Federal Register, Volume 84 Issue 33 (Tuesday, February 19, 2019)

[Federal Register Volume 84, Number 33 (Tuesday, February 19, 2019)]
[Notices]
[Pages 4777-4790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02685]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG628

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Railroad Dock Dolphin
Installation Project, Skagway, Alaska

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

ACTION: Notice; Issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
White Pass & Yukon Route (WP&YR) to incidentally take, by Level A and
Level B harassment, seven species of marine mammals during the Railroad
Dock dolphin installation project in Skagway, Alaska.

DATES: This IHA is valid from February 15, 2019 through February 14,
2020.

FOR FURTHER INFORMATION CONTACT: Wendy Piniak, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the
authorization, 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

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 NDAA (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.'' The definitions of all applicable MMPA statutory
terms cited above are included in the relevant sections below.

Summary of Request

On August 21, 2018, NMFS received a request from WP&YR for an IHA
to take marine mammals incidental to the

[[Page 4778]]

Railroad Dock dolphin installation project in Skagway, Alaska. WP&YR
submitted a revised version of the application on November 9, 2018,
which was deemed adequate and complete on November 15, 2018. WP&YR's
request is for take of seven species of marine mammals by Level B
harassment and Level A harassment incidental to impact pile driving,
vibratory pile driving and removal, and down-the-hole drilling
activities. Neither WP&YR nor NMFS expects serious injury or mortality
to result from this activity and, therefore, an IHA is appropriate. In-
water activities (pile installation and extraction) associated with the
project are scheduled to begin in February, 2019, and be completed
April 30, 2019.

Description of Activity

WP&YR requested the authorization of take of small numbers of
marine mammals incidental to pile driving/removal and down-the-hole
drilling associated with the installation of two new 200-ton pile
supported mooring dolphins in Skagway Harbor, Alaska. The new mooring
dolphins will provide ample safe moorage when both Norwegian Breakaway
and Royal Caribbean Quantum class cruise ship vessels are in port. The
existing dolphin infrastructure does not allow for both cruise ships to
be moored at the dock at the same time. The additional dolphins will
allow for both ships to be docked simultaneously. To facilitate dual
mooring, the project includes the installation of two 200-ton dolphins,
each comprised of six 42-inch steel permanent piles 300 feet in length.
WP&YR will also install and subsequently remove 14 36-inch template
(temporary) piles (200 feet in length) at the two dolphin locations
which are approximately 100 feet and 200 feet, respectively, south of
the existing southernmost mooring dolphin at the WP&YR Railroad Dock.
The template and permanent piles are comprised of two to three 100-feet
long segments which will be spliced (i.e., welded) together as they are
installed. All temporary and permanent piles will require a combination
of three pile installation methods: vibratory driving, impact driving,
and down-the-hole drilling. Sounds produced by these activities may
result in take, by Level A and Level B harassment, of marine mammals
located in Taiya Inlet, Alaska.
In-water activities (pile installation and extraction) associated
with the project are scheduled to begin in February, 2019, and be
completed April 30, 2019. Pile installation and removal will occur over
the course of the three months. WP&YR anticipates up to 10 hours of
activity (vibratory driving, impact driving, and down-the-hole
drilling) during daylight hours will occur per day.
A detailed description of the planned activities is provided in the
Federal Register notice announcing the proposed IHA (83 FR 64541;
December 17, 2018). Since that time no changes have been made to
WP&YR's planned activities. Therefore, a detailed description is not
provided here. Please refer to the proposed IHA Federal Register notice
for a detailed description of the activity.

Comments and Responses

A notice of NMFS' proposal to issue an IHA to WP&YR was published
in the Federal Register on December 17, 2018 (83 FR 64541). That notice
described, in detail, WP&YR's activity, the marine mammal species that
may be affected by the activity, the anticipated effects on marine
mammals and their habitat, proposed amount and manner of take, and
proposed mitigation, monitoring and reporting measures. On January 31,
2019, NMFS received a comment letter from the Marine Mammal Commission
(Commission); the Commission's recommendations and our responses are
provided here, and the comments have been posted online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. 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
WP&YR'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
64541; December 17, 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 the proposed IHA
Federal Register notice for these descriptions; we provide a summary of
marine mammals that may potentially be present in the project area here
(Table 1). Additional information regarding population trends and
threats may be found in NMFS' Stock Assessment Reports (SAR; https://
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-

