[Federal Register Volume 82, Number 59 (Wednesday, March 29, 2017)]
[Notices]
[Pages 15497-15513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06096]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF250


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seattle Multimodal Construction 
Project in Washington State

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

ACTION: Proposed incidental harassment authorization; request for 
comment.

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SUMMARY: NMFS has received an application from Washington State 
Department of Transportation (WSDOT) for an Incidental Harassment 
Authorization (IHA) to take marine mammals, by harassment, incidental 
to Seattle Multimodal Construction Project in Washington State. 
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to issue an IHA to the WSDOT to incidentally 
take marine mammals during the specified activities.

DATES: Comments and information must be received no later than April 
28, 2017.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service. Physical comments should 
be sent to 1315 East-West Highway, Silver Spring, MD 20910 and 
electronic comments should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal 
identifying information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected

[[Page 15498]]

Resources, NMFS, (301) 427-8401. Electronic copies of the applications 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these 
documents, please call the contact listed above.

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 by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified area, the incidental, but not intentional, 
taking of small numbers of marine mammals, provided that certain 
findings are made and the necessary prescriptions are established.
    The incidental taking of small numbers of marine mammals shall be 
allowed if NMFS (through authority delegated by the Secretary) finds 
that the total taking by the specified activity during the specified 
time period will (i) have a negligible impact on the species or 
stock(s) and (ii) not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant). Further, the permissible methods of taking, as well as the 
other means of effecting the least practicable adverse impact on the 
species or stock and its habitat (i.e., mitigation) must be prescribed. 
Last, requirements pertaining to the monitoring and reporting of such 
taking must be set forth.
    Where there is the potential for serious injury or death, the 
allowance of incidental taking requires promulgation of regulations 
under MMPA section 101(a)(5)(A). Subsequently, a Letter (or Letters) of 
Authorization may be issued as governed by the prescriptions 
established in such regulations, provided that the level of taking will 
be consistent with the findings made for the total taking allowable 
under the specific regulations. Under MMPA section 101(a)(5)(D), NMFS 
may authorize incidental taking by harassment only (i.e., no serious 
injury or mortality), for periods of not more than one year, pursuant 
to requirements and conditions contained within an Incidental 
Harassment Authorization (IHA). The promulgation of regulations or 
issuance of IHAs (with their associated prescribed mitigation, 
monitoring, and reporting) requires notice and opportunity for public 
comment.
    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, 
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).

National Environmental Policy Act (NEPA)

    Issuance of an MMPA 101(a)(5) authorization requires compliance 
with the National Environmental Policy Act.
    NMFS preliminary determined the issuance of the proposed IHA is 
consistent with categories of activities identified in CE B4 (issuance 
of incidental harassment authorizations under section 101(a)(5)(A) and 
(D) of the MMPA for which no serious injury or mortality is 
anticipated) of the Companion Manual for NAO 216-6A and we have not 
identified any extraordinary circumstances listed in Chapter 4 of the 
Companion Manual for NAO 216-6A that would preclude this categorical 
exclusion.
    We will review all comments submitted in response to this notice 
prior to making a final decision on the IHA request.

Summary of Request

    On July 28, 2016, WSDOT submitted a request to NMFS requesting an 
IHA for the harassment of small numbers of 11 marine mammal species 
incidental to construction associated with the Seattle Multimodal 
Project at Colman Dock, Seattle, Washington, between August 1, 2017 and 
July 31, 2018. NMFS initially determined the IHA application was 
complete on September 1, 2016. However, WSDOT notified NMFS in November 
2016 that the scope of its activities had changed. WSDOT stated that 
instead of using vibratory hammers for the majority of in-water pile 
driving and using impact hammer for proofing, it would be required to 
use impact hammers to drive a large number of piles completely due to 
sediment conditions at Colman Dock. On March 2, 2017, WSDOT submitted a 
revised IHA application with updated project description. NMFS 
determined that the revised IHA application was complete on March 3, 
2017.
    NMFS is proposing to authorize the Level A and Level B harassment 
of the following eight marine mammal species/stocks: Harbor seal (Phoca 
vitulina), California sea lion (Zalophus californianus), Steller sea 
lion (Eumetopias jubatus), killer whale (Orcinus orca), gray whale 
(Eschrichtius robustus), humpback whale (Megaptera novaeangliae), 
harbor porpoise (Phocoena phocoena), and Dall's porpoise (P. dalli).

Description of Specified Activities

Overview

    WSDOT is proposing to preserve the Seattle Ferry Terminal at Colman 
Dock. The project will reconfigure the dock while maintaining 
approximately the same vehicle holding capacity as current conditions. 
The reconfiguration would increase total permanent overwater coverage 
(OWC) by about 5,400 square feet (f\2\) (about 1.7 percent more than 
existing overwater coverage at the site), due to the new walkway from 
the King County Passenger Only Ferry (POF) facility to Alaskan Way and 
new stairways and elevators from the POF to the upper level of the 
terminal. The additional 5,400 f\2\ will be mitigated by removing a 
portion of Pier 48, a condemned timber structure.
    The project will remove the northern timber trestle and replace a 
portion of it with a new concrete trestle. The area from Marion Street 
to the north edge of the property will not be rebuilt and will become, 
after demolition, a new area of open water. A section of fill contained 
behind a bulkhead underneath the northeast section of the dock will 
also be removed.
    WSDOT will construct a new steel and concrete trestle from Columbia 
Street northward to Marion Street. Construction of the reconfigured 
dock will narrow (reduce) the OWC along the shoreline (at the landward 
edge) by 180 linear feet at the north end of the site, while 30 linear 
feet of new trestle would be constructed along the shoreline at the 
south end of the site. The net reduction of OWC in the nearshore zone 
is 150 linear feet.
    The purpose of the Seattle Multimodal Project at Colman Dock is to 
preserve the transportation function of an aging, deteriorating and 
seismically-deficient facility to continue providing safe and reliable 
service. The project will also address existing safety concerns related 
to conflicts between vehicles and pedestrian traffic and

[[Page 15499]]

operational inefficiencies. Key project elements include:
     Replacing and re-configuring the timber trestle portion of 
the dock;
     Replacing the main terminal building;
     Reconfiguring the dock layout to provide safer and more 
efficient operations;
     Replacing the vehicle transfer span and the overhead 
loading structures of Slip 3;
     Replacing vessel landing aids;
     Maintaining a connection to the Marion Street pedestrian 
overpass;
     Moving the current POF slip temporarily to the north to 
make way for south trestle construction, and then constructing a new 
POF slip in the south trestle area;
     Mitigating for the additional 5,400 f\2\ of overwater 
coverage;
     Capping existing contaminated sediments.
    The proposed Seattle Multimodal Project would involve in-water 
impact and vibratory pile driving and vibratory pile removal. Details 
of the proposed construction project that have the potential to affect 
marine mammals are provided below.

Dates and Duration

    Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water 
work timing restrictions to protect Endangered Species Act (ESA) listed 
salmonids, planned WSDOT in-water construction at this location is 
limited each year to July 16 through February 15. For this project, in-
water construction is planned to take place between August 1, 2017 and 
February 15, 2018.
    The total worst-case time for pile installation and removal is 
expected to be 83 working days (Table 1).
     Vibratory driving of each of the 101 24-inch steel pile 
will take approximately 20 minutes, with a maximum of 16 piles 
installed per day over 7 days.
     Vibratory removal of 103 temporary 24-inch diameter steel 
piles will take approximately 20 minutes per pile, with maximum 16 
piles removed per day over 8 days.
     Impact driving (3000 strikes per pile) of 14 30-inch and 
201 36-inch diameter steel piles will take approximately 45 minutes per 
pile, with maximum 8 piles per day for a total of 28 days.
     Vibratory driving of 17 30- and 205 36-inch diameter steel 
piles will take 20 minutes per pile, with maximum 8 piles per day over 
a total of 29 days.
     Vibratory removal of 215 14-inch timber piles will take 
approximately 15 minutes per pile, with approximately 20 piles removed 
per day for 11 days.

                              Table 1-- Summary of In-Water Pile Driving Durations
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                                                                                  Time to vibratory
                                                        Pile size                  drive per pile/     Duration
             Method                    Pile type          (inch)    Pile number   strikes to impact     (days)
                                                                                   drive per pile
----------------------------------------------------------------------------------------------------------------
Vibratory removal...............  Timber.............           14          215  900 seconds.......           11
Vibratory removal...............  Steel..............           24          103  1200 seconds......            8
Vibratory driving...............  Steel..............           24          101  1200 seconds......            7
Vibratory driving...............  Steel..............           30           17  1200 seconds......            3
Vibratory driving...............  Steel..............           36          205  1200 seconds......           26
Impact driving..................  Steel..............           30           14  3000 strikes......            2
Impact driving..................  Steel..............           36          201  3000 strikes......           26
                                                      ----------------------------------------------------------
    Total.......................  ...................  ...........          856  ..................           83
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Specified Geographic Region

    The proposed activities will occur at the Seattle Ferry Terminal at 
Colman Dock, located in the City of Seattle, Washington (see Figure 1-2 
of the IHA application).

