[Federal Register Volume 82, Number 89 (Wednesday, May 10, 2017)]
[Notices]
[Pages 21793-21808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09417]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF340


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

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

ACTION: Proposed incidental harassment authorization (IHA); request for 
comments.

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SUMMARY: NMFS has received a request from Washington State Department 
of Transportation (WSDOT) for authorization to take marine mammals 
incidental to Mukilteo 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 incidentally 
take marine mammals during the specified activities.

DATES: Comments and information must be received no later than June 9, 
2017.

ADDRESSES: Comments 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 
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, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    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).

National Environmental Policy Act

    Issuance of an MMPA 101(a)(5)(D) 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 as to whether application of this CE 
is appropriate in this circumstance.

[[Page 21794]]

Summary of Request

    NMFS received a request from WSDOT for an IHA to take marine 
mammals incidental to Mukilteo Multimodal Project in Mukilteo, 
Washington. WSDOT's request was for harassment only and NMFS concurs 
that serious injury or mortality is not expected to result from this 
activity. Therefore, an IHA is appropriate.
    On April 7, 2016, WSDOT submitted a request to NMFS requesting an 
IHA for the possible harassment of small numbers of marine mammal 
species incidental to construction associated with the Mukilteo 
Multimodal Project in Mukilteo, Washington, between August 1, 2017, and 
July 31, 2018. WSDOT subsequently updated its project scope and 
submitted a revised IHA application on April 10, 2017. NMFS determined 
the IHA application was complete on April 14, 2017. NMFS is proposing 
to authorize the take by Level A and Level B harassment of the 
following marine mammal species: Harbor seal (Phoca vitulina), 
California sea lion (Zalophus californianus), Steller sea lion 
(Eumetopias jubatus), northern elephant seal (Mirounga angustirostris), 
killer whale (Orcinus orca), gray whale (Eschrichtius robustus), 
humpback whale (Megaptera novaeangliae), harbor porpoise (Phocoena 
phocoena), and Dall's porpoise (P. dalli).

Description of Proposed Activity

Overview

    The purpose of the Mukilteo Multimodal Project is to provide safe, 
reliable, and effective service and connection for general-purpose 
transportation, transit, high occupancy vehicles (HOV), pedestrians, 
and bicyclists traveling between Island County and the Seattle/Everett 
metropolitan area and beyond by constructing a new ferry terminal. The 
current Mukilteo Ferry Terminal has not had significant improvements 
for almost 30 years and needs key repairs. The existing facility is 
deficient in a number of aspects, such as safety, multimodal 
connectivity, capacity, and the ability to support the goals of local 
and regional long-range transportation and comprehensive plans. The 
project is intended to:
     Reduce conflicts, congestion, and safety concerns for 
pedestrians, bicyclists, and motorists by improving local traffic and 
safety at the terminal and the surrounding area that serves these 
transportation needs.
     Provide a terminal and supporting facilities with the 
infrastructure and operating characteristics needed to improve the 
safety, security, quality, reliability, efficiency, and effectiveness 
of multimodal transportation.
     Accommodate future demand projected for transit, HOV, 
pedestrian, bicycle, and general-purpose traffic.
    The proposed Mukilteo Multimodal Project would involve in-water 
impact and vibratory pile driving and vibratory pile removal. Details 
of the proposed construction project 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 ESA-listed salmonids, planned WSDOT 
in-water construction 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 175 days (Table 1).

Specified Geographic Region

    The Mukilteo Ferry Terminal is located in the City of Mukilteo, 
Snohomish County, Washington. The terminal is located in Township 28 
North, Range 4 East, Section 3, in Possession Sound. The new terminal 
will be approximately 1,700 ft east of the existing terminal in 
Township 28N, Range 4E, Section 33 (Figure 1-2 of the IHA application). 
Land use in the Mukilteo area is a mix of residential, commercial, 
industrial, and open space and/or undeveloped lands.