[[Page 4779]]

mammal-stock-assessments) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS' website (https://www.fisheries.noaa.gov/find-species).
Table 1 lists all species with expected potential for occurrence in
the Taiya Inlet and larger Lynn Canal 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 (2018). 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' 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' 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' U.S. Alaska SARs (e.g., Muto et al. 2018). All values presented
in Table 2 are the most recent available at the time of publication and
are available in the 2017 SARs (Muto et al. 2018) and draft 2018 SARs
(available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

Table 1--Marine Mammals Potentially Present During the Specified 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/
\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 26,960 (0.05, 25,849, 801 138
2016).
Family Balaenidae:
Humpback whale.................. Megaptera novaeangliae. Central North Pacific.. -, -, Y 10,103 (0.3, 7,890, 83 25
2006).
Minke Whale..................... Balaenoptera Alaska................. -, -, N N/A................... UND 0
acutorostrata.
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae,
Family Delphinidae:
Killer whale.................... Orcinus orca........... Alaska Resident........ -, -, N 2,347 (N/A, 2,347, 24 1
2012) \4\.
Northern Resident...... -, -, N 261 (N/A, 261, 2011) 1.96 0
\4\.
Gulf of Alaska, -, -, N 587 (N/A, 587, 2012) 5.87 1
Aleutian Islands, \4\.
Bering Sea Transient.
West Coast Transient... -, -, N 243 (N/A, 243, 2009) 2.4 0
\4\.
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Southeast Alaska....... -, -, Y 975 (0.12-0.14, 897, 8.9 34
2012) \5\.
Dall's porpoise................. Phocoenoides dalli..... Alaska................. -, -, N 83,400 (0.097, N/A, UND 38
1991).
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
Steller sea lion................ Eumetopias jubatus..... Western U.S............ E, D, Y 54,267 (N/A, 54,267, 326 252
2017).
Eastern U.S............ T, D, Y 41,638 (N/A, 41,638, 2498 108
2015).
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Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina Lynn Canal/Stephens -, -, N 9,478 (N/A, 8,605, 155 50
richardii. Passage. 2011).
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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, CV is not applicable (N/A).
\3\ These values, found in NMFS' 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\ N is based on counts of individual animals identified from photo-identification catalogs.
\5\ In the SAR for harbor porpoise, NMFS identified population estimates and PBR for porpoises within inland southeast Alaska waters (these abundance
estimates have not been corrected for g(0); therefore, they are likely conservative).

Habitat

No Biologically Important Areas (BIAs) or ESA-designated critical
habitat overlap with the project area, however there is seasonally
important foraging habitat for some species of marine mammal which
overlap spatially and temporally with planned project activities. The
annual eulachon run (which occurs for approximately three to four weeks
during April through May) in Lynn Canal is important to all marine
mammals (particularly Steller sea lions, and harbor seals, and humpback
whales) for seasonal foraging and many species travel into Taiya Inlet
to forage on this prey.

[[Page 4780]]

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

Underwater noise from impact and vibratory pile driving and down-
the-hole drilling activities associated with the planned Railroad Dock
dolphin installation project have the potential to result in harassment
of marine mammals in the vicinity of the action area. The Federal
Register notice for the proposed IHA (83 FR 64541; December 17, 2018)
included a discussion of the potential effects of such disturbances on
marine mammals and their habitat, therefore that information is not
repeated in detail here; please refer to the Federal Register notice
(83 FR 64541; December 17, 2018) for that information.

Estimated Take

This section provides an estimate of the number of incidental takes
authorized through this IHA, which informs 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 will primarily be by Level B harassment, as use of
the impact and vibratory hammers and down-the-hole drilling 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 low-frequency cetaceans, high-
frequency cetaceans, and/or phocids because predicted auditory injury
zones are larger than for mid-frequency cetaceans and otariids.
Auditory injury is unlikely to occur for mid-frequency cetaceans and
otariids. The planned mitigation and monitoring measures are expected
to minimize the severity of such taking to the extent practicable. As
described previously, no mortality is anticipated or authorized for
this activity. Below we describe how the take is estimated.
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 take estimate.

