[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Notices]
[Pages 39709-39726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17185]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG291


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

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

ACTION: Incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Seattle Department of Transportation (DOT) to incidentally harass, 
by Level A and B harassment, marine mammals during pile driving and 
removal activities associated with the restoration of Pier 62, Seattle 
Waterfront, Elliott Bay in Seattle, Washington (Season 2).

DATES: This Authorization is applicable from August 1, 2018 through 
February 28, 2019.

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, 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, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

National Environmental Policy Act

    In compliance with NOAA policy, the National Environmental Policy 
Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.), and the Council on 
Environmental Quality Regulations (40 CFR parts 1500-1508), NMFS 
determined the issuance of the IHA qualifies to be categorically 
excluded from further NEPA review. This action is consistent with 
categories of activities identified in CE B4 of the Companion Manual 
for NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have

[[Page 39710]]

the potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion.

Summary of Request

    On January 27, 2018, NMFS received a request from the Seattle DOT 
for a second IHA to take marine mammals incidental to pile driving and 
removal activities for the restoration of Pier 62, Seattle Waterfront, 
Elliott Bay in Seattle, Washington. A revised request was submitted on 
May 18, 2018, which was deemed adequate and complete. Seattle DOT's 
request is for take of 12 species of marine mammals, by Level B 
harassment and Level A harassment (three species only). Neither Seattle 
DOT nor NMFS expects serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to Seattle DOT for related work for 
Season 1 of this activity (82 FR 47176; October 11, 2017). Seattle DOT 
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 Description of Marine Mammals in 
the Area of Specified Activities and Estimated Take sections.
    This IHA will cover the second season of work for the Seattle DOT 
Pier 62 project and provides take authorization for these subsequent 
facets of the project. The second season of the larger project is 
expected to primarily involve the remaining pile driving for Pier 62 
and Pier 63. If the Seattle DOT encounters delays due to poor weather 
conditions, difficult pile driving, or other unanticipated challenges, 
an additional in-water work season may be necessary. If so, a separate 
IHA may be prepared for the third season of work.

Description of Specified Activities

    The planned project will replace Pier 62 and make limited 
modifications to Pier 63 on the Seattle waterfront of Elliott Bay, 
Seattle, Washington. The existing piers are constructed of creosote-
treated timber piles and treated timber decking, which are failing. The 
planned project would demolish and remove the existing timber piles and 
decking of Pier 62, and replace them with concrete deck planks, 
concrete pile caps, and steel piling. The majority of the timber pile 
removal required by the project occurred during the 2017-2018 in-water 
work season (Season 1).
    A total of 831 piles were removed from Pier 62 and Pier 63 during 
Season 1 (see Table 1 below). Timber pile removal work in Season 2 
(2018-2019 in-water work window) may occur for an estimated 10 days (49 
remaining timber piles), if the contractor encounters deteriorated 
piles that pose a safety hazard or are within the area where grated 
decking or habitat improvements are to be installed. Pile installation 
will occur via vibratory and impact hammers. Seattle DOT estimates 10 
days will be needed to remove the old timber piles, 53 days for 
vibratory installation of steel piles, and 64 days for impact 
installation of steel piles for a total of 127 in-water construction 
days for both Pier 62 and Pier 63 (see Table 1 below). Seattle DOT 
expects most days for vibratory and impact installation of steel piles 
will overlap, for a total of fewer than 127 days. The 14-inch (in) 
timber piles will be removed with a vibratory hammer or pulled with a 
clamshell bucket. The 30-in steel piles will be installed with a 
vibratory hammer to the extent possible. The maximum extent of pile 
removal and installation activities are described in Table 1. An impact 
hammer will be used for proofing steel piles or when encountering 
obstructions or difficult ground conditions. In addition, a pile 
template will be installed to ensure the piles are placed properly. It 
is anticipated that the contractor will complete the pile installation 
during the 2018-2019 in-water work window. In-water work may occur 
within a modified or shortened work window (September through February) 
to reduce or minimize effect on juvenile salmonids.

                                                                           Table 1--Pile Installation and Removal Plan
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Actual                                                                                                 Additive
                                         Number of     Completed during      duration      Remaining work        Anticipated      Hours per                        Single source   source sound
    Activity          Pile type            piles           Season 1          Season 1         Season 2        duration Season 2      day          Hammer type      sound levels   levels (dBRMS)
                                                                              (days)                                                                                  (dBRMS)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Remove.........  Creosote-treated     880...........  831 piles removed.  19...........  49 timber piles...  10 days...........  8..........  Vibratory.........  \2\ 161 dB....  ..............
                  timber, 14-inch
                  \1\.
                 Steel template       2.............  ..................  .............  2.................  Daily \3\.........  ...........  Vibratory.........  \4\ 177 dB....  ..............
                  pile, 24-inch.
Install........  Steel pile, 30-inch  189...........  2 steel sheet       1............  189 steel piles...  53 days...........  8..........  Vibratory.........  \6\ 177 dB....  \7\ 180 dB
                                                       piles installed.
                                                                                                             64 days \8\.......  8..........  Impact............  \9\ 189 dB....  \10\ 189 dB
                 Steel template       2.............  ..................  .............  2.................  Daily \3\.........  ...........  Vibratory.........  \4\ 177 dB....  ..............
                  pile, 24-inch.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ Assumed to be 14-inch diameter.
\2\ Hydroacoustic monitoring during Pier 62 Season 1 showed unweighted RMS ranging from 140 dB to 169 dB; the 75th percentile of these values is 161 dBRMS and was used to calculate thresholds.
\3\ The two template piles will be installed and removed daily. The time associated with this activity is included in the overall 8-hour pile driving day associated with installation of the 30-
  inch steel piles.
\4\ Assumed to be no greater than vibratory installation of the 30-inch steel pile.
\6\ Source sound from Port Townsend Test Pile Project (WSDOT 2010).
\7\ For simultaneous operation of two vibratory hammers installing steel pipe piles, the 180 dBRMS value is based on identical single-source levels, adding three dB based on WSDOT rules for
  decibel addition (2018).
\8\ Approximately 20 percent of the pile driving effort is anticipated to require an impact hammer, which results in approximately 11 cumulative days of impact hammer activity. However, the
  impact hammer activity is sporadic, often occurring for short periods each day. A total of 64 days represents the number of days in which pile installation with an impact hammer could occur,
  with the anticipation that each day's impact hammer activity would be short.
\9\ Source level from Colman Dock Test Pile Project (WSDOT 2016).
\10\ For simultaneous operation of one impact hammer and one vibratory hammer installing 30-inch piles, the original dBRMS estimates differ by more than 10 dB, so the higher value, 189 dBRMS,
  is used based on WSDOT rules for decibel addition (2018).
RMS--root mean square: The square root of the energy divided by the impulse duration. This level is the mean square pressure level of the pulse. It has been used by NMFS to describe
  disturbance-related effects (i.e., harassment) to marine mammals from underwater impulse-type noises.
WSDOT--Washington State Department of Transportation.

    The contractor may elect to operate multiple pile crews for the 
Seattle DOT Pier 62 Project. As a result, more than one vibratory or 
impact hammer may be active at the same time. For the Pier 62 Project, 
there is a low likelihood that multiple impact hammers would operate in 
a manner that piles would be struck simultaneously; however, as a 
conservative approach we used a multiple-source decibel (dB) rule when 
determining the Level A and Level B harassment zones for this project. 
Table 2 provides guidance on adding dBs to account for multiple sources 
(WSDOT 2015a):

[[Page 39711]]



                Table 2--Multiple Source Decibel Addition
------------------------------------------------------------------------
                                              Add the following to the
    When two decibel values differ by:          higher decibel value:
------------------------------------------------------------------------
0-1 dB....................................  3 dB
2-3 dB....................................  2 dB
4-9 dB....................................  1 dB
------------------------------------------------------------------------

