[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Notices]
[Pages 35226-35239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15874]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG219


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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

DATES: This authorization is effective from August 1, 2018, through 
July 31, 2019.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued IHA, may be obtained 
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In 
case of problems accessing these documents, please call the contact 
listed above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On November 21, 2017, WSDOT submitted a request to NMFS requesting 
an IHA for the possible harassment of small numbers of marine mammal 
species incidental to Seattle Multimodal Project at Colman Dock in 
Seattle, Washington, from August 1, 2018 to July 31, 2019. After 
receiving the revised project description and the revised IHA 
application, NMFS determined that the IHA application was adequate and 
complete on April 4, 2018. NMFS is authorizing the take by Level A and 
Level B harassment of the following marine mammal species: Harbor seal 
(Phoca vitulina); northern elephant seal (Mirounga angustirostris); 
California sea lion (Zalophus californianus); Steller sea lion 
(Eumetopias jubatus); killer whale (Orcinus orca); long-beaked common 
dolphin (Delphinus delphis), bottlenose dolphin (Tursiops truncatus), 
gray whale (Eschrichtius robustus); humpback whale (Megaptera 
novaeangliae), minke whale (Balaenoptera acutorostrata); harbor 
porpoise (Phocoena phocoena); and Dall's porpoise (Phocoenoides dalli). 
Neither WSDOT nor NMFS expect mortality to result from this activity 
and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to WSDOT for the first year of this 
project (FR 21579; July 7, 2017). WSDOT complied with all the 
requirements (e.g., mitigation, monitoring, and reporting) of the 
previous IHA and information regarding their monitoring results may be 
found in the Estimated Take section.

Description of Specified Activity

Overview

    The purpose of the Seattle Multimodal Project at Colman Dock is to 
preserve the transportation function of an aging, deteriorating and 
seismically deficient facility to continue providing safe and reliable 
service. The project will also address existing safety concerns related 
to conflicts between vehicles and pedestrian traffic and operational 
inefficiencies.

Dates and Duration

    Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water 
work timing restrictions to protect Endangered Species Act (ESA)-listed 
salmonids, planned WSDOT in-water construction is limited each year to 
July 16 through February 15.

Specific Geographic Region

    The Seattle Ferry Terminal at Colman Dock is located on the 
downtown Seattle waterfront, in King County, Washington. The terminal 
services vessels from the Bainbridge Island and Bremerton routes, and 
is the most heavily used terminal in the Washington State Ferry system. 
The Seattle terminal is located in Section 6, Township 24 North, Range 
4 East, and is adjacent to Elliott Bay, tributary to Puget Sound 
(Figure 1-2 of the IHA application). Land use in the area is highly 
urban, and includes business, industrial, the Port of Seattle container

[[Page 35227]]

loading facility, residential, the Pioneer Square Historic District and 
local parks.

Detailed Description of the Seattle Multimodal Project at Colman Dock: 
Year 2

    The project will reconfigure the Colman Dock while maintaining 
approximately the same vehicle holding capacity as current conditions. 
The construction began in August 2017. In the 2017-2018 season, the 
construction activities were focused on the South Trestle, Terminal 
Building Foundation, and the temporary and permanent Passenger 
Offloading Facility.
    In the 2018-2019 season, WSDOT plans to continue the project by 
constructing the North Trestle, and Slip 3 bridge seat, overhead 
loading, wingwall, and inner dolphin. Both impact pile driving and 
vibratory pile driving and pile removal will be conducted. A total of 
37 days are estimated for pile driving and 77 days for pile removal.
    In-water construction methods include:
     Installing 119 36-inch (in) permanent steel piles with a 
vibratory hammer, and then proofed with an impact hammer for the last 
5-10 feet;
     Installing six 36-in and (8) 30-in steel piles with a 
vibratory hammer;
     Installing one 108-in steel pile with a vibratory hammer;
     Removing all existing 12-in steel, 14-in timber, 14-in H, 
24-in steel and 30-in steel piles with a vibratory hammer;
     Installing and then removing eight 24-in Slip 3 Overhead 
loading temporary piles with a vibratory hammer; and
     Installing and then removing 147 24-in temporary template 
piles with a vibratory hammer.
    A list of pile driving and removal activities is provided in Table 
1.

                                            Table 1--Summary of In-Water Pile Driving and Removal Activities
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                                                                             Pile size                                                       Duration
                 Method                             Pile type                 (inch)        Pile number      Piles/day     Minutes/pile       (days)
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Vibratory drive........................  Steel (temporary)..............              24             147               8              20              18
Vibratory drive........................  Steel (Slip 3).................              24               8               8              20               1
Vibratory drive........................  Steel..........................              30               8               8              20               1
Vibratory drive........................  Steel..........................              36               6               6              20               1
Vibratory drive *......................  Steel..........................              36             119               8              20              15
Impact drive (proof) *.................  Steel..........................              36             119               8          ** 300              15
Vibratory drive........................  Steel..........................             108               1               1             120               1
                                                                         -------------------------------------------------------------------------------
    Subtotal...........................  ...............................  ..............  ..............  ..............  ..............              37
                                                                         -------------------------------------------------------------------------------
Vibratory remove.......................  Timber.........................              14             925              20              15              47
Vibratory remove.......................  Steel..........................              12              22              11              20               2
Vibratory remove.......................  Steel H........................              14              19              10              20               2
Vibratory remove.......................  Steel..........................              24              35               8              20               5
Vibratory remove.......................  Steel (Slip 3).................              24               8               8              20               1
Vibratory remove.......................  Steel (temporary)..............              24             147               8              20              19
Vibratory remove.......................  Steel..........................              30               1               1              20               1
                                                                         -------------------------------------------------------------------------------
    Subtotal...........................  ...............................  ..............  ..............  ..............  ..............              77
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* These two activities occur on the same day.
** Strikes.

    Prescribed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see ``Mitigation'' 
and ``Monitoring and Reporting'').

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on May 25, 2018 (83 FR 24279). During the 30-day 
public comment period, NMFS received comment letters from the Marine 
Mammal Commission (Commission) and the Center for Biological Diversity 
(CBD). Specific comments and responses are provided below.
    Comment 1: The Commission recommends that NMFS reduce the shut-down 
zone from 60 meters (m) to 15 m for harbor seals during vibratory 
installation/removal and/or impact installation of 24-, 30, 36, and 
108-in piles and increase the number of Level A harassment takes for 
harbor seals, if necessary.
    Response: NMFS reviewed WSDOT's Seattle Year 1 draft monitoring 
report and worked with WSDOT on the number of harbor seals that could 
be potentially taken by Level A harassment and the practicability of 
implementing shutdown measures. Based on the assessment, NMFS learned 
that during the construction window between August 1, 2017, and 
February 15, 2018, for the Seattle Year 1 project, a total of 23 harbor 
seals were taken by Level A harassment while implementing a 50-m 
shutdown distance. For the Seattle Year 1 project, a total of 77 days 
had Level A harassment zones beyond the 50-m shutdown distance, with 
the authorized Level A harassment take of harbor seal of 364 animals. 
This shows that the actual Level A takes during WSDOT's Seattle Year 1 
activity were much less than authorized.
    For the current IHA, WSDOT estimated that a total of 17 days would 
have Level A harassment zones beyond the newly required 60-m shutdown 
distance. Level A harassment distance for the 24-in vibratory pile 
driving and removal is less than the 60-m shutdown distance due to 
fewer piles being driven per day. Finally, there is no indication that 
the environment in the project area has changed that there are more 
harbor seals in the region that warrant to increase take numbers.
    In conclusion, based on the planned construction activity level for 
the Seattle Year 2 project, harbor seal abundance in the project area, 
harbor seal Level A harassment takes from Seattle Year 1 monitoring 
report, and the feasibility of WSDOT to implement a 60-m shutdown 
measure for harbor seals, we think that requiring WSDOT to implement a 
60-m shutdown zone for harbor seal with an authorized Level A 
harassment take of 187 animals is feasible for WSDOT and