Detailed Description of In-Water Pile Driving Associated With Mukilteo 
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.
(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 
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 or vibratory hammer. Once the 
pile is set in place, pile installation with an impact hammer can take 
less than 15 minutes under good conditions, to over an hour under poor 
conditions (such as glacial till and bedrock, or exceptionally loose 
material in which the pile repeatedly moves out of position).
    Impact hammer is also used for ``proofing'' after pile is driven 
using a vibratory hammer to set the pile firmly.
    Details of pile driving activities are provided below and are 
summarized in Table 1.
     Vibratory driving of 24-inch temporary steel pile and 
steel piles for a public fishing pier. Installation of each pile will 
take approximately 60 minutes, 3 piles installed per day, with 117 
piles installed over 39 days.
     Vibratory removal of 69 temporary 24-inch diameter steel 
piles. This will take approximately 15 minutes per pile, with 3 piles 
removed per day over 23 days.
     Vibratory driving of 40 30-inch steel piles. This will 
take approximately 60 minutes per pile, with 3 piles installed per day 
over 14 days.
     Vibratory removal of 2 30-inch test steel piles. This will 
take approximately 15 minutes per pile, with both piles removed in 1 
day.
     Vibratory removal of 7 30-inch inner dolphin steel piles. 
This will take approximately 15 minutes per pile, with all 7 piles 
removed in 1 day.
     Vibratory driving of 6 36-inch steel piles. This will take 
approximately 60 minutes per pile, with 3 piles installed per day over 
2 days.
     Vibratory driving of 2 78-inch diameter drilled steel 
shafts. This will take approximately 60 minutes to install in one day.
     Vibratory driving of a 120-inch diameter drilled steel 
shaft. This will take approximately 60 minutes to install in one day.
     Vibratory driving of 139 steel H-piles. This will take 
approximately 30 minutes per pile, with 10 piles installed per day over 
14 days.

[[Page 21795]]

     Vibratory driving of 90 temporary steel sheet piles. This 
will take approximately 30 minutes per pile, with 3 sheet piles 
installed per day over 30 days.
     Vibratory removal of 90 temporary steel sheet piles. This 
will take approximately 15 minutes per pile, with 6 piles removed per 
day over 15 days.
     Impact driving (proofing; 300 strikes per pile) of 68 
temporary 24-inch diameter steel piles. This will take approximately 15 
minutes per pile, with 3 piles installed per day over 23 days.
     Impact driving (proofing; 300 strikes per pile) of 5 30-
inch diameter steel piles. This will take approximately 15 minutes per 
pile, with all 5 piles installed in 1 day.
     Impact driving with 3000 strikes per pile of 25 30-inch 
diameter steel piles. This will take approximately 15 minutes per pile, 
with 3 piles installed per day over 9 days.

                                                   Table 1--Summary of In-Water Pile Driving Durations
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                                                                                                                        Duration  (min./
                                                                                                                         sec.) per pile
                    Method                                    Pile type                    Pile size      Pile number       (vib.) or        Duration
                                                                                            (inch)                      strikes per pile      (days)
                                                                                                                            (impact)
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Vibratory driving............................  Steel..................................              24             117           60/3600              39
Vibratory removal............................  Steel..................................              24              69            15/900              23
Vibratory driving............................  Steel..................................              30              40           60/3600              14
Vibratory removal............................  Steel..................................              30               2           30/1800               1
Vibratory removal............................  Steel..................................              30               7           15/1800               1
Vibratory driving............................  Steel..................................              36               6           60/3600               2
Vibratory driving............................  Steel shaft............................              78               2           60/3600               2
Vibratory driving............................  Steel shaft............................             120               1           60/3600               1
Vibratory driving............................  Steel H-pile...........................              12             139           30/1800              14
Vibratory driving............................  Steel sheet............................  ..............              90           30/1800              30
Vibratory removal............................  Steel sheet............................  ..............              90            15/900              15
Impact proofing..............................  Steel..................................              24              68               300              23
Impact driving...............................  Steel..................................              30              25              3000               9
Impact proofing..............................  Steel..................................              30               5               300               1
                                              ----------------------------------------------------------------------------------------------------------
    Total....................................  .......................................  ..............             661  ................             175
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    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Proposed 
Mitigation'' and ``Proposed Monitoring and Reporting'').