    A detailed description of Seattle DOT's planned Pier 62 (Season 2) 
project is provided in the Federal Register notice for the proposed IHA 
(83 FR 30120; June 27, 2018). Since that time, no changes have been 
made to the planned activities. Therefore, a detailed description is 
not provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on June 27, 2018 (83 FR 30120). That notice described, 
in detail, Seattle DOT's activity, the marine mammal species that may 
be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received a 
comment letter from the Marine Mammal Commission (Commission). Specific 
comments and responses from the Commission's comment letter are 
provided below. The Commission recommended that NMFS issue the IHA, 
subject to inclusion of the proposed mitigation, monitoring, and 
reporting measures.
    Comment 1: The Commission commented on errors regarding the Level B 
harassment calculations.
    NMFS Response: NMFS acknowledges these errors and has corrected 
them in this notice and in the final IHA.
    Comment 2: The Commission asserts that NMFS underestimated take 
estimates for harbor seals by Level A harassment and take estimates for 
long-beaked common dolphin, bottlenose dolphin, and Northern elephant 
seal by Level B harassment.
    NMFS Response: NMFS does not believe the take estimates were 
incorrect in the proposed IHA for these species. However, NMFS 
increased the take estimates as suggested, which provides more 
conservative coverage for some species.
    Comment 3: The Commission commented that NMFS should use the 
Smultea et al., 2017 report rather than the Jefferson et al., 2016 
density estimates for harbor porpoise. The Commission also commented on 
an error for the density estimate for minke whales.
    NMFS response: NMFS agrees and updated the density estimate for 
harbor porpoise by Smultea et al., 2017 and accordingly the estimated 
takes by Level A and Level B harassment of harbor porpoise decreased. 
NMFS also corrected the density estimate for minke whales.
    Comment 4: The Commission requested clarification regarding certain 
issues associated with NMFS' 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. The Commission also noted that NMFS 
had recently begun utilizing abbreviated notices, referencing relevant 
documents, to solicit public input and suggested that NMFS use these 
notices and solicit review in lieu of the currently proposed renewal 
process.
    NMFS 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 the FR notices that consider renewals, requesting input specifically 
on the possible renewal itself. 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 circumstances 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 they are for all IHAs. The 
option for issuing renewal IHAs has been in NMFS's incidental take 
regulations since 1996. See 50 CFR 216.107(e). We will provide any 
additional information to the Commission and consider posting a 
description of the renewal process on our website before any renewal is 
issued utilizing this process.

Description of Marine Mammals in the Area of Specified Activities

    The marine mammal species under NMFS's jurisdiction that have the 
potential to occur in the construction area include Pacific harbor seal 
(Phoca vitulina), northern elephant seal (Mirounga angustirostris), 
California sea lion (Zalophus californianus), Steller sea lion 
(Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's 
porpoise (Phocoenoides dalli), long-beaked common dolphin (Delphinus 
capensis), common bottlenose dolphin (Tursiops truncatus), both 
southern resident and transient killer whales (Orcinus orca), humpback 
whale (Megaptera novaengliae), gray whale (Eschrichtius robustus), and 
minke whale (Balaenoptera acutorostrata) (Table 3). Of these, the 
southern resident killer whale (SRKW) and humpback whale are protected 
under the Endangered Species Act (ESA). Pertinent information for each 
of these species is presented in this document to provide the necessary 
background to understand their demographics and distribution in the 
area.

[[Page 39712]]



                                        Table 3--Marine Mammal Species Potentially Present in Region of Activity
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                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic (Y/N)      Nmin, most recent        PBR      Annual M/SI
                                                                                            \1\          abundance survey) \2\                   \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
                                                                  Family Eschrichtiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale.........................  Eschrichtius robustus.  Eastern North Pacific.  -; N               20,990 (0.05; 20,125;           624          132
                                                                                                         2011).
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                                                                    Family Balaenidae
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Humpback whale.....................  Megaptera novaeangliae  California/Oregon/      E; D               1,918 (0.03; 1,876;            11.0        >=9.2
                                      novaeangliae.           Washington.                                2017).
Minke whale........................  Balaenoptera            California/Oregon/      -; N               636 (0.72, 369, 2014).          3.5        >=1.3
                                      acutorostrata           Washington.
                                      scammoni.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
                                                                   Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale.......................  Orcinus orca..........  Eastern North Pacific   -; N               240 (0.49, 162, 2014).          1.6            0
                                                              Offshore.
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Killer whale.......................  Orcinus orca..........  Eastern North Pacific   E; D               83 (na, 83, 2016).....         0.14            0
                                                              Southern Resident.
Long-beaked common dolphin.........  Dephinus capensis.....  California............  -; N               101,305 (0.49; 68,432,          657       >=35.4
                                                                                                         2014).
Bottlenose dolphin.................  Tursiops truncatus....  California/Oregon/      -; N               1,924 (0.54; 1,255,              11        >=1.6
                                                              Washington Offshore.                       2014).
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                                                             Family Phocoenidae (porpoises)
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Harbor Porpoise....................  Phocoena phocoena.....  Washington Inland       -; N               11,233 (0.37; 8,308;             66        >=7.2
                                                              Waters.                                    2015).
Dall's Porpoise....................  Phocoenoides dalli....  California/Oregon/      -; N               25,750 (0.45, 17,954,           172          0.3
                                                              Washington.                                2014).
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                                                         Order Carnivora--Superfamily Pinnipedia
                                                      Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion................  Zalophus californianus  U.S...................  -; N               296,750 (na, 153,337,         9,200          389
                                                                                                         2011).
Steller sea lion...................  Eumetopias jubatus....  Eastern DPS...........  -; N               41,638 (-; 41,638;            2,498          108
                                                                                                         2015).
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                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal........................  Phoca vitulina........  Washington Northern     -; N               11,036 (0.15, -,             Undet.          9.8
                                                              Inland Waters stock.                       1,999).
Northern elephant seal.............  Mirounga                California breeding...  -; N               179,000 (na; 81,368,          4,882          8.8
                                      angustirostris.                                                    2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases

    A detailed description of the species likely to be affected by the 
Seattle DOT Pier 62 (Season 2) project, including brief introductions 
to the species and relevant stocks as well as available information 
regarding population trends and threats, and information regarding 
local occurrence, were provided in the Federal Register notice for the 
proposed IHA (83 FR 30120; June 27, 2018); since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to NMFS websites for generalized species accounts for whales (https://www.fisheries.noaa.gov/whales), dolphins and porpoises (https://www.fisheries.noaa.gov/dolphins-porpoises), and pinnipeds (https://www.fisheries.noaa.gov/seals-sea-lions).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the planned activities for the 
Seattle DOT Pier 62 (Season 2) project have the potential to result in 
Level B behavioral harassment of marine mammals in the vicinity of the 
action area. There is also some potential for auditory injury (Level A 
harassment) to result, primarily for high frequency species, due to 
larger predicted auditory injury zones. Auditory injury is unlikely to 
occur for mid-frequency species and most pinnipeds. The mitigation and 
monitoring measures (i.e., exclusion zones, use of a bubble curtain, 
etc. as discussed in detail below in ``Mitigation'' section), are 
expected to minimize the severity of such taking to the extent 
practicable.
    The project would not result in permanent impacts to habitats used 
directly by marine mammals, such as haulout sites, but may have 
potential short-term impacts to food sources such as marine 
invertebrates and fish species. Construction will also have temporary 
effects on salmonids and other fish species in the project area due to 
disturbance, turbidity, noise, and the potential resuspension of 
contaminants during the Pier 62 project. The Federal Register notice 
for the proposed IHA (83 FR 30120 June 27, 2018) included a detailed 
discussion of the effects of

[[Page 39713]]

anthropogenic noise on marine mammals and their habitat, and therefore, 
that information is not repeated here; please refer to that Federal 
Register notice for that information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which informed both NMFS's consideration 
of whether the number of takes is ``small'' and the negligible impact 
determination. Based on public comment, since the Proposed Notice, a 
few minor changes have been made to this section, including 
modifications to the density and take estimates for species. These 
changes are reflected in the tables and narrative below.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as: Any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as 
exposure to pile driving and removal activities has the potential to 
result in disruption of behavioral patterns for individual marine 
mammals. There is also some potential for auditory injury (Level A 
harassment) to result, primarily for high frequency species due to 
larger predicted auditory injury zones. Auditory injury is unlikely to 
occur for mid-frequency species and most pinnipeds. The planned 
mitigation and monitoring measures (i.e., shutdown zones, use of a 
bubble curtain, etc. as discussed in detail below in ``Mitigation'' 
section), are expected to minimize the severity of such taking to the 
extent practicable. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and (4) and 
the number of days of activities. Below, we describe these components 
in more detail and present the take estimates.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur 
permanent threshold shift (PTS) of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al. 2007, Ellison 
et al. 2011). Based on what the available science indicates and the 
practical need to use a threshold based on a factor that is both 
predictable and measurable for most activities, NMFS uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS predicts that marine mammals are likely to 
be behaviorally harassed in a manner we consider Level B harassment 
when exposed to underwater anthropogenic noise above received levels of 
120 dB re 1 [mu]Pa root mean square (rms) for continuous (e.g., 
vibratory pile-driving, drilling) sources and above 160 dB re 1 [mu]Pa 
(rms) for non-explosive impulsive (e.g., impact pile driving sources). 
Seattle DOT's planned activity includes the use of continuous 
(vibratory pile driving and removal) and impulsive (impact pile 
driving) sources, and therefore the 120 and 160 dB re 1 [mu]Pa (rms) 
are applicable.
    Level A harassment for non-explosive sources--NMFS's Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (NMFS, 2016a) identifies dual criteria to assess 
auditory injury (Level A harassment) to five different marine mammal 
groups (based on hearing sensitivity) as a result of exposure to noise 
from two different types of sources (impulsive or non-impulsive). 
Seattle DOT's planned activity includes the use of continuous 
(vibratory pile driving and removal) and impulsive (impact pile 
driving) sources.
    These thresholds were developed by compiling and synthesizing the 
best available science and soliciting input multiple times from both 
the public and peer reviewers to inform the final product, and are 
provided in Table 4 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/resource/document/underwater-acoustic-thresholds-onset-permanent-and-temporary-threshold-shiftshttp://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

                     Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                                   PTS onset thresholds
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Lpk,flat: 219 dB;           LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Lpk,flat: 230 dB;           LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Lpk,flat: 202 dB;           LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Lpk,flat: 218 dB;           LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Lpk,flat: 232 dB;           LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.