[[Page 35228]]

beneficial to the resources. Therefore, NMFS does not agree with the 
Commission's recommendation to reduce shutdown distance to 15-m while 
increasing harbor seal Level A harassment takes.
    Comment 2: The Commission recommends that NMFS more thoroughly 
assess the proposed shutdown zones that are to be implemented and the 
associated numbers of Level A harassment takes requested for each 
proposed incidental take authorization prior to publication in the 
Federal Register.
    Response: NMFS agrees with the Commission's recommendation, and 
agrees that the proposed shutdown zones that are to be implemented and 
the associated numbers of Level A harassment hakes for this IHA as well 
as other incidental take authorizations should be thoroughly assessed 
at early review team meetings prior to drafting the proposed IHAs.
    Comment 3: The Commission commented that the method NMFS used to 
estimate the numbers of takes during the proposed activities, which 
summed fractions of takes for each species across project days, does 
not account for and negates the intent of NMFS' 24-hour reset policy. 
The Commission also recommends that NMFS develop and share guidance on 
this issue.
    Response: NMFS has provided the guidance to the Commission as 
recommended.
    Comment 4: The Commission requested clarification of certain issues 
associated with NMFS's notice that one-year renewals could be issued in 
certain limited circumstances and expressed concern that the process 
would bypass the public notice and comment requirements. The Commission 
also suggested that NMFS should discuss the possibility of renewals 
through a more general route, such as a rulemaking, instead of notice 
in a specific authorization. The Commission further recommended that if 
NMFS did not pursue a more general route, that the agency provide the 
Commission and the public with a legal analysis supporting our 
conclusion that this process is consistent with the requirements of 
section 101(a)(5)(D) of the MMPA.
    Response: The process of issuing a renewal IHA does not bypass the 
public notice and comment requirements of the MMPA. The notice of the 
proposed IHA expressly notifies the public that under certain, limited 
conditions an applicant could seek a renewal IHA for an additional 
year. The notice describes the conditions under which such a renewal 
request could be considered and expressly seeks public comment in the 
event such a renewal is sought. Additional reference to this 
solicitation of public comment has recently been added at the beginning 
of FR notices that consider renewals. NMFS appreciates the streamlining 
achieved by the use of abbreviated FR notices and intends to continue 
using them for proposed IHAs that include minor changes from previously 
issued IHAs, but which do not satisfy the renewal requirements. 
However, we believe our proposed method for issuing renewals meets 
statutory requirements and maximizes efficiency. Importantly, such 
renewals would be limited to where the activities are identical or 
nearly identical to those analyzed in the proposed IHA, monitoring does 
not indicate impacts that were not previously analyzed and authorized, 
and the mitigation and monitoring requirements remain the same, all of 
which allow the public to comment on the appropriateness and effects of 
a renewal at the same time the public provides comments on the initial 
IHA. NMFS has, however, modified the language for future proposed IHAs 
to clarify that all IHAs, including renewal IHAs, are valid for no more 
than one year and that the agency would consider only one renewal for a 
project at this time. In addition, notice of issuance or denial of a 
renewal IHA would be published in the Federal Register, as are all 
IHAs. Last, NMFS will publish on our website a description of the 
renewal process before any renewal is issued utilizing the new process.
    Comment 5: The CBD recommends that the authorization include 
mitigation measures on operation of the ferries that will result from 
construction activities. Specifically, the CBD recommends that NMFS 
find ways to support and accelerate transition of the Washington State 
ferry system to quieter designs and technologies.
    Response: While NMFS shares the concerns with CBD regarding the 
elevated underwater noise from ferry operations and general shipping 
activities in the Puget Sound area, the specific recommendation raised 
by the CBD is irrelevant in evaluating the potential impacts from ferry 
terminal construction on marine mammals. For the issuance of the IHA to 
take marine mammals incidental to WSDOT's Seattle Multimodal Project at 
Colman Dock, we analyzed the impacts from construction related 
activities that may affect marine mammals, which are mostly from 
underwater noise generated during in-water pile driving and pile 
removal. Please see Potential Effects of Specified Activities on Marine 
Mammals and their Habitat section below for detailed analysis.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports).
    Table 2 lists all species with expected potential for occurrence in 
the lower Puget Sound area and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's 2017 U.S. Pacific Marine Mammal SARs (Carretta et al., 2018). 
The 2017 SAR is available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports.

[[Page 35229]]



                Table 2--Marine Mammals With Potential Presence Within the Proposed Project Area
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                                                                      ESA/MMPA
                                                                      status;      Stock               Annual M/
          Common name            Scientific name        Stock        strategic   abundance     PBR       SI \3\
                                                                     (Y/N) \1\      \2\
----------------------------------------------------------------------------------------------------------------
                      Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
                                              Family Eschrichtiidae
----------------------------------------------------------------------------------------------------------------
Gray whale....................  Eschrichtius      Eastern North     -; N            20,990        624        132
                                 robustus.         Pacific.
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                                             Family Balaenopteridae
----------------------------------------------------------------------------------------------------------------
Humpback whale................  Megaptera         California/       E/D; Y           1,918       11.0       >6.5
                                 novaneagliae.     Oregon/
                                                   Washington.
Minke whale...................  Balaenoptera      California/       -; N               636        3.5       >1.3
                                 acutorostrata.    Oregon/
                                                   Washington.
----------------------------------------------------------------------------------------------------------------
                                               Family Delphinidae
----------------------------------------------------------------------------------------------------------------
Killer whale..................  Orcinus orca....  Eastern N.        E/D; Y              83       0.14          0
                                                   Pacific
                                                   Southern
                                                   resident.
                                                  West coast        -; N               243        2.4          0
                                                   transient.
Long-beaked common dolphin....  Delphinus         California......  -; N           101,305        657      >35.4
                                 capensis.
Bottlenose dolphin............  Tursiops          California/       -; N             1,924         11       >1.6
                                 truncatus.        Oregon/
                                                   Washington
                                                   offshore.
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                                         Family Phocoenidae (porpoises)
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Harbor porpoise...............  Phocoena          Washington        -; N            11,233         66        7.2
                                 phocoena.         inland waters.
Dall's porpoise...............  P. dali.........  California/       -; N            25,750        172        0.3
                                                   Oregon/
                                                   Washington.
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                                     Order Carnivora--Superfamily Pinnipedia
                                  Family Otariidae (eared seals and sea lions)
----------------------------------------------------------------------------------------------------------------
California sea lion...........  Zalophus          U.S.............  -; N           296,750      9,200        389
                                 californianus.
Steller sea lion..............  Eumetopias        Eastern U.S.....  -; N            41,638      2,498        108
                                 jubatus.
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                                         Family Phocidae (earless seals)
----------------------------------------------------------------------------------------------------------------
Harbor seal...................  Phoca vitulina..  Washington        -; N               \4\      1,641         43
                                                   northern inland                  11,036
                                                   waters.
Northern elephant seal........  Mirounga          California        -; N           179,000      4,882        8.8
                                 angustirostris.   breeding.
----------------------------------------------------------------------------------------------------------------
\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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region#reports.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury
  from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined
  precisely and is in some cases presented as a minimum value or range.
\4\ Harbor seal estimate is based on data that are greater than 8 years old, but this is the best available
  information for use here (Jeffries et al., 2003; Carretta et al., 2017).