Description of Marine Mammals in the Area of Specified Activities

    We have reviewed the applicants' species information--which 
summarizes available information regarding status and trends, 
distribution and habitat preferences, behavior and life history, and 
auditory capabilities of the potentially affected species--for accuracy 
and completeness and refer the reader to Sections 3 and 4 of the 
applications, as well as to NMFS's Stock Assessment Reports (SAR; 
www.nmfs.noaa.gov/pr/sars/), instead of reprinting all of the 
information here. Additional general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's Web 
site (www.nmfs.noaa.gov/pr/species/mammals/), or in the U.S. Navy's 
Marine Resource Assessments (MRA) for relevant operating areas. The 
MRAs are available online at: www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html. Table 2 lists all species with 
expected potential for occurrence in Mukilteo project area and 
summarizes information related to the population or stock, including 
potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2016). PBR, defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population, is considered in 
concert with known sources of ongoing anthropogenic mortality to assess 
the population-level effects of the anticipated mortality from a 
specific project (as described in NMFS's SARs). While no mortality is 
anticipated or authorized here, PBR and annual serious injury and 
mortality are included here as gross indicators of the status of the 
species and other threats. Species that could potentially occur in the 
proposed survey areas but are not expected to have reasonable potential 
to be harassed by WSDOT's Mukilteo Multimodal project are described 
briefly but omitted from further analysis. These include extralimital 
species, which are species that do not normally occur in a given area 
but for which there are one or more occurrence records that are 
considered beyond the normal range of the species. For status of 
species, we provide information regarding U.S. regulatory status under 
the MMPA and ESA.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study area. NMFS's stock 
abundance estimates for most species represent the total estimate of 
individuals within the geographic area, if known, that comprises that 
stock.
    Nine species (with 10 managed stocks) are considered to have the 
potential to co-occur with the proposed construction activities. 
Extralimital species or stocks unlikely to co-occur with the Mukilteo 
project include bottlenose dolphin, long-beaked common dolphin, Risso's 
dolphin, Bryde's whale, and minke whale. All values presented in Table 
2 are the most recent available at the time of publication and are 
available in the 2015 SARs (Carretta et al. 2016) and draft 2016 SARs 
(available online at: www.nmfs.noaa.gov/pr/sars/draft.htm).

[[Page 21796]]



                                    Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
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                                                                                                               Stock
                                                                                                          abundance (CV,
                                                                                       ESA/MMPA status;     Nmin, most                      Annual M/SI
            Common name                  Scientific name              Stock          strategic (Y/N) \1\      recent            PBR             \3\
                                                                                                             abundance
                                                                                                            survey) \2\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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                                                                  Family Eschrichtiidae
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Gray whale.........................  Eschrichtius robustus.  Eastern North Pacific.  N..................          20,990             624             132
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                                                            Family Balaenopteridae (rorquals)
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Humpback whale.....................  Megaptera novaeangliae  California/Oregon/      Y..................           1,918            11.0             6.5
                                                              Washington.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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                                                                   Family Delphinidae
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Killer whale.......................  Orcinus orca..........  Eastern North Pacific   Y..................              78               0               0
                                                              Southern Resident.
                                                             West coast transient..  N..................             243             2.4               0
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                                                             Family Phocoenidae (porpoises)
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Harbor porpoise....................  Phocoena phocoena.....  Washington inland       N..................          11,233              66             7.2
                                                              waters.
Dall's porpoise....................  P. dalli..............  California/Oregon/      N..................          25,750             172             0.3
                                                              Washington.
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                                                         Order Carnivora--Superfamily Pinnipedia
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                                                      Family Otariidae (eared seals and sea lions)
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California sea lion................  Zalophus californianus  U.S...................  N..................         296,750           9,200             389
Steller sea lion...................  Eumetopias jubatus....  Eastern U.S...........  N..................          71,562           2,498             108
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                                                             Family Phocidae (earless seals)
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Harbor seal........................  Phoca vitulina........  Washington northern     N..................      \4\ 11,036           1,641              43
                                                              inland waters.
Elephant seal......................  Mirounga                California breeding...  N..................         179,000           2,882             8.8
                                      angustirostris.
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Harbor seal estimate is based on data that are 8 years old, but this is the best available information for use here.

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 by Incidental Harassment'' section 
later in this document will include a quantitative analysis of the 
number of individuals that are expected to be taken by this activity. 
The ``Negligible Impact Analysis and Determination'' section will 
consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section, and the ``Proposed Mitigation'' 
section, to draw conclusions regarding the likely impacts of 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.
    Potential impacts to marine mammals from the proposed Mukilteo 
ferry terminal construction are from noise generated during in-water 
pile driving and pile removal activities.

Acoustic Effects

    Here, we first provide background information on marine mammal 
hearing before discussing the potential effects of the use of active 
acoustic sources on marine mammals.
    Marine Mammal Hearing--Hearing is the most important sensory 
modality for marine mammals underwater, and exposure to anthropogenic 
sound can have deleterious effects. To appropriately assess the 
potential effects of exposure to sound, it is necessary to understand 
the frequency ranges marine mammals are able to hear. Current data 
indicate that not all marine mammal species have equal hearing 
capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; 
Au and Hastings,

[[Page 21797]]

