[Federal Register Volume 82, Number 182 (Thursday, September 21, 2017)]
[Notices]
[Pages 44164-44176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20144]


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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: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to 
Washington State Department of Transportation (WSDOT) to take small 
numbers of marine mammals, by harassment, incidental to Mukilteo 
Multimodal Construction Project in Washington State.

DATES: This authorization is effective from August 1, 2017, through 
July 31, 2018.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued IHA, 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 (as delegated to NMFS) 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) authorization requires compliance 
with the National Environmental Policy Act.
    NMFS determined the issuance of the 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.

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.

[[Page 44165]]

     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 feet (ft) east of the existing terminal in 
Township 28 North, Range 4 East, 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. Details of the pile driving and pile removal 
activities are provided in the Federal Register notice (82 FR 21793; 
May 10, 2017) for the proposed IHA and is summarized in Table 1 below.

                               Table 1--Summary of In-Water Pile Driving Durations
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                                                                                Duration (min./
                                                  Pile size                      sec.) per pile      Duration
           Method                Pile type         (inch)        Pile number   (vib.) or strikes      (days)
                                                                               per pile (impact)
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Vibratory driving...........  Steel..........              24             117           60/3,600              39
Vibratory removal...........  Steel..........              24              69             15/900              23
Vibratory driving...........  Steel..........              30              40           60/3,600              14
Vibratory removal...........  Steel..........              30               2           30/1,800               1
Vibratory removal...........  Steel..........              30               7           15/1,800               1
Vibratory driving...........  Steel..........              36               6           60/3,600               2
Vibratory driving...........  Steel shaft....              78               2           60/3,600               2
Vibratory driving...........  Steel shaft....             120               1           60/3,600               1
Vibratory driving...........  Steel H-pile...              12             139           30/1,800              14
Vibratory driving...........  Steel sheet....  ..............              90           30/1,800              30
Vibratory removal...........  Steel sheet....  ..............              90             15/900              15
Impact proofing.............  Steel..........              24              68                300              23
Impact driving..............  Steel..........              30              25              3,000               9
Impact proofing.............  Steel..........              30               5                300               1
                                              ------------------------------------------------------------------
    Total...................  ...............  ..............             661  .................             175
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Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on May 10, 2017 (82 FR 21793). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). No other comments were received. 
Specific comments and responses are provided below.
    Comment 1: The Commission noted several typographic errors in the 
Federal Register notice for the proposed IHA. Specifically, Level B 
harassment for Steller sea lion, gray whales, harbor porpoise, and 
Dall's porpoise should be 320, 44, 6,650, and 414, instead of 323, 45, 
6,698, and 417, respectively. Further, the Commission recommends that 
NMFS issue the incidental harassment authorization, subject to the 
inclusion of the proposed mitigation, monitoring, and reporting 
measures.
    Response: NMFS agrees with the Commission's assessment and made 
corrections to these errors. Specifically, Level B harassment for 
Steller sea lion, gray whales, harbor porpoise, and Dall's porpoise are 
changed to 320, 44, 6,650, and 414, from the previous 323, 45, 6,698, 
and 417, respectively. All these corrections are included in this 
document in the Estimated Takes section. The reduced takes do not 
affect our analysis of negligible impact determination and small number 
conclusion as discussed later in this document.
    Comment 2: The Commission had questions about the method used to 
estimate the numbers of takes during the proposed activities, which 
summed fractions of takes for each species across project days. The 
Commission had concerns that this method does not account for and 
negates the intent of NMFS's 24-hour reset policy.
    Response: While for certain projects NMFS has rounded to the whole 
number for daily takes, for projects like this one, when the objective 
of take estimation is to provide more accurate assessments of potential 
impacts to marine mammals for the entire project, rounding in the 
middle of a calculation would introduce large errors into the process. 
In addition, while NMFS uses a 24-hour reset for its take calculation 
to ensure that individual animals are not counted as a take more than 
once per day, that fact does not make the calculation of take across 
the entire activity period inherently incorrect. There is no need for 
daily (24-hour) rounding in this case because there is no daily limit 
of takes, as long as total authorized takes of marine mammal are not 
exceeded.

