[Federal Register Volume 82, Number 195 (Wednesday, October 11, 2017)]
[Notices]
[Pages 47176-47190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21857]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF444


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Pile Driving Activities for the 
Restoration of Pier 62, Seattle Waterfront, Elliot Bay

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 NMFS has issued an incidental harassment authorization (IHA) to 
the Seattle Department of Transportation (Seattle DOT) to incidentally 
harass, by Level B harassment only, marine mammals during pile driving 
and removal activities associated with the restoration of Pier 62 
project in Seattle Waterfront, Elliot Bay in Seattle, Washington.

DATES: This Authorization is applicable from October 4, 2017 through 
February 28, 2018.

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, 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, or 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

    In compliance with NOAA policy, the National Environmental Policy 
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), and the Council on 
Environmental Quality Regulations (40 CFR parts 1500-1508), NMFS 
determined the issuance of the IHA qualifies to be categorically

[[Page 47177]]

excluded from further NEPA review. This action is consistent with 
categories of activities identified in CE B4 of the Companion Manual 
for NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion.

Summary of Request

    On January 27, 2017, NMFS received a request from the Seattle DOT 
for an IHA to take marine mammals incidental to pile driving activities 
for the restoration of Pier 62, Seattle Waterfront, Elliot Bay in 
Seattle, Washington. Seattle DOT's request is for take of 11 species of 
marine mammals, by Level A and Level B harassment. Neither Seattle DOT 
nor NMFS expect mortality to result from this activity and, therefore, 
an IHA is appropriate.
    This IHA would cover one season of a larger project for which 
Seattle DOT intends to request take authorization for subsequent facets 
of the project. The second season of the project is expected to involve 
pile driving the remainder of piles for Pier 62 and Pier 63.

Description of Specified Activities

Overview

    The planned project will replace Pier 62 and make limited 
modifications to Pier 63 on the Seattle waterfront of Elliot Bay, 
Seattle, Washington. The existing piers are constructed of creosote-
treated timber piles and treated timber decking, which are failing. The 
planned project would demolish and remove the existing timber piles and 
decking of Pier 62, and replace them with concrete deck planks, 
concrete pile caps, and steel piling.
    The footprint of Pier 62 will remain as it currently is, with a 
small amount of additional over-water coverage (approximately 3,200 
square feet) created by a new float system added to the south side of 
Pier 62. This float system is intended for moorage of transient, small-
boat traffic, and will not be designed to accommodate mooring or 
berthing for larger vessels. This includes removing 815 timber piles, 
and will require installation of 180 steel piles for Pier 62. To offset 
the additional over-water coverage associated with the new float 
system, approximately 3,700 square feet of Pier 63 will be removed. 
This includes removing 65 timber piles, and will require installation 
of nine steel piles to provide structural support for the remaining 
portion of Pier 63. Seattle DOT estimates 49 days will be needed to 
remove the old timber piles and 64 days for installation of steel piles 
for a total of 113 in-water construction days for both Pier 62 and Pier 
63. Pile driving (removal and installation activities) will occur 
approximately eight hours a day during daylight hours only.
    The 14-inch (in) timber piles will be removed with a vibratory 
hammer or pulled with a clamshell bucket. The 30-in steel piles will be 
installed with a vibratory hammer to the extent possible. An impact 
hammer will be used for proofing steel piles or when encountering 
obstructions or difficult ground conditions. The contractor may elect 
to operate multiple pile crews for the Pier 62 Project. As a result, 
more than one vibratory or impact hammer may be active at the same 
time. The Seattle DOT will not operate more than two vibratory hammers 
concurrently. The Seattle DOT will proof 10 piles, spread over the 
different geological zones and construction zones of the pier 
foundation. For this proofing effort, one impact crane would be 
mobilized. In addition to proofing, if a pile reaches refusal (i.e., 
can be driven no farther) with a vibratory hammer, an impact hammer 
would be used to drive the pile to the required depth or embedment. It 
is not possible to anticipate which piles will need to be driven with 
an impact hammer. Even if the project were to mobilize two impact 
hammer crews on one day, given the nature of the work, simultaneous 
hammer strikes would not be possible.
    In-water noise from pile driving activities will result in the 
take, by Level A and Level B harassment only, of 11 species of marine 
mammals. It is assumed that a second season of in-water pile driving 
will be required to finish the pile installation. The specific scope of 
the second season of work will depend on work accomplished during the 
first season. A separate IHA application will be prepared for the 
second season of work. In-water work will occur within a modified or 
shortened work window (October through February) to reduce or minimize 
effects on juvenile salmonids.
    A detailed description of the planned Pier 62 project is provided 
in the Federal Register notice for the proposed IHA (82 FR 34486; July 
25, 2017). Since that time, no changes have been made to the planned 
activities. Therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for the description of the 
specific activity.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to the Seattle DOT for 
the Pier 62 project was published in the Federal Register on July 25, 
2017 (82 FR 34486). That notice described, in detail, Seattle DOT's 
activity, the marine mammal species that may be affected by the 
activity, and the anticipated effects on marine mammals. During the 30-
day public comment period, NMFS received only one pertinent comment 
letter, from the Marine Mammal Commission (Commission).
    Comment 1: NMFS received a comment from the Commission and while 
the Commission agrees with NMFS's determinations, it recommends that 
NMFS follow NMFS's policy of a 24-hour reset for enumerating the number 
of marine mammals that could be taken during the planned activities by 
applying standard rounding rules before summing the numbers of 
estimated takes across survey sites and survey days.
    Response: Calculating predicted take is not an exact science and 
there are arguments for using different mathematical approaches in 
different situations, and for making qualitative adjustments in other 
situations. NMFS is currently engaged in developing a protocol to help 
guide its take calculations given particular situations and 
circumstances. We believe, however, that the methodology for this 
action is appropriate and is not at odds with the 24-hour reset policy 
the Commission references.
    Comment 2: NMFS received comments from the Seattle Aquarium 
(Aquarium) requesting Seattle DOT coordinate with the Aquarium during 
pile driving and removal activities for the Aquarium's captive marine 
mammals, some of which are housed outside of the main aquarium, and may 
potentially be exposed to sound and visual stimuli during the project. 
The Aquarium also requested additional mitigation measures during pile 
driving and removal activities to minimize impacts from noise on the 
Aquarium's captive marine mammals as well as for air and water quality 
concerns.
    Response: After coordinating with Seattle DOT, NMFS confirmed that 
additional, voluntary measures will be carried out by the Seattle DOT 
to satisfy concerns from the Aquarium. Seattle DOT will implement the 
following:
    1. If aquarium animals are determined by the Aquarium veterinarian 
to be distressed, Seattle DOT will coordinate with Aquarium staff to 
determine appropriate next steps, which may include suspending pile 
driving work

[[Page 47178]]

for 30 minutes, provided that suspension does not pose a safety issue 
for the Pier 62 project construction crews.
    2. Seattle DOT will make reasonable efforts to take at least one 
regularly scheduled 20-minute break in pile driving each day.
    3. Seattle DOT will regularly communicate with the Aquarium staff 
when pile driving is occurring.
    4. Seattle DOT will further coordinate with the Aquarium to 
determine appropriate methods to avoid and minimize impacts to water 
quality.
    5. Seattle DOT does not anticipate the project resulting in impacts 
associated with airborne dust. If, during construction, odors 
associated with the project are an issue, Seattle DOT will coordinate 
with its contractor to determine appropriate mitigation measures.