2008). To reflect this, Southall et al. (2007) recommended that marine 
mammals be divided into functional hearing groups based on directly 
measured or estimated hearing ranges on the basis of available 
behavioral response data, audiograms derived using auditory evoked 
potential techniques, anatomical modeling, and other data. Note that no 
direct measurements of hearing ability have been successfully completed 
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS 
(2016) described generalized hearing ranges for these marine mammal 
hearing groups. Generalized hearing ranges were chosen based on the 
approximately 65 dB threshold from the normalized composite audiograms, 
with the exception for lower limits for low-frequency cetaceans where 
the lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. The functional groups and 
the associated frequencies are indicated below (note that these 
frequency ranges correspond to the range for the composite group, with 
the entire range not necessarily reflecting the capabilities of every 
species within that group):
     Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 Hz and 35 kHz, with best 
hearing estimated to be from 100 Hz to 8 kHz;
     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz, with best hearing from 10 to 
less than 100 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz.
     Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz, 
with best hearing between 1-50 kHz;
     Pinnipeds in water; Otariidae (eared seals): Generalized 
hearing is estimated to occur between 60 Hz and 39 kHz, with best 
hearing between 2-48 kHz.
     The pinniped functional hearing group was modified from 
Southall et al. (2007) on the basis of data indicating that phocid 
species have consistently demonstrated an extended frequency range of 
hearing compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2016) for a review of available information. 
Nine marine mammal species (5 cetacean and 4 pinniped (2 otariid and 2 
phocid) species) have the reasonable potential to co-occur with the 
proposed survey activities. Please refer to Table 2. Of the cetacean 
species that may be present, 2 are classified as low-frequency 
cetaceans (i.e., all mysticete species), 1 is classified as mid-
frequency cetaceans (i.e., killer whale), and 2 are classified as high-
frequency cetaceans (i.e., harbor porpoise and Dall's porpoise).
    The WSDOT's Mukilteo Multimodal 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 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 decibel (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 threshold shift (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 micropascal 
([mu]Pa), which corresponds to a sound exposure level of 164.5 dB re: 1 
[mu]Pa\2\ s after integrating exposure. 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. Therefore, based on these studies, 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

[[Page 21798]]

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, which 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 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 sound pressure 
level) in the world's ocean from pre-industrial periods, and most of 
these increases are from distant shipping (Hildebrand 2009). For 
WSDOT's Mukilteo Multimodal 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 
Mukilteo Multimodal 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 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 vibratory pile 
removal and pile driving in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.
    With regard to fish as a prey source for cetaceans and pinnipeds, 
fish are known to hear and react to sounds and to use sound to 
communicate (Tavolga et al. 1981) and possibly avoid predators (Wilson 
and Dill 2002). Experiments have shown that fish can sense both the 
strength and direction of sound (Hawkins 1981). Primary factors 
determining whether a fish can sense a sound signal, and potentially 
react to it, are the frequency of the signal and the strength of the 
signal in relation to the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al., 1993). In general, fish react more strongly to pulses of 
sound (such as noise from impact pile driving) rather than continuous 
signals (such as noise from vibratory pile driving) (Blaxter et al., 
1981), and a quicker alarm response is elicited when the sound signal 
intensity rises rapidly compared to sound rising more slowly to the 
same level.
    During the coastal construction only a small fraction of the 
available habitat would be ensonified at any given time. Disturbance to 
fish species would be short-term and fish would return to their pre-
disturbance behavior once the pile driving activity ceases. Thus, the 
proposed construction would have little, if any, impact on marine 
mammals' prey availability 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.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through 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 type of take expected to result from these 
activities. 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).

[[Page 21799]]

    Authorized takes would primarily be by Level B harassment, as noise 
generated from in-water impact pile driving and vibratory pile driving 
and pile removal has the potential to result in disruption of 
behavioral patterns for individual marine mammals. There is also some 
potential for auditory injury (Level A harassment) to result, primarily 
for high frequency cetaceans (harbor and Dall's porpoises) and phocid 
seals (harbor and northern elephant seals) due to larger predicted 
auditory injury zones. Auditory injury is unlikely to occur for low- 
and mid-frequency cetaceans and otarrids. The proposed mitigation and 
monitoring measures are expected to minimize the severity of such 
taking to the extent practicable. Below we describe how the take is 
estimated.