Acoustic Thresholds

Using the best available science, NMFS has developed acoustic
thresholds that identify the received level of underwater sound above
which exposed marine mammals would be reasonably expected to be
behaviorally harassed (equated to Level B harassment) or to incur PTS
of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al. 2007; Ellison
et al. 2012). Based on what the available science indicates and the
practical need to use a threshold based on a factor that is both
predictable and measurable for most activities, NMFS uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS predicts that marine mammals are likely to
be behaviorally harassed in a manner we consider Level B harassment
when exposed to underwater anthropogenic noise above received levels of
120 decibels (dB) re 1 micropascal ([mu]Pa) (root mean square (rms))
for continuous (e.g., vibratory pile-driving, drilling) and above 160
dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., seismic
airguns) or intermittent (e.g., scientific sonar) sources. WP&YR's
planned activity includes the use of continuous (vibratory pile
driving/removal and drilling) and impulsive (impact pile driving)
sources, and therefore the 120 and 160 dB re 1 [mu]Pa (rms) thresholds
are 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).
WP&YR's planned activity includes the use of impulsive (impact pile
driving) and non-impulsive (vibratory pile driving/removal and
drilling) sources.
These thresholds are provided in Table 2. 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.

Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift (PTS)
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PTS onset thresholds \*\ (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
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Low-Frequency (LF) Cetaceans........... L0-pk,flat: 219 dB; LE, LE,, LF,24h: 199 dB.
LF,24h: 183.
Mid-Frequency (MF) Cetaceans........... L0-pk,flat: 230 dB; LE, LE,, MF,24h: 198 dB.
MF,24h: 185.
High-Frequency (HF) Cetaceans.......... L0-pk,flat: 202 dB; LE, HF,24h: 173 dB.
LE,,HF,24h: 155.
Phocid Pinnipeds (PW) (Underwater)..... L0-pk.flat: 218 dB; LE,PW,24h: 201 dB.
LE,,PW,24h: 185.

[[Page 4781]]

Otariid Pinnipeds (OW) (Underwater).... Lp,0-pk,flat: 232 dB; LE,OW,24h: 219 dB.
LE,,OW,24h: 203.
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* Dual metric 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 are recommended for consideration.
Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,p) has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to be
more reflective of International Organization for Standardization standards (ISO 2017). The subscript ``flat''
is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 160 kHz). 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 weighted
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 thresholds will be exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the planned project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., impact pile driving, vibratory
pile driving and removal and down-the-hole drilling). The maximum
(underwater) ensonification area of 17.9 km\2\ due to project
activities is governed by the topography of Taiya Inlet (see Figure 6
in the application). The eastern shoreline of the inlet is acoustically
shadowed due to land located just south of the project site. Similarly,
Yakutania Point and Dyea Point will inhibit transmission of project
sounds from reaching Nahku Bay and the upper inlet at the mouth of the
Taiya River. Additionally, vessel traffic and other commercial and
industrial activities in the project (and ensonified) area may
contribute to elevated background noise levels which may mask sounds
produced by the project.
In order to calculate distances to the Level A and Level B
harassment thresholds for piles of various sizes being used in this
project, NMFS used acoustic monitoring data from other pile driving
projects in Alaska. Empirical data from recent sound source
verification (SSV) studies in Anchorage and Kodiak, Alaska were used to
estimate sound source levels (SSLs) for impact pile driving, vibratory
pile driving/removal, and down-the-hole drilling installations of the
42-inch steel pipe permanent piles and the 36-inch steel pipe template
piles (Austin et al. 2016; Denes et al. 2016). These Alaskan
construction sites were generally assumed to best represent the
environmental conditions found in Skagway and represent the nearest
available source level data for 42-inch steel piles. Note that piles of
differing sizes have different sound source levels.
Table 3 provides the sound source values used in calculating
harassment isopleths for each source type. No data are currently
available for 42-inch steel pipe piles. For impact and vibratory hammer
source levels WP&YR used the median levels (sound exposure level
single-strike (SELS-S) for impact and SPL rms for vibratory)
measured 11 m from the pile by Austin et al. (2016) during installation
of 48-inch piles at Port of Anchorage (see Table 3). These 48-inch pile
impact and vibratory levels are conservatively used for both the 42-
inch permanent piles and the 36-inch template piles. Few SSV and SSL
data are available for down-the-hole drilling. WP&YR used the 90th
percentile source levels measured 10 m from the pile by Denes et al.
(2016) during drilling down the center of 30-inch piles in Kodiak (see
Table 3)).
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN19FE19.000

