[Federal Register Volume 83, Number 241 (Monday, December 17, 2018)]
[Notices]
[Pages 64531-64541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27199]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XG454
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to US 101/Chehalis River Bridge-Scour
Repair in Washington State
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that we have issued an incidental harassment authorization (IHA) to
Washington State Department of Transportation (WSDOT) to take small
numbers of marine mammals, by harassment, incidental to US 101/Chehalis
River Bridge-Scour Repair in Washington State.
DATES: This authorization is valid from July 15, 2019, through February
15, 2020.
[[Page 64532]]
FOR FURTHER INFORMATION CONTACT: Rob Pauline, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents 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
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. 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 incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other means of effecting the least practicable adverse
impact on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
The National Defense Authorization Act (Pub. L. 108-136) removed
the small numbers and specified geographical region limitations
indicated above and amended the definition of harassment as it applies
to a military readiness activity
Summary of Request
On July 26, 2018, NMFS received a request from WSDOT for an IHA to
take marine mammals incidental to US 101/Chehalis River Bridge-Scour
Repair in the State of Washington. WSDOT's request was for take of
small numbers of harbor seal (Phoca vitulina); California sea lion
(Zalophus californianus); Steller sea lion (Eumetopias jubatus); gray
whale (Eschrichtius robustus); and harbor porpoise (Phocoena phocoena)
by Level B harassment only. This authorization is valid from July 15,
2019, through February 15, 2020. Neither WSDOT nor NMFS expects serious
injury or mortality to result from this activity and, therefore, an IHA
is appropriate.
Description of the Activity
Overview
WSDOT plans to conduct in-water construction work as part of the US
101/Chehalis River Bridge-Scour Repair Project in Washington State
between July 15, 2019 and February 15, 2020. Vibratory pile driving
will be required to remove and install timber piles, steel sheets and
steel H-piles. Sound in the water from vibratory driving may result in
behavioral harassment. NMFS previously issued an IHA to WSDOT to
incidentally take five species of marine mammal by Level B harassment
on October 18, 2017 (82 FR 50628; November 1, 2017). That IHA is valid
from July 1, 2018 through June 30, 2019. However, WSDOT has made minor
changes to the project plan and delayed the work by one year.
Therefore, WSDOT has requested that NMFS re-issue the IHA with the
dates changed to accommodate the analyzed work with minor modifications
to the number of piles driven and removed as well as the number of
animals authorized for take. No work was conducted or is planned to
occur under the original IHA. The purpose of the US 101/Chehalis River
Bridge-Scour Repair Project is to make the bridge foundation stable and
protect the foundation from further scour. Bridge scour is the removal
of sediment such as sand and gravel from around bridge abutments or
piles. Scour, caused by swiftly moving water, can scoop out scour
holes, compromising the integrity of a structure. WSDOT plans to remove
debris from the scour area, fill the scour void under Pier 14 with
cement (to protect the pilings from marine borers), fill the scour
hole, and protect the pier with scour resistant material.
Note that WSDOT has made revisions to the number and types of piles
that would be installed and removed under the proposed 2019 IHA. The
first change is the removal of 44 timber piles (some of which may be
treated with creosote) from the immediate vicinity of the scour repair
project. Additionally, 18 sheet piles will be temporarily installed
adjacent to Pier 14, instead of the 44 sheet piles originally proposed.
A detailed description of the planned WSDOT project is provided in the
Federal Register notice for the proposed IHA (83 FR 53033; October 19,
2018). Since that time, no changes have been made to the planned WSDOT
construction activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specific activity.
Dates and Duration
Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water
work timing restrictions to protect Endangered Species Act (ESA)-listed
salmonids, planned WSDOT in-water construction is limited each year to
July 15 through February 15. For this project, in-water construction is
planned to take place between July 15, 2019 and September 30, 2019. The
IHA is effective from July 15, 2019 to February 15, 2020. The estimated
number of piles and maximum time period for pile installation and
removal is 37 hours over 6 days as shown in Table 1.
Table 1--Pile Removal Mitigation and Scour Repair Pile Summary
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Duration (11-
Method Pile type Number of Minutes per Total minutes Duration Piles per day hour work
piles pile (hours) days)
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Vibratory Removal................. 14-inch diameter 44 30 1320 22 22 2
timber.