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 Mukilteo 
Multimodal project.
    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] TN10MY17.000

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] TN10MY17.001

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] TN10MY17.002

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             Lrms,flat: 160 dB             Lrms,flat: 120 dB
                                 LE,LF,24h: 183 dB
Mid-Frequency (MF) Cetaceans...  Lpk,flat: 230 dB               LE,MF,24h: 198 dB
                                 LE,MF,24h: 185 dB

[[Page 21800]]

 
High-Frequency (HF) Cetaceans..  Lpk,flat: 202 dB               LE,HF,24h: 173 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 pile driving and removal of 24-, 30-
, and 36-inch (in) steel piles, vibratory driving of 78- and 120-in 
steel shaft, vibratory driving of steel H-piles, vibratory driving and 
removal of steel sheet piles, and impact pile driving and proofing of 
24- and 30-in steel piles.
    Source levels of the above pile driving activities are based on 
measurements of the same material types and same or similar dimensions 
of piles measured at Mukilteo or elsewhere. Specifically, the source 
level for vibratory pile driving and removal of the 24-in steel pile is 
based on vibratory test pile driving of the same pile at the Friday 
Harbor (WSDOT, 2010a). The unweighted SPLrms source level at 
10 m from the pile is 162 dB re 1 re 1 [mu]Pa. We consider that using 
vibratory pile installation source level as a proxy for vibratory pile 
removal is conservative.
    The source level for vibratory pile driving and removal of the 30-
in steel pile is based on vibratory pile driving of the same pile at 
Port Townsend (WSDOT, 2010b). The unweighted SPLrms source 
level at 10 m from the pile is 174 dB re 1 re 1 [mu]Pa.
    The source level for vibratory pile driving the 36-in steel piles 
is based on vibratory test pile driving of 36-in steel piles 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 unweighted SPLrms for vibratory pile driving of 36-in 
steel pile was 177 dB re 1 [mu]Pa.
    Source level for vibratory pile driving of the 78- and 120-in steel 
shaft is based on measurements of 72-in steel piles vibratory driving 
conducted by CALTRANS. The unweighted SPLrms source level 
ranged between 170 and 180 dB re 1 [mu]Pa at 10 m from the pile 
(CALTRANS 2012). The value of 180 dB is chosen to be more conservative.
    The source level for vibratory pile driving of steel H-piles is 
based on measurements conducted by the California Department of 
Transportation (CALTRANS). The unweighted SPLrms source 
level is 150 dB re 1 re 1 [mu]Pa at 10 m from the pile (CALTRANS, 
2012).
    The source level for vibratory sheet pile driving and removal is 
based on measurements at the Elliott Bay Seawall Project. The 
unweighted SPLrms source level is 164 dB re 1 re 1 [mu]Pa at 
10 m from the pile (Greenbusch 2015).
    Source levels for impact pile driving of the 24-in steel piles are 
based on impact test pile driving of the same steel pile during the 
Vashon Acoustic Monitoring by WSDOT (Laughlin, 2015). The unweighted 
back-calculated source levels at 10 m are 174 dB re 1 [mu]Pa\2\-s for 
single strike SEL (SELss) and 189 dB re 1 [mu]Pa for 
SPLrms.
    Source levels for impact pile driving of the 30-in steel pile are 
based on impact test pile driving for the 36-in steel pile at Mukilteo 
in November 2006. Recordings of the impact pile driving that were made 
at a distance of 10 m from the pile were analyzed using Matlab. The 
results show that the unweighted source levels are 178 dB re 1 
[mu]Pa\2\-s for SELss and 193 dB re 1 [mu]Pa for 
SPLrms.
    A summary of source levels from different pile driving and pile 
removal activities is provided in Table 4.

                             Table 4--Summary of In-Water Pile Driving Source Levels
                                              [At 10 m from source]
----------------------------------------------------------------------------------------------------------------
                                                                               SEL (SELss  for
                                                                                impact  pile
                   Method                         Pile type/size  (inch)      driving),  dB re  SPLrms,  dB re 1
                                                                               1  [mu]Pa\2\-s       [mu]Pa\2\
 
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal...................  Steel, 24-in..................               162               162
Vibratory driving/removal...................  Steel, 30-in..................               174               174
Vibratory driving...........................  Steel, 36-in..................               177               177
Vibratory driving...........................  Steel shaft, 78-in............               180               180
Vibratory driving...........................  Steel shaft, 120-in...........               180               180
Vibratory driving...........................  Steel H-pile, 12-in...........               150               150
Vibratory driving/removal...................  Steel sheet...................               164               164

[[Page 21801]]

 
Impact driving..............................  Steel, 24-in..................               174               189
Impact driving..............................  Steel, 30-in..................               178               193
----------------------------------------------------------------------------------------------------------------