Detailed Description of In-Water Pile Driving Associated With Seattle 
Multimodal Project

    The proposed project has two elements involving noise production 
that may affect marine mammals: Vibratory hammer driving and removal, 
and impact hammer driving.
    Details of pile driving activities are provided below:
     The 14-inch timber piles will be removed with a vibratory 
hammer (Table 1).
     The 24-inch temporary piles will be installed and removed 
with a vibratory hammer (no proofing) (Table 1).
     Some of the permanent 30- and 36-inch steel piles would be 
installed with a vibratory hammer, and some would be installed with 
impact hammer (Table 1).
(1). Vibratory Hammer Driving and Removal
    Vibratory hammers are commonly used in steel pile driving where 
sediments allow and involve the same vibratory hammer used in pile 
removal. The pile is placed into position using a choker and crane, and 
then vibrated between 1,200 and 2,400 vibrations per minute. The 
anticipated time required (based on WSDOT prior experience) to install 
a 14'' timber pile is up to 900 seconds; for a 24'' steel pile 1200 
seconds; and for a 30'' or 36'' steel pile 2700 seconds. The vibrations 
liquefy the sediment surrounding the pile allowing it to penetrate to 
the required seating depth, or to be removed. The type of vibratory 
hammer that will be used for the project will likely be an APE 400 King 
Kong (or equivalent) with a drive force of 361 tons.
(2). Impact Hammer Installation
    Impact hammers are used to install plastic/steel core, wood, 
concrete, or steel piles. An impact hammer is a steel device that works 
like a piston. Impact hammers are usually large, though small impact 
hammers are used to install small diameter plastic/steel core piles.
    Impact hammers have guides (called a lead) that hold the hammer in 
alignment with the pile while a heavy piston moves up and down, 
striking the top of the pile, and drives it into the substrate from the 
downward force of the hammer on the top of the pile.
    To drive the pile, the pile is first moved into position and set in 
the proper location using a choker cable. Once the pile is set in 
place, pile installation with an impact hammer is expected to require 
approximately 45 minutes. It is expected that for each 30 inch and 36 
inch steel pile, a maximum of 3,000 strikes would be needed to install 
a pile.
    It is possible that more than 1 vibratory pile driving, up to 3 
hammers, could be conducted concurrently for the 24-, 30-, and 36-inch 
piles.
    Proposed mitigation, monitoring, and reporting measures are 
described in in detail later in the document (Mitigation

[[Page 15500]]

section and Monitoring and Reporting section).

Description of Marine Mammals in the Area of Specified Activities

    The marine mammal species under NMFS jurisdiction that have the 
potential to occur in the proposed construction area include Pacific 
harbor seal (Phoca vitulina), California sea lion (Zalophus 
californianus), northern elephant seal (Mirounga angustirostris), 
Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca), 
long-beaked common dolphin (Delphis capensis), gray whale (Eschrichtius 
robustus), humpback whale (Megaptera novaeangliae), minke whale 
(Balaenoptera acutorostrata), harbor porpoise (Phocoena phocoena), and 
Dall's porpoise (P. dalli). A list of marine mammals that have the 
potential to occur in the vicinity of the action and their legal status 
under the MMPA and ESA are provided in Table 2. Among these species, 
northern elephant seal, minke whale, and long-beaked common dolphin are 
extralimital in the proposed project area. NMFS does not consider take 
is likely to occur for these species. Therefore, these species are not 
discussed further in this document.

                    Table 2--Marine Mammal Species Potentially Present in Region of Activity
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             Species                    ESA status          MMPA status           Occurrence         Abundance
----------------------------------------------------------------------------------------------------------------
Harbor Seal......................  Not listed.........  Non-depleted.......  Frequent...........             Unk
California Sea Lion..............  Not listed.........  Non-depleted.......  Frequent...........         296,750
Northern Elephant Seal...........  Not listed.........  Non-depleted.......  Extralimital.......         179,000
Steller Sea Lion (eastern DPS)...  Not listed.........  Non-depleted.......  Rare...............          71,256
Harbor Porpoise..................  Not listed.........  Non-depleted.......  Frequent...........          11,233
Dall's Porpoise..................  Not listed.........  Non-depleted.......  Occasional.........          25,750
Killer Whale (Southern Resident).  Endangered.........  Depleted...........  Occasional.........              78
Killer Whale (West Coast           Not listed.........  Non-depleted.......  Occasional.........             243
 transient).
Long-beaked Common Dolphin.......  Not listed.........  Non-depleted.......  Extralimital.......         101,305
Gray Whale.......................  Not listed.........  Non-depleted.......  Occasional.........          20,990
Humpback Whale...................  Endangered.........  Depleted...........  Rare...............           1,918
Minke Whale......................  Not listed.........  Non-depleted.......  Extralimital.......             636
----------------------------------------------------------------------------------------------------------------

    General information on the marine mammal species found in 
Washington coastal waters can be found in Caretta et al. (2016), which 
is available online at: http://www.nmfs.noaa.gov/pr/sars/pdf/pacific2015_final.pdf. Refer to that document for information on these 
species. Specific information concerning these species in the vicinity 
of the proposed action area is provided in detail in the WSDOT's IHA 
application.

Harbor Seal

    There are three stocks in Washington's inland waters, the Hood 
Canal, Northern Inland Waters, and Southern Puget Sound stocks. Seals 
belonging to the Northern Inland Waters Stock are present at the 
project site. Pupping seasons vary by geographic region. For the 
northern Puget Sound region, pups are born from late June through 
August (WDFW 2012). After October 1, all pups in the inland waters of 
Washington are weaned. Of the pinniped species that commonly occur 
within the region of activity, harbor seals are the most common and the 
only pinniped that breeds and remains in the inland marine waters of 
Washington year-round (Calambokidis and Baird 1994).
    In 1999, Jeffries et al. (2003) recorded a mean count of 9,550 
harbor seals in Washington's inland marine waters, and estimated the 
total population to be approximately 14,612 animals (including the 
Strait of Juan de Fuca). According to the 1999 Stock Assessment Report 
(SAR), the most recent estimate for the Washington Northern Inland 
Waters Stock is 11,036 (NMFS 1999). No minimum population estimate is 
available. However, there are an estimated 32,000 harbor seals in 
Washington today, and their population appears to have stabilized 
(Jeffries 2013), so the estimate of 11,036 may be low.
    The nearest documented harbor seal haulout to the Seattle Ferry 
Terminal is 10.6 kilometers (km)/6.6 miles (mi) west on Blakely Rocks, 
though harbor seals also make use of docks, buoys and beaches in the 
area. The level of use of this haulout during the fall and winter is 
unknown, but is expected to be much less as air temperatures become 
colder than water temperatures resulting in seals in general hauling 
out less. None of the harbor seals have been spotted using Colman Dock 
as a haulout. Harbor seals are known to haulout opportunistically on 
docks and beaches throughout the project area.
    During the 2012 Seattle Slip 2 Batter Pile project, 6 harbor seals 
were observed during this one day project in the area that corresponds 
to the upcoming project zones of influence (ZOIs) where received sound 
levels are above 160 decibel (dB) re 1 micropascal ([micro]Pa) and 
Level B harassment is anticipated to occur (WSF 2012). During the 2016 
Seattle Test Pile project, 56 harbor seals were observed over 10 days 
in the area that corresponds to the upcoming project ZOIs. The maximum 
number sighted during 1day was 13 (WSF 2016).
    The Navy Marine Species Density Database (U.S. Navy 2015) estimates 
the density of harbor seals in the Seattle area as a range of 0.550001 
and 1.219000 animals per square kilometer.

California Sea Lion

    Washington California sea lions are part of the U.S. stock, which 
begins at the U.S./Mexico border and extends northward into Canada. The 
minimum population size of the U.S. stock was estimated at 296,750 in 
2011. More recent pup counts made in 2011 totaled 61,943, the highest 
recorded to date. Estimates of total population size based on these 
counts are currently being developed (NMFS 2015d). Some 3,000 to 5,000 
animals are estimated to move into northwest waters (both Washington 
and British Columbia) during the fall (September) and remain until the 
late spring (May) when most return to breeding rookeries in California 
and Mexico (Jeffries et al., 2000). Peak counts of over 1,000 animals 
have been made in Puget Sound (Jeffries et al., 2000).
    The nearest documented California sea lion haulout sites are 3 km/2 
mi southwest of the Seattle Ferry Terminal, although sea lions also 
make use of docks and other buoys in the area.
    During the 2012 Seattle Slip 2 Batter Pile project, 15 California 
sea lions were observed during this 1 day project in the area that 
corresponds to the upcoming project ZOIs (WSF 2012). During the

[[Page 15501]]

2016 Seattle Test Pile project, 12 California sea lions were observed 
over 10 days in the area that corresponds to the upcoming project ZOIs. 
The maximum number sighted during one day was 4 (WSF 2016).
    The Navy Marine Species Density Database (U.S. Navy 2015) estimates 
the density of California sea lions in the Seattle area as a range of 
0.067601 and 0.12660 animals per square kilometer.

Steller Sea Lion

    The Eastern U.S. stock of Steller sea lion may be present near the 
project site. The eastern U.S. stock of Steller sea lions is estimated 
to be 71,562 based on pup and non-pup counts. In Washington waters, 
Steller sea lion abundances vary seasonally with a minimum estimate of 
1,000 to 2,000 individuals present or passing through the Strait of 
Juan de Fuca in fall and winter months.
    Steller sea lion numbers in Washington State decline during the 
summer months, which correspond to the breeding season at Oregon and 
British Columbia rookeries (approximately late May to early June) and 
peak during the fall and winter months (WDFW 2000). According to NMFS 
Marine Mammal Stock Assessment Report, a new rookery has become 
established on the outer Washington coast with over 100 pups born there 
in 2015 (NMFS 2016). A few Steller sea lions can be observed year-round 
in Puget Sound although most of the breeding age animals return to 
rookeries in the spring and summer.
    The nearest documented Steller sea lion haulout sites are 15 km/9 
mi southwest of the Seattle Ferry Terminal (WSDOT 2016a).
    During the 2012 Seattle Slip 2 Batter Pile project, 0 Steller sea 
lions were observed during this one day project in the area that 
corresponds to the upcoming project ZOIs (WSF 2012). During the 2016 
Seattle Test Pile project, 0 Steller sea lions were observed over 10 
days in the area that corresponds to the upcoming project ZOIs (WSF 
2016).
    The Navy Marine Species Density Database (U.S. Navy 2015) estimates 
the density of Steller sea lions in the Seattle area as a range of 
0.025101 and 0.036800 animals per square kilometer.