[[Page 39714]]

 
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa2s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that fed into identifying the area ensonified above the 
acoustic thresholds.
    Background noise is the sound level that would exist without the 
planned activity (pile driving and removal, in this case), while 
ambient sound levels are those without human activity (NOAA 2009). The 
marine waterway of Elliott Bay is very active, and human factors that 
may contribute to background noise levels include ship traffic. Natural 
actions that contribute to ambient noise include waves, wind, rainfall, 
current fluctuations, chemical composition, and biological sound 
sources (e.g., marine mammals, fish, and shrimp; Carr et al. 2006). 
Background noise levels were compared to the relevant threshold levels 
designed to protect marine mammals to determine the Level B Harassment 
Zones for noise sources. Based on hydroacoustic monitoring conducted 
during Season 1 of the Pier 62 Project to determine background noise in 
the vicinity of the project, the background level of 124 dB rms was 
used to calculate the attenuation for vibratory pile driving and 
removal in Season 2 (Greenbusch Group 2018). Although NMFS's harassment 
threshold is typically 120 dB for continuous noise, recent site-
specific measurements collected by The Greenbusch Group (2018) as 
required by the Season 1 IHA indicate that ambient sound levels are 
typically higher than this sound level and ranged from 117 dB to 145 
dB. Therefore, we used the 124 dB rms (also the same noise level as 
Season 1), as the relevant threshold for Season 2 of the Seattle DOT 
Pier 62 project, assuming that any noise generated by the project below 
124 dB would be subsumed by the existing background noise and have 
little likelihood of causing additional behavioral disturbance.
    The source level of vibratory removal of 14-in timber piles is 
based on hydroacoustic monitoring measurements conducted at the Pier 62 
project site during Season 1 vibratory removal (Greenbusch Group 2018). 
The recorded source level ranged from 140 to 169 dB rms re 1 
micropascal ([mu]Pa) at 10 meters (m) from the pile, with the 75th 
percentile at 161 dB rms. This level, 161 dB rms, was chosen as the 
source value for vibratory timber removal in Season 2 because it is a 
conservative estimate of potential noise generation; 75 percent of the 
timber pile removal noise generated in Season 1 was on average lower 
than 161 dB rms. The sound source levels for installation of the 30-in 
steel piles and 24-in template piles are based on surrogate data 
compiled by the Washington State Department of Transportation (WSDOT). 
This value was also used for other pile driving projects (e.g., WSDOT 
Seattle Multimodal Construction Project--Colman Dock (82 FR 31579; July 
7, 2017)) in the same area as the Seattle Pier 62 project. In February 
of 2016, WSDOT conducted a test pile project at Colman Dock. The 
measured results from Colman Dock were used for that project and also 
here to provide source levels for the prediction of isopleths 
ensonified over thresholds for the Seattle Pier 62 project. The results 
showed that the sound pressure level (SPL) root-mean-square (rms) for 
impact pile driving of a 36-in steel pile is 189 dB re 1 [micro]Pa at 
14 m from the pile (WSDOT 2016b). This value is also used for impact 
driving of the 30-in steel piles, which is a precautionary approach. 
Source level of vibratory pile driving of 36-in steel piles is based on 
test pile driving at Port Townsend in 2010 (Laughlin 2011). Recordings 
of vibratory pile driving were made at a distance of 10 m from the 
pile. The results show that the SPL rms for vibratory pile driving of 
36-in steel pile was 177 dB re 1 [micro]Pa (WSDOT 2016a). The source 
sound level of 177 dB is used for vibratory steel installation of 30-in 
piles and 24-in template piles. The template pile activity occurs in 
conjunction with vibratory installation of 30-in steel piles. As such, 
the template pile activity is conservatively included as part of 30-in 
vibratory steel installation for the purposes of estimating take and 
monitoring the project activities. Sound generated by template pile 
activity (removal and installation of 24-in steel piles) is expected to 
be quieter than sound generated during vibratory steel installation of 
30-in piles, because the piles are smaller and do not need to be driven 
as deep as structural, permanent 30-in steel piles.
    The method of incidental take requested is Level B acoustical 
harassment of marine mammals within the 160 dB rms disturbance 
threshold (impact pile driving); the 120 dB rms disturbance threshold 
(vibratory pile driving); and the 120 dB rms disturbance threshold for 
vibratory removal of piles. Therefore, three different Level B 
Harassment/Monitoring Zones were established and must be in place 
during pile driving installation or removal (Table 5).
    For the Level B Harassment/Monitoring Zones, sound waves propagate 
in all directions when they travel through water until they dissipate 
to background levels or encounter barriers that absorb or reflect their 
energy, such as a landmass. Therefore, the area of the Level B 
Harassment/Monitoring Zones was determined using land as the boundary 
on the north, east and south sides of the project. On the west, land 
was also used to establish the zone for vibratory driving. From Alki on 
the south and Magnolia on the north, a straight line of transmission 
was established out to Bainbridge Island. For impact driving (and 
vibratory removal), sound dissipates much quicker and the impact zone 
stays within Elliott Bay. Pile-related construction noise would extend 
throughout the nearshore and open water environments to just west of 
Alki Point and a limited distance into the East Waterway of the Lower 
Duwamish River, a highly industrialized waterway. Because landmasses 
block in-water construction noise, a ``noise shadow'' created by Alki 
Point is expected to be present immediately west of this feature (refer 
to Seattle DOT's application for maps depicting the Level B Harassment/
Monitoring Zones).

[[Page 39715]]



                                 Table 5--Level B Zone Harassment/Monitoring Zones Descriptions and Duration of Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Level B
                                                                                                              Level B       harassment        Days of
              Sound source                            Activity                  Construction method        threshold (m)   zones (km\2\)     activity
                                                                                                                                \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................  Removal of 14-in Timber Piles..  Vibratory \1\................           2,929            10.5              10
2.......................................  Installation of 30[dash]in       Vibratory \1\................          54,117              91              53
                                           Steel Piles and Temporary 24-
                                           in Template Steel Piles.
3.......................................  Installation of 30[dash]in       Impact.......................           1,201             2.3              64
                                           Steel Piles.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
\1\ The Level B thresholds for vibratory installation and removal were calculated to 124 dB rms as the actual ambient noise level rather than 120 dB.
\2\ The Level B Harassment Zones are not based on the distances given but represent actual ensonified area given the surrounding land configuration of
  Elliott Bay.

    When NMFS Technical Guidance (NMFS 2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which will result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources such as vibratory 
and impact pile driving, NMFS's User Spreadsheet predicts the closest 
distance at which, if a marine mammal remained at that distance the 
whole duration of the activity, it would not incur PTS. Inputs used in 
the User Spreadsheet, and the resulting isopleths/Level A Harassment 
Zones are reported below.
    The PTS isopleths were identified for each hearing group for impact 
and vibratory installation and removal methods that must be used in the 
Pier 62 Project. The PTS isopleth distances were calculated using the 
NMFS acoustic threshold calculator (NMFS 2016), with inputs based on 
measured and surrogate noise measurements taken during the Elillott Bay 
Seawall Project and from WSDOT, and estimating conservative working 
durations (Table 6 and Table 7).

  Table 6--NMFS Technical Acoustic Guidance User Spreadsheet Input To Predict PTS Isopleths/Level A Harassment
                                            [User Spreadsheet Input]
----------------------------------------------------------------------------------------------------------------
                                                                  Sound source 1  Sound source 2  Sound source 3
                                                                 -----------------------------------------------
                      Spreadsheet tab used                         (A) Vibratory   (A) Vibratory   (E.1) Impact
                                                                   pile driving    pile driving    pile driving
                                                                     (removal)    (installation)  (installation)
----------------------------------------------------------------------------------------------------------------
Source Level (rms SPL)..........................................        a 161 dB        b 180 dB  ..............
Source Level (Single Strike/shot SEL)...........................  ..............  ..............        c 176 dB
Weighting Factor Adjustment (kHz)...............................             2.5             2.5               2
(a) Number of strikes in 1 h....................................  ..............  ..............              20
(a) Activity Duration (h) within 24-h period....................               8               8               4
Propagation (xLogR).............................................              15              15              15
Distance of source level measurement (meters) +.................              10              10              14
----------------------------------------------------------------------------------------------------------------
a Greenbusch Group 2018. Pier 62 Project--Draft Acoustic Monitoring Season 1 (2017/2018) Report. Prepared for
  City of Seattle Department of Transportation. April 9, 2018.
b Source level for 30-in steel piles was from test pile driving at Port Townsend Ferry Terminal in 2010. SPLrms
  for vibratory pile driving was 177 dB re 1 [mu]Pa and 3 dB was added for use of two hammers.
c Source information is from the Underwater Sound Level Report: Colman Dock Test Pile Project 2016.