Description of Marine Mammals in the Area of Specified Activities

    The marine mammal species under NMFS jurisdiction that have the 
potential to occur in the proposed construction area include Pacific 
harbor seal (Phoca vitulina), California sea lion (Zalophus 
californianus), northern elephant seal (Mirounga angustirostris), 
Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca), 
gray whale (Eschrichtius robustus), humpback

[[Page 44166]]

whale (Megaptera novaeangliae), harbor porpoise (Phocoena phocoena), 
and Dall's porpoise (P. dalli). A list of marine mammals that have the 
potential to occur in the vicinity of the action and their legal status 
under the MMPA and ESA are provided in Table 2.

                                    Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
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                                                                                                                      Stock
                                                                                                                    abundance
                                                                                                       ESA/MMPA     (CV, Nmin,
               Common name                       Scientific name                   Stock                status;    most recent      PBR      Annual M/SI
                                                                                                     strategic (Y/  abundance                    \3\
                                                                                                        N) \1\     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 waters...            N        11,233           66          7.2
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 inland             N    \4\ 11,036        1,641           43
                                                                         waters.
Elephant seal............................  Mirounga angustirostris....  California breeding........            N       179,000        2,882          8.8
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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.

    General information on the marine mammal species found in 
Washington coastal waters can be found in Caretta et al. (2016), which 
is available online at: http://www.nmfs.noaa.gov/pr/sars/pdf/pacific2015_final.pdf. Refer to that document for information on these 
species. Specific information concerning these species in the vicinity 
of the proposed action area is provided in detail in the WSDOT's IHA 
application and in the Federal Register notice for the proposed IHA (82 
FR 21793; May 10, 2017).

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 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 
decibels (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

[[Page 44167]]

approximately 7 hertz (Hz) and 35 kilohertz (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 construction 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).

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 includes a quantitative analysis of the number 
of individuals that are expected to be taken by this activity. The 
``Negligible Impact Analysis and Determination'' section considers the 
content of this section, the ``Estimated Take by Incidental 
Harassment'' section, and the ``Mitigation'' section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.
    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 dB or reduced by 30 dB). PTS is 
permanent, but some recovery is possible. PTS can also occur in a 
specific frequency range and amount as mentioned above for TTS.
    For marine mammals, published data are limited to the captive 
bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless 
porpoise (Finneran et al., 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; 
Finneran and Schlundt, 2010; Lucke et al., 2009; Mooney et al., 2009a, 
2009b; Popov et al., 2011a, 2011b; Kastelein et al., 2012a; Schlundt et 
al., 2000; Nachtigall et al., 2003, 2004). For pinnipeds in water, data 
are limited to measurements of TTS in harbor seals, an elephant seal, 
and California sea lions (Kastak et al., 1999, 2005; Kastelein et al., 
2012b).
    Lucke et al. (2009) found a TS of a harbor porpoise after exposing 
it to airgun noise with a received sound pressure level (SPL) at 200.2 
dB (peak-to-peak) re: 1 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 
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.

[[Page 44168]]

    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 
(root mean squared (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 
authorized 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).
    Authorized takes would primarily be by Level B harassment, as noise 
from pile driving and 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 and phocids due to larger 
predicted auditory injury zones. Auditory injury is unlikely to occur 
for low- and mid-frequency cetaceans and otariids. The prescribed 
mitigation and monitoring measures are expected to

[[Page 44169]]

minimize the severity of such taking to the extent practicable.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science indicates marine mammals will be behaviorally harassed or incur 
some degree of permanent hearing impairment; (2) the area or volume of 
water that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) and the number of days of activities. Below, we describe these 
components in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2011). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g. 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources.
    Applicant's proposed activity includes the use of continuous 
(vibratory pile driving and removal) and impulsive (impact pile 
driving) sources, and therefore the 120 and 160 160 dB re 1 [mu]Pa 
(rms) are applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to 
assess auditory injury (Level A harassment) to five different marine 
mammal groups (based on hearing sensitivity) as a result of exposure to 
noise from two different types of sources (impulsive or non-impulsive). 
Applicant's proposed activity includes the use of impulsive (impact 
pile driving) and non-impulsive (vibratory pile driving and pile 
removal) sources.
    These thresholds were developed by compiling and synthesizing the 
best available science and soliciting input multiple times from both 
the public and peer reviewers to inform the final product, and are 
provided in the table below. The references, analysis, and methodology 
used in the development of the thresholds are described in NMFS 2016 
Technical Guidance, which may be accessed at: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

                 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.
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.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
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 meters (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.