    All species that could potentially occur in the proposed 
construction areas are included in Table 2. However, the temporal and/
or spatial occurrence of humpback whale and Southern Resident killer 
whale (SRKW) and the implementation of monitoring and mitigation 
measures are such that take is not expected to occur, and they are not 
discussed further beyond the explanation provided here. The occurrence 
of humpback whale in the WSDOT's Seattle Multimodal Project area is 
rare, and WSDOT's 2017 monitoring report showed no sighting of this 
species. Although the SRKW could occur in the vicinity of the project 
area, WSDOT is required to implement strict monitoring and mitigation 
measures with assistance from local marine mammal researchers and 
observers. Thus, the take of this marine mammal stock can be avoided 
(see details in Mitigation section).
    In addition, the sea otter may be found in Puget Sound area. 
However, this species is managed by the USFWS and is not considered 
further in this document.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. The functional groups and 
the associated frequencies are indicated below (note that these 
frequency ranges correspond to the range for the composite group, with 
the entire range not necessarily reflecting the capabilities of every 
species within that group):
     Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 hertz (Hz) and 35 
kilohertz (kHz);

[[Page 35230]]

     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz.
     Pinnipeds in water; Phocidae (true seals): Generalized 
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
     Pinnipeds in water; Otariidae (eared seals): Generalized 
hearing is estimated to occur between 60 Hz and 39 kHz.
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al., 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2016) for a review of available information. 
Eleven marine mammal species (7 cetacean and 4 pinniped (2 otariid and 
2 phocid) species) have the reasonable potential to co-occur with the 
proposed construction activities. Please refer to Table 2. Of the 
cetacean species that may be present, one species is classified as low-
frequency cetaceans (i.e., gray whale), two are classified as high-
frequency cetaceans (i.e., harbor porpoise and Dall's porpoise), and 
the rest of them mid-frequency cetaceans.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take'' section later in this document 
will include a quantitative analysis of the number of individuals that 
are expected to be taken by this activity. The ``Negligible Impact 
Analysis and Determination'' section will consider the content of this 
section, the ``Estimated Take'' section, and the Mitigation section, to 
draw conclusions regarding the likely impacts of these activities on 
the reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.
    Potential impacts to marine mammals from the Seattle Multimodal 
Colman Dock project are from noise generated during in-water pile 
driving and pile removal activities.

Acoustic Effects

    Here, we first provide background information on marine mammal 
hearing before discussing the potential effects of the use of active 
acoustic sources on marine mammals.
    The WSDOT's Seattle Multimodal Project using in-water pile driving 
and pile removal could adversely affect marine mammal species and 
stocks by exposing them to elevated noise levels in the vicinity of the 
activity area.
    Exposure to high intensity sound for a sufficient duration may 
result in auditory effects such as a noise-induced threshold shift 
(TS)--an increase in the auditory threshold after exposure to noise 
(Finneran et al., 2005). Factors that influence the amount of TS 
include the amplitude, duration, frequency content, temporal pattern, 
and energy distribution of noise exposure. The magnitude of hearing TS 
normally decreases over time following cessation of the noise exposure. 
The amount of TS just after exposure is the initial TS. If the TS 
eventually returns to zero (i.e., the threshold returns to the pre-
exposure value), it is a temporary threshold shift (TTS) (Southall et 
al., 2007).
    Threshold Shift (noise-induced loss of hearing)--When animals 
exhibit reduced hearing sensitivity (i.e., sounds must be louder for an 
animal to detect them) following exposure to an intense sound or sound 
for long duration, it is referred to as a noise-induced TS. An animal 
can experience TTS or permanent threshold shift (PTS). TTS can last 
from minutes or hours to days (i.e., there is complete recovery), can 
occur in specific frequency ranges (i.e., an animal might only have a 
temporary loss of hearing sensitivity between the frequencies of 1 and 
10 kHz), and can be of varying amounts (for example, an animal's 
hearing sensitivity might be reduced initially by only 6 dB or reduced 
by 30 dB). PTS is permanent, but some recovery is possible. PTS can 
also occur in a specific frequency range and amount as mentioned above 
for TTS.
    For marine mammals, published data are limited to the captive 
bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless 
porpoise (Finneran, 2015). For pinnipeds in water, data are limited to 
measurements of TTS in harbor seals, an elephant seal, and California 
sea lions (Kastak et al., 1999, 2005; Kastelein et al., 2012b).
    Lucke et al. (2009) found a TS of a harbor porpoise after exposing 
it to airgun noise with a received sound pressure level (SPL) at 200.2 
dB (peak-to-peak) re: 1 micropascal ([mu]Pa), which corresponds to a 
sound exposure level of 164.5 dB re: 1 [mu]Pa\2\ s after integrating 
exposure. Because the airgun noise is a broadband impulse, one cannot 
directly determine the equivalent of root mean square (rms) SPL from 
the reported peak-to-peak SPLs. However, applying a conservative 
conversion factor of 16 dB for broadband signals from seismic surveys 
(McCauley, et al., 2000) to correct for the difference between peak-to-
peak levels reported in Lucke et al. (2009) and rms SPLs, the rms SPL 
for TTS would be approximately 184 dB re: 1 [mu]Pa, and the received 
levels associated with PTS (Level A harassment) would be higher. 
Therefore, based on these studies, NMFS recognizes that TTS of harbor 
porpoises is lower than other cetacean species empirically tested 
(Finneran & Schlundt, 2010; Finneran et al., 2002; Kastelein and 
Jennings, 2012).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
(similar to those discussed in auditory masking, below). For example, a 
marine mammal may be able to readily compensate for a brief, relatively 
small amount of TTS in a non-critical frequency range that occurs 
during a time where ambient noise is lower and there are not as many 
competing sounds present. Alternatively, a larger amount and longer 
duration of TTS sustained during time when communication is critical 
for successful mother/calf interactions could have more serious 
impacts. Also, depending on the degree and frequency range, the effects 
of PTS on an animal could range in severity, although it is considered 
generally more serious because it is a permanent condition. Of note, 
reduced hearing sensitivity as a simple function of aging has been 
observed in marine mammals, as well as humans and other taxa