Killer Whale

    The Eastern North Pacific Southern Resident (SRKW) and West Coast 
Transient (Transient) stocks of killer whale may be found near the 
project site. The Southern Resident killer whales live in three family 
groups known as the J, K and L pods. As of December 31, 2015, the stock 
collectively numbers 78 individuals (CWR 2016). Transient killer whales 
generally occur in smaller (less than 10 individuals), less structured 
pods (NMFS 2013c). According to the Center for Whale Research (CWR 
2015), they tend to travel in small groups of one to five individuals, 
staying close to shorelines, often near seal rookeries when pups are 
being weaned. The West Coast Transient stock, which includes 
individuals from California to southeastern Alaska, is has a minimum 
population estimate of 243, which does not include an estimate of the 
number of whales in California (NMFS 2013b).
    The SRKW and West Coast Transient stocks are both found within 
Washington inland waters. Individuals of both stocks have long-ranging 
movements and regularly leave the inland waters (Calambokidis and Baird 
1994).
    During the 2012 Seattle Slip 2 Batter Pile project, 0 SRKW were 
observed during this one day project in the area that corresponds to 
the upcoming project ZOIs (WSF 2012). During the 2016 Seattle Test Pile 
project, 0 SRKW were observed over 10 days in the area that corresponds 
to the upcoming project ZOIs (WSF 2016).
    The Navy Marine Species Density Database (U.S. Navy 2014) estimates 
the density of Southern Resident killer whales in the Seattle area as a 
range of 0.001461 and 0.020240 animals per square kilometer.
    According to the NMFS National Stranding Database, there were no 
killer whale strandings in the Seattle and Island County areas between 
2010 and 2014 (NMFS 2016).
    The West Coast Transient killer whale sightings have become more 
common since mid-2000. Unlike the SRKW pods, transients may be present 
in an area for hours or days as they hunt pinnipeds.
    During the 2012 Seattle Slip 2 Batter Pile project, 0 transients 
were observed during this one day project in the area that corresponds 
to the upcoming project ZOIs (WSF 2012). During the 2016 Seattle Test 
Pile project, 0 transients were observed over 10 days in the area that 
corresponds to the upcoming project ZOIs (WSF 2016). However, on 
February 5, 2016, a pod of up to 7 transients were reported in the area 
that corresponds to the upcoming project ZOIs (Orca Network Archive 
Report 2016).
    The Navy Marine Species Density Database (U.S. Navy 2015) estimates 
the density of west coast transient killer whales in the Seattle area 
as a range of 0.000575 and 0.002373 animals per square kilometer.

Gray Whale

    The Eastern North Pacific gray whale may be found near the project 
site. The most recent population estimate for the Eastern North Pacific 
stock is 20,990 individuals (NMFS 2015e). Within Washington waters, 
gray whale sightings reported to Cascadia Research and the Whale Museum 
between 1990 and 1993 totaled over 1,100 (Calambokidis et al., 1994). 
Abundance estimates calculated for the small regional area between 
Oregon and southern Vancouver Island, including the San Juan Area and 
Puget Sound, suggest there were 137 to 153 individual gray whales from 
2001 through 2003 (Calambokidis et al. 2004a). Forty-eight individual 
gray whales were observed in Puget Sound and Hood Canal in 2004 and 
2005.
    During the 2012 Seattle Slip 2 Batter Pile project, 0 gray whales 
were observed during this one day project in the area that corresponds 
to the upcoming project ZOIs (WSF 2012). During the 2016 Seattle Test 
Pile project, 0 gray whales were observed over 10 days in the area that 
corresponds to the upcoming project ZOIs (WSF 2016).
    The Navy Marine Species Density Database (U.S. Navy 2014) estimates 
the density of gray whales in the Seattle area as a range of 0.000002 
to 0.000510 animals per square kilometer.

Humpback Whale

    The California-Oregon-Washington (CA-OR-WA) stock of humpback whale 
may be found near the project site. In 2016, NMFS has identified three 
Distinct Population Segments (DPSs) of humpback whales off the coast of 
Washington, Oregon, and California. These are: The Hawaii DPS (found 
predominately off Washington and southern British Columbia), which is 
not listed under the ESA; the Mexico DPS (found all along the coast), 
which is listed as threatened under the ESA; and the Central America 
DPS (found all along the coast), which is listed as endangered under 
the ESA.
    From August to November 2015, WSDOT conducted marine mammal 
monitoring during tank farm pier removal at the Seattle Multimodal 
Project. During 51 days of monitoring, one humpback whale was observed 
within the ZOI on November 4, 2015.
    During the 2012 Seattle Slip 2 Batter Pile project, 0 humpback 
whales were observed during this one day project in the area that 
corresponds to the upcoming project ZOIs (WSF 2012). During the 2016 
Seattle Test Pile project, 0 humpback whales were

[[Page 15502]]

observed over 10 days in the area that corresponds to the upcoming 
project ZOIs (WSF 2016).
    The Navy Marine Species Density Database (U.S. Navy 2015) estimates 
the density of humpback whales in the Seattle area as a range between 
0.000010 and 0.00070 animals per square kilometer.

Harbor Porpoise

    The Washington Inland Waters Stock of harbor porpoise may be found 
near the project site. The Washington Inland Waters Stock occurs in 
waters east of Cape Flattery (Strait of Juan de Fuca, San Juan Island 
Region, and Puget Sound).
    Aerial surveys of the Washington and southern British Columbia were 
conducted from 2013 to 2015 (Smultea et al. 2015). These aerial surveys 
included the Strait of Juan de Fuca, San Juan Islands, Gulf Island, 
Strait of Georgia, Puget Sound, and Hood Canal. The surveys showed that 
for U.S. waters, the current estimate for Washington inland water stock 
harbor porpoise is 11,233 (NMFS 2016).
    During the 2012 Seattle Slip 2 Batter Pile project, 0 harbor 
porpoise were observed during this one day project in the area that 
corresponds to the upcoming project ZOIs (WSF 2012). During the 2016 
Seattle Test Pile project, 0 harbor porpoise were observed over 10 days 
in the area that corresponds to the upcoming project ZOIs (WSF 2016).
    The Navy Marine Species Density Database (U.S. Navy 2014) estimates 
the density of harbor porpoise during the timeframe scheduled for this 
project in the Seattle area as a range between 0.061701 and 0.156000 
animals/km\2\ (U.S. Navy 2014).

Dall's Porpoise

    The California, Oregon, and Washington Stock of Dall's porpoise may 
be found near the project site. The most recent estimate of Dall's 
porpoise stock abundance is 25,750, based on 2005 and 2008 summer/
autumn vessel-based line transect surveys of California, Oregon, and 
Washington waters (NMFS 2011d). Within the inland waters of Washington 
and British Columbia, this species is most abundant in the Strait of 
Juan de Fuca east to the San Juan Islands. The most recent Washington's 
inland waters estimate is 900 animals (Calambokidis et al. 1997), 
though sightings have become rarer since then. Prior to the 1940s, 
Dall's porpoises were not reported in Puget Sound.
    During the 2012 Seattle Slip 2 Batter Pile project, 0 Dall's 
porpoise were observed during this one day project in the area that 
corresponds to the upcoming project ZOIs (WSF 2012). During the 2016 
Seattle Test Pile project, 0 Dall's porpoise were observed over 10 days 
in the area that corresponds to the upcoming project ZOIs (WSF 2016).
    The Navy Marine Species Density Database (U.S. Navy 2014) estimates 
the density of Dall's porpoises in the Seattle area as a range between 
0.018858 and 0.047976 animals per square kilometer.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take'' section later in this document 
will include a quantitative analysis of the number of individuals that 
are expected to be taken by this activity. The ``Negligible Impact 
Analyses and Determination'' section will consider the content of this 
section, the ``Estimated Take by Incidental Harassment'' section, and 
the ``Mitigation'' section, to draw conclusions regarding the likely 
impacts of these activities on the reproductive success or survivorship 
of individuals and how those impacts on individuals are likely to 
impact marine mammal species or stocks.
    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 derived using auditory evoked 
potentials, anatomical modeling, and other data, NMFS (2016) to 
designate ``marine mammal hearing groups'' for marine mammals and 
estimate the lower and upper frequencies of hearing of the groups. The 
marine mammal 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 hearing range):
     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 hertz 
(Hz) and 35 kilohertz (kHz);
     Mid-frequency cetaceans (32 species of dolphins, seven 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
seven species of river dolphins, Kogia, the franciscana, and four 
species of cephalorhynchids): Functional hearing is estimated to occur 
between approximately 275 Hz and 160 kHz;
     Phocid pinnipeds in Water: Functional hearing is estimated 
to occur between approximately 50 Hz and 86 kHz; and
     Otariid pinnipeds in Water: Functional hearing is 
estimated to occur between approximately 60 Hz and 39 kHz.
    As mentioned previously in this document, eight marine mammal 
species (five cetacean and four pinniped species) are likely to occur 
in the vicinity of the Seattle pile driving/removal area. Of the five 
cetacean species, three belong to the low-frequency cetacean group 
(gray and humpback whales), one is a mid-frequency cetacean (killer 
whale), and two high-frequency cetacean (harbor and Dall's porpoises). 
One species of pinniped is phocid (harbor seal), and two species of 
pinniped are otariid (California and Steller sea lions). A species' 
functional hearing group is a consideration when we analyze the effects 
of exposure to sound on marine mammals.
    The WSDOT's Seattle Colman ferry terminal construction work using 
in-water pile driving and pile removal could adversely affect marine 
mammal species and stocks by exposing them to elevated noise levels in 
the vicinity of the activity area.
    Exposure to high intensity sound for a sufficient duration may 
result in auditory effects such as a noise-induced threshold shift--an 
increase in the auditory threshold after exposure to noise (Finneran et 
al., 2005). Factors that influence the amount of threshold shift 
include the amplitude, duration, frequency content, temporal pattern, 
and energy distribution of noise exposure. The magnitude of hearing 
threshold shift normally decreases over time following cessation of the 
noise exposure. The amount of threshold shift just after exposure is 
the initial threshold shift. If the threshold shift eventually returns 
to zero (i.e., the threshold returns to the pre-exposure value), it is 
a temporary threshold shift (Southall et al., 2007).
    Threshold Shift (noise-induced loss of hearing)--When animals 
exhibit reduced hearing sensitivity (i.e., sounds must be louder for an 
animal to detect them) following exposure to an intense sound or sound 
for long duration, it is referred to as a noise-induced threshold shift 
(TS). An animal can experience