Description of Marine Mammals in the Area of Specified Activities

    The marine mammal species under NMFS's jurisdiction that have the 
potential to occur in the construction area include Pacific harbor seal 
(Phoca vitulina), northern elephant seal (Mirounga angustirostris), 
California sea lion (Zalophus californianus), Steller sea lion 
(Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's 
porpoise (Phocoenoides dalli), long-beaked common dolphin (Delphinus 
capensis), both southern resident and transient killer whales (Orcinus 
orca), humpback whale (Megaptera novaengliae), gray whale (Eschrichtius 
robustus), and minke whale (Balaenoptera acutorostrata) (Table 1). Of 
these, the southern resident killer whale (SRKW) and humpback whale are 
protected under the Endangered Species Act (ESA). Pertinent information 
for each of these species is presented in this document to provide the 
necessary background to understand their demographics and distribution 
in the area.

                                        Table 1--Marine Mammal Species Potentially Present in Region of Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Stock abundance  (CV,
                                                                                     ESA/MMPA  status;     Nmin, most recent                  Annual  M/
            Common name                 Scientific name             Stock           strategic (Y/N) \1\    abundance  survey)       PBR         SI \3\
                                                                                                                  \2\
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                                          Order Cetartiodactyla--Cetacea--SuperfamilyMysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Family Eschrichtiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale.........................  Eschrichtius robustus  Eastern North Pacific  -; N                  20,990 (0.05; 20,125;          624          132
                                                                                                          2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Family Balaenidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale.....................  Megaptera              California/Oregon/     E; D                  1,918 (0.03; 1,855;           11.0        >=5.5
                                      novaeangliae           Washington.                                  2011).
                                      novaeangliae.
Minke whale........................  Balaenoptera           California/Oregon/     -; N                  636 (0.72, 369, 2014)          3.5        >=1.3
                                      acutorostrata          Washington.
                                      scammoni.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale.......................  Orcinus orca.........  Eastern North Pacific  -; N                  240 (0.49, 162, 2008)          1.6            0
                                                             Offshore.
Killer whale.......................  Orcinus orca.........  Eastern North Pacific  E; D                  78 (na, 78, 2014)....         0.14            0
                                                             Southern Resident.
Long-beaked common dolphin.........  Dephinus capensis....  California...........  -; N                  101,305 (0.49;                 657       >=35.4
                                                                                                          68,432, 2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocoenidae (porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Porpoise....................  Phocoena phocoena....  Washington Inland      -; N                  11,233 (0.37; 8,308;            66        >=7.2
                                                             Waters.                                      2015).
Dall's Porpoise....................  Phocoenoides dalli...  California/Oregon/     -; N                  25,750 (0.45, 17,954,          172        >=0.4
                                                             Washington.                                  2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion................  Zalophus               U.S..................  -; N                  296,750 (na, 153,337,        9,200          389
                                      californianus.                                                      2011).
Steller sea lion...................  Eumetopias jubatus...  Eastern DPS..........  -; N                  60,131- 74,448 (-;           1,645       Insig.
                                                                                                          36,551; 2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal........................  Phoca vitulina.......  Washington Northern    -; N                  11,036 (0.15, -,            Undet.          9.8
                                                             Inland Waters stock.                         1999).
Northern elephant seal.............  Mirounga               California breeding..  -; N                  179,000 (na; 81,368,         4,882          8.8
                                      angustirostris.                                                     2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. In some cases, CV is not applicable.
\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 mortality/serious injury (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.


[[Page 47179]]

    A detailed description of the of the species likely to be affected 
by the Pier 62 project, including brief introductions to the species 
and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (82 FR 34486; July 25, 2017). Since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals/) for 
generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the planned activities for the 
Pier 62 project have the potential to result in Level B behavioral 
harassment of marine mammals in the vicinity of the action area. There 
is also some potential for auditory injury (Level A harassment) to 
result, primarily for high frequency species, due to larger predicted 
auditory injury zones. Auditory injury is unlikely to occur for mid-
frequency species and most pinnipeds. The mitigation and monitoring 
measures (i.e., exclusion zones, use of a bubble curtain, etc. as 
discussed in detail below in ``Mitigation'' section), are expected to 
minimize the severity of such taking to the extent practicable.
    The project would not result in permanent impacts to habitats used 
directly by marine mammals, such as haulout sites, but may have 
potential short-term impacts to food sources such as marine 
invertebrates and fish species. Construction will also have temporary 
effects on salmonids and other fish species in the project area due to 
disturbance, turbidity, noise, and the potential resuspension of 
contaminants during the Pier 62 project. The Federal Register notice 
for the proposed IHA (82 FR 34486; July 25, 2017) included a detailed 
discussion of the effects of anthropogenic noise on marine mammals and 
their habitat, and therefore, that information is not repeated here; 
please refer to that Federal Register notice for that information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
to be authorized through this IHA, which informed both NMFS's 
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 
exposure to pile driving activities 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 species due to larger predicted 
auditory injury zones. Auditory injury is unlikely to occur for mid-
frequency species and most pinnipeds. The mitigation and monitoring 
measures (i.e., exclusion zones, use of a bubble curtain, etc. as 
discussed in detail below in ``Mitigation'' section), are expected to 
minimize the severity of such taking to the extent practicable. 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 authorized take estimates.

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 root mean square (rms) for continuous (e.g., 
vibratory pile-driving, drilling) sources and above 160 dB re 1 [mu]Pa 
(rms) for non-explosive impulsive (e.g., seismic airguns) or 
intermittent (e.g., scientific sonar) sources. Seattle DOT's planned 
activity includes the use of continuous (vibratory pile driving and 
removal) and impulsive (impact pile driving) sources, and therefore the 
120 and 160 dB re 1 [mu]Pa (rms) are applicable.
    Level A harassment for non-explosive sources--NMFS's Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (NMFS, 2016a) 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). 
Seattle DOT's planned activity includes the use of continuous 
(vibratory pile driving and removal) and impulsive (impact pile 
driving) 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 Table 2 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.