[[Page 35231]]

(Southall et al., 2007), so one can infer that strategies exist for 
coping with this condition to some degree, though likely not without 
cost.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals, which utilize sound for vital biological functions 
(Clark et al., 2009). Acoustic masking is when other noises such as 
from human sources interfere with animal detection of acoustic signals 
such as communication calls, echolocation sounds, and environmental 
sounds important to marine mammals. Therefore, under certain 
circumstances, marine mammals whose acoustical sensors or environment 
are being severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction.
    Masking occurs at the frequency band that the animals utilize. 
Therefore, since noise generated from vibratory pile driving is mostly 
concentrated at low frequency ranges, it may have less effect on high 
frequency echolocation sounds by odontocetes (toothed whales). However, 
lower frequency man-made noises are more likely to affect detection of 
communication calls and other potentially important natural sounds such 
as surf and prey noise. It may also affect communication signals when 
they occur near the noise band and thus reduce the communication space 
of animals (e.g., Clark et al., 2009) and cause increased stress levels 
(e.g., Foote et al., 2004; Holt et al., 2009).
    Unlike TS, masking, which can occur over large temporal and spatial 
scales, can potentially affect the species at population, community, or 
even ecosystem levels, as well as individual levels. Masking affects 
both senders and receivers of the signals and could have long-term 
chronic effects on marine mammal species and populations. Recent 
science suggests that low frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, and most of these increases 
are from distant shipping (Hildebrand, 2009). For WSDOT's Seattle 
Multimodal at Colman Dock Project, noises from vibratory pile driving 
and pile removal contribute to the elevated ambient noise levels in the 
project area, thus increasing potential for or severity of masking. 
Baseline ambient noise levels in the vicinity of project area are high 
due to ongoing shipping, construction and other activities in the Puget 
Sound.
    Finally, marine mammals' exposure to certain sounds could lead to 
behavioral disturbance (Richardson et al., 1995), such as changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities; 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al., 2007). Currently NMFS uses a received level of 160 dB re 1 [mu]Pa 
(rms) to predict the onset of behavioral harassment from impulse noises 
(such as impact pile driving), and 120 dB re 1 [mu]Pa (rms) for 
continuous noises (such as vibratory pile driving). For the WSDOT's 
Seattle Multimodal Project at Colman Ferry Terminal, both 120-dB and 
160-dB levels are considered for effects analysis because WSDOT plans 
to use both impact pile driving and vibratory pile driving and pile 
removal.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be biologically significant if the change affects 
growth, survival, and/or reproduction, which depends on the severity, 
duration, and context of the effects.

Potential Effects on Marine Mammal Habitat

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

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of whether the number of takes is ``small'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level A and Level B harassment.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Described in the most basic way, we estimate take by considering: 
(1) Acoustic thresholds above which NMFS believes the best available 
science

[[Page 35232]]

indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. Below, we describe these 
components in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g. 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) sources.
    Applicant's proposed activity includes the generation of impulse 
(impact pile driving) and non-impulse (vibratory pile driving and 
removal) sources; and, therefore, both 160- and 120-dB re 1 [mu]Pa 
(rms) are used.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to 
assess auditory injury (Level A harassment) to five different marine 
mammal groups (based on hearing sensitivity) as a result of exposure to 
noise from two different types of sources (impulsive or non-impulsive). 
Applicant's proposed activity would generate and non-impulsive 
(vibratory pile driving and pile removal) noises. These thresholds were 
developed by compiling and synthesizing the best available science and 
soliciting input multiple times from both the public and peer reviewers 
to inform the final product and are provided in the table below. The 
references, analysis, and methodology used in the development of the 
thresholds are described in NMFS 2016 Technical Guidance, which may be 
accessed at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

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

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds.
Source Levels
    The source level for vibratory pile driving and removal of the 24- 
and 30-in steel pile is based on vibratory pile driving of the 30-in 
steel pile at Port Townsend (WSDOT, 2010). The unweighted 
SPLrms source level at 10 m from the pile is 174 dB re 1 re 
1 [mu]Pa.
    The source level for vibratory pile driving of the 36-in steel 
piles is based on vibratory test pile driving of 36-in steel piles at 
Port Townsend in 2010 (Laughlin 2011). Recordings of vibratory pile 
driving were made at a distance of 10 m from the pile. The results show 
that the unweighted SPLrms for vibratory pile driving of 36-
in steel pile was 177 dB re 1 [mu]Pa.
    The source level for vibratory pile driving of the 108-in steel 
pile is based on measurements of 72-in steel piles vibratory driving 
conducted by CALTRANS. The unweighted SPLrms source level 
ranged between 170 and 180 dB re 1 [micro]Pa at 10 m from the pile 
(CALTRANS 2015). The value of 180 dB is chosen to be more conservative.
    The source level for impact pile driving of the 36-in steel pile is 
based on impact test pile driving for the 36-in steel pile at Mukilteo 
in November 2006

[[Page 35233]]

(WSDOT 2007). Recordings of the impact pile driving that were made at a 
distance of 10 m from the pile were analyzed using Matlab. The results 
show that the unweighted source levels are 178 dB re 1 [micro]Pa\2\-s 
for SELss and 193 dB re 1 [micro]Pa for SPLrms. 
The peak source level for impact pile driving of the 36-in steel pile 
is based on measurement conducted by CALTRANS for the same type and 
dimension of the pile, which is 210 dBpk re 1 [micro]Pa.
    The source level for vibratory pile removal of 14-in timber pile is 
based measurements conducted at the Port Townsend Ferry Terminal during 
vibratory removal of a 12-in timber pile by WSDOT (Laughlin 2011). The 
recorded source level is 152 dBrms re 1 [micro]Pa at 16 m 
from the pile, with an adjusted source level of 155 dBrms re 
1 [micro]Pa at 10 m.
    The source levels for vibratory pile removal of 12-in steel and 14-
in steel H piles are based on vibratory pile driving of 12-in steel 
pipe pile measured by CALTRANS. The unweighted source level is 155 
dBrms re 1 [micro]Pa at 10 m.
    A summary of source levels is presented in Table 4.

                             Table 4--Summary of In-Water Pile Driving Source Levels
                                              [at 10 m from source]
----------------------------------------------------------------------------------------------------------------
                                                                   SEL, dB re 1    SPLrms, dB re  SPLpk, dB re 1
                Method                    Pile type/size (inch)   [micro]Pa\2\-s    1 [micro]Pa      [micro]Pa
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal.............  Steel, 24-in............             174             174  ..............
Vibratory driving/removal.............  Steel, 30-in............             174             174  ..............
Vibratory driving.....................  Steel, 36-in............             177             177  ..............
Impact pile driving (proof)...........  Steel, 36-in............             178             193             210
Vibratory driving.....................  Steel, 108-in...........             180             180  ..............
Vibratory removal.....................  Timber, 14-in...........             155             155  ..............
Vibratory removal.....................  Steel, 12-in............             155             155  ..............
Vibratory removal.....................  Steel H, 14-in..........             155             155  ..............
----------------------------------------------------------------------------------------------------------------

    These source levels are used to compute the Level A harassment 
zones and to estimate the Level B harassment zones. For Level A 
harassment zones, since the peak source levels for both pile driving 
are below the injury thresholds, cumulative SEL were used to do the 
calculations using the NMFS acoustic guidance (NMFS 2016).