[[Page 15503]]

temporary threshold shift (TTS) or permanent threshold shift (PTS). TTS 
can last from minutes or hours to days (i.e., there is complete 
recovery), can occur in specific frequency ranges (i.e., an animal 
might only have a temporary loss of hearing sensitivity between the 
frequencies of 1 and 10 kHz), and can be of varying amounts (for 
example, an animal's hearing sensitivity might be reduced initially by 
only 6 dB or reduced by 30 dB). PTS is permanent, but some recovery is 
possible. PTS can also occur in a specific frequency range and amount 
as mentioned above for TTS.
    For marine mammals, published data are limited to the captive 
bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless 
porpoise (Finneran et al., 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; 
Finneran and Schlundt, 2010; Lucke et al., 2009; Mooney et al., 2009a, 
2009b; Popov et al., 2011a, 2011b; Kastelein et al., 2012a; Schlundt et 
al., 2000; Nachtigall et al., 2003, 2004). For pinnipeds in water, data 
are limited to measurements of TTS in harbor seals, an elephant seal, 
and California sea lions (Kastak et al., 1999, 2005; Kastelein et al., 
2012b).
    Lucke et al. (2009) found a TS of a harbor porpoise after exposing 
it to airgun noise with a received sound pressure level (SPL) at 200.2 
dB (peak-to-peak) re: 1 [mu]Pa, which corresponds to a sound exposure 
level of 164.5 dB re: 1 [mu]Pa\2\ s after integrating exposure. NMFS 
currently uses the root-mean-square (rms) of received SPL at 180 dB and 
190 dB re: 1 [mu]Pa as the threshold above which PTS could occur for 
cetaceans and pinnipeds, respectively. Because the airgun noise is a 
broadband impulse, one cannot directly determine the equivalent of rms 
SPL from the reported peak-to-peak SPLs. However, applying a 
conservative conversion factor of 16 dB for broadband signals from 
seismic surveys (McCauley et al., 2000) to correct for the difference 
between peak-to-peak levels reported in Lucke et al. (2009) and rms 
SPLs, the rms SPL for TTS would be approximately 184 dB re: 1 [mu]Pa, 
and the received levels associated with PTS (Level A harassment) would 
be higher. However, NMFS recognizes that TTS of harbor porpoises is 
lower than other cetacean species empirically tested (Finneran & 
Schlundt, 2010; Finneran et al., 2002; Kastelein and Jennings, 2012).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
(similar to those discussed in auditory masking, below). For example, a 
marine mammal may be able to readily compensate for a brief, relatively 
small amount of TTS in a non-critical frequency range that occurs 
during a time where ambient noise is lower and there are not as many 
competing sounds present. Alternatively, a larger amount and longer 
duration of TTS sustained during time when communication is critical 
for successful mother/calf interactions could have more serious 
impacts. Also, depending on the degree and frequency range, the effects 
of PTS on an animal could range in severity, although it is considered 
generally more serious because it is a permanent condition. Of note, 
reduced hearing sensitivity as a simple function of aging has been 
observed in marine mammals, as well as humans and other taxa (Southall 
et al., 2007), so one can infer that strategies exist for coping with 
this condition to some degree, though likely not without cost.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions (Clark 
et al., 2009). Acoustic masking is when other noises such as from human 
sources interfere with animal 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.
    Masking occurs at the frequency band that the animals utilize. 
Therefore, since noise generated from vibratory pile driving activity 
is mostly concentrated at low frequency ranges, it may have less effect 
on high frequency echolocation sounds by odontocetes (toothed whales). 
However, lower frequency man-made noises are more likely to affect 
detection of communication calls and other potentially important 
natural sounds such as surf and prey noise. It may also affect 
communication signals when they occur near the noise band and thus 
reduce the communication space of animals (e.g., Clark et al., 2009) 
and cause increased stress levels (e.g., Foote et al., 2004; Holt et 
al., 2009).
    Unlike TS, masking, which can occur over large temporal and spatial 
scales, can potentially affect the species at population, community, or 
even ecosystem levels, as well as individual levels. Masking affects 
both senders and receivers of the signals and could have long-term 
chronic effects on marine mammal species and populations. Recent 
science suggests that low frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, and most of these increases 
are from distant shipping (Hildebrand, 2009). For WSDOT's Seattle 
Colman Ferry Terminal construction activities, noises from vibratory 
pile driving and pile removal contribute to the elevated ambient noise 
levels in the project area, thus increasing potential for or severity 
of masking. Baseline ambient noise levels in the vicinity of project 
area are high due to ongoing shipping, construction and other 
activities in the Puget Sound.
    Finally, marine mammals' exposure to certain sounds could lead to 
behavioral disturbance (Richardson et al., 1995), such as: Changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities; 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al., 2007). Currently NMFS uses a received level of 160 dB re 1 [mu]Pa 
(rms) to predict the onset of behavioral harassment from impulse noises 
(such as impact pile driving), and 120 dB re 1 [mu]Pa (rms) for 
continuous noises (such as vibratory pile driving). For the WSDOT's 
Seattle Colman Ferry Terminal construction activities, both of these 
noise levels are considered for effects analysis because WSDOT plans to 
use both impact and vibratory pile driving, as well as vibratory pile 
removal.
    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 biologically

[[Page 15504]]

significant if the change affects growth, survival, and/or 
reproduction, which depends on the severity, duration, and context of 
the effects.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by pile driving and 
removal associated with marine mammal prey species. However, other 
potential impacts to the surrounding habitat from physical disturbance 
are also possible. These potential effects are discussed below.
    SPLs from impact pile driving has the potential to injure or kill 
fish in the immediate area. These few isolated fish mortality events 
are not anticipated to have a substantial effect on prey species 
population or their availability as a food resource for marine mammals.
    Studies also suggest that larger fish are generally less 
susceptible to death or injury than small fish. Moreover, elongated 
forms that are round in cross section are less at risk than deep-bodied 
forms. Orientation of fish relative to the shock wave may also affect 
the extent of injury. Open water pelagic fish (e.g., mackerel) seem to 
be less affected than reef fishes. The results of most studies are 
dependent upon specific biological, environmental, explosive, and data 
recording factors.
    The huge variation in fish populations, including numbers, species, 
sizes, and orientation and range from the detonation point, makes it 
very difficult to accurately predict mortalities at any specific site 
of detonation. Most fish species experience a large number of natural 
mortalities, especially during early life-stages, and any small level 
of mortality caused by the WSDOT's impact pile driving will likely be 
insignificant to the population as a whole.
    For non-impulsive sound such as that of vibratory pile driving, 
experiments have shown that fish can sense both the strength and 
direction of sound (Hawkins, 1981). Primary factors determining whether 
a fish can sense a sound signal, and potentially react to it, are the 
frequency of the signal and the strength of the signal in relation to 
the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona, 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al., 1993).
    During construction activity at Colman Dock, only a small fraction 
of the available habitat would be ensonified at any given time. 
Disturbance to fish species would be short-term and fish would return 
to their pre-disturbance behavior once the pile driving activity 
ceases. Thus, the proposed construction would have little, if any, 
impact on the abilities of marine mammals to feed in the area where 
construction work is planned.
    Finally, the time of the proposed construction activity would avoid 
the spawning season of the ESA-listed salmonid species between March 
and July.
    Short-term turbidity is a water quality effect of most in-water 
work, including pile driving.
    Cetaceans are not expected to be close enough to the Colman 
terminal to experience 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.
    For these reasons, WSDOT's proposed Seattle Multimodal construction 
at Colman Dock is not expected to have adverse effects to marine mammal 
habitat in the area.

Estimated Take

    This section includes an estimate of the number of incidental 
``takes'' likely to occur pursuant to this IHA, which will inform both 
NMFS' consideration of whether the number of takes is ``small'' and the 
negligible impact determination.
    Harassment is the only means of take expected to result from these 
activities. 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).
    As described previously in the section Potential Effects of 
Specified Activities on Marine Mammals and their Habitat, no incidental 
take is anticipated to result from effects on prey species or as a 
result of turbidity. Level B Harassment is expected to occur as 
discussed below and is proposed to be authorized in the numbers 
identified below.
    As described below, a small number of takes by Level A Harassment 
are being proposed to be authorized.
    The death of a marine mammal is also a type of incidental take. 
However, as described previously, no mortality is anticipated or 
proposed to be authorized to result from this activity.

Basis for Takes

    Take estimates are based on average marine mammal density in the 
project area multiplied by the area size of ensonified zones within 
which received noise levels exceed certain thresholds (i.e., Level A 
and/or Level B harassment) from specific activities, then multiplied by 
the total number of days such activities would occur. Certain 
adjustments were made for marine mammals whose local abundance are 
known through long-term monitoring efforts. Therefore, their local 
abundance data are used for take calculation instead of general animal 
density (see below).

