mu]Pa rms at 10 m. The proxy value of 
163 dB re 1 [mu]Pa rms at 10 m is greater than the 24-inch pipe pile 
proxy and equal to the sheet pile values proposed by Navy (2014) at 161 
dB re 1 [mu]Pa rms and 163 dB re 1 [mu]Pa rms, respectively, and is 
also higher than the Friday Harbor Ferry sample (162 dB re 1 [mu]Pa 
rms) (Navy 2014 and Laughlin 2010a cited in Washington State Ferries 
2013, respectively). NMFS also proposes 163 dB re 1 [mu]Pa rms to 
represent sheet pile installation, which registered higher than the 
pipe pile levels in the proxy study. Given the comparative differences 
between the substrate and context used in the Navy study relative to 
the MCR, 163 dB re 1 [mu]Pa rms is a very conservative evaluation 
level. Results are listed in Tables 4, 5, 6, and 7.

 Table 4--Calculated Area Encompassed Within Zone of Influence at MCR Jetties for Underwater Marine Mammal Sound
                                              Thresholds at Jetty A
----------------------------------------------------------------------------------------------------------------
                                                                                           Area excluding land &
               Jetty                     Underwater threshold        Distance--m (ft)       jetty masses--km\2\
                                                                                                  (mi\2\)
----------------------------------------------------------------------------------------------------------------
Jetty A: ~ Station 78+50, River      Vibratory driving, pinniped  0.....................  0
 Side.                                injury (190 dB).
                                     Vibratory driving, cetacean  1 (3.3)...............  <0.000003 (0.000001)
                                      injury (180 dB).
                                     Vibratory driving,           7,356 (4.6 miles).....  23.63 (9.12)
                                      disturbance (120 dB).
----------------------------------------------------------------------------------------------------------------


 Table 5--Calculated Area Encompassed Within Zone of Influence at MCR Jetties for Underwater Marine Mammal Sound
                                     Thresholds at North Jetty: Channel Side
----------------------------------------------------------------------------------------------------------------
                                                                                           Area excluding land &
               Jetty                     Underwater threshold        Distance--m (ft)       jetty masses--km\2\
                                                                                                  (mi\2\)
----------------------------------------------------------------------------------------------------------------
North Jetty: ~ Station 70+00,        Vibratory driving, pinniped  0.....................  0
 Channel Side.                        injury (190 dB).
                                     Vibratory driving, cetacean  1 (3.3)...............  <0.000003 (0.000001)
                                      injury (180 dB).
                                     Vibratory driving,           7,356 (4.6 miles).....  49.18 (18.99)
                                      disturbance (120 dB).
----------------------------------------------------------------------------------------------------------------


 Table 6--Calculated Area Encompassed Within Zone of Influence at MCR Jetties for Underwater Marine Mammal Sound
                                  Thresholds at South Jetty: Clatsop Spit Site
----------------------------------------------------------------------------------------------------------------
                                                                                           Area excluding land &
               Jetty                     Underwater threshold        Distance--m (ft)       jetty masses--km\2\
                                                                                                  (mi\2\)
----------------------------------------------------------------------------------------------------------------
South Jetty: ~ Clatsop Spit Side...  Vibratory driving, pinniped  0.....................  0
                                      injury (190 dB).
                                     Vibratory driving, cetacean  1 (3.3)...............  <0.000003 (0.000001)
                                      injury (180 dB).
                                     Vibratory driving,           7,356 (4.6 miles).....  51.96 (20.06)
                                      disturbance (120 dB).
----------------------------------------------------------------------------------------------------------------


[[Page 58458]]


 Table 7--Calculated Area Encompassed Within Zone of Influence at MCR Jetties for Underwater Marine Mammal Sound
                             Thresholds at South Jetty: Station 270+00 Channel Side
----------------------------------------------------------------------------------------------------------------
                                                                                           Area excluding land &
               Jetty                     Underwater threshold        Distance--m (ft)       jetty masses--km\2\
                                                                                                  (mi\2\)
----------------------------------------------------------------------------------------------------------------
South Jetty: ~ Channel Side........  Vibratory driving, pinniped  0.....................  0
                                      injury (190 dB).
                                     Vibratory driving, cetacean  1 (3.3)...............  <0.000003 (0.000001)
                                      injury (180 dB).
                                     Vibratory driving,           7,356 (4.6 miles).....  52.89 (20.42)
                                      disturbance (120 dB).
----------------------------------------------------------------------------------------------------------------

    Note that the actual area ensonified by pile driving activities is 
significantly constrained by local topography relative to the total 
threshold radius. The actual ensonified area was determined using a 
straight line-of-sight projection from the anticipated pile driving 
locations. These areas are depicted in Figures 18, 19, 20 and 21 in the 
Application.
    Airborne construction sound may also cause behavioral responses. 
Again, the Corps does not have specific, in-situ data and has used 
monitoring results from similar actions to obtain representative proxy 
SPLs. This also included the Navy (2014) proxy study for acoustic 
values from both vibratory and impact installation methods.
    During the Navy study (2014), a maximum level of 110 re 20 [mu]Pa 
at 15 m was measured for a single 24-inch pile installed via impact 
hammer and was selected as the most representative value for modeling 
analysis under the Navy proxy study. The site was located in the Puget 
Sound. A single 30-second measurement was made for 24-inch piles during 
the Test Pile Program at NBK, Bangor via vibratory installation, and 
because these data fit the overall trend of smaller and larger pile 
sizes, the limited data set for 24-inch steel pipe supported the Navy 
(2014) representative proxy value of 92 dB re 20 [mu]Pa at 15 m (Navy 
2014) for vibratory installation. The rms Leq value for 24-
inch steel pipe piles was also chosen as the best estimate for 24-inch 
sheet piles in the Navy study (Navy 2014).
    The method used for calculating potential exposures to vibratory 
pile driving noise for each threshold was estimated using local marine 
mammal data sets, the Biological Opinion and data from LOA/IHA 
estimates on similar projects with similar actions. All estimates are 
conservative and include the following assumptions:
     During construction, each species could be present in the 
project area each day. The potential for a take is based on a 24-hour 
period. The model assumes that there can be one potential take (Level B 
harassment exposure) per individual per 24-hours;
     All pilings installed at each site would have an 
underwater noise disturbance equal to the piling that causes the 
greatest noise disturbance (i.e., the piling furthest from shore) 
installed with the method that has the largest ZOI. The largest 
underwater disturbance ZOI would be produced by vibratory driving steel 
piles. The ZOIs for each threshold are not spherical and are truncated 
by land masses which would dissipate sound pressure waves;
     Exposures were based on estimated work days. Construction 
at each of the three offloading facilities would occur over an 
approximate span of ~17 days per facility resulting in 51 days. 
Assuming that not all of the Jetty A work was completed prior to the 
expiration of the IHA, seven days were added to cover remaining work at 
that location. Additionally six days of pedestrian surveys are planned 
to occur on South Jetty which may result in pinniped disturbance at 
haulout sites; and
     In absence of site specific underwater acoustic 
propagation modeling, the practical spreading loss model was used to 
determine the ZOI.
    The exposure estimates for cetaceans were generated using the 
following general equation. Note that additional details are provided 
below for each species for which authorized take is proposed:

Exposure estimate = (n * ZOI) * days of total activity over 5 years

Where:

n = density estimate used for each species/season
ZOI = sound threshold ZOI area; the area encompassed by all 
locations where the SPLs equal or exceed the threshold being 
evaluated as shown in Tables 4, 5, 6, and 7.
n * ZOI produces an estimate of the abundance of animals that could 
be present in the area for exposure, and is multiplied by days of 
total activity.

    Exposure estimates for pinnipeds were generated using haulout data 
collected by state wildlife agencies depicting the numbers of various 
pinniped species that are hauled out near the tip of the South Jetty.
    Note that pinnipeds that occur near the project sites could be 
exposed to airborne sounds associated with pile driving that have the 
potential to cause behavioral harassment, depending on their distance 
from pile driving activities. Cetaceans are not expected to be exposed 
to airborne sounds that would result in harassment as defined under the 
MMPA. Airborne noise will primarily be an issue for pinnipeds that are 
swimming or hauled out near the project site within the range of noise 
levels elevated above the airborne acoustic criteria. NMFS recognizes 
that pinnipeds in the water could be exposed to airborne sound that may 
result in behavioral harassment when looking with heads above water. 
However, these animals would previously have been taken as a result of 
exposure to underwater sound above the behavioral harassment 
thresholds, which are in all cases larger than those associated with 
airborne sound. Thus, the behavioral harassment of these animals is 
already accounted for in these estimates of potential take. Multiple 
incidents of exposure to sound above NMFS' thresholds for behavioral 
harassment are not believed to result in increased behavioral 
disturbance, in either nature or intensity of disturbance reaction. 
Therefore, we do not believe that authorization of incidental take 
resulting from airborne sound for pinnipeds is warranted, and airborne 
sound is not discussed further here.
Killer Whale
    Southern Resident killer whales have been observed offshore near 
the study area and ZOI, but the Corps does not have fine-scale details 
on frequency of use. While killer whales do occur in the Columbia River 
plume, where fresh water from the river intermixes with salt water from 
the ocean, they are rarely seen in the interior of the Columbia River 
Jetty system. Because Southern Residents have been known to feed in the 
area offshore, the Corps has limited its pile installation window in 
order to avoid peak salmon runs and any overlap with the presence of 
Southern Residents. To ensure no Level B acoustical harassment of 
endangered Southern Resident killer whales occurs, the Corps will 
prohibit pile installation from October 1 until April 30 of each

[[Page 58459]]

season. The Corps is proposing to include vessel surveys and to 
implement a shut-down procedure if killer whales occur in the ZOI 
during pile installation/removal/repair activities from May 1 to July 1 
to avoid take. After July 1, any animals taken are assumed to be 
transient killer whales. As such NMFS is not anticipating any acoustic 
exposure to Southern Residents. Therefore, NMFS has determined that 
authorization of take for Southern Residents is not warranted.
    Western transient killer whales may be traversing offshore over a 
greater duration of time than the feeding resident. They are rarely 
observed inside of the jetty system. The Pacific U.S. Navy Marine 
Species Density Database (Hanser et al., 2014) provides an estimated 
density of 0.00055-0.00411 animals per km\2\ for killer whales in 
spring, summer and fall for offshore areas near MCR. Only North Jetty 
and South Jetty were included as part of this calculation because the 
ensonified zones associated with driving at the two locations extends 
out into the open ocean where killer whales may occur. The ensonified 
zones associated with Jetty A and Clatsop Spit are located to the 
inland side of the Jetty system where killer whales are unlikely to be 
found.
    The following formula was used to calculate exposure:

Exposure Estimate = (0.00411DensityEstimate * 
48.18ZOI North Jetty * 17days) + 
(0.00411DensityEstimate * 52.89ZOI South Jetty * 
17days) = 7.05 whales

Where:

NDensityEstimate = Estimated density of species within 
the 7.35 km (4.6 mi) radii encompassing the ZOIs at the North Jetty 
(48.18 km\2\) and South Jetty (52.89 km\2\) using the U.S. Navy 
density model (2014)
Days = Total days of pile installation or removal activity (17 days/
facility * North and South Jetty offloading facilities = 34 days)