Estimating Harassment Zones

    The Level B harassment ensonified areas for vibratory removal of 
the 14-in timber, 12-in steel, 14-in steel H, and 18-in concrete piles 
are based on the above source level of 155 dBrms re 1 
[micro]Pa at 10 m, applying practical spreading loss of 15*log(R) for 
transmission loss calculation. The derived distance to the 120-dB Level 
B zone is 2,54 m.
    For Level B harassment ensonified areas for vibratory pile driving 
and removal of the 24-in, 30-in, 36-in, and 108-in steel piles, the 
distance is based on measurements conducted during the year 1 Seattle 
multimodal project at Colman. The result showed that pile driving noise 
of two 36-in steel piles being concurrently driven was no longer 
detectable at a range of 5.4 miles (8.69 km) (WSDOT 2017). Therefore, 
the distance of 8,690 m is selected as the Level B harassment distance 
for vibratory pile driving and removal of the 24-in, 30-in, 36-in and 
108-in steel piles.
    The Level B harassment ensonified area for impact pile driving of 
the 36-in steel piles is based on the above source level of 193 
dBrms re 1 [micro]Pa at 10 m, applying practical spreading 
loss of 15*log(R) for transmission loss calculation. The derived 
distance to the 160-dB Level B zone is 1,585 m.
    For Level A harassment, calculation is based on pile driving 
duration of each pile and the number of piles installed or removed per 
day, using NMFS optional spreadsheet.

                                                Table 5--Modeled Distances and Areas to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 SL (10m)              Level A distance (m) Level A area (km\2\)               Level B
                                                              ------------------------------------------------------------------------------   distance
                                                                                                                                             (m) Level B
                                                                                                                                                 area
                    Pile driving activity                                                                                                      (km\2\)
                                                                   SEL      LF Cetacean  MF Cetacean  HF Cetacean     Phocid      Otariid   ------------
                                                                                                                                              All marine
                                                                                                                                               mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory drive/removal, 24'' & 30'' steel piles, 8 piles/             174         96.7          8.6        143.0         58.8          4.1        8,690
 day, 20 min/pile............................................                      0.03         0.00         0.00         0.00         0.00        74.29
Vibratory removal 30'' steel pile, 1 pile/day, 20 min/pile...          174         24.2          2.1         35.7         14.7          1.0        8,960
                                                                                   0.00         0.00         0.00         0.00         0.00        74.29
Vibratory drive 36'' steel pile, 6 piles/day, 20 min/pile....          177        126.4         11.2        186.9         76.8          5.4        8,960
                                                                                   0.05         0.00         0.11         0.02         0.00        74.29
Vibratory drive 36'' steel pile, 8 piles/day, 20 min/pile....          177        153.3         13.6        226.6         93.2          6.5        8,960
                                                                                   0.07         0.00         0.16         0.03         0.00        74.29
Impact drive (proof) 36'' steel pile, 8 piles/day, 300                 178        830.9         29.6        989.7        444.7         32.4        1,585
 strikes/pile................................................                      2.17         0.00         3.08         0.62         0.00         7.89
Vibratory drive 108'' steel pile, 1 pile/day, 120 min/pile...          180        200.3         17.8        296.2        121.8          8.5        8,690
                                                                                   0.13         0.00         0.28         0.05         0.00        74.29

[[Page 35234]]

 
Vibratory remove 14'' timber pile, 20 piles/day, 15 min/pile.          155          8.0          0.7         11.8          4.8          0.3        2,154
                                                                                   0.00         0.00         0.00         0.00         0.00        14.57
Vibratory remove 12'' steel pile, 11 piles/day, 20 min/pile..          155          6.5          0.6          9.6          3.9          0.3        2,154
                                                                                   0.00         0.00         0.00         0.00         0.00        14.57
Vibratory remove 14'' steel H pile, 10 piles/day, 20 min/pile          155          6.1          0.5          9.0          3.7          0.3        2,154
                                                                                   0.00         0.00         0.00         0.00         0.00        14.57
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Distances of ensonified area for different pile driving/removal 
activities for different marine mammal hearing groups is presented in 
Table 5.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    All marine mammal density data except harbor seal, California sea 
lion, harbor porpoise, bottlenose dolphin, and long-beaked common 
dolphin are from the U.S. Navy Marine Species Density Report. For 
harbor seal and California sea lion, because WSDOT has local 
distribution data based on recent survey in the area, local animal 
abundance are used to calculate the take numbers. Specifically, the 
occurrence of these two species are based on local seal abundance 
information off the Seattle area from Year One (2017/18) of WSDOT's 
Seattle Colman Project.
    For bottlenose dolphin and long-beaked common dolphin, no density 
estimate is available. Therefore, take numbers for these two species 
are based on prior anecdotal observations and strandings in the action 
area (Shuster et al., 2015; Huggins et al., 2016).
    Harbor porpoise density is based on a recent study by Smultea et 
al. (2017) for the Seattle area near the Colman Dock.
    A summary of marine mammal density, days and Level A and Level B 
harassment areas from different pile driving and removal activities is 
provided in Table 6.

Table 6--Marine Mammal Density and Local Occurrence in the WSDOT Project
                                  Area
------------------------------------------------------------------------
                                          Density (#/km \2\) or Animals/
                Species                                day
------------------------------------------------------------------------
Gray whale.............................  0.00051/km \2\.
Minke whale............................  0.00003/km \2\.
Killer whale (West coast transient)....  0.002/km \2\.
Bottlenose dolphin.....................  NA.
Long-beaked common dolphin.............  NA.
Harbor porpoise........................  0.54/km \2\.
Dall's porpoise........................  0.048/km \2\.
California sea lion....................  14 animals/day.
Steller sea lion.......................  0.04/km \2\.
Harbor seal............................  11 animals/day.
Northern elephant seal.................  0.00001/km \2\.
------------------------------------------------------------------------

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    In general, marine mammal takes were calculated as: Take = 
ensonified area x average animal abundance in the area x pile driving 
days. All Level A harassment takes were further adjusted by subtracting 
animals that would occur within the Level A harassment zone (except for 
harbor seal where a 60-m shutdown zone would be implemented), where 
pile driving activities that could cause Level A harassment for all 
marine mammals, except harbor seal, harbor porpoise, and Dall's 
porpoise, would be suspended when an animal is observed to approach 
such a zone. Further, the number of Level B harassment takes were 
adjusted to exclude those already counted for Level A harassment takes.
    The harbor seal take estimate is based on local seal abundance 
information off the Seattle area from Year One (2017/18) of WSDOT's 
Seattle Colman Project. During 99 days of marine mammal visual 
monitoring, 813 harbor seals were observed, an average of 8.212 
animals/day, with a one-day high of 43 observations on 10/24/17 (WSDOT 
2018b). By adjusting the averaged observation of harbor seals to 11 
animals/day as a conservative estimate to account for possible missed 
observation, and based on a total of 114 pile driving days for the 
WSDOT Seattle Colman Dock project, it is estimated that up to 1,254 
harbor seals could be exposed to noise levels associated with ``take.'' 
Since 17 days would involve vibratory/impact pile driving of 36-in 
steel piles (16 days) and vibratory driving of and 108-in steel pile (1 
day) with Level A harassment zones beyond shutdown zones (445 m and 122 
m, respectively, vs. the 60-m shutdown zone), we consider that 187 
harbor seals exposed during these 17 days would experience Level A 
harassment. The difference between the 1,254 total takes and the 187 
Level A harassment takes makes up the harbor seal Level B harassment 
takes, which is 1,067 animals.