[[Page 47180]]



                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                                    PTS onset thresholds
              Hearing group               ----------------------------------------------------------------------
                                                       Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans.............  Lpk,flat: 219 dB; LE,LF,24h: 183   LE,LF,24h: 199 dB.
                                            dB.
Mid-Frequency (MF) Cetaceans.............  Lpk,flat: 230 dB; LE,MF,24h: 185   LE,MF,24h: 198 dB.
                                            dB.
High-Frequency (HF) Cetaceans............  Lpk,flat: 202 dB; LE,HF,24h: 155   LE,HF,24h: 173 dB.
                                            dB.
Phocid Pinnipeds (PW); (Underwater)......  Lpk,flat: 218 dB; LE,PW,24h: 185   LE,PW,24h: 201 dB.
                                            dB.
Otariid Pinnipeds (OW); (Underwater).....  Lpk,flat: 232 dB; LE,OW,24h: 203   LE,OW,24h: 219 dB.
                                            dB2.
----------------------------------------------------------------------------------------------------------------
* 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 fed into identifying the area ensonified above the 
acoustic thresholds.
    Background noise is the sound level that would exist without the 
planned activity (pile driving and removal, in this case), while 
ambient sound levels are those without human activity (NOAA 2009). The 
marine waterway of Elliott Bay is very active, and human factors that 
may contribute to background noise levels include ship traffic and 
fishing-boat depth sounders. Natural actions that contribute to ambient 
noise include waves, wind, rainfall, current fluctuations, chemical 
composition, and biological sound sources (e.g., marine mammals, fish, 
and shrimp; Carr et al. 2006). Background noise levels were compared to 
the NOAA/NMFS threshold levels designed to protect marine mammals to 
determine the Level B Harassment Zones for noise sources. Based on work 
completed by Washington State Department of Transportation (WSDOT) for 
Washington State Ferries (WSF) to determine background noise in the 
vicinity of Elliott Bay, specifically at the Seattle Ferry terminal, 
the background level of 124 dB rms was used to calculate the 
attenuation for vibratory pile driving and removal (WSDOT 2015b). 
Although NMFS's harassment threshold is typically 120 dB for continuous 
noise, based on multiple measurements, the data collected by WSDOT 
(2015b) indicate that ambient sound levels are typically higher than 
this sound level and ranged from 124 dB to 141 dB; therefore, we used 
124 dB rms as the relevant threshold for the Seattle DOT Pier 62 
project, assuming that any noise generated by the project below 124 dB 
would be subsumed by the existing background noise and have little 
likelihood of causing additional behavioral disturbance.
    The sound source levels for installation of the 30-in steel piles 
are based on surrogate data compiled by WSDOT. The source level of 
vibratory removal of 14-in timber piles were based on measurements 
conducted at the Port Townsend Ferry Terminal during vibratory removal 
of 12-in timber piles by WSDOT (Laughlin 2011). The recorded source 
level is 152 decibels (dB) re 1 micropascal ([mu]Pa) at 16 meters (m) 
from the pile. This value was also used for other pile driving projects 
(e.g., WSDOT Seattle Multimodal Construction Project--Colman Dock (82 
FR 31579; July 7, 2017)) in the same area as the Seattle Pier 62 
project. In February of 2016, WSDOT conducted a test pile project at 
Colman Dock and the measured results from that project were used for 
that project and here to provide source levels for the prediction of 
isopleths ensonified over thresholds for the Seattle Pier 62 project. 
The results showed that the sound pressure level (SPL) root-mean-square 
(rms) for impact pile driving of 36-in steel pile is 189 dB re 1 
[micro]Pa at 14 m from the pile (WSDOT 2016b). This value is also used 
for impact driving of the 30-in steel piles, which is a precautionary 
approach. Source level of vibratory pile driving of 36-in steel piles 
is based on test pile driving at Port Townsend in 2010 (Laughlin 2011). 
Recordings of vibratory pile driving were made at a distance of 10 m 
from the pile. The results show that the SPLrms for vibratory pile 
driving of 36-in steel pile was 177 dB re 1 [micro]Pa (WSDOT 2016a).
    The method of incidental take requested is Level B acoustical 
harassment of any marine mammal occurring within the 160 dB rms 
disturbance threshold during impact pile driving of 30-in pipe piles; 
the 120 dB rms disturbance threshold for vibratory pile driving of 30-
in pipe piles; and the 120 dB rms disturbance threshold for vibratory 
removal of 14-in timber piles have been established as the three 
different Level B ZOIs that will be in place during active pile removal 
or installation of the different types of piles (Table 3). However, 
measured ambient noise levels in the area are 124 dB; therefore, NMFS 
only considers take likely to occur in the area ensonified above 124 
dB, as pile driving noise below 124 dB would likely be masked or their 
impacts diminished such that any reactions would not be considered take 
as a result of the high ambient noise levels.
    For the Level B ZOI's, sound waves propagate in all directions when 
they travel through water until they dissipate to background levels or 
encounter barriers that absorb or reflect their energy, such as a 
landmass. Therefore, the area of the Level B ZOIs was determined using 
land as the boundary on the north, east and south sides of the project. 
On the west, land was also used to establish the zone for vibratory 
driving. From Alki on the south and Magnolia on the north, a straight 
line of transmission was established out to Bainbridge Island. For 
impact driving (and vibratory removal), sound dissipates much quicker 
and the impact zone stays within Elliott Bay. Pile-related construction 
noise would extend throughout the nearshore and open water environments 
to just west of Alki Point and a limited distance into the East 
Waterway of the Lower Duwamish River, a highly industrialized waterway. 
Because landmasses block in-water construction noise, a ``noise 
shadow''

[[Page 47181]]

created by Alki Point is expected to be present immediately west of 
this feature (refer to Seattle DOT's application for maps depicting the 
Level B ZOIs).

                           Table 3--Level B Zone Descriptions and Duration of Activity
----------------------------------------------------------------------------------------------------------------
                                                                      Level B      Level B  ZOI       Days of
     Sound source            Activity        Construction method  threshold  (m)      (km\2\)        activity
----------------------------------------------------------------------------------------------------------------
1....................  Removal of 14-in      Vibratory..........           1,865             4.9              49
                        Timber Piles.
2....................  Installation of 30-   Vibratory..........          54,117              91              53
                        in Steel Piles.
3....................  Installation of 30-   Impact.............           1,201             2.3              11
                        in Steel Piles.
----------------------------------------------------------------------------------------------------------------

    When NMFS Technical Guidance (NMFS 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 stationary sources such as vibratory and 
impact pile driving, NMFS's User Spreadsheet predicts the closest 
distance at which, if a marine mammal remained at that distance the 
whole duration of the activity, it would not incur PTS. Inputs used in 
the User Spreadsheet, and the resulting isopleths are reported below.
    The PTS isopleths were identified for each hearing group for impact 
and vibratory installation and removal methods that will be used in the 
Pier 62 Project. The PTS isopleth distances were calculated using the 
NMFS acoustic threshold calculator (NMFS 2016), with inputs based on 
measured and surrogate noise measurements taken during the EBSP and 
from WSDOT, and estimating conservative working durations (Table 4 and 
Table 5).