    While the calculated exposure is 7.05 whales, NMFS believes that an 
authorized take of 20 over the 5 year LOA period is warranted because 
solitary killer whales are rarely observed, and transient whales travel 
in pods of 6 or less (Dalheim et al., 2008) members. NMFS has 
conservatively assumed that 4 pods of 5 killer whales will exposed to 
Level B harassment.
Humpback Whale
    The Corps does not have fine-scale information about humpback whale 
use within the immediate project area. The Navy (2014) marine mammal 
database indicates that between 0.002 animals per km\2\ occur near the 
mouth of the Columbia River during spring (March-May) while the summer 
(June-August) and fall (September-November) densities are 0.0214 
animals per km\2\. Most of the pile installation is likely to be done 
in May or June at the beginning of the construction season while pile 
removal would occur towards the end of the season in August and 
September. Repair or replacement of piles, although not anticipated, 
could occur anytime during the five month construction season. 
Therefore, NMFS will conservatively assume that approximately 20 
percent of driving will occur during each month between May and 
September, which equates to 3.4 days per month. Rounding to full days, 
NMFS will assume that 3 days of driving per month will occur from June 
through August while 4 days of driving will occur in the months of May 
and September. Humpback whales will only occur in the offshore portions 
of the project area which would be the ensonified areas associated with 
driving activities at the North and South Jetties.
    The following formula was used to calculate exposure:

Exposure Estimate = (0.002DensityEstimate * 
48.18ZOI North Jetty * 4days (May) + 
0.0214DensityEstimate * 48.18ZOI North Jetty * 
13days (June-September)) + (0.002DensityEstimate 
* 52.89ZOI South Jetty * 4days (May) + 
0.0214DensityEstimate * 52.89ZOI South Jetty * 
13days (June-September) = 28.9 humpback whale exposures.

    Based on the above formula, an estimate of 29 (28.9) humpback whale 
disturbance exposures was calculated over the duration of the entire 
project. Therefore, NMFS is recommending Level B take of 29 humpback 
whales.
Gray Whales
    Anecdotal evidence also indicates gray whales have been seen at MCR 
but are not a common visitor, as they mostly remain in the vicinity of 
the further offshore shelf-break (Griffith 2015). According to NOAA's 
Cetacean Mapping classification the waters in the vicinity of the MCR 
are classified as a Biologically Important Area (BIA) for gray whales. 
These whales use the area as a migration corridor (Calambokidis et al., 
2015). As primarily bottom feeders, gray whales are the most coastal of 
all great whales. They primarily feed in shallow continental shelf 
waters and are often observed within a few miles of shore (Barlow et. 
al., 2009). The Pacific Coast Feeding Group (PCFG) or northbound summer 
migrants would be the most likely gray whales to be in the vicinity of 
MCR.
    The Navy (2014) marine mammal database indicates that between 
0.0487 animals per km\2\ occur near the mouth of the Columbia River 
during spring (March-May) while the summer (June-August) and fall 
(September-November) densities are 0.00045 animals per km\2\. NMFS will 
conservatively assume that approximately 20 percent of driving will 
occur during each month between May and September which equates to 3.4 
days per month. Rounding to full days NMFS will assume that three days 
of drilling per month will occur from June through August while four 
days of drilling will occur in the months of May and September. Gray 
whales would only occur in the offshore portions of the project area 
associated with pile driving activities at the North and South Jetties.
    The following formula was used to calculate exposure:

Exposure Estimate = +(0.0487DensityEstimate * 
48.18ZOI North Jetty * 4days (May) + 
0.00045DensityEstimate * 48.18ZOI North Jetty * 
13days (June-September)) + (0.0487DensityEstimate 
* 52.89ZOI South Jetty * 4days (May) + 
0.00045DensityEstimate * 52.89ZOI South Jetty * 
13days (June-September) = 20.27 gray whale exposures.

    However, the number of gray whale exposures at the North Jetty and 
South Jetty locations should be higher than that of humpback whales 
because gray whales are known to inhabit nearshore environments in 
greater numbers than humpback whales.
    Gray whales typically migrate in pods numbering between 1 and 3 
although migrating pods of 16 or more have been recorded (Jefferson et 
al., 1993.) For gray whales, NMFS will conservatively assume 20 pods of 
2 gray whales will be exposed for work done at the North Jetty and 
South Jetty sites. Therefore, the total number of proposed takes is 40 
gray whales.
Harbor Porpoise
    Harbor porpoises are known to occupy shallow, coastal waters and, 
therefore, are likely to be found in the vicinity of the MCR. They are 
also known to occur within the proposed project area (Griffith 2015).
    The Navy (2014) provides an estimated year round density of 1.67163 
animals per km\2\ for offshore waters near the MCR. This number will be 
utilized to estimate take for all four jetties as porpoises are known 
to occur on the inland side of the jetty complex.

[[Page 58460]]

    The formula used for harbor porpoises is below:

Exposure Estimate = (1.67163DensityEstimate * 
23.63ZOI Jetty A * 7days) + 
(1.67163DensityEstimate * 48.18ZOI North Jetty * 
17days) + (1.67163DensityEstimate * 
52.89ZOI South Jetty Channel * 17days) + 
(1.67163DensityEstimate * 
51.96ZOI South Jetty Clatsop * 17days) = 4,624 
harbor porpoise exposures.

    Based on the density model suggested by NOAA (2015), the Corps has 
provided a very conservative maximum estimate of 4,624 harbor porpoise 
disturbance exposures over the 58 days of operation. However, this 
number of potential exposures does not accurately reflect the actual 
number of animals that would potentially be taken for the MCR jetty 
project. Rather, it is more likely that the same animal may be exposed 
more than once during each 17-day operating window. According to Halpin 
et al. (2009), the normal range of group size generally consists of 
less than five or six individuals, although aggregations into large, 
loose groups of 50 to several hundred animals could occur for feeding 
or migration. Because the ZOI only extends for a maximum 7.35 km (4.6 
mi), it is likely that due to competition and territorial circumstances 
only a limited number of pods would be feeding in the ZOI at any 
particular time, and members of this small number of pods could be 
taken repeatedly. NMFS is recommending Level B take of 4,624 harbor 
porpoises.
Pinnipeds
    There are haulout sites on the South Jetty used by pinnipeds, 
especially Steller sea lions. It is likely that pinnipeds that use the 
haulout area would be exposed to 120 dB threshold acoustic threshold 
during pile driving activities. The number of exposures would vary 
based on weather conditions, season, and daily fluctuations in 
abundance. Based on a survey by the WDFW (2014), the number of affected 
Steller sea lions could be between 200-800 animals per day depending on 
the particular month. California sea lion numbers could range from 1 to 
500 per day and the number of harbor seals could be as low as 1 to as 
high as 57 per day. Exposure and take estimates, below, are based on 
past pinniped data from WDFW (2000-2014 data), which had a more robust 
monthly sampling frequency relative to ODFW (2014) counts. The 
exception to this was for harbor seal counts, for which ODFW (also 
2000-2014 data) had more sampling data in certain months. Therefore, 
ODFW harbor seal data was used for the month of May, which indicated 
zero harbor seal sightings in May. NMFS utilized the average of counts 
from May through September from surveys conducted in between 2000 and 
2014 at the South Jetty. This survey data was used to calculate take of 
animals exposed to Level B disturbance at the South Jetty's pinniped 
haulout area. NMFS will conservatively assume that all pinnipeds both 
hauled out and in-water would enter the water at some point during a 
single day of driving and transit into one of the four ensonified zones 
associated with each offloading facility. Therefore, they would be 
exposed to noise at or above the Level B thresholds.
    To calculate take, NMFS will take the average daily counts from the 
months of May and June, when pile driving is likely to occur. This will 
be multiplied by the total number of days of driving (58) at the four 
offloading facilities.