Vibratory Driving................. Sheet............... 18 30 540 9 9 2
Vibratory Driving................. H pile.............. 6 30 180 3 6 1
Vibratory Removal................. H pile.............. 6 30 180 3 6 1
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Total......................... .................... .............. .............. 2220 37 .............. 6.0
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[[Page 64533]]
Comments and Responses
A notice of NMFS's proposal to issue an IHA to WSDOT was published
in the Federal Register on October 19, 2018 (83 FR 53033). That notice
described, in detail, WSDOT's planned 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 comments from the Marine Mammal Commission (Commission).
Please see the letter, available online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities, for full details of the
Commission's recommendations. The Commission recommended that NMFS
issue the IHA, subject to inclusion of the proposed mitigation,
monitoring, and reporting measures.
Comment 1: The Commission expressed concern that the renewal
process proposed in the Federal Register notice is inconsistent with
the statutory requirements. The Commission recommended that NMFS
refrain from implementing its proposed renewal process and instead use
abbreviated Federal Register notices and reference existing documents
to streamline the incidental harassment authorization process. The
Commission further recommended that if NMFS did not pursue a more
general route, NMFS should provide the Commission and the public with a
legal analysis supporting its conclusion that the process is consistent
with the requirements under section 101(a)(5)(D) of the MMPA.
Response 1: 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 Federal Register notices that consider
renewals. NMFS appreciates the streamlining achieved by the use of
abbreviated Federal Register notices and intends to continue using them
for proposed IHAs that include minor changes from previously issued
IHAs, but which do not satisfy the renewal requirements. However, we
believe our proposed method for issuing renewals meets statutory
requirements and maximizes efficiency. Importantly, such renewals would
be limited to where the activities are identical or nearly identical to
those analyzed in the proposed IHA, monitoring does not indicate
impacts that were not previously analyzed and authorized, and the
mitigation and monitoring requirements remain the same, all of which
allow the public to comment on the appropriateness and effects of a
renewal at the same time the public provides comments on the initial
IHA. NMFS has, however, modified the language for future proposed IHAs
to clarify that all IHAs, including renewal IHAs, are valid for no more
than one year and that the agency would consider only one renewal for a
project at this time. In addition, notice of issuance or denial of a
renewal IHA would be published in the Federal Register, as are all
IHAs. Last, NMFS will publish on our website a description of the
renewal process before any renewal is issued utilizing the new process.
Description of Marine Mammals in the Area of Specified Activities
A detailed description of the species likely to be affected by
WSDOT's 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
53033; October 19, 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'
website (https://www.fisheries.noaa.gov/find-species) for generalized
species accounts.
Table 2 lists all species with expected potential for occurrence in
the project location and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and potential biological removal (PBR), where known. For taxonomy, we
follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS's SARs). While no mortality is anticipated or authorized here, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. 2017 SARs (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and draft U.S. 2018
SARS (https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports). All values presented in
Table 2 are the most recent available at the time of publication.
Table 2--Marine Mammals With Potential Presence Within the Project Area
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock Strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae
Gray whale...................... Eschrichtius robustus.. Eastern North Pacific.. N 20,990 (0.05, 20,125, 624 132
2011).
Family Phocoenidae (porpoises)
Harbor porpoise................. Phocoena phocoena...... Northern Oregon/ N 21,487 (0.44, 15,123, 151 >=3.0
Washington Coast. 2011).
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[[Page 64534]]
Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions)
California sea lion............. Zalophus californianus. U.S.................... N 296,750 (n/a, 153,337, 9,200 389
2011).
Steller sea lion................ Eumetopias jubatus..... Eastern U.S............ N 41,638 (n/a, 41,638, 2,498 108
2015) \4\.
Family Phocidae (earless seals)
Harbor seal..................... Phoca vitulina......... Oregon/Washington Coast N Unk \5\............... undet 10.6
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases a CV is not applicable For certain stocks
of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from
knowledge of the species' (or similar species') life history to arrive at a best abundance estimate; therefore, there is no associated CV.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys.
\5\ Harbor seal estimate is based on data that are 8 years old, but this is the best available information for use here.