BILLING CODE 3510-22-C
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
TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven
pile, and
R2 = the distance from the driven pile of the initial
measurement

A practical spreading value of fifteen is often used under
conditions, such as at the WP&YR Railroad Dock, 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. Practical spreading loss is
assumed here.
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, which may 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 pile
driving and drilling, NMFS User Spreadsheet predicts the closest
distance at which, if a marine mammal remained at that distance (or
greater) the whole duration of the activity, it would not incur PTS.
Inputs used in the User Spreadsheet and the resulting isopleths are
reported in Tables 4 and 5. As WP&YR will employ two continuous sound
sources (vibratory pile driving and drilling) it is necessary to
account for accumulation of sound caused by both activities during the
full 10-hour work day when calculating Level A harassment isopleths. As
drilling has the higher sound pressure level, the 171 dB re 1 [micro]Pa
(rms) sound level was used to calculate the Level A harassment
isopleths for both drilling and vibratory pile driving activities
(Table 4). Therefore, the resulting Level A isopleth distance is
precautionary as WP&YR does not intend to drill for 10 hours per day;
some hours will be allocated to vibratory pile driving which has a
lower source level. For impact pile driving, isopleths calculated using
the SELS-S metric were used as it produces larger isopleths
than the sound pressure level peak (SPLPK) and takes into
account the duration of each strike. Isopleths for Level B harassment
associated with impact pile driving (160 dB) and vibratory pile
driving/removal and drilling (120 dB) can be found in Table 5.

[[Page 4783]]

Table 4--User Spreadsheet Input Parameters Used for Calculating
Harassment Isopleths
------------------------------------------------------------------------
Vibratory pile
Parameter Impact pile driving and
driving drilling
------------------------------------------------------------------------
Spreadsheet Tab Used............ E.1) Impact pile A. 1) Drilling/
driving. Vibratory pile
driving.
Source Level.................... 186.7 dB SELS-S... 171 dB SPL rms.
Weighting Factor Adjustment 2................. 2.
(kHz).
Number of strikes per day....... 2,000............. N/A.
Activity Duration (h) within 24- N/A............... 10 hours.
hourperiod.
Propagation (xLogR)............. 15LogR............ 15LogR.
Distance of source level 11................ 10.
measurement (meters).
------------------------------------------------------------------------

Table 5--Calculated Distances to Level A Harassment and Level B Harassment Isopleths During Pile Installation and Removal and Drilling
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment zone (meters) Level B
-------------------------------------------------------------------------------- harassment
zone (meters)
Source Low-frequency Mid-frequency High- Phocid Otariid ---------------
cetacean cetacean frequency pinniped pinniped Cetaceans &
cetacean Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Drilling and Vibratory Installation..................... 148 8.3 129.7 79.2 5.8 \1\ 13,000
Impact Installation..................................... 3,077.2 109.4 3,665.4 1,646.8 119.9 3,698.8
--------------------------------------------------------------------------------
Source.................................................. PTS Onset Isopleth--Peak (meters)
--------------------------------------------------------------------------------
Impact Installation..................................... 4.1 n/a 55.1 4.7 n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Based on maximum distance before landfall. Calculated distance was 25.1 km.