Exposure EstimateStellar = (Nest(May-Sept) * 
58underwater/piles days) = 27,773 Steller sea lions

Exposure EstimateCalifornia = (Nest(May-Sept) * 
58underwater/piles days) = 8,039 California sea lions

Exposure EstimateHarbor = (Nest(May-Sept) * 
58underwater/piles days) = 989 Harbor porpoises

Where:

Nest = Estimated daily average number of animals for May 
and June hauled out at South Jetty based on WDFW data and ODFW data
Duration = total days of pile installation or removal activity for 
underwater thresholds (58); 17 days each at North Jetty, South 
Jetty, and Clatsop Spit and 7 days remaining at Jetty A.

    In order to estimate exposure from pedestrian surveys, NMFS assumed 
that over the span of three survey seasons (6 days), there was a chance 
of visual disturbance impacting one percent of pinnipeds that may be 
hauled out on the jetty during any single day. Because survey days are 
weather dependent and occur in the summer time, the Corps 
conservatively selected from the highest monthly average species number 
during the summer months between May and August. Pinniped exposure 
estimates are found in Table 8.

    Table 8--Authorized Takes of Pinnipeds During Pile Installation at Jetty A, North Jetty, South Jetty, and
                                                  Clatsop Spit
----------------------------------------------------------------------------------------------------------------
                                                                   Steller  sea     California     Harbor  seal
                                                                       lion          sea lion    ---------------
                              Month                              --------------------------------
                                                                     Avg \1\ #       Avg \1\ #     Avg \1\ \2\ #
----------------------------------------------------------------------------------------------------------------
April...........................................................             587              99  ..............
May.............................................................             824             125               0
June............................................................             676             202              57
July............................................................             358               1              10
August..........................................................             324             115               1
September.......................................................             209             249  ..............
October.........................................................             384             508  ..............
Avg Daily Count (May-Sept) \3\..................................             478             138              17
Total Pile Driving Exposures (58 days)..........................          27,724           8,027             986
Pedestrian Survey Exposures--1% of highest monthly                            49              12               3
 Avg.May	August (6 days)........................................
                                                                 -----------------------------------------------
    Total Exposures.............................................          27,773           8,039             989
----------------------------------------------------------------------------------------------------------------
\1\ WDFW average daily count per month from 2000-2014.
\2\ ODFW average daily count per month for May and July 2000-2014 due to additional available sampling data.
\3\ Conservatively assumes each exposure is to new individual, all individuals are new arrivals each month, and
  no individual is exposed more than one time.


[[Page 58461]]

Analyses and Determinations

Negligible Impact Analysis

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, effects on habitat, and the status 
of the species.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 1, with the exception of Southern Resident 
killer whales and gray whales, given that the anticipated effects of 
this pile driving project on marine mammals are expected to be 
relatively similar in nature. There is no information about the size, 
status, or structure of any species or stock that would lead to a 
different analysis for this activity, else species-specific factors 
would be identified and analyzed.
    Pile driving activities associated with the rehabilitation of the 
Jetty system at the MCR, as outlined previously, have the potential to 
disturb or displace marine mammals. Specifically, the planned 
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, 
vibratory hammers will be the only method of installation utilized. No 
impact driving is planned. Vibratory driving does not have significant 
potential to cause injury to marine mammals due to the relatively low 
source levels produced and the lack of potentially injurious source 
characteristics. The likelihood of marine mammal detection ability by 
both land-based and vessel-based observers is high under the 
environmental conditions described for the rehabilitation of the Jetty 
system. MMO's ability to readily implement shutdowns as necessary 
during Jetty system construction activities will result in avoidance of 
injury, serious injury, or mortality.
    The Corps' proposed pile driving activities are localized and of 
short duration. The entire project area is limited to the four jetty 
offloading facilities and their immediate surroundings. Pile driving 
activities covered under the LOA would take on approximately 10 hours 
per day for 58 days over a five year period. Six days of pedestrian 
surveys across the five year period are also planned. The piles would 
be a maximum diameter of 24 inches and would only be installed by 
vibratory driving method. The possibility exists that smaller diameter 
piles may be used, but for this analysis it is assumed that 24-inch 
piles will be driven.
    These localized and short-term noise exposures may cause brief 
startle reactions or short-term behavioral modification by the animals. 
These reactions and behavioral changes are expected to subside quickly 
when the exposures cease. Moreover, the proposed mitigation and 
monitoring measures are expected to reduce potential exposures and 
behavioral modifications even further. Additionally, no important 
feeding and/or reproductive areas for marine mammals are known to be 
near the proposed action areas. Therefore, the take resulting from the 
proposed project is not reasonably expected to and is not reasonably 
likely to adversely affect the marine mammal species or stocks through 
effects on annual rates of recruitment or survival.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; Lerma, 2014). Most likely, individuals will simply move away from 
the sound source and be temporarily displaced from the areas of pile 
driving, although even this reaction has been observed primarily only 
in association with impact pile driving. In response to vibratory 
driving, pinnipeds (which may become somewhat habituated to human 
activity in industrial or urban waterways) have been observed to orient 
towards and sometimes move towards the sound. The pile driving 
activities analyzed here are similar to, or less impactful than, 
numerous construction activities conducted in other similar locations, 
which have taken place with no reported injuries or mortality to marine 
mammals, and no known long-term adverse consequences from behavioral 
harassment. Repeated exposures of individuals to levels of sound that 
may cause Level B harassment are unlikely to result in hearing 
impairment or to significantly disrupt foraging behavior. Thus, even 
repeated Level B harassment of some small subset of the overall stocks 
is unlikely to result in any significant realized decrease in fitness 
for the affected individuals, and thus would not result in any adverse 
impact to the stock as a whole. Level B harassment will be reduced to 
the level of least practicable impact through use of mitigation 
measures described herein and, if sound produced by project activities 
is sufficiently disturbing, animals are likely to simply avoid the 
project area while the activity is occurring.
    Note that NMFS has not authorized take for the endangered Southern 
Resident killer whales. Take has not been authorized because the Corps 
will prohibit pile driving from October 1 through May 1 which is 
considered the primary feeding season for Southern Residents and when 
their presence in the project areas is likely to be greatest. 
Additionally, the Corps will shut down all pile driving activities 
between May 1 and July 1 if any killer whale is observed approaching 
the ZOI. While unlikely, Southern Residents may occur near the project 
areas during this time. Because it may be difficult to differentiate 
between Southern Resident