            Table 4--NMFS Technical Acoustic Guidance User Spreadsheet Input to Predict PTS Isopleths
----------------------------------------------------------------------------------------------------------------
                                                                Sound source 1   Sound source 2   Sound source 3
                                                              --------------------------------------------------
                     Spreadsheet tab used                       (A) Vibratory    (A) Vibratory     (E.1) Impact
                                                                 pile driving     pile driving     pile driving
                                                                  (removal)      (installation)   (installation)
----------------------------------------------------------------------------------------------------------------
                                             User spreadsheet input
----------------------------------------------------------------------------------------------------------------
Source Level (rms SPL).......................................         a 155 dB         b 180 dB  ...............
Source Level (Single Strike/shot SEL)........................  ...............  ...............         c 176 dB
Weighting Factor Adjustment (kHz)............................              2.5              2.5                2
(a) Number of strikes in 1 h.................................  ...............  ...............               20
(a) Activity Duration (h) within 24-h period.................                8                8                4
Propagation (xLogR)..........................................               15               15               15
Distance of source level measurement (meters)+...............               16               10               14
----------------------------------------------------------------------------------------------------------------
\a\ Laughlin, Jim. 2011. Port Townsend Dolphin Timber Pile Removal--Vibratory Pile Monitoring Technical
  Memorandum. Prepared by Washington State Department of Transportation, Office of Air Quality and Noise,
  Seattle, Washington. January 2011. 3 dB added for use of two vibratory hammers.
\b\ Source level for 30-in steel piles was from test pile driving at Port Townsend Ferry Terminal in 2010.
  SPLrms for vibratory pile driving was 177 dB re 1 [mu]Pa. and 3 dB was added for use of two hammers.
\c\ Source information is from the Underwater Sound Level Report: Colman Dock Test Pile Project 2016.


            Table 5--NMFS Technical Acoustic Guidance User Spreadsheet Output for Predicted PTS Isopleths and Level A Daily Ensonified Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                    PTS isopleth (meters)
                                                                   -------------------------------------------------------------------------------------
                         Sound source type                            Low-frequency     Mid-frequency    High-frequency       Phocid          Otariid
                                                                        cetaceans         cetaceans         cetaceans        pinnipeds       pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 User spreadsheet output
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Vibratory (pile removal).......................................              17.4               1.5              25.7            10.6             0.7
2--Vibratory (installation).......................................             504.8              44.7             746.4           306.8            21.5
3--Impact (installation)..........................................              88.6               3.2             105.6            47.4             3.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Daily ensonified area (km\2\) \a\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory (pile removal)..........................................          0.000476          0.000004          0.001037        0.000176        7.70E-13
Vibratory (installation)..........................................          0.400275          0.003139          0.875111        0.147853        0.000726

[[Page 47182]]

 
Impact (installation).............................................          0.012331          0.000016          0.017517        0.003529     1.92423E-05
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
\a\ Daily ensonified areas were divided by two to only account for the ensonified area within the water and not over land.

 Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that informed the take 
calculation and we describe how the marine mammal occurrence 
information is brought together to produce a quantitative take 
estimate. In all cases we demonstrated take estimates using the species 
density data from the 2015 Pacific Navy Marine Species Density Database 
(U.S. Navy 2015), to estimate take for marine mammals.
    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 B harassment) from specific activities, then multiplied by the 
total number of days such activities would occur.
    Unless otherwise described, incidental take is estimated by the 
following equation:

Incidental take estimate = species density * zone of influence * days 
of pile-related activity

    However, adjustments were made for nearly every marine mammal 
species, whenever their local abundance was known through other 
monitoring efforts. In those cases, the local abundance data was used 
for take calculations for the authorized take instead of general animal 
density (see below).
Harbor Seal
    Based on U.S. Navy species density estimates (U.S. Navy 2015) for 
the inland waters of Puget Sound, potential take of harbor seal is 
shown in Table 6. Based on these calculations, Level A take is 
estimated at 10 harbor seals from vibratory pile driving and Level B 
take is estimated at 6,193 harbor seals from all sound sources. 
However, observational data from previous projects on the Seattle 
waterfront have documented only a fraction of what is calculated using 
the Navy density estimates for Puget Sound. For example, between zero 
and seven seals were observed daily for the EBSP and 56 harbor seals 
were observed over 10 days in the area with the maximum number of 13 
harbor seals sighted during the 2016 Seattle Test Pile project (WSF 
2016).
    Therefore, the harbor seal take estimate is based on local seal 
abundance information using the maximum number of seals (13) sighted in 
one day during the 2016 Seattle Test Pile project multiplied by a total 
of 113 pile driving days for the Seattle DOT Pier 62 Project. As a 
result, NMFS will authorize Level B harassment of 1,469 harbor seals 
that could be exposed to noise levels associated with ``take.'' Fifty-
three of the 113 days of activity would involve installation by 
vibratory pile driving, which has a much larger Level A zone (306.8 m) 
than the Level A zones for vibratory removal (10.6 m) and impact pile 
driving (47.4 m). Harbor seals may be difficult to observe at greater 
distances, therefore, during vibratory pile driving, it may not be 
known how long a seal is present in the Level A zone. We estimate that 
four harbor seals may experience Level A harassment during these 53 
days. Four seals were considered to have the potential to be taken by 
Level A harassment based the local observational data for harbor seals, 
the larger ensonified area during vibratory pile driving for 
installation, and our best professional judgment that an animal would 
remain within the injury zone for prolonged exposure of intense noise. 
The number of Level B takes was adjusted to exclude those already 
counted for Level A takes, so the authorized Level B take is 1,465 
harbor seals.