All species that could potentially occur in the survey areas are
included in Table 2.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from vibratory pile driving and
removal activities for the planned River Bridge-Scour repair project
have the potential to result in behavioral harassment of marine mammals
in the vicinity of the action area. The Federal Register notice for the
proposed IHA (83 FR 53033; October 19, 2018) included a discussion of
the effects of anthropogenic noise on marine mammals and their habitat,
therefore that information is not repeated here; please refer to the
Federal Register notice (83 FR 53033; October 19, 2018) for that
information.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of ``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to vibratory driving. Based on the nature of
the activity and the anticipated effectiveness of the mitigation
measures (i.e., shutdown, establishment and monitoring of harassment
zones) discussed in detail below in the Mitigation section), Level A
harassment is neither anticipated nor authorized.
As described previously, no mortality is anticipated or authorized
for this activity. 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. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the authorized take
estimate.
Acoustic Thresholds
Using the best available science, NMFS has developed acoustic
thresholds that identify the received level of underwater sound above
which exposed marine mammals would be reasonably expected to be
behaviorally harassed (equated to Level B harassment) or to incur
permanent threshold shift (PTS) (equated to Level A harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 120 decibel (dB) re 1 micro pascal ([mu]Pa) root
means square (rms) for continuous (e.g., vibratory pile-driving,
drilling) sources such as those used here.
[[Page 64535]]
WSDOT's planned activity includes the use of continuous (vibratory
driving and removal and, therefore, the 120 dB re 1 [mu]Pa (rms) is
applicable.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (NMFS, 2018) 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).
WSDOT's planned activity includes the use non-impulsive (vibratory
driving) sources.
These thresholds are provided in Table 3 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS 2018 Technical Guidance, which may be accessed at:
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
[GRAPHIC] [TIFF OMITTED] TN17DE18.053
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
Reference sound source levels used by WSDOT vibratory piling
driving and removal activities were derived from several sources. WSDOT
utilized in-water measurements generated by the Greenbusch Group (2018)
from the WDOT Seattle Pier 62 project (83 FR 39709) to establish proxy
sound source levels for vibratory removal of 14-inch timber piles. The
results determined unweighted rms ranging from 140 dB to 169 dB. WSDOT
used the 75th percentile of these values (161 dB rms measured at 10
meters) as a proxy for vibratory removal of 14-inch timber piles at the
Chehalis River Bridge.
[[Page 64536]]
However, NMFS reviewed the report by the Greenbusch Group (2018) and
determined that the findings were derived by pooling together all steel
pile and timber pile at various distance measurements data together.
The data was not normalized to the standard 10 m distance. NMFS
analyzed source measurements at different distances for all 63
individual timber piles that were removed and normalized the values to
10 m. The results showed that the median is 152 dB SPLrms. This value
was used as the source level for vibratory removal of 14-inch timber
piles.
The planned project includes vibratory driving of 18 sheet piles as
well as vibratory driving and removal of six steel H piles. Based on
in-water measurements at the Elliot Bay Seawall Project, vibratory pile
driving of steel sheet piles generated a source level of 165 dB rms
measured at 10 m (Greenbush Group 2015). According to CalTrans (2015),
150 dB rms at 10 m is a typical source level for vibratory driving and
removal of steel H piles.
Level B Harassment Zones
The practical spreading model was used by WSDOT to establish the
Level B harassment zones for all vibratory pile installation and
removal activities. Practical spreading is described in full detail
below.
Pile driving generates underwater noise that can potentially result
in disturbance to marine mammals in the project area. Transmission loss
(TL) is the decrease in acoustic intensity as an acoustic pressure wave
propagates out from a source. TL parameters vary with frequency,
temperature, sea conditions, current, source and receiver depth, water
depth, water chemistry, and bottom composition and topography. The
general formula for underwater TL is:
TL = B * log10 (R1/R2),
Where:
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement.
This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(free-field) environment not limited by depth or water surface,
resulting in a 6 dB reduction in sound level for each doubling of
distance from the source (20 * log[range]). Cylindrical spreading
occurs in an environment in which sound propagation is bounded by the
water surface and sea bottom, resulting in a reduction of 3 dB in sound
level for each doubling of distance from the source (10 * log[range]).
A practical spreading value of 15 is often used under conditions where
water increases with depth as the receiver moves away from the
shoreline, resulting in an expected propagation environment that would
lie between spherical and cylindrical spreading loss conditions.
Utilizing the practical spreading loss model, WSDOT determined the
distance and area where the noise will fall below the behavioral
effects threshold of 120 dB rms. The distances and areas are shown in
Table 4. Note that the ensonified area is based on a GIS analysis of
the area accounting for structures and landmasses which would block
underwater sound transmission.