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 will inform the take
calculations, and how this information is brought together to produce a
quantitative take estimate.
Density information is not available for marine mammals in the
project area in Taiya Inlet. Potential exposures to impact and
vibratory pile driving and down-the-hole drilling noise for each
threshold for all marine mammals were estimated using published reports
of group sizes and population estimates, and anecdotal observational
reports from local commercial entities. For several species, it is not
currently possible to identify all observed individuals to stock.
Level B Harassment Calculations
Unless otherwise noted, the estimation of takes by Level B
harassment uses the following calculation: Level B harassment estimate
= N (number of animals in the ensonified area) * Number of days of
noise generating activities.
Humpback Whale
Humpback whales are the most commonly observed baleen whale in
Southeast Alaska, particularly during spring and summer months.
Humpback whales in Alaska, although not limited to these areas, return
to specific feeding locations such as Frederick Sound, Chatham Strait,
North Pass, Sitka Sound, Glacier Bay, Point Adolphus, and Prince
William Sound, as well as other similar coastal areas (Wing and Krieger
1983). In Lynn Canal they have been observed in the spring and fall
from Haines to Juneau, however scientific surveys have not documented
the species within Taiya Inlet (Dahlheim et al. 2009).
Local observations indicate that humpback whales are not common in
the project action area but, if they are sighted, are generally present
during mid to late spring and vacate the area by July to follow large
aggregations of forage fish in lower Lynn Canal. Local observers have
reported humpback whales in Taiya Inlet, sometimes fairly close to the
Skagway waterfront. Due to seasonal migration patterns, the low
frequency of humpbacks in the area, and that no humpback whales have
been reported during winter months it is anticipated that no humpback
whales will be present in the project area in February; therefore, we
predict no exposure to noise generated from the project in February. As
it is unclear whether humpback whales occur in the inlet in March (for
example, should the eulachon run begin very early), it is
conservatively estimated that one whale might be found in the inlet
during February for five days resulting in five exposures. On average,
four to five individuals may occur near Skagway during the spring
eulachon run in April and May, after which, only a few individuals are
observed throughout the summer. In 2015, only one whale was observed
(for several) weeks close to Skagway (K. Gross, personal communication
reported in MOS 2016). Based on humpback whale occurrence in the
project area and local observations, it is conservatively estimated
that four individuals may be present in the action area each day during
April, coinciding with 30 days of project activity (120 exposures). In
total, NMFS authorized 125 exposures to humpback whales for the planned
activity.
Minke Whale
Minke whales are rarely observed in the project area, and
scientific surveys have not documented the species within Taiya Inlet
(Dahlheim et al. 2009). A single minke whale was observed in the inlet
in 2015 (K. Gross, Never Monday Charters, personal communication; R.
Ford, Taiya Inlet Watershed Council, both personal communications
reported in MOS 2016), and is the only known record of a minke whale in
Taiya Inlet. However one minke whale was reported by local observers in
the action area in 2015. Based on the available information it is very
unlikely minke whales will be present in the inlet, however, minke
whale presence is possible based on a single sighting and

[[Page 4784]]