                                       Table 6--Harbor Seal Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      take  Level A   take  Level B
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................           1.219        0.000176             4.9              49               0             293
2.......................................................           1.219        0.147853              91              53              10       * * 5,879
3.......................................................           1.219        0.003529             2.3              11               0              31
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B takes was adjusted to exclude those already counted for Level A takes.
* * (* Adjusted 5,869)

Northern Elephant Seal
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of northern elephant seal is expected to be zero. 
However, The Whale Museum (as cited in WSDOT 2016a) reported one 
sighting in the relevant area between 2008 and 2014. Therefore, the 
Seattle DOT requested and NMFS will authorize Level B harassment of one 
northern elephant seal.
California Sea Lion
    Based on U.S. Navy species density estimates (U.S. Navy 2015) for 
the inland waters of Washington, including Eastern Bays and Puget 
Sound, potential take of California sea lion is shown in Table 7. Since 
the calculated Level A

[[Page 47183]]

zones of otariids are all very small (Table 5), we do not consider it 
likely that any sea lions would be taken by Level A harassment. All 
California sea lion takes estimated here are expected to be takes by 
Level B harassment. The estimated Level B take is 644 California sea 
lions. However, the Seattle DOT believes that this estimate is 
unrealistically low, based on local marine mammal monitoring. 
Therefore, NMFS will authorize Level B harassment of 1,695 California 
sea lions. The California sea lion take estimate is based on four 
seasons of local sea lion abundance information from the EBSP. Marine 
mammal visual monitoring during the EBSP indicates that a maximum of 15 
sea lions were observed in a day during four years of project 
monitoring (Anchor QEA 2014, 2015, 2016). Based on a total of 113 pile 
driving days for the Seattle Pier 62 project, it is estimated that up 
to 1,695 California sea lions could be exposed to noise levels 
associated with ``take.''

                                   Table 7--California Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................          0.1266        7.70E-13             4.9              49               0              30
2.......................................................          0.1266        0.000726              91              53               0             611
3.......................................................          0.1266     1.92423E-05             2.3              11               0               3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Steller Sea Lion
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of Steller sea lion is shown in Table 8. Since the 
calculated Level A zones of otariids are all very small (Table 5), we 
do not consider it likely that any Steller sea lions would be taken by 
Level A harassment. The Seattle DOT requested and NMFS will authorize 
Level B harassment of 188 Steller sea lions.

                                    Table 8--Steller Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................          0.0368        7.70E-13             4.9              49               0               9
2.......................................................          0.0368        0.000726              91              53               0             178
3.......................................................          0.0368     1.92423E-05             2.3              11               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: km\2\--square kilometers.

Southern Resident Killer Whale
    Based on the U.S. Navy species density estimates (U.S. Navy 2015) 
the density for the SRKW is variable across seasons and across the 
range. The inland water density estimates vary from 0.001461 to 
0.004760/km\2\ in fall and 0.004761-0.020240/km\2\ in winter. 
Therefore, the take request as shown in Table 9 is based on the highest 
density estimated during the winter season (0.020240/km\2\) for the 
SRKW population.
    With the variable winter density, the Level B take estimate can 
range from 24 to 104 SRKW, with the upper take estimate greater than 
the estimated population size and the lower estimated take still 
greater than 20 percent of the population. NMFS will authorize Level B 
harassment of 24 SRKW based on a single occurrence of one pod (i.e., J 
Pod--24 individuals) that would be most likely to be seen near Seattle. 
The Seattle DOT will coordinate with the Orca Network and the Center 
for Whale Research (CWR) in an attempt to avoid all take of SRKW, but 
it may be possible that a group may enter the Level B ZOI before 
Seattle DOT could shut down due to the larger size of the Level B ZOI, 
particularly during vibratory pile driving (installation). Since the 
Level A zones of mid-frequency cetaceans are small (Table 5), we do not 
consider it likely that any SRKW would be taken by Level A harassment.

                             Table 9--Southern Resident Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        0.020240        0.000004             4.9              49               0               5
2.......................................................        0.020240        0.003139              91              53               0              98
3.......................................................        0.020240        0.000016             2.3              11               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: km\2\--square kilometers.

Transient Killer Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of transient killer whale is shown in Table 10. As with 
the SRKW, the density estimate of transient killer whales is variable 
between seasons and regions. In fall, density estimates range from 
0.001583 to 0.002373/km\2\ and in winter they range from 0.000575 to 
0.001582/km\2\. The winter density estimate, when most of the work is 
being conducted, will be used for estimating density and take. For 
Level B harassment, this results in a take

[[Page 47184]]

estimate of eight individuals. However, the Seattle DOT believes that 
this estimate is low based on local data of seven transients that were 
reported in the area (Orca Network Archive Report 2016a). Therefore, 
NMFS will authorize Level B harassment of 42 transient killer whales, 
which would cover up to 2 groups of up to seven transient whales 
entering into the project area and remaining there for three days. 
Since the Level A zones of mid-frequency cetaceans are small (Table 5), 
we do not consider it likely that any transient killer whales would be 
taken by Level A harassment.

                                 Table 10--Transient Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        0.001582        0.000004             4.9              49               0               0
2.......................................................        0.001582        0.003139              91              53               0               8
3.......................................................        0.001582        0.000016             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Long-Beaked Common Dolphin
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of long-beaked common dolphin is expected to be zero. 
However, in 2016, the Orca Network (2016c) reported a pod of up to 20 
long-beaked common dolphins. Therefore, the Seattle DOT requested and 
NMFS authorized Level B harassment of 20 long-beaked common dolphins. 
Since the Level A zones of mid-frequency cetaceans are all very small 
(Table 5), we do not consider it likely that the long-beaked common 
dolphin would be taken by Level A harassment.
Harbor Porpoise
    Based on species density estimates from Jefferson et al. (2016), 
potential take of harbor porpoise is shown in Table 11. Take by Level A 
harassment is estimated at 32 harbor porpoises and take by Level B 
harassment is estimated at 3,512 exposures to harbor porpoises. NMFS 
will authorize take by Level A harassment of 32 harbor porpoises and 
take by Level B harassment of 3,480 harbor porpoises.

                                    Table 11--Harbor Porpoise Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................            0.69        0.001037             4.9              49               0             166
2.......................................................            0.69        0.875111              91              53              32       * * 3,328
3.......................................................            0.69        0.017517             2.3              11               0              18
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B takes was adjusted to exclude those already counted for Level A takes. Take is instances not individuals.
* * (*Adjusted 3,296).

Dall's Porpoise
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of Dall's porpoise is shown in Table 12. Based on these 
calculations, the Seattle DOT requested and NMFS will authorize take by 
Level A harassment of two Dall's porpoise and take by Level B 
harassment of 199 Dall's porpoise.

                                    Table 12--Dall's Porpoise Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................           0.039        0.001037             4.9              49               0              10
2.......................................................           0.039        0.875111              91              53               2         * * 190
3.......................................................           0.039        0.017517             2.3              11               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
 km\2\--square kilometers.
* Number of Level B takes was adjusted to exclude those already counted for Level A takes.
* * (*Adjusted 188).

Humpback Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of humpback whale is shown in Table 13. Although the 
standard take calculations would result in an estimated take of less 
than one humpback whale, to be conservative, the Seattle DOT requested 
and NMFS will authorize Level B harassment of five humpback whales 
based on take during previous work in Elliott Bay where two humpback 
whales were observed, including one take, during the 175 days of work 
during the previous four years (Anchor QEA 2014, 2015, 2016, and 2017). 
Since the Level A zones of low-frequency cetaceans are

[[Page 47185]]

smaller during vibratory removal (17.4 m) or impact installation (88.6 
m) compared to the Level A zone for vibratory installation (504.8 m) 
(Table 5), we do not consider it likely that any humpbacks would be 
taken by Level A harassment during removal or impact installation. We 
also do not believe any humpbacks would be taken during vibratory 
installation due to the ability to see humpbacks easily during 
monitoring and additional coordination with the Orca Network and the 
CWR which would enable the work to be shut down before a humpback would 
be taken by Level A harassment.