    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.
    Source spectrum of the 36-in steel pile recording is used for 
spectral modeling for the 24-, 30-, and 36-in steel pile vibratory pile 
driving and removal to calculate Level A exposure distances based on 
cumulative SEL metric (see below).
    For other piles where no recording is available, source modeling 
cannot be performed. In such cases, the weighting factor adjustment 
(WFA) recommended by NMFS acoustic guidance (NMFS 2016) was used to 
determine Level A exposure distances.
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) as described above. 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:
[GRAPHIC] [TIFF OMITTED] TN10MY17.003

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. Parseval'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 with a time window that 
contains 90 percent of each 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] TN10MY17.004

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] TN10MY17.005


[[Page 21802]]


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] TN10MY17.006

where [alpha](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).
    A summary of the measured and modeled harassment zones is provided 
in Table 5. The maximum distance is 20,500 m from the source, since 
this is where landmass intercepts underwater sound propagation.

                                                         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 removal, 24-in steel pile, 3 piles/day........              10              10              55              10              10           6,040
Vibratory driving, 24-in steel pile, 3 piles/day........             175              45             995              85              10           6,040
Vibratory removal, 30-in steel pile, 2 piles/day........              55              10             345              25              10        * 20,500
Vibratory removal, 30-in steel pile, 7 piles/day........             125              35             725              55              10        * 20,500
Vibratory driving, 30-in steel pile, 3 piles/day........             175              45             995              85              10        * 20,500
Vibratory driving, 36-in steel pile, 3 piles/day........             175              45             995              85              10        * 20,500
Vibratory driving, 78-in steel shaft, 1 pile/day........             126              11             186              77               5        * 20,500
Vibratory driving, 120-in steel shaft, 1 pile/day.......             126              11             186              77               5        * 20,500
Vibratory driving, steel 12-in H-pile, 10 piles/day.....               4               1               6               2               0           1,000
Vibratory driving, steel sheet, 3 piles/day.............              14               1              21               9               1           8,577
Vibratory removal, steel sheet, 6 piles/day.............              23               2              33              14               1           8,577
Impact proofing, 24-in steel pile, 3 piles/day..........             135              10              75              35              10             875
Impact driving, 30-in steel pile, 3 piles/day...........           1,065              10             505             225              10           1,585
Impact proofing, 30-in steel pile, 5 piles/day..........             355              10             175              75              10           1,585
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Landmass intercepts at a distance of 20,500m from project area.

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, California sea lions, and northern elephant seals, 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. In 
most cases, marine mammal density data are from the U.S. Navy Marine 
Species Density Database (Navy 2015). Harbor porpoise density is based 
on a recent study by Jefferson et al. (2016) for the Eastern Whidbey 
area near the Mukilteo Ferry Terminal. Harbor seal, northern elephant 
seal, and California sea lion takes are based on observations in the 
Mukilteo area, since these data provide the best information on 
distribution and presence of these species that are often associated 
with nearby haulouts (see below).
    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

[[Page 21803]]

from monitoring during the Mukilteo pier removal project. Marine mammal 
visual monitoring during Mukilteo Ferry Terminal pier removal project 
showed an average daily observation of 7 harbor seals (WSDOT 2015). 
Based on a total of 175 pile driving days for the WSDOT Mukilteo 
Multimodal Phase 2 project, it is estimated that up to 1,225 harbor 
seals could be exposed to noise levels associated with ``take''. Since 
9 days would involve impact pile driving of 30-in piles with Level A 
harassment zones beyond the required shutdown zones (225 m vs 160 m 
shutdown zone), we consider that 63 harbor seals exposed during these 9 
days would experience Level A harassment.
    The California sea lion take estimate is based on local sea lion 
abundance information during the Mukilteo Ferry Terminal pier removal 
project (WSDOT 2015). Marine mammal visual monitoring during the 
Mukilteo pier removal project indicates on average 7 sea lions were 
observed in the general area of the Mukilteo Ferry Terminal per day 
(WSDOT 2015). Based on a total of 175 pile driving days for the WSDOT 
Mukilteo Multimodal project, it is estimated that up to 1,225 
California sea lions could be exposed to noise levels associated with 
``take''. Since the Level A harassment zones of otarids are all very 
small (max. 10 m, 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 by Level B harassment.
    Northern elephant seal is not common in the Mukilteo Multimodal 
Project area, however, their presence has been observed in Edmonds area 
just south of Mukilteo (Huey, Pers. Comm. April 2017). Therefore, a 
potential take of 20 animals by Level B harassment during the project 
period is assessed. Since northern elephant seal is very uncommon in 
the project area, we do not consider it likely that any elephant seal 
would be taken by Level A harassment.
    However, the method used in take estimates does not account for 
single individuals being taken multiple times during the entire project 
period of 175 days. Therefore, the percent of marine mammals that are 
likely to be taken for a given population would be far less than the 
ratio of numbers of animals taken divided by the population size. For 
harbor porpoise, the estimated incidences of takes at 6,759 animals 
would be 60.2% of the population, if each single take were a unique 
individual. However, this is highly unlikely because the results of 
telemetry and photo-identification studies in Washington waters have 
demonstrated that harbor porpoise shows site fidelity to small areas 
for periods of time that can extend between seasons (Hanson et al. 
1999; Hanson 2007a, 2007b). Based on studies by Jefferson et al. 
(2016), harbor porpoise abundance in the East Whidbey region, which is 
adjunct to the Mukilteo Ferry Terminal construction, is 497, and harbor 
porpoise abundance in the entire surrounding area of North Puget Sound 
is 1,798.
    For Southern Resident killer whales, potential takes based on 
density calculation showed that 4 animals could be exposed to noise 
levels for Level B harassment. However, mitigation measures prescribed 
below will prevent such takes.
    A summary of estimated marine mammal takes is listed in Table 6.