presence of potential prey (eulachon) in the spring. Thus, we estimate
a total of two potential exposures of minke whales.
Killer Whale
Although killer whale stocks' ranges include southeast Alaska, they
have only been documented as far north as Lynn Canal; therefore, while
possible, occurrence north of Lynn Canal into Taiya Inlet is rare.
According to local observations, pods of resident killer whales are
occasionally seen in Taiya Inlet. Local observations indicate killer
whales are observed four or five times a year (between spring and fall)
usually in a group of 15 to 20 whales. In 2015 a resident pod was only
observed in Taiya Inlet twice, remaining for one to four days per visit
(K. Gross, personal communication reported in MOS 2016). There is no
evidence of transient whales occurring within Taiya Inlet. While the
resident pods remain in Alaska year-round there are no reports of
sightings during winter months (January-February) in Taiya Inlet so it
is assumed no killer whales will be present in the project area in
February. Based on local observations in the project area in the
spring, it is assumed that a group of 20 whales may enter the project
area once in each of March and April and remain within the inlet for
2.5 days each time, for a total of 100 potential exposures. This is an
increase from the proposed IHA to account for the average duration of
pod visits according to local observations.
Harbor Porpoise
Harbor porpoises are primarily found in coastal waters, and in the
Gulf of Alaska and Southeast Alaska, they occur most frequently in
waters less than 100 meters (Dahlheim et al. 2009). Dedicated research
studies of harbor porpoise in the project area only occur as far north
in Lynn Canal as Haines during the summer (Dahlheim et al. 2009; 2015),
approximately 16 miles south of Skagway. Group sizes were, on average,
between 1.37-1.59 animals (less than 2) (Dahlheim et al. 2009; 2015).
In Lynn Canal, observations were less frequent, primarily in lower Lynn
Canal from Chatham Strait to Juneau, though harbor porpoises have been
observed as far north as Haines during the summer (Dahlheim et al.
2009; 2015).
Despite lack of observations during dedicated surveys, local
charter captains indicate that harbor porpoises commonly occur in small
groups of two or three in Taiya Inlet, although they are not
encountered on a daily basis and are rarely seen in areas close to the
waterfront (K. Gross, personal communication reported in MOS 2016).
Therefore, it is conservatively estimated that one group of three
individuals may be present in the inlet 75 percent of the days during
each month for a total of 201 potential exposures.
Dall's Porpoise
Dall's porpoises are widely distributed across the entire North
Pacific Ocean. Throughout most of the eastern North Pacific they are
present during all months of the year, although there may be seasonal
onshore-offshore movements along the west coast of the continental
United States and winter movements of populations out of Prince William
Sound and areas in the Gulf of Alaska and Bering Sea (Muto et al.
2018). Dahlheim et al. (2009) observed Dall's porpoise throughout
Southeast Alaska, with concentrations of animals consistently found in
Lynn Canal, Stephens Passage, Icy Strait, upper Chatham Strait,
Frederick Sound, and Clarence Strait. Dahlheim et al. (2009),
documented Dall's porpoise in Lynn Canal as far north as Haines,
Alaska, about 15 miles south of Skagway.
Local observation indicate that three to six Dall's porpoises may
be present in Taiya Inlet during the early spring and late fall.
Observations have been occasional to sporadic and do not occur on a
daily basis. The species has not been observed during winter months and
has not been observed near the waterfront (K. Gross, personal
communication reported in MOS 2016). The mean group size of Dall's
porpoise in Southeast Alaska is estimated to be 3.7 individuals
(Dahlheim et al. 2009). Therefore, it is estimated that a group of four
Dall's porpoises will be present in the project area every other day in
March and April, for a total of 122 potential exposures.
Steller Sea Lion
Several long-term Steller sea lion haulouts are located in Lynn
Canal, however none occur in Taiya Inlet. The nearest long-term Steller
sea lion haulout is located at Gran Point, south of Haines and 24 mi
(38 km) south of the project area. Other year-round haulouts in Lynn
Canal are present at Met Point, Benjamin Island, and Little Island,
closer to Juneau (Fritz et al. 2015). Observations from local charter
boat captains and watershed stewards indicate Steller sea lions can be
abundant in the action area, particularly in April and May during the
eulachon run, but are rarely observed in the project area during the
winter (K. Gross, Never Monday Charters, personal communication; R.
Ford, Taiya Inlet Watershed Council, personal communication reported in
MOS 2016). This is consistent with the National Marine Mammal
Laboratory database (Fritz et al. 2015), which has identified the
largest number of Lynn Canal sea lions during the fall and winter
months at Benjamin Island in the lower reaches of the canal. During
surveys conducted in 2002 and 2003, Womble et al. (2005) observed a
maximum of approximately 400 Steller sea lions in the water at the
mouth of the Taiya River feeding on eulachon in 2003, but observed very
few in the same area in 2002. Steller sea lions have also been observed
in Lutak Inlet, a foraging site closer to both Taiya Point and Gran
Point haulouts.
During the spring eulachon run, a seasonal haulout site is located
on Taiya Point at the southern tip of Taiya Inlet, approximately 11 mi
(18 km) from the project site. Twenty-five to 40 sea lions are
estimated to use this haulout for about three weeks during spring run,
during which they frequently are observed in the inlet (K. Gross,
personal communication reported in MOS 2016). However, most animals
leave the inlet shortly after the eulachon run and are rarely observed
in the summer. Based on survey data and local observations in the
project area, it is estimated that two animals may be present each day
in February (56 exposures), 16 animals may be present on each day in
March (half of the mean found on Taiya Rocks during the eulachon run,
496 exposures), and 40 animals may be present each day in April (1,200
exposures) for a total of 1,752 potential exposures.
Harbor Seal
No long-term haulout sites have been documented for harbor seals in
Taiya Inlet; however, seasonal haulouts are present within six miles of
the project area at Seal Cove and at the mouth of the Taiya River.
Based on reports from local observers, a few resident harbor seals are
expected to occur within Taiya Inlet during the winter months, but
during the April and May eulachon run numbers can range from 20 to over
100 (K. Gross and R. Ford, personal communication reported in MOS
2016). Before and after the spawning run, much lower numbers of harbor
seals are present.
Based on survey data and local observations in the project area it
is assumed that 20 seals (the lower estimate in the range) occur within
the project area each day in February through March (560 takes in
February and 620 takes in March) and 100 seals (the higher estimate in
the range) during

[[Page 4785]]

April (3,000 takes) for a total of 4,180 potential exposures.