                                     Table 13--Humpback Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00001        0.000476             4.9              49               0               0
2.......................................................         0.00001        0.400275              91              53               0               0
3.......................................................         0.00001        0.012331             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
 km\2\--square kilometers.

Gray Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of gray whale is shown in Table 14. The Seattle DOT 
requested and NMFS will authorize Level B harassment of three gray 
whales. Since the Level A zones of low-frequency cetaceans are smaller 
during vibratory removal (17.4 m) or impact installation (88.6 m) 
compared to the Level A zone for vibratory installation (504.8 m) 
(Table 5), we do not consider it likely that any gray whales would be 
taken by Level A harassment during removal or impact installation. We 
also do not believe any gray whales would be taken during vibratory 
installation due to the ability to see gray whales easily during 
monitoring and additional coordination with the Orca Network and the 
CWR, which would enable the work to be shut down before a gray whale 
would be taken by Level A harassment.

                                       Table 14--Gray Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Sound source                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00051        0.000476             4.9              49               0               0
2.......................................................         0.00051        0.400275              91              53               0               3
3.......................................................         0.00051        0.012331             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
 km\2\--square kilometers.

Minke Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of minke whales is expected to be zero (Table 15). 
However, between 2008 and 2014, the Whale Museum (as cited in WSDOT 
2016a) reported one sighting in the relevant area. Although the take 
calculations would result in an estimated take of less than one minke 
whale, the Seattle DOT is requesting authorization for Level B 
harassment of two minke whales, based on previous sightings in the 
construction area by the Whale Museum. Based on the low probability 
that a minke whale would be observed during the project and then also 
enter into a Level A zone, we do not consider it likely that any minke 
whales would be taken by Level A harassment.

                                      Table 15--Minke Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Species      Level A  ZOI    Level B  ZOI       Days of        Estimated       Estimated
                      Level B Zone                            density         (km\2\)         (km\2\)        activity      Level A  take   Level B  take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00003        0.000476             4.9              49               0               0
2.......................................................         0.00003        0.400275              91              53               0              <1
3.......................................................         0.00003        0.012331             2.3              11               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
 km\2\--square kilometers.

    The summary of the authorized take by Level A and Level B 
Harassment is described below in Table 16.

[[Page 47186]]



                Table 16--Summary of Requested Incidental Take by Level A and Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                                 Authorized
            Species               Stock size      Level A    Authorized  Level     Authorized          % of
                                                    take           B take          total take       population
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal (Phoca              11,036            4  1,465 \a\........  1,469...........  13.31.
 vitulina).
Northern elephant seal                 179,000            0  1 \b\............  1...............  Less than 1.
 (Mirounga angustirostris).
California sea lion (Zalophus          296,750            0  1,695 \c\........  1,695...........  Less than 1.
 californianus).
Steller sea lion (Eumetopias     60,131-74,448            0  188..............  188.............  Less than 1.
 jubatus).
Southern resident killer whale              78            0  24 (single         24 (single        30.77.
 DPS (Orcinus orca).                                          occurrence of      occurrence of
                                                              one pod) \d\.      one pod).
Transient killer whale                     240            0  42 \e\...........  42..............  20.
 (Orcinus orca).
Long-beaked common dolphin             101,305            0  20 \f\...........  20..............  Less than 1.
 (Dephinus capensis).
Harbor porpoise (Phocoena               11,233           32  3,480............  3,512...........  31.26.
 phocoena).
Dall's porpoise (Phocoenoides           25,750            2  199..............  201.............  Less than 1.
 dalli ).
Humpback whale (Megaptera                1,918            0  5 \g\............  5...............  Less than 1.
 novaengliae).
Gray whale (Eschrichtius                20,990            0  3................  3...............  Less than 1.
 robustus).
Minke whale (Balaenoptera                  636            0  2 \h\............  2...............  Less than 1.
 acutorostrata).
----------------------------------------------------------------------------------------------------------------
Note:
\a\ The take estimate is based on a maximum of 13 seals observed on a given day during the 2016 Seattle Test
  Pile project. The number of Level B takes was adjusted to exclude those already counted for Level A takes.
\b\ The take estimate is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting of a
  Northern elephant seal in the area between 2008 and 2014.
\c\ The take estimate is based on a maximum of 15 California sea lions observed on a given day during 4
  monitoring seasons of the EBSP project.
\d\ The take estimate is based on a single occurrence of one pod of SRKW (i.e., J-pod of 24 SRKW) that would be
  most likely to be seen near Seattle.
\e\ The take estimate is based on local data which is greater than the estimates produced using the Navy density
  estimates. Therefore, the take is 20 percent of the transient killer whale stock.
\f\ The take estimate is based on the Orca Network (2016c) reporting a pod of up to 20 long-beaked common
  dolphins.
\g\ The take estimate is based on take during previous work in Elliott Bay, where two humpback whales were
  observed and is greater than what was calculated using 2015 Navy density estimates.
\h\ The take estimate is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting in the
  relevant area. Although the take calculations would result in an estimated take of less than one minke whale,
  to be conservative the Seattle DOT is requesting take of two minke whales.

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 (probability 
implemented as planned), 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.
    Several measures for mitigating effects on marine mammals from the 
pile installation and removal activities at Pier 62 and are described 
below.

Timing Restrictions

    All work will be conducted during daylight hours.

Bubble Curtain

    A bubble curtain will be used during pile driving activities with 
an impact hammer to reduce sound levels.

Exclusion Zones

    Exclusion Zones will be implemented to protect marine mammals from 
Level A harassment (Table 17 below). The PTS isopleths described in 
Table 5 were used as a starting point for calculating the exclusion 
zones; however, Seattle DOT will implement a minimum shutdown zone of a 
10 m radius around each pile for all construction methods for all 
marine mammals. Therefore, in some cases the exclusion zone will be 
slightly larger than was calculated for the PTS isopleths as described 
in Table 5 (i.e., for mid-frequency cetaceans and otariid pinnipeds). 
Outside of any Level A take authorized, if a marine mammal is observed 
at or within the Exclusion Zone, work will shut down (stop work) until 
the individual has been observed outside of the zone, or has not been 
observed for at least 15 minutes for pinnipeds and small cetaceans and 
30 minutes for large whales.