Basis for Threshold Calculation

    As discussed above, in-water pile removal and pile driving 
(vibratory and impact) generate loud noises that could potentially 
harass marine mammals in the vicinity of WSDOT's proposed Seattle 
Multimodal Project at Colman Dock.
    Under the NMFS' Technical Guidance for Assessing the Effects of 
Anthropogenic Sound on Marine Mammal Hearing (Guidance), dual criteria 
are used to assess marine mammal auditory injury (Level A harassment) 
as a result of noise exposure (NMFS 2016). The dual criteria under the 
Guidance provide onset thresholds in instantaneous peak SPLs 
(Lpk) as well as 24-hr cumulative sound exposure levels 
(SELcum or LE) that could cause PTS to marine mammals of 
different hearing groups. The peak SPL is the highest positive value of 
the noise field, log transformed to dB in reference to 1 [mu]Pa.
[GRAPHIC] [TIFF OMITTED] TN29MR17.000

where p(t) is acoustic pressure in pascal or micropascal, and pref is 
reference acoustic pressure equal to 1 [mu]Pa.
    The cumulative SEL is the total sound exposure over the entire 
duration of a given day's pile driving activity, specifically, pile 
driving occurring within a 24-hr period.
[GRAPHIC] [TIFF OMITTED] TN29MR17.001


[[Page 15505]]


where p(t) is acoustic pressure in pascal or micropascal, pref is 
reference acoustic pressure equals to 1 [mu]Pa, t1 marks the 
beginning of the time, and t2 the end of time.
    For onset of Level B harassment, NMFS continues to use the root-
mean-square (rms) sound pressure level (SPLrms) at 120 dB re 
1 [mu]Pa and 160 dB re 1 [mu]Pa as the received levels from non-impulse 
(vibratory pile driving and removal) and impulse sources (impact pile 
driving) underwater, respectively. The SPLrms for pulses 
(such as those from impact pile driving) should contain 90 percent of 
the pulse energy, and is calculated by
[GRAPHIC] [TIFF OMITTED] TN29MR17.002

where p(t) is acoustic pressure in pascal or micropascal, pref is 
reference acoustic pressure equals to 1 [mu]Pa, t1 marks the beginning 
of the time, and t2 the end of time. In the case of an impulse noise, 
t1 marks the time of 5 percent of the total energy window, and t2 the 
time of 95 percent of the total energy window.
    Table 3 summarizes the current NMFS marine mammal take criteria.

                 Table 3--Current Acoustic Exposure Criteria for Non-explosive Sound Underwater
----------------------------------------------------------------------------------------------------------------
                                           PTS onset thresholds                    Behavioral thresholds
          Hearing group          -------------------------------------------------------------------------------
                                       Impulsive         Non-impulsive         Impulsive         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Lpk,flat: 219 dB..  LE,LF,24h: 199 dB.
                                  LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans....  Lpk,flat: 230 dB..  LE,MF,24h: 198 dB.
                                  LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans...  Lpk,flat: 202 dB..  LE,HF,24h: 173 dB.  Lrms,flat: 160 dB.  Lrms,flat: 120 dB.
                                  LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW)...........  Lpk,flat: 218 dB..  LE,PW,24h: 201 dB.
(Underwater)....................  LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW)..........  Lpk,flat: 232 dB..  LE,OW,24h: 219 dB.
(Underwater)....................  LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa2s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Sound Levels and Acoustic Modeling for the Proposed Construction 
Activity

Source Levels
    The project includes vibratory removal of 14-inch (in) timber 
piles, vibratory driving and removal of 24-in steel piles, vibratory 
driving of 30- and 36-in steel piles, and impact pile driving of 30- 
and 36-in steel piles. In February of 2016, WSDOT conducted a test pile 
project at Colman Dock in order to gather data to select the 
appropriate piles for the project. The test pile project measured 
impact pile driving of 24- and 36-in steel piles. The measured results 
from the project are used here to provide source levels for the 
prediction of isopleths ensonified over thresholds for the Seattle 
project. The results show that the SPLrms for impact pile 
driving of 36-in steel pile is 189 dB re 1 [mu]Pa at 14 m from the pile 
(WSDOT 2016b). This value is also used for impact driving of the 30-in 
steel piles, which is a precautionary approach.
    Source level of vibratory pile driving of 36-in steel piles is 
based on test pile driving at Port Townsend in 2010 (Laughlin 2011). 
Recordings of vibratory pile driving were made at a distance of 10 m 
from the pile. The results show that the SPLrms for 
vibratory pile driving of 36-in steel pile was 177 dB re 1 [mu]Pa 
(WSDOT 2016a).
    Up to three pile installation crews may be active during the day 
within the project footprint. Each crew will use one vibratory and one 
impact hammer, and it is possible that more than one vibratory or 
impact hammer may be active at the same time for pile driving and/or 
removal for the 24-, 30-, and 36-inch piles. Overlapping noise fields 
created by multiple hammer use are handled differently for impact and 
vibratory hammers. When more than one impact hammer is being used close 
enough to another impact hammer, the cumulative acoustic energy is 
accounted for by including all hammer strikes. When more than one 
vibratory hammer is being used close enough to another vibratory hammer 
to create overlapping noise fields, additional sound levels are added 
to account for the overlap, creating a larger ZOI. A simplified 
nomogram method (Kinsler et al., 2000) is proposed to account for the 
addition of noise source levels for multiple vibratory hammers, as 
shown in Table 4. Using this method, the source levels of 24-, 30-, and 
36-in piles during vibratory pile driving are adjusted to 182 dB re 1 
[mu]Pa (at 10 m).

                 Table 4--Multiple Sound Level Addition
------------------------------------------------------------------------
                                                              Add the
                                                           following to
             When two sound levels differ by                the higher
                                                            level (dB)
------------------------------------------------------------------------
0-1 dB..................................................               3
2-3 dB..................................................               2
4-9 dB..................................................               1
>10 dB..................................................               0
------------------------------------------------------------------------

    For vibratory pile removal, vibratory pile driving data were used 
as proxies because we conservatively consider noises from pile removal 
would be the same as those from pile driving.
    The source level of vibratory removal of 14-in timber piles were 
based on measurements conducted at the Port Townsend Ferry Terminal 
during vibratory removal of a 12-inch timber pile by WSDOT (Laughlin 
2011). The recorded source level is 152 dB re 1 [mu]Pa at 16 m from the 
pile. In the absence of

[[Page 15506]]

spectral data for timber pile vibratory driving, the weighting factor 
adjustment (WFA) recommended by NMFS acoustic guidance (NMFS 2016) was 
used to determine these zones.
    These source levels are used to compute the Level A ensonified 
zones and to estimate the Level B harassment zones. For Level A 
harassment zones, zones calculated using cumulative SEL are all larger 
than those calculated using SPLpeak, therefore, only zones 
based on cumulative SEL for Level A harassment are used.
Estimating Injury Zones
    Calculation and modeling of applicable ensonified zones are based 
on source measurements of comparable types and sizes of piles driven by 
different methods (impact vs. vibratory hammers) either during the 
Colman test pile driving or at a different location within the Puget 
Sound. As mentioned earlier, isopleths for injury zones are based on 
cumulative SEL (LE) criteria.
    For peak SPL (Lpk), distances to marine mammal injury 
thresholds were calculated using a simple geometric spreading model 
using a transmission loss coefficient of 15:

(4) SLMeasure = EL + 15log10(R - DMeasure)

where SLMeasure is the measured source level in dB re 1 [mu]Pa, EL is 
the specific received level of threshold, DMeasure is the distance (m) 
from the source where measurements were taken, and R is the distance 
(radius) of the isopleth to the source in meters.
    For cumulative SEL (LE), distances to marine mammal exposure 
thresholds were computed using spectral modeling that incorporates 
frequency specific absorption. First, representative pile driving 
sounds recorded during test pile driving with impact and vibratory 
hammers were used to generate power spectral densities (PSDs), which 
describe the distribution of power into frequency components composing 
that sound, in 1-Hz bins. Parserval's theorem, which states that the 
sum of the square of a function is equal to the sum of the square of 
its transform, was applied to ensure that all energies within a strike 
(for impact pile driving) or a given period of time (for vibratory pile 
driving) were captured through the fast Fourier transform, an algorithm 
that converts the signal from its original domain (in this case, time 
series) to a representation in frequency domain. For impact pile 
driving, broadband PSDs were generated from SPLrms time 
series of a total of 270 strikes with a time window that contains 90 
percent of pulse energy. For vibratory pile driving, broadband PSDs 
were generated from a series of continuous 1-second SEL. Broadband PSDs 
were then adjusted based on weighting functions of marine mammal 
hearing groups (Finneran 2016) by using the weighting function as a 
band-pass filter. For impact pile driving, cumulative exposures (Esum) 
were computed by multiplying the single rms pressure squared by rms 
pulse duration for the specific strike, then by the number of strikes 
(provided in Table 1) required to drive one pile, then by the number of 
piles to be driven in a given day, as shown in the equation below:
[GRAPHIC] [TIFF OMITTED] TN29MR17.003

where prms,i is the rms pressure, [tau] is the rms pulse duration for 
the specific strike, Ns is the anticipated number of strikes 
(provided in Table 1) needed to install one pile, and N is the number 
of total piles to be installed.
    For vibratory pile driving, cumulative exposures were computed by 
summing 1-second noise exposure by the duration needed to drive on pile 
(provided in Table 1), then by the number of piles to be driven in a 
given day, as shown in the equation below:
[GRAPHIC] [TIFF OMITTED] TN29MR17.004

where E1s is the 1-second noise exposure, and [Delta]t is the duration 
(provided in Table 1) need to install 1 pile by vibratory piling.
    Frequency-specific transmission losses, TL(f), were then computed 
using practical spreading along with frequency-specific absorption 
coefficients that were computed with nominal seawater properties (i.e., 
salinity = 35 psu, pH = 8.0) at 15 [deg]C at the surface by
[GRAPHIC] [TIFF OMITTED] TN29MR17.005

where a(f) is dB/km, and R is the distance (radius) of the specific 
isopleth to the source in meters. For broadband sources such as those 
from pile driving, the transmission loss is the summation of the 
frequency-specific results.
Approach To Estimate Behavioral Zones
    As mentioned earlier, isopleths to Level B behavioral zones are 
based on root-mean-square SPL (SPLrms) that are specific for 
impulse (impact pile driving) and non-impulse (vibratory pile driving) 
sources. Distances to marine mammal behavior thresholds were calculated 
using a simple geometric spreading equation as shown in Equation (4).
    For Level B harassment zones from vibratory pile driving of 30 inch 
and 36 inch piles, the ensonified zones are calculated based on 
practical spreading of back-calculated source level of 36 inch pile 
driving adjusted for 3 hammers operating concurrently by adding 5 dB. 
The results show that the 120 dB re 1 [mu]Pa isopleth is at 13.6 km. 
For Level B harassment zone from vibratory pile driving of 24'' piles, 
WSDOT conducted site measurements during Seattle test pile driving 
project using 24'' steel piles. The results show that underwater noise 
cannot be detected at a distance of 5 km (3 mi). Since this measurement 
was based on pile driving using 1 hammer, the Level B harassment zone 
for 24 inch steel pile