[[Page 35235]]

    The California sea lion take estimate is also based on local sea 
lion abundance information from the Seattle Colman Project). During 99 
days of marine mammal visual monitoring 1,047 California sea lions were 
observed, an average of 11 animals/day, with a one-day high of 48 
observations on 1/8/2018. (WSDOT 2018b). By adjusting the averaged 
observation of California sea lions to 14 animals/day as a conservative 
estimate to account for possible missed observation, and based on a 
total of 114 pile driving days for the WSDOT Seattle Colman Dock 
project, it is estimated that up to 1,596 California sea lions could be 
exposed to noise levels associated with ``take''. Although the Level A 
harassment zones of otariids are all very small (<33 m, Table 5) and 
WSDOT will implement strict shutdown measures if a sea lion is observed 
to be moving towards the Level A zone, it is still possible that in 
rare occasions an animal could enter the Level A zone undetected. We 
therefore, estimate that one California sea lion could be taken by 
Level A harassment on each of the 16 days that involve vibratory/impact 
pile driving of 36-in steel piles when the Level A zone is 32 m. Thus a 
total of 16 Level A harassment of California sea lion is estimated. The 
difference between the 1,596 total takes and the 16 Level A takes makes 
up the California sea lions Level B takes, which is 1,580 animals. The 
same reasoning is used for estimating Steller sea lion Level A takes, 
which results in an estimated 16 Level A takes and 215 Level B takes.
    The common bottlenose dolphin estimate is based on sightings data 
from Cascadia Research Collective. Between September 2017 and March 
2018, a group of up to five to six individuals was sighted in South 
Puget Sound (CRC 2017/18). It is assumed that this group is still 
present in the area.
    Given how rare common bottlenose dolphins are in the area, it is 
unlikely they would be present on a daily basis. Instead it is assumed 
that they may be present in the Level B harassment zone once a month 
during the in-water work window (7 months), and adjusted for potential 
group size of 5-10 individuals with an average of 7 animals per group.
    The long-beaked common dolphin estimate is based on sightings data 
from Cascadia Research Collective. Four to six Long-beaked Common 
dolphins have remained in Puget Sound since June 2016, and four animals 
with distinct markings have been seen multiple times and in every 
season of the year as of October 2017 (CRC 2017).
    Given how rare long-beaked common dolphins are in the area, it is 
unlikely they would be present on a daily basis. Instead it is assumed 
that they may be present in the Level B harassment zone once a month 
during the in-water work window (7 months), and adjusted for potential 
group size of 5-10 individuals with an average of 7 animals per group.
    For harbor porpoise, density based Level A harassment take 
calculation yields a total of 28 animals. However, due to the large 
Level A harassment distance during the 36-in pile driving (990 m) 
during 16 days and the 108-in pile driving (296 m) during one day, its 
Level A harassment take is readjusted to account for a typical animal 
group size of 3 multiplied by these 17 days with large Level A 
harassment zones. Therefore, we estimate that a total of 51 harbor 
porpoise could be taken by Level A harassment.
    For Dall's porpoise, due to its relatively uncommon occurrence in 
comparison to harbor porpoise, the estimated Level A harassment take is 
scaled down by \1/3\ that of harbor porpoise, yielding 17 Level A 
harassment takes.
    For calculated take number less than 15, such as northern elephant 
seals, transient killer whales, gray whales, and minke whales, takes 
numbers were adjusted to account for group encounter and the likelihood 
of encountering. Specifically, for northern elephant seal, take of 15 
animals is estimated based on the likelihood of encountering this 
species during the project period. For transient killer whale, takes of 
30 animals is estimated based on the group size and the likelihood of 
encountering in the area. For gray whale and minke whale, takes of 30 
and 8 animals each are estimated, respectively, based on the likelihood 
of encountering.
    For SRKWs, WSDOT will implement strict monitoring and mitigation 
measures and to suspend pile driving activities when such animal is 
detected in the vicinity of the action area (see Mitigation section 
below).
    A summary of estimated takes based on the above analysis is listed 
in Table 7.

                                         Table 7--Estimated Take Numbers
----------------------------------------------------------------------------------------------------------------
                                     Estimated       Estimated       Estimated
             Species               level A take    level B take     total take       Abundance      Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.............             187           1,067           1,254          11,036              11
Northern elephant seal..........               0              15              15          81,368               0
California sea lion.............              16           1,580           1,596         296,750               1
Steller sea lion................              16             215             231          41,638               1
Killer whale, transient.........               0              30              30             243              12
Killer whale, Southern Resident.               0               0               0              83               0
Gray whale......................               0              30              30          20,990               0
Humpback whale..................               0               0               0           1,918               0
Minke whale.....................               0               8               8             202               2
Harbor porpoise.................              51           3,069           3,120          11,233             *28
Dall's porpoise.................              17             260             277          25,750               1
Long-beaked common dolphin......               0              49              49         101,305               0
Bottlenose dolphin..............               0              49              49           1,921               3
----------------------------------------------------------------------------------------------------------------
* The percentage of individual harbor porpoises take is estimated to be notably smaller than this, as described
  in the ``Small Numbers'' section.

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

[[Page 35236]]

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.

Mitigation for Marine Mammals and Their Habitat

    1. Time Restriction.
    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted.
    2. Establishing and Monitoring Level A, Level B Harassment Zones, 
and Shutdown Zones.
    WSDOT shall establish shutdown zones that encompass the distances 
within which marine mammals could be taken by Level A harassment (see 
Table 7 above) except for harbor seal. For Level A harassment zones 
that is less than 10 m from the source, a minimum of 10 m distance 
should be established as a shutdown zone. For harbor seal, a maximum of 
60 m shutdown zone would be implemented if the actual Level A 
harassment zone exceeds 60 m. This is because there are a few 
habituated harbor seals that repeated occur within the larger Level A 
zone, which makes implementing a shutdown zone larger than 60 m 
infeasible.
    A summary of exclusion zones is provided in Table 8.