                             Table 17--Exclusion Zones for Various Pile Driving Activities for Marine Mammal Hearing Groups
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                   Exclusion zone (meters)
                                                                   -------------------------------------------------------------------------------------
                         Sound source type                            Low-frequency     Mid-frequency    High-frequency       Phocid          Otariid
                                                                        cetaceans         cetaceans         cetaceans        pinnipeds       pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Vibratory (pile removal).......................................              17.4                10              25.7            10.6              10
2--Vibratory (installation).......................................             504.8              44.7             746.4           306.8            21.5

[[Page 47187]]

 
3--Impact (installation)..........................................              88.6                10             105.6            47.4              10
--------------------------------------------------------------------------------------------------------------------------------------------------------

Additional Shutdown Measures

    Seattle DOT will implement shutdown measures if the cumulative 
total number of individuals observed within the Level B harassment zone 
for any particular species reaches the number authorized under the IHA 
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.

Level B Harassment Zones

    Seattle DOT will monitoring the Level B harassment zones as 
described in Table 18.

                     Table 18--Level B Harassment Zones for Various Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                                                      Level B       Level B ZOI
                   Activity                            Construction method         threshold (m)      (km\2\)
----------------------------------------------------------------------------------------------------------------
Removal of 14-in Timber Piles.................  Vibratory.......................       * * 1,865             4.9
Installation of 30-in Steel Piles.............  Vibratory.......................          54,117              91
Installation of 30-in Steel Piles.............  Impact..........................           1,201             2.3
----------------------------------------------------------------------------------------------------------------

Soft-Start for Impact Pile Driving

    Each day at the beginning of impact pile driving or any time there 
has been cessation or downtime of 30 minutes or more without pile 
driving, Seattle DOT will use the soft-start technique by providing an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a one-minute waiting period, then two subsequent 
three-strike sets.

Additional Coordination

    The project team will monitor and coordinate with local marine 
mammal networks on a daily basis (i.e., Orca Network and/or the CWR) 
for sightings data and acoustic detection data to gather information on 
the location of whales prior to pile removal or pile driving 
activities. The project team will also coordinate with WSF to discuss 
marine mammal sightings on days when pile driving and removal 
activities are occurring on their nearby projects. Marine mammal 
monitoring will be conducted to collect information on the presence of 
marine mammals within the Level B Harassment Zones for this project. In 
addition, reports will be made available to interested parties upon 
request. With this level of coordination in the region of activity, 
Seattle DOT will get real-time information on the presence or absence 
of whales before starting any pile driving or removal activities.
    Based on our evaluation of the applicant's mitigation measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
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.
    Marine mammal monitoring will be conducted at all times during in-
water pile driving and pile removal activities in strategic locations 
around the area of potential effects as described below:
    [ssquf] During pile removal or installation with a vibratory 
hammer, three to four monitors would be used, positioned such that each 
monitor has a distinct view-shed and the monitors collectively have 
overlapping view-sheds.
    [ssquf] During pile driving activities with an impact hammer, one 
monitor, based

[[Page 47188]]

at or near the construction site, will conduct the monitoring.
    [ssquf] In the case(s) where visibility becomes limited, additional 
land-based monitors and/or boat-based monitors may be deployed.
    [ssquf] Monitors will record take when marine mammals enter the 
relevant Level B Harassment Zones based on type of construction 
activity.
    [ssquf] If a marine mammal approaches an Exclusion Zone, the 
observation will be reported to the Construction Manager and the 
individual will be watched closely. If the marine mammal crosses into 
an Exclusion Zone, a stop-work order will be issued. In the event that 
a stop-work order is triggered, the observed marine mammal(s) will be 
closely monitored while it remains in or near the Exclusion Zone, and 
only when it moves well outside of the Exclusion Zone or has not been 
observed for at least 15 minutes for pinnipeds and small cetaceans and 
30 minutes for large whales will the lead monitor allow work to 
recommence.

Protected Species Observers

    Seattle DOT shall employ NMFS-approved protected species observers 
(PSOs) to conduct marine mammal monitoring for its Pier 62 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.
    5. NMFS will require submission and approval of observer CVs.
    6. PSOs will monitor marine mammals around the construction site 
using high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or 
spotting scopes. Due to the different sizes of the Level B Zones from 
different pile sizes, several different Level B Zones and different 
monitoring protocols corresponding to a specific pile size will be 
established.
    7. If marine mammals are observed, the following information will 
be documented:
    (A) Date and time that monitored activity begins or ends;
    (B) Construction activities occurring during each observation 
period;
    (C) Weather parameters (e.g., percent cover, visibility);
    (D) Water conditions (e.g., sea state, tide state);
    (E) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (F) Description of any observable marine mammal behavior patterns, 
including bearing and direction of travel and distance from pile 
driving activity;
    (G) Distance from pile driving activities to marine mammals and 
distance from the marine mammals to the observation point;
    (H) Locations of all marine mammal observations; and
    (I) Other human activity in the area.

Acoustic Monitoring

    In addition, acoustic monitoring will occur on up to six days per 
in-water work season to evaluate, in real time, sound production from 
construction activities and will capture all hammering scenarios that 
may occur under the planned project. Background noise recordings (in 
the absence of pile-related work) will also be made during the study to 
provide a baseline background noise profile. Acoustic monitoring will 
follow NMFS's 2012 Guidance Documents: Sound Propagation Modeling to 
Characterize Pile Driving Sounds Relevant to Marine Mammals and Data 
Collection Methods to Characterize Underwater Background Sound Relevant 
to Marine Mammals in Coastal Nearshore Waters and Rivers of Washington 
and Oregon.
    The results and conclusions of the acoustic monitoring will be 
summarized and presented to NOAA/NMFS with recommendations on any 
modifications to this plan or Exclusion Zones.

Reporting Measures

Marine Mammal Monitoring Report
    Seattle DOT will submit a draft marine mammal monitoring report 
within 90 days after completion of the in-water construction work or 
the expiration of the IHA (if issued), whichever comes earlier. The 
report would include data from marine mammal sightings as described: 
Date, time, location, species, group size, and behavior, any observed 
reactions to construction, distance to operating pile hammer, and 
construction activities occurring at time of sighting and environmental 
data for the period (i.e., wind speed and direction, sea state, tidal 
state, cloud cover, and visibility). The marine mammal monitoring 
report will also include total takes, takes by day, and stop-work 
orders for each species. NMFS will have an opportunity to provide 
comments on the report, and if NMFS has comments, Seattle DOT will 
address the comments and submit a final report to NMFS within 30 days.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as an injury (Level A harassment), serious injury, or mortality, 
Seattle DOT would immediately cease the specified activities and 
immediately report the incident to the Permits and Conservation 
Division, Office of Protected Resources, NMFS and the NMFS' West Coast 
Stranding Coordinator. The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hrs preceding the 
incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hrs preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Seattle DOT 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Seattle DOT may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
Reporting of Injured or Dead Marine Mammals
    In the event that Seattle DOT 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), 
Seattle DOT will immediately report the incident to the Permits and 
Conservation Division, Office of Protected Resources, NMFS and the 
NMFS' West Coast Stranding Coordinator. The report must include the 
same information identified in the paragraph above. Activities may