Table 4--Level B Harassment Ensonified Area
------------------------------------------------------------------------
Level B
harassment
Pile type zone isopleth Area (km \2\)
(meters)
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14-inch timber vibratory removal........ 1,359 0.93
Steel sheet vibratory driving........... 10,000 2.04
Steel H-pile vibratory driving and 1,000 0.67
removal................................
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Level A Harassment Zones
When the NMFS Technical Guidance (2016) was published, in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, we developed a User Spreadsheet that includes tools
to help predict a simple isopleth that can be used in conjunction with
marine mammal density or occurrence to help predict takes. We note that
because of some of the assumptions included in the methods used for
these tools, we anticipate that isopleths produced are typically going
to be overestimates of some degree. 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
driving, NMFS 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. User Spreadsheet inputs are shown in
Table 5 and outputs are shown in Table 6. Note that since no Level A
harassment take is authorized, the areas of the Level A harassment
zones were not calculated.
Table 5--Parameters of Pile Driving Activity
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14-inch timber Sheet H-Pile
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USER SPREADSHEET INPUT
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Spreadsheet Tab Used................. A.1) Vibratory driving. A.1) Vibratory driving. A.1) Vibratory driving.
Source Level (rms SPL)............... 152.................... 165.................... 150.
Weighting Factor Adjustment (kHz).... 2.5.................... 2.5.................... 2.5.
Number of piles in 24-h period....... 22..................... 9...................... 6.
Duration to drive a single pile 30..................... 30..................... 30.
(minutes).
Propagation (xLogR).................. 15..................... 15..................... 15.
[[Page 64537]]
Distance of source level measurement 10..................... 10..................... 10.
(meters).
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Table 6--Level A Harassment Zone Isopleths
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PTS Isopleth (meters)
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High-
Source type Low-frequency Mid-frequency frequency Phocid Otariid
cetaceans cetaceans cetaceans pinnipeds pinnipeds
----------------------------------------------------------------------------------------------------------------
USER SPREADSHEET OUTPUT
----------------------------------------------------------------------------------------------------------------
14-inch timber.................. 8.5 0.8 12.5 5.2 0.4
Sheet pile...................... 34.4 3 50.9 20.9 1.5
H-pile.......................... 2.6 0.2 3.9 1.6 0.1
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Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
There is little abundance or density data available for marine
mammal species that are likely to occur within Grays Harbor and which
could potentially be found in the Chehalis River near the project site.
In most cases, WSDOT relied on density data from the U.S. Navy Marine
Species Density Database (NMSDD) (U.S. Navy 2015). NMFS concurs that
this, and the exceptions described below, represent the best available
data for use here.
Harbor Seal
While the NMSDD (U.S. Navy 2015) estimates the density of harbor
seals in the waters offshore of Grays Harbor as 0.279 animals per
square kilometer, WSDOT relied on a study which identified 44 harbor
seal haul-outs in Grays Harbor and provided very rough estimates of the
number of seals at each site. Twenty-seven haul-outs had less than 100
animals; 16 haul-outs had 100-500 animals; and 2 haul outs were
reported to support over 500 animals (Jeffries et al. 2000). These data
likely represent the best estimate of harbor seal numbers in Grays
Harbor. Using median numbers of each haul-out estimate range resulted
in an estimated 7,150 harbor seals in Grays Harbor. The area of the
estuary during mean higher high water (243 km\2\) was used to derive a
density estimate of 29.4 harbor seals per square kilometer.
California Sea Lion
Only 10 California sea lion strandings have been documented between
2006 and 2015 (NMFS 2016c), and no haul-outs have been identified.
Therefore, it is expected that the density of California sea lions in
Grays Harbor is low. The NMSDD (U.S. Navy 2015) estimates the density
of California sea lions in the waters offshore of Grays Harbor as
ranging from 0.020 to 0.033 animals per square kilometer in summer and
fall. The higher estimate is used as a surrogate for Grays Harbor.
Steller Sea Lion
According to the NMFS National Stranding Database, there were four
confirmed Steller sea lion strandings in Grays Harbor between 2006 and
2015 (NMFS 2016c) and no haul-outs have been identified in Grays
Harbor. The NMSDD (U.S. Navy 2015) estimates the density of Steller sea
lions in the waters offshore of Grays Harbor as 0.0145 animals per
square kilometer. This estimate is used as a surrogate for Grays
Harbor.