[[Page 58462]]

and transient populations, this conservative measure will ensure that 
no Southern Residents are taken. After July 1 it would be highly 
unlikely for Southern Residents to occur in the project areas. 
Therefore, shut down for Southern Residents will not be necessary, and 
any killer whales observed in the ZOI during this time are assumed to 
be transient killer whales.
    The area offshore of MCR has been identified as a BIA for migrating 
gray whales (Calambokidis et al., 2015). Members of the PCFG as well as 
other animals from both the eastern and western North Pacific 
populations travel through the area. However, this region has not been 
identified as one of six distinct PCFG feeding BIAs where PCFG animals 
are likely to stay for extended periods. Furthermore, anecdotal 
evidence indicates that while members of the PCFG have been observed 
near the MCR, they are not a common visitor, as they mostly remain in 
the vicinity of the offshore shelf-break Griffith (2015).
    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 and; (3) the presumed efficacy of 
the proposed mitigation measures in reducing the effects of the 
specified activity to the level of least practicable impact. In 
combination, we believe that these factors, as well as the available 
body of evidence from other similar activities, demonstrate that the 
potential effects of the specified activity will have only short-term 
effects on individuals. The 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 proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the Corps' rehabilitation of the MCR Jetty System will have a 
negligible impact on the affected marine mammal species or stocks.

            Table 9--Estimated Percentage of Species/Stocks That May Be Exposed to Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                           Total proposed
                                                          authorized takes                       Percentage of
                        Species                            over 5 years/        Abundance      total stock taken
                                                           average annual                       annually over 5
                                                           take (rounded)                       year LOA period
----------------------------------------------------------------------------------------------------------------
Killer whale (Western transient stock).................               20/4                243                1.6
Humpback whale (California/Oregon/Washington stock)....               29/6              1,918                0.3
Gray whale (Eastern North Pacific Stock)...............               40/8             18,017              <0.01
Harbor porpoise........................................          4,624/924             21,487                4.3
Steller sea lion.......................................       27,773/5,555      63,160-78,198            8.8-7.1
California sea lion....................................        8,039/1,608            296,750                0.5
Harbor seal............................................            989/198             24,732                0.8
----------------------------------------------------------------------------------------------------------------

Small Numbers Analysis

    Table 9 illustrates the number of animals that could be exposed to 
received noise levels that could cause Level B behavioral harassment 
for the proposed work associated with the rehabilitation of the Jetty 
system at MCR. The total number of allowed takes was estimated and then 
divided equally over five years, which is the length of the proposed 
LOA. This was done because the small numbers analysis must be conducted 
on an annual basis.
    Note that the work at the four jetty offloading facilities will not 
be spread evenly over the proposed five-year authorization period. 
Because the schedule for pile driving over the five year period is 
uncertain and susceptible to change depending on future funding 
availability, it is not possible for NMFS to estimate exposure and 
subsequent take for specific years. As such, the actual take per 
species may be higher or lower than the annual average for a specific 
year. Because the take numbers generated by NMFS are annualized 
averages, NMFS will assume that in any one year the actual take will be 
up to two times greater than the projected average annual take. As 
such, the greatest percentage of a total stock taken annually is not 
likely to exceed 17.6 percent (11,110 Steller sea lions). Furthermore, 
the small numbers analyses of annual averages shown in Table 9 
represents between 8.8 percent and <0.01 percent of the populations of 
these stocks that could be affected by Level B behavioral harassment. 
The numbers of animals authorized to be taken for all species would be 
considered small relative to the relevant stocks or populations even if 
each estimated taking occurred to a new individual--an extremely 
unlikely scenario. For pinnipeds occurring in the vicinity of the 
offloading facilities, especially those hauled out at South Jetty, 
there will almost certainly be overlap in individuals present day-to-
day, and these takes are likely to occur only within some small portion 
of the overall regional stock.
    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.

Endangered Species Act (ESA)

    We previously requested a section 7 consultation with NMFS West 
Coast Region for this action. The resultant Biological Opinion 
determined that the proposed action was not likely to jeopardize the 
continued existence of humpback whales. The West Coast Region has 
determined that the March 18, 2011, Biological Opinion remains valid 
and that the proposed MMPA authorization provides no new information 
about the effects of the action, nor does it change the extent of 
effects of the action, nor offers any other basis to require 
reinitiation of the consultation. Therefore, the March 18, 2011, 
Biological Opinion meets the

[[Page 58463]]

requirements of section 7(a)(2) of the ESA and implementing regulations 
at 50 CFR part 402 for our proposed action to issue an LOA under the 
MMPA, and no further consultation is required. The West Coast Region 
will issue a new Incidental Take Statement and append it to the 2011 
Biological Opinion.