          Table 8--Shutdown Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
                                                                 Shutdown zone (m)
 Pile type, size & pile driving  -------------------------------------------------------------------------------
             method                 LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid
----------------------------------------------------------------------------------------------------------------
Vibratory drive/removal, 24'' &               97              10             143              59              10
 30'' steel piles, 8 piles/day,
 20 min/pile....................
Vibratory removal 30'' steel                  24              10              36              15              10
 pile, 1 pile/day, 20 min/pile..
Vibratory drive 36'' steel pile,             126              11             187              60              10
 8 piles/day, 20 min/pile.......
Vibratory drive 36'' steel pile,             153              14             227              60              10
 8 piles/day, 20 min/pile.......
Impact drive (proof) 36'' steel              831              30             990              60              32
 pile, 8 piles/day, 300 strikes/
 pile...........................
Vibratory drive 108'' steel                  200              18             296              60              10
 pile, 1 pile/day, 120 min/pile.
Vibratory remove 14'' timber                  10              10              12              10              10
 pile, 20 piles/day, 15 min/pile
Vibratory remove 12'' steel                   10              10              10              10              10
 pile, 11 piles/day, 20 min/pile
Vibratory remove 14'' steel H
 pile, 10 piles/day, 20 min/pile
----------------------------------------------------------------------------------------------------------------

    WSDOT shall also establish a Zone of Influence (ZOI) based on the 
Level B harassment zones for take monitoring where received underwater 
SPLs are higher than 160 dBrms re 1 [micro]Pa for impulsive 
noise sources (impact pile driving) and 120 dBrms re 1 
[micro]Pa for non-impulsive noise sources (vibratory pile driving and 
pile removal).
    NMFS-approved protected species observers (PSO) shall conduct an 
initial 30-minute survey of the exclusion zones to ensure that no 
marine mammals are seen within the zones before pile driving and pile 
removal of a pile segment begins. If marine mammals are found within 
the exclusion zone, pile driving of the segment would be delayed until 
they move out of the area. If a marine mammal is seen above water and 
then dives below, the contractor would wait 15 minutes. If no marine 
mammals are seen by the observer in that time it can be assumed that 
the animal has moved beyond the exclusion zone.
    If pile driving of a segment ceases for 30 minutes or more and a 
marine mammal is sighted within the designated exclusion zone prior to 
commencement of pile driving, or if a shutdown occurs due to marine 
mammal sighting, the observer(s) must notify the pile driving operator 
(or other authorized individual) immediately and continue to monitor 
the exclusion zone. Operations may not resume until the marine mammal 
has exited the exclusion zone or 30 minutes have elapsed since the last 
sighting.
    3. Soft-start.
    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the impact pile driver reaches full power. 
Whenever there has been downtime of 30 minutes or more without impact 
pile driving, the contractor will initiate the driving with ramp-up 
procedures described below.
    Soft start for impact hammers requires contractors to provide an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a 1-minute waiting period, then two subsequent 
three-strike sets. Each day, WSDOT will use the soft-start technique at 
the beginning of impact pile driving, or if pile driving has ceased for 
more than 30 minutes.
    4. Shutdown Measures.
    WSDOT shall implement shutdown measures if a marine mammal is 
detected within an exclusion zone or is about to enter an exclusion 
zone listed in Table 8.
    WSDOT shall also implement shutdown measures if SRKWs or humpback 
whales are sighted within the vicinity of the project area and are 
approaching the ZOI during in-water construction activities.
    If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a SRKW or a transient killer 
whale, it shall be assumed to be a SRKW and WSDOT shall implement the 
shutdown measure.
    If a SRKW, an unidentified killer whale, or a humpback whale enters 
the ZOI undetected, in-water pile driving or

[[Page 35237]]

pile removal shall be suspended until the whale exits the ZOI to avoid 
further Level B harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA or if a marine mammal observed is not authorized for take under 
this IHA, 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.
    5. Coordination with Local Marine Mammal Research Network.
    Prior to the start of pile driving for the day, the Orca Network 
and/or Center for Whale Research will be contacted by WSDOT to find out 
the location of the nearest marine mammal sightings. The Orca Sightings 
Network consists of a list of over 600 (and growing) residents, 
scientists, and government agency personnel in the United States and 
Canada. Sightings are called or emailed into the Orca Network and 
immediately distributed to other sighting networks including: the NMFS 
Northwest Fisheries Science Center, the Center for Whale Research, 
Cascadia Research, the Whale Museum Hotline and the British Columbia 
Sightings Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile driving.
    Based on our evaluation of the required measures, NMFS has 
determined that the prescribed mitigation measures provide the means 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, requirements pertaining to 
the monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring Measures

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for the Seattle Multimodal Year 2 Project at Colman Dock. 
The purposes of marine mammal monitoring are to implement mitigation 
measures and learn more about impacts to marine mammals from WSDOT's 
construction activities. The PSOs will observe and collect data on 
marine mammals in and around the project area for 30 minutes before, 
during, and for 30 minutes after all pile removal and pile installation 
work. NMFS-approved PSOs shall meet the following requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    5. NMFS will require submission and approval of observer CVs.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of ZOI from different pile types, three 
different ZOIs and different monitoring protocols corresponding to a 
specific pile type will be established.
     For Level B harassment zones with radii less than 1,600 m, 
3 PSOs will be monitoring from land.
     For Level B harassment zones with radii larger than 1,600 
m but smaller than 2,500 m, 4 PSOs will be monitoring from land.
     For Level B harassment zones with radii larger than 2,500 
m, 4 PSOs will be monitoring from land with an additional 1 PSO 
monitoring from a ferry.
    6. PSOs shall collect the following information during marine 
mammal monitoring:
     Date and time that monitored activity begins and ends for 
each day conducted (monitoring period);
     Construction activities occurring during each daily 
observation period, including how many and what type of piles driven;
     Deviation from initial proposal in pile numbers, pile 
types, average driving times, etc.;
     Weather parameters in each monitoring period (e.g., wind 
speed, percent cloud cover, visibility);
     Water conditions in each monitoring period (e.g., sea 
state, tide state);
     For each marine mammal sighting:
    [cir] Species, numbers, and, if possible, sex and age class of 
marine mammals;
    [cir] Description of any observable marine mammal behavior 
patterns,

[[Page 35238]]

including bearing and direction of travel and distance from pile 
driving activity;
    [cir] Location and distance from pile driving activities to marine 
mammals and distance from the marine mammals to the observation point; 
and
    [cir] Estimated amount of time that the animals remained in the 
Level B zone;
     Description of implementation of mitigation measures 
within each monitoring period (e.g., shutdown or delay); and
     Other human activity in the area within each monitoring 
period.
    To verify the required monitoring distance, the exclusion zones and 
ZOIs will be determined by using a range finder or hand-held global 
positioning system device.
    WSDOT will conduct noise field measurement to determine the actual 
Level B distance from the source during vibratory driving of the first 
36-in pile. If the actual Level B harassment distance is less than 
modelled, the number of PSOs will be adjusted based on the criteria 
listed above.