       Table 7--NMFS Technical Acoustic Guidance User Spreadsheet Output for Predicted PTS Isopleths and Level A Harassment Daily Ensonified Areas
                                                                [User Spreadsheet Output]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Low-frequency      Mid-frequency      High-frequency
                    Sound source type                          cetaceans          cetaceans          cetaceans       Phocid pinnipeds  Otariid pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  PTS Isopleth (meters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Vibratory (pile removal)..............................               27.3                2.4               40.4               16.6                1.2
2--Vibratory (installation)..............................              504.8               44.7              746.4              306.8               21.5
3--Impact (installation).................................               88.6                3.2              105.6               47.4                3.5
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 39716]]

 
                                                   Level A Harassment Daily ensonified area (km\2\) a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory (pile removal).................................               0.00                0.0               0.00               0.00                0.0
Vibratory (installation).................................              0.400               0.00              0.875              0.148               0.00
Impact (installation)....................................               0.01                0.0              0.018               0.00                0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
a Daily ensonified areas were divided by two to only account for the ensonified area within the water and not over land.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that informed the take 
calculation and we describe how the marine mammal occurrence 
information is brought together to produce a quantitative take 
estimate. In some cases (e.g., harbor seals and California sea lions) 
we used local monitoring to calculate estimated take; however, we also 
present take estimates (where available) using the species density data 
from the 2015 Pacific Navy Marine Species Density Database (U.S. Navy 
2015), as a comparison for estimated take of marine mammals. For harbor 
porpoise, we estimated take using the density estimates provided in 
Smultea et al., 2017, as this is the best available density information 
for this species.
    Where species density is available, take estimates are based on 
average marine mammal density in the project area multiplied by the 
area size of ensonified zones within which received noise levels exceed 
certain thresholds (i.e., Level A and Level B harassment) from specific 
activities, then multiplied by the total number of days such activities 
would occur.
    Unless otherwise described, incidental take is estimated by the 
following equation:

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

    However, adjustments were made for nearly every marine mammal 
species, whenever their local abundance is known through monitoring 
during Season 1 activities and other monitoring efforts. In those 
cases, the local abundance data was used for take calculations for the 
authorized take instead of general animal density (see below).
Harbor Seal
    The take estimate for harbor seals for Pier 62 is based on local 
seal abundance information using the maximum number of seals (13) 
sighted in one day during the 2016 Seattle Test Pile project multiplied 
by the total of 127 pile driving and removal days for the Seattle DOT 
Pier 62 Project Season 2 for 1,651 seals. Fifty-three of the 127 days 
of activity would involve installation by vibratory pile driving, which 
has a much larger Level A Harassment Zone (306.8 m) than the Level A 
Harassment Zones for vibratory removal (16.6 m) and impact pile driving 
(47.4 m). Harbor seals may be difficult to observe at greater 
distances, therefore, during vibratory pile driving, it may not be 
known how long a seal is present in the Level A Harassment Zone. We 
conservatively estimate that 53 instances of take by Level A harassment 
may occur during these 53 days. Fifty-three instances of potential take 
by Level A harassment was calculated as follows: 1 harbor seal per day 
x 53 days of vibratory pile driving within the 307 m Level A Harassment 
Zone. The instances of take by Level B harassment (1,651 seals) was 
adjusted to exclude those already counted for instances of take by 
Level A harassment, so the authorized instances of take by Level B 
harassment is 1,598 harbor seals.
    As a comparison, using U.S. Navy species density estimates (U.S. 
Navy 2015) for the inland waters of Puget Sound, potential take of 
harbor seal is shown in Table 8. Based on these calculations, instances 
of take by Level A harassment is estimated at 10 harbor seals from 
vibratory pile driving and instances of take by Level B harassment is 
estimated at 6,177 harbor seals from all sound sources. However, 
observational data from previous projects on the Seattle waterfront 
have documented only a fraction of what is calculated using the Navy 
density estimates for Puget Sound. For example, between zero and seven 
seals were observed daily for the EBSP and 56 harbor seals were 
observed over 10 days in the area with the maximum number of 13 harbor 
seals sighted during the 2016 Seattle Test Pile project (WSF 2016). 
During marine mammal monitoring for Season 1 of the Seattle DOT Pier 62 
Project, 10 harbor seals were observed within the Level B Harassment/
Monitoring Zone during vibratory activity. Project activities in Season 
1, primarily timber vibratory removal, had a smaller Level B 
Harassment/Monitoring Zone than vibratory steel installation (the 
primary activity for Seasons 2), so it is expected that harbor seal 
observations and takes in Season 2 will be greater and will more 
closely resemble observational data from other monitoring efforts such 
as EBSP and Seattle Test Pile Project.

                                       Table 8--Harbor Seal Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Level A         Level B                     Estimated take  Estimated take
                      Sound source                            Species     harassment ZOI  harassment ZOI      Days of         Level A         Level B
                                                              density         (km\2\)         (km\2\)        activity       harassment      harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................           1.219            0.00            10.5              10               0             128
2.......................................................           1.219           0.148              91              53              10         * 5,879
3.......................................................           1.219            0.00             2.3              64               0             180

[[Page 39717]]

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Adjusted 5,869.

Northern Elephant Seal
    For the Northern elephant seal, the Whale Museum (as cited in WSDOT 
2016a) reported one sighting in the relevant area between 2008 and 
2014. In addition, based on U.S. Navy species density estimates (U.S. 
Navy 2015), potential take of northern elephant seal is expected to be 
zero. Therefore, to be conservative. NMFS is authorizing two instances 
of take by Level B harassment of northern elephant seals.
California Sea Lion
    The take estimate of California sea lions for Pier 62 is based on 
Season 1 marine mammal monitoring for the Seattle DOT Pier 62 Project 
and four seasons of local sea lion abundance information from the EBSP. 
Marine mammal visual monitoring during the EBSP indicates that a 
maximum of 15 sea lions were observed in a day during 4 years of 
project monitoring (Anchor QEA 2014, 2015, 2016, 2017). Based on a 
total of 127 pile driving and removal days for the Seattle Pier 62 
project Season 2, it is estimated that up to 1,905 California sea lions 
(15 sea lions multiplied by 127 days) could be exposed to noise levels 
associated with ``take.'' Since the calculated Level A Harassment Zones 
of otariids are all very small (Table 7), we do not consider it likely 
that any sea lions would be taken by Level A harassment. Therefore, all 
California sea lion takes estimated here are expected to be takes by 
Level B harassment and NMFS is authorizing instances of take by Level B 
harassment of 1,905 California sea lions.
    As a comparison, using the U.S. Navy species density estimates 
(U.S. Navy 2015) for the inland waters of Washington, including Eastern 
Bays and Puget Sound, potential take of California sea lion is shown in 
Table 9. The estimated instances of take by Level B harassment is 643 
California sea lions. However, the Seattle DOT believes that this 
estimate is unrealistically low, based on local marine mammal 
monitoring.

                                   Table 9--California Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................          0.1266             0.0            10.5              10               0              13
2.......................................................          0.1266            0.00              91              53               0             611
3.......................................................          0.1266             0.0             2.3              64               0              19
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Steller Sea Lion
    No local monitoring data of Steller sea lions is available. 
Therefore, the estimated take for Steller sea lions is based on U.S. 
Navy species density estimates (U.S. Navy 2015), and is shown in Table 
10. Since the calculated Level A Harassment Zones of otariids are all 
very small (Table 7), we do not consider it likely that any Steller sea 
lions would be taken by Level A harassment. NMFS is authorizing 
instances of take by Level B harassment of 187 Steller sea lions.