[[Page 44170]]

    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    SPLrms, dB re
                                                                                  re 1 [mu]Pa\2\-   1 [mu]Pa\2\
                                                                                         s
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal.....................  Steel, 24.......................             162             162
Vibratory driving/removal.....................  Steel, 30.......................             174             174
Vibratory driving.............................  Steel, 36.......................             177             177
Vibratory driving.............................  Steel shaft, 78.................             180             180
Vibratory driving.............................  Steel shaft, 120................             180             180
Vibratory driving.............................  Steel H-pile, 12................             150             150
Vibratory driving/removal.....................  Steel sheet.....................             164             164
Impact driving................................  Steel, 24.......................             174             189
Impact driving................................  Steel, 30.......................             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.
    When NMFS Technical Guidance (2016) was published, in recognition 
of the fact that ensonified area/volume could be more technically 
challenging to predict because of the duration component in the new 
thresholds, we developed a User Spreadsheet that includes tools to help 
predict a simple isopleth that can be used in conjunction with marine 
mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which will result in some degree of 
overestimate of Level A take. However, these tools offer the best way 
to predict appropriate isopleths when more sophisticated 3D modeling 
methods are not available, and NMFS continues to develop ways to 
quantitatively refine these tools, and will qualitatively address the 
output where appropriate.
    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. For cumulative SEL (LE), 
distances to marine mammal injury thresholds were computed using 
spectral modeling that incorporates frequency specific absorption.
    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 practical 
spreading.
    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.

[[Page 44171]]



                                                         Table 5--Distances to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Injury zone (m)
         Pile type, size and 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 20,500 m from project area.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    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.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    The harbor seal take estimate is based on local seal abundance 
information 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

[[Page 44172]]

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 percent 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 are expected to 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             320             320          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              44              44          20,990            0.21
Humpback whale..................               0               6               6           1,918            0.31
Harbor porpoise.................              61           6,650           6,711          11,233            60.2
Dall's porpoise.................               4             414             418          25,750            1.63
----------------------------------------------------------------------------------------------------------------

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 (latter not applicable for this action). 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 consider 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. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) 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.
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.

[[Page 44173]]

    A summary of exclusion zones is provided in Table 7.

          Table 7--Exclusion Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
                                                                Exclusion 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 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 required measures, NMFS has 
determined that the prescribed mitigation measures provide the means 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth,

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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.

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.

Reporting Measures

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

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering 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).

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    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 6, 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 lose 
a few dB in its hearing sensitivity, which in most cases is not likely 
to affect its survival and recruitment. Hearing impairment that occur 
for these individual animals would be limited to the dominant frequency 
of the noise sources, i.e., in the low-frequency region below 2 kHz. 
Therefore, the degree of PTS is not likely to affect the echolocation 
performance of the two porpoise species, which use frequencies mostly 
above 100 kHz. Nevertheless, for all marine mammal species, it is known 
that in general animals avoid areas where sound levels could cause 
hearing impairment. Therefore, it is not likely that an animal would 
stay in an area with intense noise that could cause severe levels of 
hearing damage.
    For the rest of the three marine mammal species, takes that are 
anticipated and authorized are expected to be limited to short-term 
Level B harassment. 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.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not 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.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     Level A harassment is expected in the form of elevated 
hearing threshold of a few dBs within limited frequency range, and is 
limited to a few individual animals of three species; and
     The majority of harassment is Level B harassment in the 
form of short-term behavioral modification.
    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 prescribed monitoring and 
mitigation measures, NMFS 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 6). 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 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 prescribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact 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)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with West Coast Regional Office 
Protected Resources Division Office, whenever we propose to authorize 
take for endangered or threatened species.

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    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.
    In July 2017, NMFS finished conducting its section 7 consultation 
and issued a Biological Opinion concluding that the issuance of the IHA 
associated with WSDOT's Mukilteo Multimodal Project is not likely to 
jeopardize the continued existence of the endangered humpback and the 
Southern Resident killer whales.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
Washington State Department of Transportation for the Mukilteo 
Multimodal Construction Project in Washington State, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: September 18, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-20144 Filed 9-20-17; 8:45 am]
BILLING CODE 3510-22-P