[[Page 47189]]

continue while NMFS reviews the circumstances of the incident. NMFS 
would work with Seattle DOT to determine whether modifications in the 
activities are appropriate.
    In the event that Seattle DOT 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), Seattle DOT will report the 
incident to the Permits and Conservation Division, Office of Protected 
Resources, NMFS and the NMFS Stranding Hotline and/or by email to the 
NMFS' West Coast Stranding Coordinator within 24 hrs of the discovery. 
Seattle DOT would provide photographs or video footage (if available) 
or other documentation of the stranded animal sighting to NMFS. 
Activities may continue while NMFS reviews the circumstances of the 
incident.
Acoustic Monitoring Report
    Seattle DOT will submit an Acoustic Monitoring Report within 90 
days after completion of the in-water construction work or the 
expiration of the IHA (if issued), whichever comes earlier. The report 
will provide details on the monitored piles, method of installation, 
monitoring equipment, and sound levels documented during both the sound 
source measurements and the background monitoring. NMFS will have an 
opportunity to provide comments on the report or changes in monitoring 
for the second season, and if NMFS has comments, Seattle DOT will 
address the comments and submit a final report to NMFS within 30 days. 
If no comments are received from NMFS within 30 days, the draft report 
will be considered final. Any comments received during that time will 
be addressed in full prior to finalization of the report.

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).
    No serious injury or mortality is anticipated or authorized for the 
Pier 62 Project. Takes that are anticipated and authorized are expected 
to be limited to short-term Level A and Level B harassment 
(behavioral). Marine mammals present in the vicinity of the action area 
and taken by Level A and 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. However, many marine mammals showed no observable 
changes during similar project activities for the EBSP.
    There are two endangered species that may occur in the project 
area, humpback whales and SRKW. However, few humpbacks are expected to 
occur in the project area and few have been observed during previous 
projects in Elliot Bay. SRKW have occurred in small numbers in the 
project area. Seattle DOT will shut down in the Level B ZOI should they 
meet or exceed the take of one occurrence of one pod (J-pod, 24 
whales).
    There is ESA-designated critical habitat in the vicinity of Seattle 
DOT's Pier 62 Project for SRKW. However, this IHA is authorizing the 
harassment of marine mammals, not the production of sound, which is 
what would result in adverse effects to critical habitat for SRKW. 
There is one documented harbor seal haulout area near Bainbridge 
Island, approximately 6 miles (9.66 km) from Pier 62. The haulout, 
which is estimated at less than 100 animals, consists of intertidal 
rocks and reef areas around Blakely Rocks and is at the outer edge of 
potential effects at the outer extent near Bainbridge Island (Jefferies 
et al. 2000). The level of use of this haulout during the fall and 
winter is unknown, but is expected to be much less than in the spring 
and summer, as air temperatures become colder than water temperatures 
resulting in seals in general hauling out less. Similarly, the nearest 
Steller sea lion haulout to the project area is located approximately 6 
miles away (9.66 km) and is also on the outer edge of potential 
effects. This haulout is composed of net pens offshore of the south end 
of Bainbridge Island.
    The project also is not expected to have significant adverse 
effects on affected marine mammal habitat, as analyzed in the 
``Potential Effects of Specified Activities on Marine Mammals and their 
Habitat'' section. 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, Seattle DOT's Pier 62 Project 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 serious injury or mortality is anticipated or 
authorized.
     Takes that are anticipated and authorized are expected to 
be limited to short-term Level B harassment (behavioral) and a small 
number of takes of Level A harassment (behavioral) for three species.
     The project also is not expected to have significant 
adverse effects on affected marine mammals' habitat.
     There are no known important feeding or pupping areas. 
There are two haulouts (harbor seals and Steller sea lions). However, 
they are at the most outer edge of the potential effects and 
approximately 6.6 miles from Pier 62. There are no other known 
important areas for marine mammals.
     For eight of the eleven species, take is less than one 
percent of the stock abundance. Instances of take for the

[[Page 47190]]

other three species (harbor seals, killer whales, and harbor porpoise) 
range from about 13-31 percent of the stock abundance. However, when 
the fact that a fair number of these instances are expected to be 
repeat takes of the same animals is considered, the number of 
individual marine mammals taken is significantly lower.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
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, where estimated numbers are 
available, 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. Additionally, other factors may be 
considered in the analysis, such as the temporal or spatial scale of 
the activities.
    Take of eight of the eleven species is less than one percent of the 
stock abundance. Instances of take for the SRKW and transient killer 
whales, harbor seals, and harbor porpoise ranges from about 13-31 
percent of the stock abundance. However, when the fact that a fair 
number of these instances are expected to be repeat takes of the same 
animals is considered, the number of individual marine mammals taken is 
significantly lower. Specifically, for example, Jefferson et al. 2016 
conducted harbor porpoise surveys in eight regions of Puget Sound, and 
estimated an abundance of 147 harbor porpoise in the Seattle area 
(1,798 porpoise in North Puget Sound and 599 porpoise in South Puget 
Sound). While individuals do move between regions, we would not 
realistically expect that 3,000+ individuals would be exposed around 
the pile driving for the Seattle DOT's Pier 62 Project. Considering 
these factors, as well as the general small size of the project area as 
compared to the range of the species affected, the numbers of marine 
mammals estimated to be taken are small proportions of the total 
populations of the affected species or stocks. Further, for SRWK we 
acknowledge that 30.77% of the stock is authorized to be taken by Level 
B harassment, but we believe that a single, brief incident of take of 
one group of any species represents take of small numbers for that 
species. Based on the analysis contained herein of the planned activity 
(including the 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 sizes 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 ESA of 1973 (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 the West Coast Regional Office (WCRO), 
whenever we propose to authorize take for endangered or threatened 
species.
    The Permit and Conservation Division consulted under of section 7 
of the ESA with the WCRO for the issuance of this IHA. The WCRO 
concluded that the actions are not likely to jeopardize the continued 
existence of SRKW and humpback whales will not result in the 
destruction or adverse modification of designated critical habitat. 
NMFS will authorize take of SRKW and humpback whales, which are listed 
under the ESA.

Authorization

    NMFS has issued an IHA to the Seattle DOT for the harassment of 
small numbers of marine mammals incidental to pile driving and removal 
activities for the Pier 62 Project within Elliot Bay, Seattle, 
Washington from October 2017 to February 2018, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: October 4, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-21857 Filed 10-10-17; 8:45 am]
 BILLING CODE 3510-22-P