                                    Table 10--Steller Sea Lion Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................          0.0368             0.0            10.5              10               0               4
2.......................................................          0.0368            0.00              91              53               0             178
3.......................................................          0.0368             0.0             2.3              64               0               5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Southern Resident Killer Whale
    The take estimate of SRKW for Pier 62 is based on local data and 
information from the Center for Whale Research (CWR). J-pod is the pod 
most likely to appear in the lower Puget Sound near Seattle with a 
group size of approximately 23 SRKW in 2017, 24 in 2016, and 29 in 
2015. (CWR 2017). Therefore, NMFS is authorizing instances of take by 
Level B harassment of 23 SRKW based on a single occurrence of one pod 
(i.e., J Pod--23 individuals) that would be most likely to be seen near 
Seattle. Since the Level A Harassment Zones of mid-frequency cetaceans 
are small (Table 7), we do not consider it likely that any SRKW would 
be taken by Level A harassment.
    The Seattle DOT must coordinate with the Orca Network and the CWR 
in an attempt to avoid all take of SRKW, but it may be possible that a 
group may enter the Level B Harassment/Monitoring Zones before Seattle 
DOT could shut down due to the larger size of the Level B Harassment/
Monitoring Zones particularly during vibratory pile driving 
(installation).
    As a comparison, using the U.S. Navy species density estimates 
(U.S. Navy 2015) the density for the SRKW is variable across seasons 
and across the range. The inland water density estimates vary from 
0.000000 to 0.000090/km\2\ in summer, 0.001461 to 0.004760/km\2\ in 
fall, and 0.004761-0.020240/km\2\ in winter. Therefore, estimated takes 
as shown in Table 11 are based on the highest density estimated during 
the winter season

[[Page 39718]]

(0.020240/km\2\) for the SRKW population. With the variable winter 
density, the estimate can range from 24 to 103 SRKW, with the upper 
take estimate greater than the estimated population size.

                             Table 11--Southern Resident Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        0.020240             0.0            10.5              10               0               2
2.......................................................        0.020240            0.00              91              53               0              98
3.......................................................        0.020240             0.0             2.3              64               0               3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Transient Killer Whale
    The take estimate of transient killer whales for Pier 62 is based 
on local data. Seven transients were reported in the project area (Orca 
Network Archive Report 2016a). Therefore, NMFS is authorizing instances 
of take by Level B harassment of 42 transient killer whales, which 
would cover up to 2 groups of up to 7 transient whales entering into 
the project area and remaining there for three days. Since the Level A 
Harassment Zones of mid-frequency cetaceans are small (Table 7), we do 
not consider it likely that any transient killer whales would be taken 
by Level A harassment.
    As a comparison, based on U.S. Navy species density estimates (U.S. 
Navy 2015), potential take of transient killer whale is shown in Table 
12. As with the SRKW, the density estimate of transient killer whales 
is variable between seasons and regions. Density estimates range from 
0.000575 to 0.001582/km\2\ in summer, from 0.001583 to 0.002373/km\2\ 
in fall, and from 0.000575 to 0.001582/km\2\ in winter. Work could 
occur throughout summer, fall and winter, so the highest estimate, fall 
density, was used to conservatively estimate take. For instances of 
take by Level B harassment, this results in a take estimate of twelve 
transient killer whales. However, the Seattle DOT believes that this 
estimate is low based on local data of seven transients that were 
reported in the area (Orca Network Archive Report 2016a).

                                 Table 12--Transient Killer Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................        0.002373             0.0            10.5              10               0               0
2.......................................................        0.002373            0.00              91              53               0              12
3.......................................................        0.002373             0.0             2.3              64               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Long-Beaked Common Dolphin
    The take estimate of long-beaked common dolphin for Pier 62 is 
based on local monitoring data. The earliest documented sighting of 
long-beaked common dolphins in Puget Sound was July 2003. In June 2011, 
two long-beaked common dolphins were sighted in South Puget Sound. 
Sightings continued in 2012, and in 2016-17. Four to twelve sightings 
were reported regularly, with confirmed sightings of up to 30 
individuals. Four to six 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 
2017b). In 2016, the Orca Network (2016c) reported a pod of up to 20 
long-beaked common dolphins. Therefore, NMFS is authorizing instances 
of take by Level B harassment of 7 long-beaked common dolphins per 
month for a total of 49 dolphins. Since the Level A Harassment Zones of 
mid-frequency cetaceans are all very small (Table 7), we do not 
consider it likely that the long-beaked common dolphin would be taken 
by Level A harassment. Based on U.S. Navy species density estimates 
(U.S. Navy 2015), potential instances of take of long-beaked common 
dolphin is expected to be zero; therefore, we believe it more 
appropriate to use local monitoring data.
Bottlenose Dolphin
    The take estimate of bottlenose dolphin for Pier 62 is based on 
local monitoring data. In 2017 the Orca Network (2017) reported 
sightings of a bottlenose dolphin in Puget Sound and in Elliott Bay, 
and WSDOT observed two bottlenose dolphins in one week during 
monitoring for the Colman Dock Multimodal Project (WSDOT 2017). In 
addition, a group of seven dolphins were observed in 2017 and were 
positively identified as part of the CA coastal stock (Cascadia 
Research Collective, 2017). Bottlenose dolphins typically travel in 
groups of 2 to 15 in coastal waters (NOAA 2017). Therefore, NMFS is 
authorizing instances of takes by Level B harassment of 7 bottlenose 
dolphins per month for a total of 49 dolphins. Since the Level A 
Harassment Zones of mid-frequency cetaceans are all very small (Table 
7), we do not consider it likely that the common bottlenose dolphin 
would be taken by Level A harassment. Based on U.S. Navy species 
density estimates (U.S. Navy 2015), instances of potential take by 
Level B harassment of bottlenose dolphin is expected to be zero; 
therefore, we believe it more appropriate to use local monitoring data.
Harbor Porpoise
    Species density estimates from Smultea et al. (2017), is the best 
density data available for the potential take of harbor porpoise and is 
shown in Table 13. Instances of take by Level A

[[Page 39719]]

harassment is estimated at 25 harbor porpoises and instances of take by 
Level B harassment is estimated at 2,716 harbor porpoises. Therefore, 
NMFS is authorizing instances of take by Level A harassment of 25 
harbor porpoises and instances of take by Level B harassment of 2,716 
harbor porpoises.

                                         Table 13--Harbor Porpoise Estimated Take Based on Smultea et al., 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................            0.54            0.00            10.5              10               0              57
2.......................................................            0.54           0.875              91              53              25         * 2,604
3.......................................................            0.54           0.018             2.3              64               0              80
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Take is instances not individuals.
  Adjusted 2,579.

Dall's Porpoise
    No local monitoring data of Dall's porpoise is available. 
Therefore, the estimated instances of take for Dall's porpoise is based 
on U.S. Navy species density estimates (U.S. Navy 2015), as shown in 
Table 14. Based on these calculations, NMFS is authorizing instances of 
take by Level A harassment of two Dall's porpoise and instances of take 
by Level B harassment of 196 Dall's porpoise.

                                    Table 14--Dall's Porpoise Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................           0.039            0.00            10.5              10               0               4
2.......................................................           0.039           0.875              91              53               2           * 188
3.......................................................           0.039           0.018             2.3              64               0               6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.
* Number of Level B harassment takes was adjusted to exclude those already counted for Level A harassment takes. Adjusted 186.

Humpback Whale
    Based on U.S. Navy species density estimates (U.S. Navy 2015), 
potential take of humpback whale is shown in Table 15. Although the 
standard take calculations would result in an estimated take of less 
than one humpback whale, to be conservative, NMFS is authorizing 
instances of take by Level B harassment of five humpback whales based 
on take during previous work in Elliott Bay where two humpback whales 
were observed, including one take, during the 175 days of work during 
the previous four years (Anchor QEA 2014, 2015, 2016, and 2017). Since 
the Level A Harassment Zones of low-frequency cetaceans are smaller 
during vibratory removal (27.3 m) or impact installation (88.6 m) 
compared to the Level A Harassment Zone for vibratory installation 
(504.8 m) (Table 7), we do not consider it likely that any humpbacks 
would be taken by Level A harassment during removal or impact 
installation. We also do not believe any humpbacks would be taken 
during vibratory installation due to the ability to see humpbacks 
easily during monitoring and additional coordination with the Orca 
Network and the CWR which would enable the work to be shut down before 
a humpback would be taken by Level A harassment.

                                     Table 15--Humpback Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00001            0.00            10.5              10               0               0
2.......................................................         0.00001           0.400              91              53               0               0
3.......................................................         0.00001            0.01             2.3              64               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Gray Whale
    No local monitoring data of gray whales is available. Therefore, 
the instances of estimated take for gray whales is based on U.S. Navy 
species density estimates (U.S. Navy 2015), as shown in Table 16. 
Therefore, NMFS is authorizing instances of take by Level B harassment 
of four gray whales. Since the Level A Harassment Zones of low-
frequency cetaceans are smaller during vibratory removal (27.3 m) or 
impact installation (88.6 m) compared to the Level A Harassment Zone 
for vibratory installation (504.8 m) (Table 7), we do

[[Page 39720]]

not consider it likely that any gray whales would be taken by Level A 
harassment during removal or impact installation. We also do not 
believe any gray whales would be taken by Level A harassment during 
vibratory installation due to the ability to see gray whales easily 
during monitoring and additional coordination with the Orca Network and 
the CWR, which would enable the work to be shut down before a gray 
whale would be taken by Level A harassment.