[[Page 15507]]

is adjusted by factoring in a 5 dB difference (see above) using the 
following equation, based on the inverse law of acoustic propagation 
(i.e., dB difference in transmission loss is the inverse of distance 
difference in logarithm):
[GRAPHIC] [TIFF OMITTED] TN29MR17.006

where dBdifference is the 5 dB difference, 
R3-hammer is the distance from the pile where piling noise 
is no longer audible, and R1-hammer is the measured distance 
from the pile where piling noise is no longer audible, which is 5 km.
    The result show that when using 3 vibratory hammers concurrently, 
the distance from the pile to where pile noise is no longer audible is 
11 km.
    A summary of the measured and modeled harassment zones is provided 
in Table 5.

                                                         Table 5--Distances to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Injury zone (m)
          Pile type, size & pile driving method          --------------------------------------------------------------------------------  Behavior zone
                                                            LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid           (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory 14'' timber...................................               8             0.7            11.9             4.9             0.3            1000
Vibratory 24'' steel....................................             255              65            1365             115              10           11000
Vibratory 30'' & 36'' steel.............................             285              65            1455             125              10           13600
Impact 30'' & 36'' steel................................            1845              75            2835             465              35            1200
--------------------------------------------------------------------------------------------------------------------------------------------------------

Estimated Takes From Proposed Construction Activity

    Incidental take is estimated for each species by estimating the 
likelihood of a marine mammal being present within a Level A or Level B 
harassment zone during active pile driving or removal. The Level A 
calculation includes a duration component, along with an assumption 
(which can lead to overestimates in some cases) that animals within the 
zone stay in that area for the whole duration of the pile driving 
activity within a day. For all marine mammal species except harbor 
seals and California sea lions, estimated takes are calculated based on 
ensonified area for a specific pile driving activity multiplied by the 
marine mammal density in the action area, multiplied by the number of 
pile driving (or removal) days. Marine mammal density data are from the 
U.S. Navy Marine Species Density Database (Navy 2015). Harbor seal and 
California sea lion takes are based on observations near Seattle, since 
these data provide the best information on distribution and presence of 
these species that are often associated with nearby haulouts (see 
below). A summary of marine mammal density, days and Level A and Level 
B harassment areas from different pile driving and removal activities 
is provided in Table 6.

       Table 6--Summary of Marine Mammal Density, Days and Level A and Level B Ensonified Areas From Different Pile Driving and Removal Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Vibratory    Vibratory    Vibratory    Vibratory       Impact       Impact
                                                                            14'' timber   24'' steel   30'' steel   36'' steel   30'' steel   36'' steel
--------------------------------------------------------------------------------------------------------------------------------------------------------
Days                                                                                 11           15            3           26            2           26
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species/density (km-\2\)                                          Level A areas (m\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal..........................................     1.219000           50       41,548       49,087       49,087      394,075      394,075
California sea lion..........................................      0.12660        0.126          314          314          314        3,849        3,849
Steller sea lion.............................................     0.036800        0.126          314          314          314        3,849        3,849
Killer whale, transient......................................     0.020240           50       13,273       13,273       13,273       17,672       17,672
Killer whale, Southern Resident..............................     0.002373           50       13,273       13,273       13,273       17,672       17,672
Gray whale...................................................     0.000510          154      153,311      189,384      189,384    4,129,836    4,129,836
Humpback whale...............................................      0.00070          154      153,311      189,384      189,384    4,129,836    4,129,836
Harbor porpoise..............................................     0.156000       13,273    2,547,906    2,678,940    2,678,940    8,190,639    8,190,639
Dall's porpoise..............................................     0.047976       13,273    2,547,906    2,678,940    2,678,940    8,190,639    8,190,639
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species/density (km-\2\)                                          Level B areas (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal..........................................     1.219000    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
California sea lion..........................................      0.12660    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
Steller sea lion.............................................     0.036800    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
Killer whale, transient......................................     0.020240    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
Killer whale, Southern Resident..............................     0.002373    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
Gray whale...................................................     0.000510    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
Humpback whale...............................................      0.00070    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
Harbor porpoise..............................................     0.156000    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
Dall's porpoise..............................................     0.047976    5,419,792   58,338,838   74,290,934   74,290,934    1,926,124    1,926,124
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 15508]]

    The Level A take total was further adjusted by subtracting animals 
expected to occur within the exclusion zone, where pile driving 
activities are suspended when an animal is observed in or approaching 
the zone (see Mitigation section). Further, the number of Level B takes 
was adjusted to exclude those already counted for Level A takes.
    The harbor seal take estimate is based on local seal abundance 
information off the Seattle area from WSDOT's Seattle Slip 2 Batter 
Pile Project in 2012. Marine mammal visual monitoring during the Batter 
Pile Project indicates that a maximum of 6 harbor seals were observed 
in the general area of the Colman Dock project (WSDOT 2012). Based on a 
total of 83 pile driving days for the WSDOT Seattle Colman Dock 
project, it is estimated that up to 498 harbor seals could be exposed 
to noise levels associated with ``take''. Since 28 days would involve 
impact pile driving of 30 inch and 36 inch steel piles with Level A 
zones beyond shutdown zones (465 m vs 160 m shutdown zone), we consider 
that 168 harbor seals exposed during these 28 days would experience 
Level A harassment.
    The California sea lion take estimate is based on local sea lion 
abundance information from the City of Seattle's Elliott Bay Sea Wall 
Project (City of Seattle, 2014). Marine mammal visual monitoring during 
the Sea Wall Project indicates that up to 15 sea lions were observed in 
the general area of the Colman Dock project at any given time (City of 
Seattle 2014). Based on a total of 83 pile driving days for the WSDOT 
Seattle Colman Dock project, it is estimated that up to 1245 California 
sea lions could be exposed to noise levels associated with ``take''. 
Since the Level A zones of otarrids are all very small (<35m, Table 5), 
we do not consider it likely that any sea lions would be taken by Level 
A harassment. Therefore, all California sea lion takes estimated here 
are expected to be taken by Level B harassment.
    A summary of estimated marine mammal takes is listed in Table 7.

 Table 7--Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Cause Level A or
                                               Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                     Estimated       Estimated       Estimated
             Species               Level A take    Level B take     total take       Abundance      Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.............             168             330             498          11,036           4.51%
California sea lion.............               0            1245            1245         296,750            0.42
Steller sea lion................               0             114             114          71,562            0.16
Killer whale, transient.........               0               7               7             243               3
Killer whale, Southern Resident.               0               0               0              78               0
Gray whale......................               1              15              16          20,990            0.08
Humpback whale..................               1               2               3           1,918            0.15
Harbor porpoise.................             195            1657            1852          11,233           16.49
Dall's porpoise.................              16             137             153          25,750            0.59
----------------------------------------------------------------------------------------------------------------

Mitigation

    Under section 101(a)(5)(D) of the MMPA, NMFS shall prescribe the 
``permissible methods of taking by harassment 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 subsistence 
uses.''
    To ensure that the ``least practicable adverse impact'' will be 
achieved, NMFS evaluates mitigation measures in 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(s) is 
expected to reduce impacts to marine mammals, marine mammal species or 
stocks, their habitat, and their availability for subsistence uses 
(latter where relevant); the proven or likely efficacy of the measures; 
and the practicability of the measures for applicant implementation.
    For WSDOT's proposed Seattle Multimodal Project at Colman Dock, 
WSDOT worked with NMFS and proposed the following mitigation measures 
to minimize the potential impacts to marine mammals in the project 
vicinity. The primary purposes of these mitigation measures are to 
minimize sound levels from the activities, to monitor marine mammals 
within designated zones of influence (ZOI) and exclusion zones 
corresponding to NMFS' current Level B and Level A harassment 
thresholds and, to implement shut-down measures for certain marine 
mammal species when they are detected approaching the exclusion zones 
or actual take numbers are approaching the authorized take numbers (if 
the IHA is issued).

Time Restriction

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between August 1, 2017, and 
February 15, 2018.

Use of Noise Attenuation Devices

    To reduce impact on marine mammals, WSDOT shall use a marine pile 
driving energy attenuator (i.e., air bubble curtain system), or other 
equally effective sound attenuation method (e.g., dewatered cofferdam) 
for all impact pile driving.