National Environmental Policy Act (NEPA)

    The Corps issued the Final Environmental Assessment Columbia River 
at the Mouth, Oregon and Washington Rehabilitation of the Jetty System 
at the Mouth of the Columbia River and Finding of No Significant Impact 
in 2011. The environmental assessment (EA) and finding of no 
significant interest (FONSI) were revised in 2012 with a FONSI being 
signed on July 26, 2012. NMFS has reviewed the Corps' application for a 
rehabilitation of the MCR Jetty system. Based on that review, we have 
determined that the proposed action closely follows the activities 
described in the EA and does not present any substantial changes, or 
significant new circumstances or information relevant to environmental 
concerns which would require a supplement to the 2012 EA or preparation 
of a new NEPA document. Therefore, we have preliminarily determined 
that a new or supplemental EA or Environmental Impact Statement is 
unnecessary, and will, after review of public comments, determine 
whether or not to rely on the existing EA and FONSI. The 2012 EA is 
available for review at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Classification

    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The U.S. Army Corps of Engineers is the only entity that would be 
subject to the requirements in these proposed regulations. The RFA 
requires Federal agencies to prepare an analysis of a rule's impact on 
small entities whenever the agency is required to publish a notice of 
proposed rulemaking. However, a Federal agency may certify, pursuant to 
5 U.S.C. 605(b), that the action will not have a significant economic 
impact on a substantial number of small entities. The U.S. Army Corps 
of Engineers is the only entity that would be subject to the 
requirements in these proposed regulations. The SBA defines a small 
entity as one that is independently owned and operated, and not 
dominant in its field of operation. The U.S. Army Corps of Engineers is 
not a small governmental jurisdiction, small organization, or small 
business, as defined by the RFA. Any requirements imposed by a Letter 
of Authorization issued pursuant to these regulations, and any 
monitoring or reporting requirements imposed by these regulations, 
would be applicable only to the U.S. Army Corp of Engineers. NMFS does 
not expect the issuance of these regulations or the associated LOAs to 
result in any impacts to small entities pursuant to the RFA. Because 
this action, if adopted, would directly affect the U.S. Army Corps of 
Engineers and not a small entity, NMFS concludes the action would not 
result in a significant economic impact on a substantial number of 
small entities. Thus, a regulatory flexibility analysis is not required 
and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number.
    This proposed rule contains collection-of-information requirements 
subject to the provisions of the PRA. These requirements have been 
approved by OMB under control number 0648-0151 and include applications 
for regulations, subsequent LOAs, and reports. Send comments regarding 
any aspect of this data collection, including suggestions for reducing 
the burden, to NMFS and the OMB Desk Officer (see ADDRESSES).
    The Office of Management and Budget has determined that this 
proposed rule is not significant for purposes of Executive Order 12866. 
NMFS has considered all provisions of E.O. 12866 and analyzed this 
action's impact. Based on that review, this action is not expected to 
have an annual effect on the economy of $100 million or more, or have 
an adverse effect in a material way on the economy. Furthermore, this 
action would not create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; or materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or raise 
novel or policy issues.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: August 16, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be amended as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Add subpart X to part 217 to read as follows:
Subpart X--Taking Marine Mammals Incidental to Rehabilitation of the 
Jetty System at the Mouth of the Columbia River in Oregon and 
Washington
Sec.
217.230 Specified activity and specified geographical region.
217.231 Effective dates.
217.232 Permissible methods of taking.
217.233 Prohibitions.
217.234 Mitigation requirements.
217.235 Requirements for monitoring and reporting.
217.236 Letters of Authorization.
217.237 Renewals and modifications of Letters of Authorization.

Subpart X Taking Marine Mammals Incidental to Rehabilitation of the 
Jetty System at the Mouth of the Columbia River in Oregon and 
Washington


Sec.  217.230  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Army Corps 
of Engineers (Corps) and those persons it authorizes to conduct 
activities on its behalf for the taking of marine mammals that occurs 
in the area outlined in paragraph (b) of this section and that occurs 
incidental to the jetty rehabilitation program.
    (b) The taking of marine mammals by the Corps may be authorized in 
a Letter of Authorization (LOA) only if it occurs within the nearshored 
marine environment at the Mouth of the Columbia River in Oregon and 
Washington.

[[Page 58464]]

Sec.  217.231  Effective dates.

    Regulations in this subpart are effective May 1, 2017 through April 
30, 2022.


Sec.  217.232  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.236, the Holder of the LOA (hereinafter ``Corps'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.230(b), provided the activity is in 
compliance with all terms, conditions, and requirements of the 
regulations in this subpart and the appropriate LOA.
    (b) The incidental take of marine mammals under the activities 
identified in Sec.  217.230(a) is limited to the indicated number of 
takes on an annual basis of the following species and is limited to 
Level B harassment:
    (1) Cetaceans:
    (i) Humpback whale (Megaptera novaeangliae)--29;
    (ii) Harbor porpoise (Phocoena phocoena)--4,624;
    (iii) Killer whale (Orcinus orca)--20;
    (iv) Gray whale (Eschrichtius robustus)--40;
    (2) Pinnipeds:
    (i) Harbor seal (Phoca vitulina)--989;
    (ii) Steller sea lion (Eumetopias jubatus)--27,773; and
    (iii) California Sea Lion (Zalophus californianus)--8,039.


Sec.  217.233  Prohibitions.

    (a) Notwithstanding takings contemplated in Sec.  217.230 and 
authorized by an LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.236, no person in connection with the activities described in 
Sec.  217.230 may:
    (1) Take any marine mammal not specified in Sec.  217.232(b);
    (2) Take any marine mammal specified in Sec.  217.232(b) other than 
by incidental Level B harassment;
    (3) Take a marine mammal specified in Sec.  217.232(b) if the 
National Marine Fisheries Service (NMFS) determines such taking results 
in more than a negligible impact on the species or stocks of such 
marine mammal;
    (4) Take a marine mammal specified in Sec.  217.232(b) if NMFS 
determines such taking results in an unmitigable adverse impact on the 
species or stock of such marine mammal for taking for subsistence uses; 
or
    (5) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.236.
    (b) [Reserved]


Sec.  217.234  Mitigation requirements.