 Table 6--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.............              63           1,162           1,225          11,036            11.1
California sea lion.............               0           1,225           1,225         296,750            0.41
Northern elephant seal..........               0              20              20         179,000            0.01
Steller sea lion................               0             232             232          71,562            0.32
Killer whale, transient.........               0              21              21             243            8.64
Killer whale, Southern Resident.               0               0               0              78               0
Gray whale......................               0              45              45          20,990            0.21
Humpback whale..................               0               6               6           1,918            0.31
Harbor porpoise.................              61           6,698           6,759          11,233            60.2
Dall's porpoise.................               4             417             421          25,750            1.63
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, ``and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking'' for certain 
subsistence uses. NMFS regulations require applicants for incidental 
take authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting such activity or other means of effecting the 
least practicable adverse impact upon the affected species or stocks 
and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully balance two primary factors: (1) 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, and their habitat, which considers the nature of the potential 
adverse impact being mitigated (likelihood, scope, range), as well as 
the likelihood that the measure will be effective if implemented; and 
the likelihood of effective implementation, and; (2) the practicability 
of the measures for applicant implementation, which may consider such 
things as cost, impact on operations, and, in the case of a military 
readiness activity, personnel safety, practicality of implementation, 
and impact on the effectiveness of the military readiness activity.

Mitigation for Marine Mammals and Their Habitat

1. 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.

[[Page 21804]]

2. 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.
3. 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 [mu]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 except low-frequency baleen whales. 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. For low-
frequency baleen whales, WSDOT shall establish exclusion zones that 
correspond to the actual Level A harassment distances, but shall not be 
less than 10 m.
    A summary of exclusion zones is provided in Table 7.

         Table 7--Exclusion Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups.
----------------------------------------------------------------------------------------------------------------
                                                                  Injury zone (m)
Pile type, size and pile driving -------------------------------------------------------------------------------
             method                 LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid
----------------------------------------------------------------------------------------------------------------
Vibratory removal, 24-in steel                10              10              55              10              10
 pile, 3 piles/day..............
Vibratory removal, 30-in steel                55              10             160              25              10
 pile, 2 piles/day..............
Vibratory removal, 30-in steel               125              35             160              55              10
 pile, 7 piles/day..............
Vibratory driving, 24-, 30- & 36-            175              45             160              85              10
 in steel pile, 3 piles/day.....
Vibratory driving, 78-, 120-in               126              11             160              77              10
 steel shaft, 1 pile/day........
Vibratory driving, steel 12-in H-              4               1               6               2               1
 pile, 10 piles/day.............
Vibratory driving, steel sheet,               14               1              21               9               1
 3 piles/day....................
Vibratory removal, steel sheet,               23               2              33              14               1
 6 piles/day....................
Impact proofing, 24-in steel                 135              10              75              35              10
 pile, 3 piles/day..............
Impact driving, 30-in steel                1,065              10             160             160              10
 pile, 3 piles/day..............
Impact proofing, 30-in steel                 355              10             160              75              10
 pile, 5 piles/day..............
----------------------------------------------------------------------------------------------------------------

    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 pile driving and pile removal 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.
4. 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 if pile driving has ceased for 
more than 30 minutes.
5. 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 6.
    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 (or Zone of Influence, 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.
6. 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

[[Page 21805]]

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.
    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.