Establishing and Monitoring Level A, Level B Harassment Zones, and 
Exclusion Zones

    Before the commencement of in-water construction activities, which 
include impact pile driving and vibratory pile driving and pile 
removal, WSDOT shall establish Level A harassment zones where received 
underwater SPLs or SELcum could cause PTS (see above).
    WSDOT shall also establish Level B harassment zones where received 
underwater SPLs are higher than 160 dBrms and 120 
dBrms re 1 [micro]Pa for impulse noise sources (impact pile 
driving) and non-impulses noise sources (vibratory pile driving and 
pile removal), respectively.
    WSDOT shall establish a maximum 160-m Level A exclusion zone for 
all marine mammals. For Level A harassment zones that are smaller than 
160 m from the source, WSDOT shall establish exclusion zones that 
correspond to the estimated Level A harassment distances, but shall not 
be less than 10 m.
    A summary of exclusion zones is provided in Table 8.

[[Page 15509]]



          Table 8--Exclusion Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
                                                                Exclusion zone (m)
 Pile type, size & pile driving  -------------------------------------------------------------------------------
             method                 LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid
----------------------------------------------------------------------------------------------------------------
14'' timber pile, vibratory.....              10              10              12              10              10
24'' steel pile, vibratory......             255              65             160             115              10
30'' & 36'' steel pile,                      285              65             160             125              10
 vibratory......................
30'' & 36'' steel pile, impact..             500              75             160             160              35
----------------------------------------------------------------------------------------------------------------

    NMFS-approved protected species observers (PSO) shall conduct an 
initial survey of the exclusion zones to ensure that no marine mammals 
are seen within the zones before impact pile driving of a pile segment 
begins. If marine mammals are found within the exclusion zone, pile 
driving of the segment would be delayed until they move out of the 
area. If a marine mammal is seen above water and then dives below, the 
contractor would wait 30 minutes. If no marine mammals are seen by the 
observer in that time it can be assumed that the animal has moved 
beyond the exclusion zone.
    If pile driving of a segment ceases for 30 minutes or more and a 
marine mammal is sighted within the designated exclusion zone prior to 
commencement of pile driving, the observer(s) must notify the pile 
driving operator (or other authorized individual) immediately and 
continue to monitor the exclusion zone. Operations may not resume until 
the marine mammal has exited the exclusion zone or 30 minutes have 
elapsed since the last sighting.

Soft Start

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

Shutdown Measures

    WSDOT shall implement shutdown measures if a marine mammal is 
detected within an exclusion zone or is about to enter an exclusion 
zone listed in Table 7.
    WSDOT shall also implement shutdown measures if southern resident 
killer whales are sighted within the vicinity of the project area and 
are approaching the Level B harassment zone (ZOI) during in-water 
construction activities.
    If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a Southern Resident killer 
whale or a transient killer whale, it shall be assumed to be a Southern 
Resident killer whale and WSDOT shall implement the shutdown measure.
    If a Southern Resident killer whale or an unidentified killer whale 
enters the ZOI undetected, in-water pile driving or pile removal shall 
be suspended until the whale exits the ZOI to avoid further level B 
harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA (if issued) and if such marine mammals are sighted within the 
vicinity of the project area and are approaching the Level B harassment 
zone during in-water construction activities.

Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving for the day, the Orca Network 
and/or Center for Whale Research will be contacted by WSDOT to find out 
the location of the nearest marine mammal sightings. The Orca Sightings 
Network consists of a list of over 600 (and growing) residents, 
scientists, and government agency personnel in the U.S. and Canada. 
Sightings are called or emailed into the Orca Network and immediately 
distributed to other sighting networks including: The NMFS Northwest 
Fisheries Science Center, the Center for Whale Research, Cascadia 
Research, the Whale Museum Hotline and the British Columbia Sightings 
Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile driving.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, all of which are described 
above, NMFS has preliminarily determined that the proposed mitigation 
measures provide the means effecting the least practicable adverse 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:

[[Page 15510]]

     Occurrence of marine mammal species or stocks in the 
action area (e.g., presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Proposed Monitoring Measures

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its Seattle Multimodal Project. The PSOs will observe 
and collect data on marine mammals in and around the project area for 
30 minutes before, during, and for 30 minutes after all pile removal 
and pile installation work. NMFS-approved PSOs shall meet the following 
requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
inbiological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    5. NMFS will require submission and approval of observer CVs.;
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of ZOIs from different pile sizes, several 
different ZOIs and different monitoring protocols corresponding to a 
specific pile size will be established.
     During 14 inch timber pile removal, two land-based PSOs 
will monitor the exclusion zones and Level B harassment zone.
     During vibratory pile driving of 24 inch, 30 inch, and 36 
inch steel piles, 5 land-based PSOs and two vessel-based PSOs on 
ferries will monitor the Level A and Level B harassment zones.
     During impact pile driving of 30 inch and 36 inch steel 
piles, 4 land-based PSOs will monitor the Level A and Level B 
harassment zones.
    Locations of the land-based PSOs and routes of monitoring vessels 
are shown in WSDOT's Marine Mammal Monitoring Plan, which is available 
online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.
    To verify the required monitoring distance, the exclusion zones and 
ZOIs will be determined by using a range finder or hand-held global 
positioning system device.

Proposed Reporting Measures

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

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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'' (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 takes, alone, is not 
enough information on which to base an impact determination. In 
addition to considering the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration, etc.), as well as effects on habitat, the status of the 
affected stocks, and the likely effectiveness of the mitigation. 
Consistent with the 1989 preamble for NMFS's implementing regulations 
(54 FR 40338; September 29, 1989), the impacts from other past and 
ongoing anthropogenic activities are incorporated into these analyses 
via their impacts on the environmental baseline (e.g., as reflected in 
the regulatory status of the species, population size and growth rate 
where known, ongoing sources of human-caused mortality, or ambient 
noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 7, given that the 
anticipated effects of WSDOT's Seattle Multimodal Project at Colman 
Dock activities involving pile driving and pile removal on marine 
mammals are expected to be relatively similar in nature. There is no 
information about the nature or severity of the impacts, or the size, 
status, or structure of any species or stock that would lead to a 
different analysis by species for this activity, or else species-
specific factors would be identified and analyzed.
    Although a few marine mammal species (168 harbor seals, 1 gray 
whale, 1 humpback whale, 195 harbor porpoises, and 16 Dall's porpoise) 
are estimated to experience Level A harassment in the form of PTS if 
they stay within the Level A harassment zone during the entire pile 
driving for the day, the degree of injury is expected to be mild and is 
not likely to affect the reproduction or survival of the individual 
animals. It is expected that, if hearing impairments occurs, most

[[Page 15511]]

likely the affected animal would lose a few dB in its hearing 
sensitivity, which in most cases is not likely to affect its survival 
and recruitment. Hearing impairment that occur for these individual 
animals would be limited to the dominant frequency of the noise 
sources, i.e., in the low-frequency region below 2 kHz. Therefore, the 
degree of PTS is not likely to affect the echolocation performance of 
the two porpoise species, which use frequencies mostly above 100 kHz. 
Nevertheless, for all marine mammal species, it is known that in 
general animals avoid areas where sound levels could cause hearing 
impairment. Therefore it is not likely that an animal would stay in an 
area with intense noise that could cause severe levels of hearing 
damage. In addition, even if an animal receives a TTS, the TTS would be 
a one-time event from the exposure, making it unlikely that the TTS 
would involve into PTS. Furthermore, Level A take estimates were based 
on the assumption that the animals are randomly distributed in the 
project area and would not avoid intense noise levels that could cause 
TTS or PTS. In reality, animals tend to avoid areas where noise levels 
are high (Richardson et al. 1995).
    For the rest of the three marine mammal species, takes that are 
anticipated and proposed to be authorized are expected to be limited to 
short-term Level B harassment (behavioral and TTS). Marine mammals 
present in the vicinity of the action area and taken by Level B 
harassment would most likely show overt brief disturbance (startle 
reaction) and avoidance of the area from elevated noise levels during 
pile driving and pile removal and the implosion noise. A few marine 
mammals could experience TTS if they occur within the Level B TTS ZOI. 
However, as discussed earlier in this document, TTS is a temporary loss 
of hearing sensitivity when exposed to loud sound, and the hearing 
threshold is expected to recover completely within minutes to hours. 
Therefore, it is not considered an injury. In addition, take 
calculation of harbor porpoise is based on density provided U.S. Navy 
Marine Species Density Database (Navy 2015), which is more relevant to 
open water area of the Puget Sound. Finally, harbor porpoise abundance 
in the Seattle area based on aerial survey showed that their abundance 
is lower (Jefferson et al., 2016).
    There is no ESA designated critical habitat in the vicinity of 
WSDOT's proposed Seattle Multimodal Project at Colman Dock area.
    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. There is 
no ESA designated critical area in the vicinity of the Seattle 
Multimodal Project at Colman Dock area. The project activities would 
not permanently modify existing marine mammal habitat. The activities 
may kill some fish and cause other fish to leave the area temporarily, 
thus 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. Therefore, given 
the consideration of potential impacts to marine mammal prey species 
and their physical environment, WSDOT's proposed construction activity 
at Colman Dock would not adversely affect marine mammal habitat.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total take from 
the proposed activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, NMFS compares the number of 
individuals anticipated to be taken to the most appropriate estimation 
of the relevant species or stock size in our determination of whether 
an authorization would be limited to small numbers of marine mammals.
    The takes represent less than 17 percent of all populations or 
stocks with known abundance potentially impacted (see Table 6 in this 
document). These take estimates represent the percentage of each 
species or stock that could be taken by both Level A and Level B 
harassments. In general, the numbers of marine mammals estimated to be 
taken are small proportions of the total populations of the affected 
species or stocks.
    The most recent abundance estimate of Washington northern inland 
water stock of harbor seal was assessed at 11,036 (Carretta et al., 
2015). The actual number of harbor seal is expected to be much higher 
since animals could be under the water or in areas not covered by the 
survey (Carretta et al., 2015). Nevertheless, consider that the take 
calculation is based on daily cumulative counts of animals that are 
exposed multiplied by the activity days, a single animal could be 
exposed in different days and thus be considered as multiple takes. 
Therefore, we believe that the numbers of harbor seals being 
potentially taken are low in terms of their stock sizes.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of each species or stock will be taken relative to the 
population size of the affected species or stocks.