    (a) When conducting the activities identified in Sec.  217.130(a), 
the mitigation measures contained in any LOA issued under Sec.  216.106 
of this chapter and Sec.  217.236 must be implemented. These mitigation 
measures include, but are not limited to:
    (1) General conditions:
    (i) The Corps shall conduct briefings as necessary between vessel 
crews, marine mammal monitoring team, and other relevant personnel 
prior to the start of all pile driving and removal activity, and when 
new personnel join the work, in order to explain responsibilities, 
communication procedures, marine mammal monitoring protocol, and 
operational procedures;
    (ii) Each Marine Mammal Observer (MMO) will maintain a copy of the 
LOA at their respective monitoring location, as well as a copy in the 
main construction office;
    (iii) Pile activities are limited to the use of a vibratory hammer. 
Impact hammers are prohibited;
    (iv) Pile installation/maintenance/removal activities are limited 
to the time frame starting May 1 and ending September 30 each season; 
and
    (v) The Corps must notify NMFS' West Coast Regional Office (562-
980-3232), at least 24-hours prior to start of activities impacting 
marine mammals.
    (2) [Reserved]
    (b) Establishment of Level B harassment zone:
    (1) The Corps shall establish Level B behavioral harassment Zone of 
Influence (ZOI) where received underwater sound pressure levels (SPLs) 
are higher than 120 dB (rms) re 1 [mu]Pa for non-pulse sources (i.e. 
vibratory hammer). The ZOI delineates where Level B harassment would 
occur; and
    (2) For vibratory driving, the level B harassment area is comprised 
of a radius between 65 ft (20 m) and 4.6 mi (7.35 km) from driving 
operations.
    (c) Establishment of shutdown zone:
    (1) The Corps shall implement a minimum shutdown zone of 65 ft (20 
m) radial distance from vibratory hammer driving activities;
    (2) For in-water heavy machinery work other than pile driving 
(using, e.g., standard barges, tug boats, barge-mounted excavators, or 
clamshell equipment used to place or remove material), operations shall 
cease if a marine mammal comes within 66 ft (20 m) and vessels shall 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions;
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of vibratory pile driving operations, the activity 
will be halted and delayed until the animal has voluntarily left and 
been visually confirmed beyond the shutdown zone;
    (4) If a marine mammal is seen above water within or approaching a 
shutdown zone then dives below, the contractor would wait 15 minutes 
for pinnipeds and 30 minutes for cetaceans. If no marine mammals are 
seen by the observer in that time it will be assumed that the animal 
has moved beyond the exclusion zone;
    (5) If the shutdown zone is obscured by fog or poor lighting 
conditions, pile driving shall not be initiated until the entire 
shutdown zone is visible;
    (6) Disturbance zones shall be established as described in 
paragraph (b) of this section, and shall encompass the Level B 
harassment zones not defined as exclusion zones in paragraph (c) of 
this section. These zones shall be monitored to maximum line-of-sight 
distance from established vessel- and shore-based monitoring locations. 
If marine mammals other than those listed in Sec.  217.232(b) are 
observed within the disturbance zone, the observation shall be recorded 
and communicated as necessary to other MMOs responsible for 
implementing shutdown/power down requirements and any behaviors 
documented;
    (7) Between May 1 and July 1, the observation of any killer whales 
within the ZOI shall result in immediate shut-down all of pile 
installation, removal, or maintenance activities. Pile driving shall 
not resume until all killer whales have moved outside of the ZOI; and
    (8) After July 1, no shutdown is required for Level B killer whale 
take, but animals must be recorded as Level B take in the monitoring 
forms described below.
    (d) If the allowable number of takes for any marine mammal species 
in Sec.  217.232(b) is exceeded, or if any marine mammal species not 
listed in Sec.  217.232(b) is exposed to SPLs greater than or equal to 
120 dB re 1 [micro]Pa (rms), the Corps shall immediately shutdown 
activities involving the use of active sound sources (e.g., vibratory 
pile driving equipment), record the observation, and notify NMFS Office 
of Protected Resources.


Sec.  217.235  Requirements for monitoring and reporting.

    (a) Monitoring.
    (1) Qualified Marine Mammal Observers (MMOs) shall be used for both 
shore and vessel-based monitoring.
    (2) All MMOs must be approved by NMFS.
    (3) A qualified MMO is a third-party trained biologist with the 
following minimum qualifications:

[[Page 58465]]