                                       Table 16--Gray Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Sound source                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................         0.00051            0.00            10.5              10               0               0
2.......................................................         0.00051           0.400              91              53               0               3
3.......................................................         0.00051            0.01             2.3              64               0               1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

Minke Whale
    Between 2008 and 2014, the Whale Museum (as cited in WSDOT 2016a) 
reported one sighting of a minke whale in the relevant area. As a 
comparison, based on U.S. Navy species density estimates (U.S. Navy 
2015), the instance of potential take of minke whales is expected to be 
ten (Table 17). To be conservative NMFS is authorizing the take of 10 
minkes by Level B harassment. Based on the low probability that a minke 
whale would be observed during the project and then also enter into a 
Level A zone, we do not consider it likely that any minke whales would 
be taken by Level A harassment.

                                      Table 17--Minke Whale Estimated Take Based on NMSDD Presented for Comparison
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated       Estimated
                                                              Species         Level A         Level B         Days of         Level A         Level B
                      Level B zone                            density     harassment ZOI  harassment ZOI     activity       harassment      harassment
                                                                              (km\2\)         (km\2\)                          take            take
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................           0.002            0.00            10.5              10               0               0
2.......................................................           0.002           0.400              91              53               0              10
3.......................................................           0.002            0.01             2.3              64               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note:
km\2\--square kilometers.

    The summary of the authorized take by Level A and Level B 
Harassment is described below in Table 18.

                Table 18--Summary of Authorized Incidental Take by Level A and Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                               Authorized
                                                Level A     Authorized Level   Authorized total
            Species               Stock size   harassment  B harassment take         take        % of Population
                                                  take
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal (Phoca            11,036           53  1,598 \a\........  1,651............  14.96.
 vitulina).
Northern elephant seal               179,000            0  2 \b\............  2................  Less than 1.
 (Mirounga angustirostris).
California sea lion (Zalophus        296,750            0  1,905 \c\........  1,905............  Less than 1.
 californianus).
Steller sea lion (Eumetopias          41,638            0  187..............  187..............  Less than 1.
 jubatus).
Southern resident killer whale            83            0  23 (single         23 (single         27.71.
 DPS (Orcinus orca).                                        occurrence of      occurrence of
                                                            one pod) \d\.      one pod).
Transient killer whale (Orcinus          240            0  42 \e\...........  42...............  17.5.
 orca).
Long-beaked common dolphin           101,305            0  49 \f\...........  49...............  Less than 1.
 (Dephinus capensis).
Bottlenose dolphin (Tursiops           1,924            0  49 \g\...........  49...............  Less than 1.
 truncatus).
Harbor porpoise (Phocoena             11,233           25  2,716............  2,741............  24.4.
 phocoena).
Dall's porpoise (Phocoenoides         25,750            2  196..............  198..............  Less than 1.
 dalli).
Humpback whale (Megaptera              1,918            0  5 \h\............  5................  Less than 1.
 novaengliae).
Gray whale (Eschrichtius              20,990            0  4................  4................  Less than 1.
 robustus).
Minke whale (Balaenoptera                636            0  10...............  10...............  Less than 1.
 acutorostrata).
----------------------------------------------------------------------------------------------------------------
Note:
\a\ The take estimate is based on a maximum of 13 seals observed on a given day during the 2016 Seattle Test
  Pile project. The number of Level B harassment takes was adjusted to exclude those already counted for Level A
  harassment takes.
\b\ The take estimate is based on The Whale Museum (as cited in WSDOT 2016a) reporting one sighting of a
  northern elephant seal in the area between 2008 and 2014, but conservatively NMFS estimated two takes.
\c\ The take estimate is based on a maximum of 15 California sea lions observed on a given day during 4
  monitoring seasons of the EBSP project.
\d\ The take estimate is based on a single occurrence of one pod of SRKW (i.e., J-pod of 23 SRKW) that would be
  most likely to be seen near Seattle.
\e\ The take estimate is based on local data which is greater than the estimates produced using the Navy density
  estimates.
\f\ The take estimate is based on the local data from several sources including Cascadia Research Collective and
  the Orca Network for long-beaked common dolphins.
\g\ The take estimate is based on local data. A group of seven dolphins were observed in Puget Sound in 2017 and
  were positively identified as part of the CA coastal stock (Cascadia Research Collective, 2017).
\h\ The take estimate is based on take during previous work in Elliott Bay, where two humpback whales were
  observed and is greater than what was calculated using 2015 Navy density estimates.


[[Page 39721]]

Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned) and 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 and impact on 
operations.
    Several measures for mitigating effects on marine mammals and their 
habitat from the pile installation and removal activities at Pier 62 
are described below.

Timing Restrictions

    All work must be conducted during daylight hours.

Pre-Construction Briefing

    Seattle DOT must conduct briefings for construction supervisors and 
crews, the monitoring team, and Seattle DOT staff prior to the start of 
all pile driving and removal activity, and when new personnel join the 
work, in order to explain responsibilities, communication procedures, 
the marine mammal monitoring protocol, and operational procedures.

Bubble Curtain

    A bubble curtain must be used during pile driving activities with 
an impact hammer to reduce sound levels. Seattle DOT has stated as part 
of their specified activity that they have agreed to employ a bubble 
curtain during impact pile driving of steel piles and must implement 
the following bubble curtain performance standards:
    (i) The bubble curtain must distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column.
    (ii) The lowest bubble curtain ring must be deployed on or as close 
to the mudline for the full circumference of the ring as possible, 
without causing turbidity.
    (iii) Seattle DOT must require that construction contractors train 
personnel in the proper balancing of air flow to the bubblers, and must 
require that construction contractors submit an inspection/performance 
report for approval by Seattle DOT within 72 hours following the 
performance test. Corrections to the attenuation device to meet the 
performance standards must occur prior to impact driving.

Shutdown Zones

    Shutdown Zones must be implemented to protect marine mammals from 
Level A harassment (Table 19 below). The PTS isopleths described in 
Table 7 were used as a starting point for calculating the shutdown 
zones; however, Seattle DOT must implement a minimum shutdown zone of a 
10 m radius around each pile for all construction methods for all 
marine mammals. Therefore, in some cases the shutdown zone must be 
slightly larger than was calculated for the PTS isopleths as described 
in Table 7 (i.e., for mid-frequency cetaceans and otariid pinnipeds). 
Outside of any Level A harassment take authorized, if a marine mammal 
is observed at or within the Shutdown Zone, work must shut down (stop 
work) until the individual has been observed outside of the zone, or 
has not been observed for at least 15 minutes for all marine mammals. A 
determination that the Shutdown Zone is clear must be made during a 
period of good visibility (i.e., the entire Shutdown Zone and 
surrounding waters must be visible to the naked eye). If a marine 
mammal approaches or enters the Shutdown Zone during activities or pre-
activity monitoring, all pile driving and removal activities at that 
location must be halted or delayed, respectively. If pile driving or 
removal is halted or delayed due to the presence of a marine mammal, 
the activity may not resume or commence until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
or 15 minutes have passed without re-detection of the animal. Pile 
driving and removal activities include the time to install or remove a 
single pile or series of piles, as long as the time elapsed between 
uses of the pile driving equipment is no more than thirty minutes.

                        Table 19--Shutdown Zones for Various Pile Driving and Removal Activities for Marine Mammal Hearing Groups
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Low-frequency      Mid-frequency      High-frequency
                    Sound source type                          cetaceans          cetaceans          cetaceans       Phocid pinnipeds  Otariid pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Shutdown Zones (meters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1--Vibratory (pile removal)..............................                 28                 10                 41                 17                 10
2--Vibratory (installation)..............................                505                 45                747                307                 22
3--Impact (installation).................................                 89                 10                106                 48                 10
--------------------------------------------------------------------------------------------------------------------------------------------------------

Additional Shutdown Measures

    For in-water heavy machinery activities other than pile driving, if 
a marine mammal comes within 10 m, operations must cease and vessels 
must reduce speed to the minimum level required to maintain steerage 
and safe working conditions.
    Seattle DOT must implement shutdown measures if the cumulative 
total number of individuals observed within the Level B Harassment/

[[Page 39722]]

Monitoring Zones (below in Table 20) for any particular species reaches 
the number authorized under the IHA and if such marine mammals are 
sighted within the vicinity of the project area and are approaching the 
Level B Harassment/Monitoring Zone during in-water construction 
activities.

Level B Harassment/Monitoring Zones

    Seattle DOT must monitor the Level B Harassment/Monitoring Zones as 
described in Table 20.

          Table 20--Level B Harassment/Monitoring Zones for Various Pile Driving and Removal Activities
----------------------------------------------------------------------------------------------------------------
                                                                                      Level B       Level B ZOI
                   Activity                            Construction method         threshold (m)      (km\2\)
----------------------------------------------------------------------------------------------------------------
Removal of 14-in Timber Piles.................  Vibratory.......................           2,929            10.5
Installation of 30[dash]in Steel Piles........  Vibratory.......................          54,117              91
Installation of 30[dash]in Steel Piles........  Impact..........................           1,201             2.3
----------------------------------------------------------------------------------------------------------------

Soft-Start for Impact Pile Driving

    Each day at the beginning of impact pile driving or any time there 
has been cessation or downtime of 30 minutes or more without impact 
pile driving, Seattle DOT must use the soft-start technique by 
providing an initial set of three strikes from the impact hammer at 40 
percent energy, followed by a 30-second waiting period, then two 
subsequent three-strike sets. Soft start must be implemented at the 
start of each day's impact pile driving and at any time following 
cessation of impact pile driving for a period of thirty minutes or 
longer.