Gray Whale
Between 1998 and 2010, gray whale numbers peaked in spring and fall
in a study area that included waters inside Grays Harbor and coastal
waters along the south Washington coast (Calambokidis, et al. 2012).
However, no density estimates are available for Grays Harbor. The NMSDD
(U.S. Navy 2015) estimates the density of gray whales in nearshore
waters near Grays Harbor as 0.00045 animal per square kilometer in
summer and fall. This density is used for Grays Harbor.
Harbor Porpoise
The NMSDD (U.S. Navy 2015) estimates the density of harbor
porpoises in the waters offshore of Grays Harbor as a range between
0.69 and 1.67 animals per square kilometer. According to Evenson et al.
(2016), the maximum harbor porpoise density in the Strait of Juan de
Fuca (approximately 105 miles north of Grays Harbor) in 2014 was 0.768
animals per square kilometer. The higher density estimate for waters
offshore of Grays Harbor (1.67) is used to estimate take.
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
No Level A harassment take is likely because of the small injury
zones and relatively low average animal density in the area. Since the
largest Level A harassment distance is only 50.9 m from the source for
high-frequency cetaceans (harbor porpoise), NMFS considers that WSDOT
can effectively monitor such small zones to implement shutdown measures
and avoid Level A harassment takes. Therefore, no Level A harassment
take of marine mammal is authorized.
NMFS used an estimated harbor seal density of 29.4 animals/km\2\ in
the US 101/Chehalis River Bridge-Scour Repair Project area to estimate
the following number of Level B harassment exposures that may occur:
14-inch timber pile removal: 29.4. animals/km\2\ * 0.93 km\2\
* 2 days = 54.68
Sheet pile installation: 29.4 animals/km\2\ * 2.04 km\2\ * 2
days = 119.95
H-pile installation and removal: 29.4 animals/km\2\ * 0.67
km\2\ * 2 days = 39.39
Based on the sum of the equations above, NMFS authorizes 214 takes
of harbor seals by Level B harassment.
NMFS inserted the California sea lion density of 0.033 animals/
km\2\ into the same equation used above for harbor seals to estimate
Level B harassment exposures. Based on the sum of the equations, an
estimated 0.24 California sea lions would be taken by Level B
harassment. Due to this low value, NMFS conservatively authorizes the
take of two California sea lions each day of in-water activities,
resulting in 12 takes by Level B harassment.
[[Page 64538]]
NMFS estimated take of Steller sea lions by inserting a density of
0.0145 animals/km\2\ into the same equation used above for harbor seals
resulting in 0.10 takes of sea lions. Given the low value, NMFS
conservatively authorizes the take of two Steller sea lions during each
day of in-water activities, resulting in 12 takes by Level B
harassment.
NMFS used the same equation that was used for harbor seals to
estimate take for gray whales by inserting a density value of 0.00045
animals/km\2\. Since this resulted in a value less than one, NMFS
authorizes Level B harassment take of two gray whales per day based on
average group size.
For the proposed IHA, a density value of 1.67 animal/km\2\ for
harbor porpoises was plugged into the harbor seal equation to arrive at
an estimated 2 harbor porpoise takes per day for a total of 12.
Table 7 shows total number of authorized Level B harassment takes
and take as a percentage of population for each of the species.
Table 7--Take Estimates as a Percentage of Stock Abundance
------------------------------------------------------------------------
Authorized
Species take by Level % population
B harassment
------------------------------------------------------------------------
Harbor seal............................. 214 1.9
California sea lion..................... 12 <0.01
Steller sea lion........................ 12 <0.01
Gray whale.............................. 2 <0.01
Harbor porpoise......................... 12 <0.01
------------------------------------------------------------------------
Mitigation Measures
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable impact on
such species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting such
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned) the likelihood of effective implementation (probability
implemented as planned), and;
(2) the practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Mitigation for Marine Mammals and Their Habitat
Temporal and Seasonal Restrictions--Timing restrictions would be
used to avoid in-water work when ESA-listed salmonids are most likely
to be present. The combined work window for in-water work for the U.S.
101/Chehalis River Bridge-Scour Project is July 15 through February 15.
Furthermore, work may only occur during daylight hours, when visual
monitoring of marine mammals can be effectively conducted.