    (i) Visual acuity in both eyes (correction is permissible) 
sufficient to discern moving targets at the water's surface with 
ability to estimate target size and distance. Use of binoculars or 
spotting scope may be necessary to correctly identify the target;
    (ii) Advanced education in biological science, wildlife management, 
mammalogy or related fields (Bachelor's degree or higher is preferred);
    (iii) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
    (iv) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds);
    (v) Sufficient training, orientation or experience with vessel 
operation and pile driving operations to provide for personal safety 
during observations;
    (vi) Writing skills sufficient to prepare a report of observations; 
and
    (vii) 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 needed.
    (4) MMOs must be equipped with the following:
    (i) Binoculars (10x42 or similar), laser rangefinder, GPS, big eye 
binoculars and/or spotting scope 20-60 zoom or equivalent; and
    (ii) Camera and video capable of recording any necessary take 
information, including data required in the event of an unauthorized 
Level A take zone.
    (5) MMOs shall conduct monitoring as follows:
    (i) During all pile driving and removal activities;
    (ii) Only during daylight hours from sunrise to sunset when it is 
possible to visually monitor mammals;
    (iii) Scan the waters for 30 minutes before and during all pile 
driving. If any species for which take is not authorized are observed 
within the area of potential sound effects during or 30 minutes before 
pile driving, the MMO(s) will immediately notify the on-site supervisor 
or inspector, and require that pile driving either not initiate or 
temporarily cease until the animals have moved outside of the area of 
potential sound effects;
    (iv) If weather or sea conditions restrict the observer's ability 
to observe, or become unsafe for the monitoring vessel(s) to operate, 
pile installation shall not begin or shall cease until conditions allow 
for monitoring to resume;
    (v) Trained land-based observers will be placed at the best vantage 
points practicable. The observers position(s) will either be from the 
top of jetty or adjacent barge at the location of the pile activities 
and from Cape Disappointment Visitors Center during work at North and 
South Jetty, and Clatsop Spit for work at Jetty A;
    (vi) Vessel-based monitoring for marine mammals must be conducted 
for all pile-driving activities at the North Jetty and two South Jetty 
offloading facilities. One or two vessels may be utilized as necessary 
to adequately monitor the offshore ensonified zone;
    (vii) Any marine mammals listed in Sec.  217.232(b) entering into 
the Level B harassment zone will be recorded as take by the MMO and 
listed on the appropriate monitoring forms described below;
    (viii) During pedestrian surveys, personnel will avoid as much as 
possible direct approach towards pinnipeds that are hauled out. If it 
is absolutely necessary to make movements towards pinnipeds, personnel 
will approach in a slow and steady manner to reduce the behavioral 
harassment to the animals as much as possible;
    (ix) Hydroacoustic monitoring; and
    (x) Hydroacoustic monitoring shall be performed using an 
appropriate method reviewed and approved by NMFS.
    (b) Reporting.
    (1) MMOs must use NMFS-approved monitoring forms and shall record 
the following information when a marine mammal is observed:
    (i) Date and time that pile removal and/or installation begins and 
ends;
    (ii) Construction activities occurring during each observation 
period;
    (iii) Weather parameters (e.g., percent cover, visibility);
    (iv) Water conditions [e.g., sea state, tidal state (incoming, 
outgoing, slack, low, and high)];
    (v) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (vi) Marine mammal behavior patterns observed, including bearing 
and direction of travel, and, if possible, the correlation to SPLs;
    (vii) Distance from pile removal and/or installation activities to 
marine mammals and distance from the marine mammal to the observation 
point;
    (viii) Locations of all marine mammal observations; and
    (ix) Other human activity in the area.
    (2) [Reserved]
    (c) The Corps shall submit a draft annual report to NMFS Office of 
Protected Resources covering a given calendar year within ninety days 
of the last day of pile driving operations. The annual report shall 
include summaries of the information described in paragraph (b)(1) of 
this section.
    (d) The Corps shall submit a final annual report to the Office of 
Protected Resources, NMFS, within thirty days after receiving comments 
from NMFS on the draft report.
    (e) Notification of dead or injured marine mammals.
    (1) In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury (Level A harassment), serious injury, 
or mortality, The Corps shall immediately cease the specified 
activities and report the incident to the Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinator, 
NMFS.
    (i) The report must include the following information:
    (A) Time, date, and location (latitude/longitude) of the incident;
    (B) Description of the incident;
    (C) Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    (D) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (E) Species identification or description of the animal(s) 
involved;
    (F) Status of all sound source use in the 24 hours preceding the 
incident;
    (G) Fate of the animal(s); and
    (H) Photographs or video footage of the animal(s). Activities shall 
not resume until NMFS is able to review the circumstances of the 
prohibited take. NMFS shall work with the Corps to determine what 
measures are necessary to minimize the likelihood of further prohibited 
take and ensure MMPA compliance. The Corps may not resume their 
activities until notified by NMFS.
    (ii) In the event that the Corps discovers an injured or dead 
marine mammal, and the lead MMO determines that the cause of the injury 
or death is unknown and the death is relatively recent (e.g., in less 
than a moderate state of decomposition), the Corps shall immediately 
report the incident to the Office of Protected Resources, NMFS, and the 
West Coast Regional Stranding Coordinator, NMFS. The report must 
include the same information identified in paragraph (e) of this 
section. If the observed marine mammal is dead, activities may continue 
while NMFS reviews the circumstances of the incident. If the observed 
marine mammal is injured, measures described in paragraph (e) (of this 
section must be implemented. NMFS will work with the Corps to determine 
whether additional mitigation measures or modifications to the 
activities are appropriate.
    (iii) In the event that the Corps discovers an injured or dead 
marine

[[Page 58466]]

mammal, and the lead MMO determines that the injury or death is not 
associated with or related to the activities authorized in the LOA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, scavenger damage), the Corps shall report the incident 
to the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinator, NMFS, within 24 hours of the discovery. The 
Corps shall provide photographs or video footage or other documentation 
of the stranded animal sighting to NMFS. If the observed marine mammal 
is dead, activities may continue while NMFS reviews the circumstances 
of the incident. If the observed marine mammal is injured, measures 
described in paragraph (e) must be implemented. In this case, NMFS will 
notify the Corps when activities may resume.


Sec.  217.236  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Corps must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, the Corps may apply for and obtain a renewal of the Letter 
of Authorization.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Corps must 
apply for and obtain a modification of the Letter of Authorization as 
described in Sec.  217.237.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  217.237  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.236 for the activity identified in Sec.  217.230(a) shall be 
renewed or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section; and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in Sec.  217.247(c)(1)) that do not change the findings made 
for the regulations or result in no more than a minor change in the 
total estimated number of takes (or distribution by species or years), 
NMFS may publish a notice of proposed LOA in the Federal Register, 
including the associated analysis of the change, and solicit public 
comment before issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
217.236 for the activity identified in Sec.  217.230(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the Corps regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in a LOA:
    (A) Results from the Corps' monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in Sec.  217.232(b), an LOA may be modified 
without prior notice or opportunity for public comment. Notice would be 
published in the Federal Register within thirty days of the action.

[FR Doc. 2016-20018 Filed 8-24-16; 8:45 am]
 BILLING CODE 3510-22-P