Additional Coordination

    The project team must monitor and coordinate with local marine 
mammal networks on a daily basis (i.e., Orca Network and/or the CWR) 
for sightings data and acoustic detection data to gather information on 
the location of whales prior to pile removal or pile driving 
activities. The project team must also coordinate with Washington State 
Ferries to discuss marine mammal sightings on days when pile driving 
and removal activities are occurring on their nearby projects. Marine 
mammal monitoring must be conducted to collect information on the 
presence of marine mammals within the Level B Harassment/Monitoring 
Zones for this project. In addition, reports must be made available to 
interested parties upon request. With this level of coordination in the 
region of activity, Seattle DOT must get real-time information on the 
presence or absence of whales before starting any pile driving or 
removal activities.
    During Season 1, Seattle DOT carried out additional voluntary 
mitigation measures during pile driving and removal activities to 
minimize impacts from noise on the Seattle Aquarium's captive marine 
mammals as well as for air and water quality concerns. These measures 
were successfully coordinated and implemented, and Seattle DOT will 
implement the same measures during Season 2 work, as follows:
    1. If aquarium animals are determined by the Aquarium veterinarian 
to be distressed, Seattle DOT will coordinate with Aquarium staff to 
determine appropriate next steps, which may include suspending pile 
driving work for 30 minutes, provided that suspension does not pose a 
safety issue for the Pier 62 project construction crews.
    2. Seattle DOT will make reasonable efforts to take at least one 
regularly scheduled 20-minute break in pile driving each day.
    3. Seattle DOT will regularly communicate with the Aquarium staff 
when pile driving is occurring.
    4. Seattle DOT will further coordinate with the Aquarium to 
determine appropriate methods to avoid and minimize impacts to water 
quality.
    5. Seattle DOT does not anticipate the project resulting in impacts 
associated with airborne dust. If, during construction, odors 
associated with the project are an issue, Seattle DOT will coordinate 
with its contractor to determine appropriate mitigation measures.
    Based on our evaluation of the applicant's mitigation measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

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

[[Page 39723]]

in strategic locations around the area of potential effects as 
described below:
    [ssquf] During pile removal or installation with a vibratory 
hammer, three to four monitors would be used, positioned such that each 
monitor has a distinct view-shed and the monitors collectively have 
overlapping view-sheds (refer to Appendix A, Figures 1-3 of the Seattle 
DOT's application).
    [ssquf] During pile driving activities with an impact hammer, one 
monitor must be based at or near the construction site, and in 
addition, two to three additional monitors would be used, positioned 
such that each monitor has a distinct view-shed and the monitors 
collectively have overlapping view-sheds (refer to Appendix A, Figures 
1-3 of the Seattle DOT's application).
    [ssquf] In the case(s) where visibility becomes limited, additional 
land-based monitors and/or boat-based monitors may be deployed.
    [ssquf] Monitors must record take when marine mammals enter the 
relevant Level B Harassment/Monitoring Zones based on type of 
construction activity.
    If a marine mammal approaches or enters the Shutdown Zone during 
activities or pre-activity monitoring, all pile driving or removal 
activities at that location must be halted or delayed, respectively. If 
pile driving or removal is halted or delayed due to the presence of a 
marine mammal, the activity may not resume or commence until either the 
animal has voluntarily left and been visually confirmed beyond the 
Shutdown Zone or 15 minutes have passed without re-detection of the 
animal. Pile driving activities include the time to install or remove a 
single pile or series of piles, as long as the time elapsed between 
uses of the pile driving equipment is no more than thirty minutes.

Protected Species Observers

    Seattle DOT must employ NMFS-approved protected species observers 
(PSOs) to conduct marine mammal monitoring for its Pier 62 Project. The 
PSOs must 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 must 
meet the following requirements:
    1. Independent PSOs (i.e., not construction personnel) are 
required.
    2. At least one PSO must have prior experience working as a marine 
mammal observer during construction activities.
    3. Other PSOs may substitute education (degree in biological 
science or related field) or training for experience.
    4. Where a team of three or more PSOs are required, one observer 
should be designated as lead observer or monitoring coordinator. The 
lead observer must have prior experience working as a marine mammal 
observer during construction.
    5. NMFS must require submission and approval of observer CVs.
    Seattle DOT must ensure that observers have the following 
additional qualifications:
    1. Ability to conduct field observations and collect data according 
to assigned protocols.
    2. Experience or training in the field identification of marine 
mammals, including the identification of behaviors.
    3. Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations.
    4. Writing skills sufficient to prepare a report of observations 
including but not limited to the number and species of marine mammals 
observed; dates and times when in-water construction activities were 
conducted; dates, times, and reason for implementation of mitigation 
(or why mitigation was not implemented when required); and marine 
mammal behavior.
    5. Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    PSOs must monitor marine mammals around the construction site using 
high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or spotting 
scopes. Due to the different sizes of the Level B Harassment/Monitoring 
Zones from different pile sizes, several different Level B Harassment/
Monitoring Zones and different monitoring protocols corresponding to a 
specific pile size must be established. If marine mammals are observed, 
the following information must be documented:
    1. Date and time that monitored activity begins or ends for each 
day conducted (monitoring period);
    2. Construction activities occurring during each observation 
period, including how many and what type of piles driven;
    3. Deviation from initial proposal in pile numbers, pile types, 
average driving times, etc.
    4. Weather parameters in each monitoring period (e.g., wind speed, 
percent cover, visibility);
    5. Water conditions in each monitoring period (e.g., sea state, 
tide state);
    6. For each marine mammal sighting:
    a. Species, numbers, and, if possible, sex and age class of marine 
mammals;
    b. Description of any observable marine mammal behavior patterns, 
including bearing and direction of travel and distance from pile 
driving or removal activity;
    c. Location and distance from pile driving or removal activities to 
marine mammals and distance from the marine mammals to the observation 
point; and
    d. Estimated amount of time that the animals remained in the Level 
B Harassment Zone.
    7. Description of implementation of mitigation measures within each 
monitoring period (e.g., shutdown or delay);
    8. Other human activity in the area within each monitoring period
    9. A summary of the following:
    a. Total number of individuals of each species detected within the 
Level B Harassment/Monitoring Zone, and estimated as taken if 
correction factor appropriate.
    b. Total number of individuals of each species detected within the 
Shutdown Zone and the average amount of time that they remained in that 
zone.
    c. Daily average number of individuals of each species 
(differentiated by month as appropriate) detected within the Level B 
Harassment/Monitoring Zone, and estimated as taken, if appropriate.

Acoustic Monitoring

    In addition, acoustic monitoring must occur on up to six days per 
in-water work season to evaluate, in real time, sound production from 
construction activities and must capture all hammering scenarios that 
may occur under the planned project.
    The results and conclusions of the acoustic monitoring must be 
summarized and presented to NMFS with recommendations on any 
modifications to this plan or Shutdown Zones.

Reporting Measures

Marine Mammal Monitoring Report
    Seattle DOT must submit a draft marine mammal monitoring report 
within 90 days after completion of the in-water construction work, the 
expiration of the IHA, or 60 days prior to the requested date of 
issuance of any subsequent IHA, whichever is earliest. The report would 
include data from marine mammal sightings as described: Date, time, 
location, species, group size, and behavior, any observed reactions to 
construction, distance to operating pile hammer, and construction 
activities