Unmitigable Adverse Impact Subsistence Analysis and Determination

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

Endangered Species Act (ESA)

    Issuance of an MMPA authorization requires compliance with the ESA 
for any species that are listed or proposed as threatened or 
endangered.
    The California-Oregon-Washington stock of humpback whale and the 
Southern Resident stock of killer whale are the only marine mammal 
species listed under the ESA that could occur in the vicinity of 
WSDOT's proposed construction projects. Two DPSs of the humpback whale 
stock, the Mexico DPS and the Central America DPS, are listed as 
threatened and endangered under the ESA, respectively. NMFS' Permits 
and Conservation Division has initiated consultation with NMFS' 
Protected Resources Division under section 7 of the ESA on the issuance 
of an IHA to WSDOT under section 101(a)(5)(D) of the MMPA for this 
activity.
    NMFS will conclude the ESA consultation prior to reaching a 
determination regarding the proposed issuance of the authorization.

National Environmental Policy Act (NEPA)

    Issuance of an MMPA 101(a)(5)(D) authorization requires compliance 
with the National Environmental Policy Act.

[[Page 15512]]

    NMFS preliminary determined the issuance of the proposed IHA is 
consistent with categories of activities identified in CE B4 (issuance 
of incidental harassment authorizations under section 101(a)(5)(A) and 
(D) of the MMPA for which no serious injury or mortality is 
anticipated) of the Companion Manual for NAO 216-6A and we have not 
identified any extraordinary circumstances listed in Chapter 4 of the 
Companion Manual for NAO 216-6A that would preclude this categorical 
exclusion.
    We will review all comments submitted in response to this notice 
prior to making a final decision on the IHA request.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to the Washington State Department of Transportation for 
conducting ferry terminal construction at Colman Dock in Seattle 
Washington, provided the previously mentioned mitigation, monitoring, 
and reporting requirements are incorporated. This section contains a 
draft of the IHA itself. The wording contained in this section is 
proposed for inclusion in the IHA (if issued).
    The proposed IHA language is provided next.
    1. This Authorization is valid from August 1, 2017, through July 
31, 2018.
    2. This Authorization is valid only for activities associated with 
in-water construction work at the Seattle Multimodal Project at Colman 
Dock in the State of Washington.
    3. (a) The species authorized taking by, Level A and Level B 
harassment and in the numbers shown in Table 7 are: Pacific harbor seal 
(Phoca vitulina), California sea lion (Zalophus californianus), Steller 
sea lion (Eumetopias jubatus), killer whale (Orcinus orca), gray whale 
(Eschrichtius robustus), humpback whale (Megaptera novaeangliae), 
harbor porpoise (Phocoena phocoena), and Dall's porpoise (P. dalli).
    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
     Impact pile driving;
     Vibratory pile driving; and
     Vibratory pile removal.
    4. Prohibitions.
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 6 of this notice. The taking by death of these species or the 
taking by harassment, injury or death of any other species of marine 
mammal is prohibited unless separately authorized or exempted under the 
MMPA and may result in the modification, suspension, or revocation of 
this Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
7(a), are not present in conformance with condition 7(a) of this 
Authorization.
    5. Mitigation.
    (a) Time Restriction.
    In-water construction work shall occur only during daylight hours.
    (b) Establishment of Level A and Level B Harassment Zones.
    (A) Before the commencement of in-water pile driving/removal 
activities, WSDOT shall establish Level A harassment zones. The modeled 
Level A zones are summarized in Table 5.
    (B) Before the commencement of in-water pile driving/removal 
activities, WSDOT shall establish Level B harassment zones. The modeled 
Level B zones are summarized in Table 5.
    (C) Before the commencement of in-water pile driving/removal 
activities, WSDOT shall establish exclusion zones. The proposed 
exclusion zones are summarized in Table 8.
    (c) Monitoring of marine mammals shall take place starting 30 
minutes before pile driving begins until 30 minutes after pile driving 
ends.
    (d) Soft Start.
    (i) When there has been downtime of 30 minutes or more without pile 
driving, the contractor will initiate the driving with ramp-up 
procedures described below.
    (ii) Soft start for impact hammers requires contractors to provide 
an initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a 1-minute waiting period, then two subsequent 
three-strike sets. Each day, WSDOT will use the soft-start technique at 
the beginning of impact pile driving or removal, or if pile driving has 
ceased for more than 30 minutes.
    (e) Shutdown Measures.
    (i) WSDOT shall implement shutdown measures if a marine mammal is 
detected within or to be approaching the exclusion zones provided in 
Table 7 of this notice.
    (ii) WSDOT shall implement shutdown measures if southern resident 
killer whales (SRKWs) are sighted within the vicinity of the project 
area and are approaching the Level B harassment zone (zone of 
influence, or ZOI) during in-water construction activities.
    (iii) If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a SRKW or a transient killer 
whale, it shall be assumed to be a SRKW and WSDOT shall implement the 
shutdown measure identified in 6(e)(ii).
    (iv) If a SRKW enters the ZOI undetected, in-water pile driving or 
pile removal shall be suspended until the SRKW exits the ZOI to avoid 
further level B harassment.
    (v) WSDOT shall implement shutdown measures if the number of any 
allotted marine mammal takes reaches the limit under the IHA, if such 
marine mammals are sighted within the vicinity of the project area and 
are approaching the Level B harassment zone during pile removal 
activities.
    (f) Coordination with Local Marine Mammal Research Network.
    Prior to the start of pile driving, WSDOT will contact the Orca 
Network and/or Center for Whale Research to get real-time information 
on the presence or absence of whales before starting any pile driving.
    6. Monitoring.
    (a) Protected Species Observers.
    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its construction project. NMFS-approved PSOs will meet 
the following qualifications.
    (i) Independent observers (i.e., not construction personnel) are 
required.
    (ii) At least one observer must have prior experience working as an 
observer.
    (iii) Other observers may substitute education (undergraduate 
degree in biological science or related field) or training for 
experience.
    (iv) Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer.
    (v) NMFS will require submission and approval of observer CVs.
    (b) Monitoring Protocols: PSOs shall be present on site at all 
times during pile removal and driving.
    (i) A 30-minute pre-construction marine mammal monitoring will be 
required before the first pile driving or pile removal of the day. A 
30-minute post-construction marine mammal monitoring will be required 
after the last pile driving or pile removal of the day. If the 
constructors take a break between subsequent pile driving or pile 
removal for more than 30 minutes, then additional 30-minute pre-
construction marine mammal monitoring will be required before the next 
start-up of pile driving or pile removal.
    (iii) Marine mammal visual monitoring will be conducted for 
different ZOIs based on different sizes of piles being driven or 
removed, as shown

[[Page 15513]]

in maps in WSDOT's Marine Mammal Monitoring Plan.
    (A) During 14 inch timber pile removal, two land-based PSO will 
monitor the exclusion zones and Level B harassment zone.
    (B) During vibratory pile driving of 24 inch, 30 inch, and 36 inch 
steel piles, 5 land-based PSOs and two vessel-based PSOs on ferries 
will monitor the Level A and Level B harassment zones.
    (C) During impact pile driving of 30 inch and 36 inch steel piles, 
5 land-based PSOs and one vessel-based PSO on a ferry will monitor the 
Level A and Level B harassment zones.
    (iv) If marine mammals are observed, the following information will 
be documented:
    (A) Species of observed marine mammals;
    (B) Number of observed marine mammal individuals;
    (C) Behavior of observed marine mammals;
    (D) Location within the ZOI; and
    7. Reporting:
    (a) WSDOT shall provide NMFS with a draft monitoring report within 
90 days of the conclusion of the construction work or within 90 days of 
the expiration of the IHA, whichever comes first. This report shall 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    (b) If comments are received from NMFS Office of Protected 
Resources on the draft report, a final report shall be submitted to 
NMFS within 30 days thereafter. If no comments are received from NMFS, 
the draft report will be considered to be the final report.
    (c) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization (if issued), such as an injury, serious injury, or 
mortality, WSDOT shall immediately cease all operations and immediately 
report the incident to the Office of Protected Resources, NMFS, and the 
West Coast Regional Stranding Coordinators. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) description of the incident;
    (iii) status of all sound source use in the 24 hours preceding the 
incident;
    (iv) environmental conditions (e.g., wind speed and direction, sea 
state, cloud cover, visibility, and water depth);
    (v) description of marine mammal observations in the 24 hours 
preceding the incident;
    (vi) species identification or description of the animal(s) 
involved;
    (vii) the fate of the animal(s); and
    (viii) photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with WSDOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. WSDOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (E) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
WSDOT will immediately report the incident to the Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinators. 
The report must include the same information identified above. 
Activities may continue while NMFS reviews the circumstances of the 
incident. NMFS will work with WSDOT to determine whether modifications 
in the activities are appropriate.
    (F) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), WSDOT shall report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinators, within 24 hours of the discovery. WSDOT shall 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network. WSDOT can continue its operations under such 
a case.
    8. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if 
NMFS determines the authorized taking is having more than a negligible 
impact on the species or stock of affected marine mammals.
    9. A copy of this Authorization must be in the possession of each 
contractor who performs the construction work at the Seattle Colman 
Dock.

Request for Public Comments

    We request comment on our analyses, the draft authorization, and 
any other aspect of this Notice of Proposed IHA for the WSDOT's Seattle 
Multimodal project at Colman Dock. Please include with your comments 
any supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.

    Dated: March 23, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-06096 Filed 3-28-17; 8:45 am]
BILLING CODE 3510-22-P