Proposed 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:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (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 Mukilteo 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 
in biological 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.
     For Level A zones less than 160 m and Level B zones less 
than 1,000 m (i.e., vibratory 12-in H pile driving, 10 piles/day; 
impact proofing of 24-in steel piles, 3 piles/day), two land-based PSOs 
will monitor the exclusion zones and Level B harassment zone.
     For Level A zones between 160 and 500 m, and Level B zones 
between 1,000 and 10,000 m (i.e., vibratory pile driving and removal of 
24-in steel piles, 3 piles/day; vibratory driving and removal of steel 
sheet; and impact proofing of 30-in steel piles, 5 piles/day), 5 land-
based PSOs and 1 vessel-based PSO on a ferry will monitor the Level A 
and Level B harassment zones.
     For the rest of the pile driving and pile removal 
scenario, 5 land-based PSOs and 2 vessel-based PSOs on ferries 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.

[[Page 21806]]

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 estimates of 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), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. 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 this 
analysis 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 Mukilteo Multimodal Project 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 (63 harbor seals, 61 harbor 
porpoises, and 4 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 because most animals 
will avoid the area, and thus avoid injury. It is expected that, if 
hearing impairments occurs, most likely the affected animal would loss 
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 evolve 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. These behavioral 
distances are not expected to affect marine mammals' growth, survival, 
and reproduction due to the limited geographic area that would be 
affected in comparison to the much larger habitat for marine mammals in 
the Puget Sound. 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.
    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 Mukilteo 
Multimodal Project 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 Mukilteo Ferry 
Terminal 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 taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals.
    The estimated takes are below 12 percent of the population for all 
marine mammals except harbor porpoise (Table 7). For harbor porpoise, 
the estimate of 6,759 incidences of takes would be 60.2 percent of the 
population, if each single take were a unique individual. However, this 
is highly unlikely because the harbor porpoise in Washington waters 
shows site fidelity to small areas for periods of time that can extend 
between seasons (Hanson et al. 1999; Hanson 2007a, 2007b). For example, 
Hanson et al. (1999) tracked a female harbor porpoise for 215 days, 
during which it remained exclusively within the southern Strait of 
Georgia region. Based on studies by Jefferson et al. (2016), harbor 
porpoise abundance in the East Whidbey region, which is

[[Page 21807]]

adjunct to the Mukilteo Ferry Terminal construction, is 497, and harbor 
porpoise abundance in the entire surrounding area of North Puget Sound 
is 1,798. Therefore, if the estimated incidents of take accrued to all 
the animals expected to occur in the entire North Puget Sound area 
(1,798 animals), it would be 16.01 percent of the Washington inland 
water stock of the harbor porpoise.
    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 marine mammals 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 humpback whale and the killer whale (southern resident distinct 
population segment (DPS)) are the only marine mammal species listed 
under the ESA that could occur in the vicinity of WSDOT's proposed 
construction project. 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' Office of Protected 
Resources has initiated consultation with NMFS' West Coast Regional 
Office 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.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to WSDOT for conducting Mukilteo Multimodal Project phase 
2 between August 1, 2016, and February 15, 2017, 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).
    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 Mukilteo Multimodal Project phase 2 
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 6 are: Pacific harbor seal 
(Phoca vitulina), northern elephant seal (Mirounga angustirostris), 
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 7.
    (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 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

[[Page 21808]]

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 in maps in WSDOT's Marine Mammal Monitoring Plan.
    (A) For Level A zones less than 160 m and Level B zones less than 
1,000 m (i.e., vibratory 12-in H pile driving, 10 piles/day; impact 
proofing of 24-in steel piles, 3 piles/day), two land-based PSOs will 
monitor the exclusion zones and Level B harassment zone.
    (B) For Level A zones between 160 and 500 m, and Level B zones 
between 1,000 and 10,000 m (i.e., vibratory pile driving and removal of 
24-in steel piles, 3 piles/day; vibratory driving and removal of steel 
sheet; and impact proofing of 30-in steel piles, 5 piles/day), 5 land-
based PSOs and 1 vessel-based PSO on a ferry will monitor the Level A 
and Level B harassment zones.
    (C) For the rest of the pile driving and pile removal scenario, 5 
land-based PSOs and 2 vessel-based PSOs on ferries 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 Mukilteo Ferry 
Terminal.

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 
Mukilteo Multimodal Project Phase 2. Please include with your comments 
any supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.

    Dated: May 4, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-09417 Filed 5-9-17; 8:45 am]
 BILLING CODE 3510-22-P