[[Page 39724]]

occurring at time of sighting and environmental data for the period 
(i.e., wind speed and direction, sea state, tidal state, cloud cover, 
and visibility). The marine mammal monitoring report must also include 
total takes, takes by day, and stop-work orders for each species. NMFS 
must have an opportunity to provide comments on the report, and if NMFS 
has comments, Seattle DOT must address the comments and submit a final 
report to NMFS within 30 days. If no comments are received from NMFS 
within 30 days, the draft report must be considered final. Any comments 
received during that time must be addressed in full prior to 
finalization of the report.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA, 
such as an injury (Level A harassment), serious injury, or mortality, 
Seattle DOT would immediately cease the specified activities and 
immediately report the incident to the Permits and Conservation 
Division, Office of Protected Resources, NMFS and the NMFS' West Coast 
Stranding Coordinator. The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved;
     Vessel's speed during and leading up to the incident;
     Description of the incident;
     Status of all sound source use in the 24 hrs preceding the 
incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hrs preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Seattle DOT 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Seattle DOT may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
Reporting of Injured or Dead Marine Mammals
    In the event that Seattle DOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Seattle DOT must immediately report the incident to the Permits and 
Conservation Division, Office of Protected Resources, NMFS and the 
NMFS' West Coast Stranding Coordinator. The report must include the 
same information identified in the paragraph above. Activities may 
continue while NMFS reviews the circumstances of the incident. NMFS 
would work with Seattle DOT to determine whether modifications in the 
activities are appropriate.
    In the event that Seattle DOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Seattle DOT must report the 
incident to the Permits and Conservation Division, Office of Protected 
Resources, NMFS and the NMFS Stranding Hotline and/or by email to the 
NMFS' West Coast Stranding Coordinator within 24 hrs of the discovery. 
Seattle DOT would provide photographs or video footage (if available) 
or other documentation of the stranded animal sighting to NMFS. 
Activities may continue while NMFS reviews the circumstances of the 
incident.
Acoustic Monitoring Report
    Seattle DOT must submit an Acoustic Monitoring Report within 90 
days after completion of the in-water construction work or the 
expiration of the IHA, whichever comes earlier. The report must provide 
details on the monitored piles, method of installation, monitoring 
equipment, and sound levels documented during both the sound source 
measurements and the background monitoring. NMFS must have an 
opportunity to provide comments on the report or changes in monitoring 
for a third season (if needed), and if NMFS has comments, Seattle DOT 
must address the comments and submit a final report to NMFS within 30 
days. If no comments are received from NMFS within 30 days, the draft 
report must be considered final. Any comments received during that time 
must be addressed in full prior to finalization of the report.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    No serious injury or mortality is anticipated or authorized for the 
Pier 62 Project (Season 2). Takes that are anticipated and authorized 
are expected to be limited to short-term Level A and Level B 
(behavioral) harassment. Marine mammals present in the vicinity of the 
action area and taken by Level A and Level B harassment would most 
likely show overt brief disturbance (startle reaction) and avoidance of 
the area from elevated noise levels during pile driving and pile 
removal. However, many marine mammals showed no observable changes 
during Season 1 of the Pier 62 project and similar project activities 
for the EBSP.
    A fair number of instances of takes are expected to be repeat takes 
of the same animals. This is particularly true for harbor porpoise, 
because they generally use sub-regions of Puget Sound, and the 
abundance of the Seattle sub-region from the Puget Sound Study was 
estimated to be 147 animals, which is much lower than the calculated 
take. Very few harbor porpoises have been observed during past projects 
in Elliott Bay (ranging from one to five harbor porpoises).
    There are two endangered species that may occur in the project 
area,

[[Page 39725]]

humpback whales and SRKW. However, few humpbacks are expected to occur 
in the project area and few have been observed during previous projects 
in Elliott Bay. SRKW have occurred in small numbers in the project 
area. Seattle DOT must shut down in the Level B Harassment/Monitoring 
Zones should they meet or exceed the take of one occurrence of one pod 
(J-pod, 23 whales).
    There is ESA-designated critical habitat in the vicinity of Seattle 
DOT's Pier 62 Project for SRKW. However, this IHA is authorizing the 
harassment of marine mammals, not the production of sound, which is 
what would result in adverse effects to critical habitat for SRKW.
    There is one documented harbor seal haulout area near Bainbridge 
Island, approximately 6 miles (9.66 km) from Pier 62. The haulout, 
which is estimated at less than 100 animals, consists of intertidal 
rocks and reef areas around Blakely Rocks and is at the outer edge of 
potential effects at the outer extent near Bainbridge Island (Jefferies 
et al. 2000). The recent level of use of this haulout is unknown. 
Harbor seals also make use of docks, buoys, and beaches in the project 
area, as noted in marine mammal monitoring reports for Season 1 of the 
Pier 62 Project and for the EBSP (Anchor QEA 2014, 2015, 2016, and 
2017). Similarly, the nearest Steller sea lion haulout to the project 
area is located approximately 6 miles away (9.66 km) and is also on the 
outer edge of potential effects. This haulout is composed of net pens 
offshore of the south end of Bainbridge Island. There are four 
documented California sea lion haulout areas near Bainbridge Island as 
well, approximately six miles from Pier 62, and two documented haulout 
areas between Bainbridge Island and Magnolia (Jefferies et al. 2000). 
The haulouts consist of buoys and floats, and some are within the area 
of potential effects, but at the outer extent, and some are just 
outside the area of potential effects (Jefferies et al. 2000). 
California sea lions were also frequently observed during marine mammal 
monitoring for Season 1 of the Pier 62 project (average of eight sea 
lions) at the Alki monitoring site and were frequently observed resting 
on two buoys in the southwest area of Elliott Bay. California sea lions 
were also frequently observed during the EBSP (average seven per day in 
2014 and 2015, and three per day in 2016 and 2017; Anchor QEA 2014, 
2015, 2016, and 2017), resting on two navigational buoys within the 
project area (near Alki Point) and swimming along the shoreline near 
the project.
    The project also is not expected to have significant adverse 
effects on affected marine mammal habitat, as analyzed in the 
``Potential Effects of Specified Activities on Marine Mammals and their 
Habitat'' section. Project activities would not permanently modify 
existing marine mammal habitat. The activities may kill some fish and 
cause other fish to leave the area temporarily, thus impacting marine 
mammals' foraging opportunities in a limited portion of the foraging 
range; but, because of the short duration of the activities and the 
relatively small area of the habitat that may be affected, the impacts 
to marine mammal habitat are not expected to cause significant or long-
term negative consequences. Therefore, given the consideration of 
potential impacts to marine mammal prey species and their physical 
environment, Seattle DOT's Pier 62 Project would not adversely affect 
marine mammal habitat.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stocks through 
effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized.
     Takes that are anticipated and authorized are expected to 
be limited to short-term Level B harassment (behavioral) and a small 
number of takes of Level A harassment for three species.
     The project also is not expected to have significant 
adverse effects on affected marine mammals' habitat.
     There are no known important feeding or pupping areas. 
There are haulouts for California sea lions, harbor seals and Steller 
sea lions. However, they are at the most outer edge of the potential 
effects and approximately 6.6 miles from Pier 62. There are no other 
known important areas for marine mammals.
     For nine of the twelve species, take is less than one 
percent of the stock abundance. Instances of take for the other three 
species (harbor seals, killer whales, and harbor porpoise) range from 
about 15-28 percent of the stock abundance. One occurrence of J-pod of 
SRKW would account for 28 percent of the stock abundance. However, when 
the fact that a fair number of these instances are expected to be 
repeat takes of the same animals is considered, particularly for harbor 
porpoise, the number of individual marine mammals taken is 
significantly lower.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. Additionally, other factors may be 
considered in the analysis, such as the temporal or spatial scale of 
the activities.
    Take of nine of the twelve species is less than one percent of the 
stock abundance. Instances of take for the SRKW and transient killer 
whales, harbor seals, and harbor porpoise ranges from about 15-28 
percent of the stock abundance, all of which NMFS has determined 
comprise small numbers of these stocks. Additionally, when the fact 
that a fair number of these instances are expected to be repeat takes 
of the same animals is considered, the number of individual marine 
mammals taken is significantly lower. Specifically, Smultea et al. 2017 
conducted harbor porpoise surveys in eight regions of Puget Sound, and 
estimated an abundance of 168 harbor porpoise in the Seattle area (100 
in Bainbridge (just west of Seattle) and 265 in Southern Puget Sound). 
While individuals do move between regions, we would not realistically 
expect that 2,500+ harbor porpoise individuals would be exposed around 
the pile driving and removal activities for the Seattle DOT's Pier 62 
Project. Considering these factors, as well as the general small size 
of the project area as compared to the range of the species affected, 
the numbers of marine mammals estimated to be taken are small 
proportions of the total populations of the affected species or stocks. 
Further, for SRKW, 27.71 percent of the stock is authorized to be taken 
by Level B harassment, but we also believe that a single, brief 
incident of take of one group of any species represents take of small 
numbers for that species. Based on the analysis contained herein of the 
planned activity

[[Page 39726]]

(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population sizes of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of IHAs, NMFS consults 
internally, in this case with the West Coast Regional Office (WCRO), 
whenever we propose to authorize take for endangered or threatened 
species.
    The Permit and Conservation Division consulted under section 7 of 
the ESA with the WCRO for the issuance of this IHA. The WCRO concluded 
that the take of marine mammals authorized here is not likely to 
jeopardize the continued existence of SRKW and humpback whales and will 
not result in the destruction or adverse modification of designated 
critical habitat.

Authorization

    NMFS has issued an IHA to the Seattle DOT for the harassment of 
small numbers of marine mammals incidental to pile driving and removal 
activities for the Pier 62 Project (Season 2) within Elliott Bay, 
Seattle, Washington from August 1, 2018 to February 28, 2019, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: August 7, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-17185 Filed 8-9-18; 8:45 am]
 BILLING CODE 3510-22-P