Establishment of Shutdown Zone--For all pile driving activities,
WSDOT will establish a shutdown zone. The purpose of a shutdown zone is
generally to define an area within which shutdown of activity would
occur upon sighting of a marine mammal (or in anticipation of an animal
entering the defined area). In this case, shutdown zones are intended
to contain areas in which sound pressure levels (SPLs) equal or exceed
acoustic injury criteria for authorized species. 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.
Shutdown zone sizes are shown in Table 8. Note that NMFS has increased
the shutdown zone described in the Federal Register notice for proposed
IHA for high-frequency cetaceans from 50 m to 55 m as well as the
shutdown zone for phocid pinnipeds from 20 m to 25 m during sheet pile
installation. In this notice of issuance, NMFS has elected to round up
to these higher values instead of rounding down as was done in the
proposed notice.
[[Page 64539]]
Table 8--Shutdown Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups (Meters)
----------------------------------------------------------------------------------------------------------------
High-
Source type Low-frequency frequency Phocid Otariid
cetaceans cetaceans pinnipeds pinnipeds
----------------------------------------------------------------------------------------------------------------
14-inch timber removal.......................... 10 15 10 10
Sheet pile installation......................... 35 55 25 10
H-pile installation and removal................. 10 10 10 10
----------------------------------------------------------------------------------------------------------------
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. WSDOT must also implement shutdown
measures if the cumulative total number of individuals observed within
the Level B harassment monitoring zones 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.
Establishment of Level B Harassment/Monitoring Zones--WSDOT must
identify and establish Level B harassment zones which are areas where
SPLs equal or exceed 120 dB rms. Observation of monitoring zones
enables observers to be aware of and communicate the presence of marine
mammals in the project area and outside the shutdown zone and thus
prepare for potential shutdowns of activity. Monitoring zones are also
used to document instances of Level B harassment. Monitoring zone
isopleths are shown in Table 4.
Pre-Activity Monitoring--Prior to the start of daily in-water
construction activity, or whenever a break in pile driving of 30
minutes or longer occurs, the observer shall observe the shutdown and
monitoring zones for a period of 30 minutes. The shutdown zone shall be
cleared when a marine mammal has not been observed within the zone for
that 30-minute period. When a marine mammal permitted for Level B
harassment take is present in the Level B harassment zone, piling
activities may begin and Level B harassment take shall be recorded. As
stated above, if the entire Level B harassment zone is not visible at
the start of construction, piling driving activities can begin. If work
ceases for more than 30 minutes, the pre-activity monitoring of both
the Level B harassment and shutdown zone shall commence.
Non-Authorized Take Prohibited--If a species enters or approaches
the Level B harassment zone and that species is not authorized for take
or a species for which authorization has been granted but the
authorized takes have been met, pile driving and removal activities
must shut down immediately. Activities must not resume until the animal
has been confirmed to have left the area or an observation time period
of 15 minutes has elapsed.
Based on our evaluation of the applicant's mitigation measures,
NMFS has determined that the required mitigation measures provide the
means effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance
Monitoring and Reporting
In order to issue an IHA for an activity, Section 101(a)(5)(D) of
the MMPA states that NMFS must set forth, requirements pertaining to
the monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
action area. Effective reporting is critical both to compliance as well
as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
Visual Monitoring
WSDOT shall employ NMFS-approved protected species observers (PSOs)
to conduct marine mammal monitoring for its US 101/Chehalis River
Bridge-Scour Repair Project. The purposes of marine mammal monitoring
are to implement mitigation measures and learn more about impacts to
marine mammals from WSDOT's construction activities. The PSOs will
observe and collect data on marine mammals in and around the project
area for 30 minutes before, during, and for 30 minutes after all pile
removal and pile installation work. NMFS-approved PSOs shall meet the
following requirements:
1. Independent observers (i.e., not construction personnel) are
required;
2. At least one observer must have prior experience working as an
observer;
3. Other observers may substitute education (undergraduate degree
in biological science or related field) or training for experience;
4. Where a team of three or more observers are required, one
observer should be designated as lead observer or monitoring
coordinator. The lead observer must have prior experience working as an
observer; and
5. NMFS will require submission and approval of observer CVs;
WSDOT must ensure that observers have the following additional
qualifications:
[[Page 64540]]
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; and
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.
Monitoring of marine mammals around the construction site shall be
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
Due to the different sizes of monitoring zones from different pile
types, separate zones and monitoring protocols corresponding to each
specific pile type will be established.