Reporting Measures

    WSDOT is required to submit a draft monitoring report within 90 
days after completion of the construction work or the expiration of the 
IHA, whichever comes earlier. In the case if WSDOT intends to renew the 
IHA in a subsequent year, a monitoring report should be submitted 60 
days before the expiration of the current IHA (if issued). This report 
would detail the monitoring protocol, summarize the data recorded 
during monitoring, and estimate the number of marine mammals that may 
have been harassed. NMFS would have an opportunity to provide comments 
on the report, and if NMFS has comments, WSDOT would address the 
comments and submit a final report to NMFS within 30 days.
    In addition, NMFS would require WSDOT to notify NMFS' Office of 
Protected Resources and NMFS' West Coast Stranding Coordinator within 
48 hours of sighting an injured or dead marine mammal in the 
construction site. WSDOT shall provide NMFS and the Stranding Network 
with the species or description of the animal(s), the condition of the 
animal(s) (including carcass condition, if the animal is dead), 
location, time of first discovery, observed behaviors (if alive), and 
photo or video (if available).
    In the event that WSDOT finds an injured or dead marine mammal that 
is not in the construction area, WSDOT would report the same 
information as listed above to NMFS as soon as operationally feasible.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 7, given that the 
anticipated effects of WSDOT's Seattle Multimodal at Colman Dock 
project involving pile driving and pile removal on marine mammals are 
expected to be relatively similar in nature. There is no information 
about the nature or severity of the impacts, or the size, status, or 
structure of any species or stock that would lead to a different 
analysis by species for this activity, or else species-specific factors 
would be identified and analyzed.
    Although a few marine mammals (132 harbor seals, 12 harbor 
porpoises, and 1 Dall's porpoise) are estimated to experience Level A 
harassment in the form of PTS if they stay within the Level A 
harassment zone during the entire pile driving for the day, the degree 
of injury is expected to be mild and is not likely to affect the 
reproduction or survival of the individual animals. It is expected 
that, if hearing impairments occurs, most likely the affected animal 
would lose a few dB in its hearing sensitivity, which in most cases is 
not likely to affect its survival and recruitment. Hearing impairment 
that occur for these individual animals would be limited to the 
dominant frequency of the noise sources, i.e., in the low-frequency 
region below 2 kHz. Therefore, the degree of PTS is not likely to 
affect the echolocation performance of the two porpoise species, which 
use frequencies mostly above 100 kHz. Nevertheless, for all marine 
mammal species, it is known that in general animals avoid areas where 
sound levels could cause hearing impairment. Therefore, it is not 
likely that an animal would stay in an area with intense noise that 
could cause severe levels of hearing damage. In addition, even if an 
animal receives a TTS, the TTS would be a one-time event from the 
exposure, making it unlikely that the TTS would evolve into PTS. 
Furthermore, Level A take estimates are based on the assumption that 
the animals are randomly distributed in the project area and would not 
avoid intense noise levels that could cause TTS or PTS. In reality, 
animals tend to avoid areas where noise levels are high (Richardson et 
al., 1995). Nonetheless, we evaluate the estimated take in this 
negligible impact analysis.
    For these species except harbor seal, California sea lion, Steller 
sea lion, harbor porpoise and Dall's porpoise, takes that are 
anticipated and authorized are expected to be limited to short-term 
Level B harassment (behavioral and TTS). Marine mammals present in the 
vicinity of the action area and taken by Level B harassment would most 
likely show overt brief disturbance (startle reaction) and avoidance of 
the area from elevated noise levels during pile driving and pile 
removal and the implosion noise. A few marine mammals could experience 
TTS if they occur within the Level B TTS ZOI. However, as discussed 
earlier in this document, TTS is a temporary loss of hearing 
sensitivity when exposed to loud sound, and the hearing threshold is 
expected to recover completely within minutes to hours. Therefore, it 
is not considered an injury.
    There are no other important areas for marine mammals, such as 
important feeding, pupping, or other areas.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' subsection. There 
is no ESA designated critical area in the vicinity of the Seattle 
Multimodal Project at Colman Dock

[[Page 35239]]

area. The project activities would not permanently modify existing 
marine mammal habitat. The activities may kill some fish and cause 
other fish to leave the area temporarily, thus impacting marine 
mammals' foraging opportunities in a limited portion of the foraging 
range. However, because of the short duration of the activities and the 
relatively small area of the habitat that may be affected, the impacts 
to marine mammal habitat are not expected to cause significant or long-
term negative consequences. Therefore, given the consideration of 
potential impacts to marine mammal prey species and their physical 
environment, WSDOT's proposed construction activity at Colman Dock 
would not adversely affect marine mammal habitat.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     Injury--only five species of marine mammals would 
experience Level A harassment in the form of mild PTS, which is 
expected to be of small degree; and
     Behavioral disturbance--eleven species/stocks of marine 
mammals would experience behavioral disturbance from the WSDOT's 
Seattle Colman Dock project. However, as discussed earlier, the area to 
be affected is small and the duration of the project is short. No other 
important habitat for marine mammals exist in the vicinity of the 
project area. Therefore, the overall impacts are expected to be 
insignificant.
    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 take from the proposed activity 
will have a negligible impact on all affected marine mammal species or 
stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, 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 qualitative factors may 
be considered in the analysis, such as the temporal or spatial scale of 
the activities.
    The estimated takes are below 13 percent of the population for all 
marine mammals except harbor porpoise (Table 7). For harbor porpoise, 
the estimate of 3,120 incidences of takes would be 28 percent of the 
population, if each single take were a unique individual. However, this 
is highly unlikely because the harbor porpoise in Washington waters 
shows site fidelity to small areas for periods of time that can extend 
between seasons (Hanson et al., 1999; Hanson 2007a, 2007b). For 
example, Hanson et al. (1999) tracked a female harbor porpoise for 215 
days, during which it remained exclusively within the southern Strait 
of Georgia region. Based on studies by Jefferson et al. (2016), harbor 
porpoise abundance in the southern Puget Sound region, which 
encompasses waters off Seattle, is 550. Therefore, if the estimated 
incidents of take accrued to all the animals expected to occur in the 
entire southern Puget Sound area (550 animals), it would be 4.90 
percent of the Washington inland water stock of the harbor porpoise.
    Based on the analysis contained herein of the proposed activity 
(including the prescribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
each species or stock will be taken relative to the population size of 
the affected species or stocks.

Unmitigable Adverse Impact 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.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    NMFS has determined the issuance of the IHA is consistent with 
categories of activities identified in CE B4 (issuance of incidental 
harassment authorizations under section 101(a)(5)(A) and (D) of the 
MMPA for which no serious injury or mortality is anticipated) of NOAA's 
Companion Manual for NAO 216-6A, and we have not identified any 
extraordinary circumstances listed in Chapter 4 of the Companion Manual 
for NAO 216-6A that would preclude this categorical exclusion under 
NEPA.

Endangered Species Act

    Section 7(a)(2) of the ESA of 1973 (ESA: 16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat.
    The California-Oregon-Washington stock of humpback whale and the 
Southern Resident stock of killer whale are the only marine mammal 
species listed under the ESA that could occur in the vicinity of 
WSDOT's proposed construction projects. Two DPSs of humpback whales, 
the Mexico DPS and the Central America DPS, are listed as threatened 
and endangered under the ESA, respectively. NMFS worked with WSDOT to 
implement shutdown measures in the IHA that would avoid takes of both 
SR killer whale and humpback whales. Therefore, NMFS determined that no 
ESA-listed marine mammal species would be affected as a result of 
WSDOT's Seattle Colman Dock construction project.

Authorization

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

    Dated: July 20, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-15874 Filed 7-24-18; 8:45 am]
 BILLING CODE 3510-22-P