For vibratory pile driving of sheet piles, a total of four land-
based PSOs will monitor the shutdown and Level B harassment zones. For
vibratory pile driving and pile removal of H piles and timber piles, a
total of three land-based PSOs will monitor the shutdown and Level B
harassment zones.
Reporting Measures
WSDOT is required to submit a draft monitoring report within 90
days after completion of the construction work or the expiration of the
IHA, whichever comes earlier. This report will detail the monitoring
protocol, summarize the data recorded during monitoring, and estimate
the number of marine mammals that may have been harassed. NMFS will
have an opportunity to provide comments on the report, and if NMFS has
comments, WSDOT will address the comments and submit a final report to
NMFS within 30 days. Reports shall contain, at minimum, the following:
Date and time that monitored activity begins and ends for
each day conducted (monitoring period);
Construction activities occurring during each daily
observation period, including how many and what type of piles driven;
Deviation from initial proposal in pile numbers, pile
types, average driving times, etc.
Weather parameters in each monitoring period (e.g., wind
speed, percent cloud cover, visibility);
Water conditions in each monitoring period (e.g., sea
state, tide state);
For each marine mammal sighting:
[cir] Species, numbers, and, if possible, sex and age class of
marine mammals;
[cir] Description of any observable marine mammal behavior
patterns, including bearing and direction of travel and distance from
pile driving activity;
[cir] Location and distance from pile driving activities to marine
mammals and distance from the marine mammals to the observation point;
and
[cir] Estimated amount of time that the animals remained in the
Level B harassment zone;
Description of implementation of mitigation measures
within each monitoring period (e.g., shutdown or delay);
Other human activity in the area within each monitoring
period; and
A summary of the following:
[cir] Total number of individuals of each species detected within
the Level B harassment zone;
[cir] Total number of individuals of each species detected within
the shutdown zone and the average amount of time that they remained in
that zone; and
[cir] Daily average number of individuals of each species
(differentiated by month as appropriate) detected within the Level B
harassment zone.
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).
NMFS has identified key qualitative and quantitative factors which
may be employed to assess the level of analysis necessary to conclude
whether potential impacts associated with a specified activity should
be considered negligible. These include (but are not limited to) the
type and magnitude of taking, the amount and importance of the
available habitat for the species or stock that is affected, the
duration of the anticipated effect to the species or stock, and the
status of the species or stock. When an evaluation of key factors shows
that the anticipated impacts of the specified activity would clearly
result in no greater than a negligible impact on all affected species
or stocks, additional evaluation is not required. In this case, the
following factors are in place for all affected species or stocks:
No takes by Level A harassment are anticipated or
authorized;
Takes by Level B harassment constitute less than 5 percent
of the best available abundance estimates for all stocks;
Take would not occur in places and/or times where take
would be more likely to accrue to impacts on reproduction or survival,
such as within ESA-designated or proposed critical habitat,
biologically important areas (BIA), or other habitats critical to
recruitment or survival (e.g., rookery);
Take would occur over a short timeframe (less than 30 days
of active pile driving required during the IHA effective period);
Take would occur over < 25 percent of species/stock range;
and
Stock is not known to be declining or suffering from known
contributors to decline (e.g., unusual mortality event (UME), oil spill
effects).
Based on these factors, and taking into consideration the
implementation of the prescribed monitoring and mitigation measures,
NMFS finds that the total take from the planned activity will have a
negligible impact on all affected marine mammal species or stocks.
[[Page 64541]]
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. Additionally, other qualitative
factors may be considered in the analysis, such as the temporal or
spatial scale of the activities.
NMFS has estimated that take for all species authorized is less
than two percent of their respective stock abundance (Table 7). Based
on the analysis contained herein of the planned activity (including the
required mitigation and monitoring measures) and the anticipated take
of marine mammals, NMFS finds that small numbers of marine mammals will
be taken relative to the population size of the affected species or
stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an
incidental harassment authorization) with respect to potential impacts
on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental harassment authorizations with
no anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS has determined that the issuance of the
IHA qualifies to be categorically excluded from further NEPA review.
Endangered Species Act (ESA)
No incidental take of ESA-listed species is authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for this
action.
Authorization
NMFS has issued an IHA to WSDOT for the incidental take of marine
mammals due to in-water construction work associated with the US 101/
Chehalis River Bridge-Scour Repair Project for a period of one year,
provided the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated.
Dated: December 11, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2018-27199 Filed 12-14-18; 8:45 am]
BILLING CODE 3510-22-P