Level A Harassment Calculations

WP&YR intends to avoid Level A harassment take by shutting down
installation activities at approach of any marine mammal to the
representative Level A harassment (PTS onset) ensonification zone up to
a practical shutdown monitoring distance. As small/cryptic marine
mammal species may enter the Level A harassment zone before shutdown
mitigation procedures can be implemented, and some animals may occur
between the maximum Level A harassment ensonification zone and the
maximum shutdown safety zone, we conservatively estimate that 20
percent of the Level B harassment takes calculated above for humpback
whales, harbor porpoises, Dall's porpoises, and harbor seals, have the
potential to be takes by Level A harassment (Table 6). Minke whale
occurrence in Taiya Inlet is rare. Because vessel-based PSOs are able
to monitor the entire Level A harassment zone (whales entering the
inlet), WP&YR did not request, and NMFS is not proposing, to authorize
Level A harassment take of minke whales.

Table 6--Estimated Take by Level A and Level B Harassment, by Species and Stock, Resulting From WP&YR Project Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Take as
Common name Stock Stock Level A Level B Total take percentage of
abundance \1\ stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale............................ Central North Pacific....... \2\ 10,103 25 100 125 1.23
Minke Whale............................... Alaska...................... N/A 0 2 2 N/A
Killer whale.............................. Alaska Resident............. 2,347 0 100 100 4.3
Northern Resident........... 261 38.3
Gulf of Alaska, Aleutian 587 17.0
Islands, Bering Sea
Transient.
West Coast Transient........ 243 41.2
Harbor porpoise........................... Southeast Alaska............ 975 40 161 201 20.6
Dall's porpoise........................... Alaska...................... 83,400 24 98 122 0.01
Steller sea lion.......................... Western U.S................. 54,267 0 \3\ 35 35 0.06
Eastern U.S................. 41,638 0 1,717 1,717 4.1
Harbor seal............................... Lynn Canal/Stephens Passage. 9,478 836 3,344 4,180 44.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Stock or DPS size is Nbest according to NMFS 2018 Draft Stock Assessment Reports.
\2\ For ESA section 7 consultation purposes, 6.1 percent are designated to the Mexico DPS and the remaining are designated to the Hawaii DPS; therefore,
we assigned 2 Level B takes to the Mexico DPS.
\3\ Based on the percent of branded animals at Gran Point and in consultation with the Alaska Regional Office, we used a 2 percent distinction factor to
determine the number of animals potentially from the western DPS.

There are a number of reasons why the estimates of potential
incidents of take are likely to be conservative. Given the lack of
density information, we use conservative estimates of marine mammal
presence to calculate takes for each species. Additionally, in the
context of stationary activities such as pile driving, and in areas
where resident animals may be present, this number represents the
number of instances of take that may occur to a small number of
individuals, with a notably smaller number of animals being exposed
more than once per individual. While pile driving or drilling can occur
any day throughout the in-water work window, and the analysis is
conducted on a per day basis, only a fraction of that time is actually
spent pile driving or drilling. The potential effectiveness of
mitigation measures in reducing the number of takes or exposure time is
also not quantified in the take estimation process. For these reasons,
these take estimates may be conservative, especially if each take is
considered a separate individual animal, and especially for pinnipeds.

Mitigation

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

Mitigation for Marine Mammals and Their Habitat

In addition to the measures described later in this section, WP&YR
will employ the following standard mitigation measures:

[[Page 4786]]

Conduct briefings between construction supervisors and
crews and the marine mammal monitoring team prior to the start of all
pile driving activity, and when new personnel join the work, to explain
responsibilities, communication procedures, marine mammal monitoring
protocol, and operational procedures;
For in-water heavy machinery work other than pile driving
(e.g., standard barges, etc.), if a marine mammal comes within 10 m,
operations shall cease and vessels shall reduce speed to the minimum
level required to maintain steerage and safe working conditions. This
type of work could include the following activities: (1) Movement of
the barge to the pile location; or (2) positioning of the pile on the
substrate via a crane (i.e., stabbing the pile);
Work may only occur during daylight hours, when visual
monitoring of marine mammals can be conducted;
For those marine mammals for which Level B harassment has
not been authorized, in-water pile installation/removal and drilling
will shut down immediately if such species are observed within or on a
path towards the monitoring zone (i.e., Level B harassment zone); and
If take reaches the authorized limit for an authorized
species, pile installation will be stopped as these species approach
the Level B harassment zone to avoid additional take.
The following measures will apply to WP&YR's mitigation
requirements:
Establishment of Shutdown Zone for Level A Harassment--For all pile
driving/removal and drilling activities, WP&YR will establish a
shutdown zone. The purpose of a shutdown zone is generally to define an
area within which shutdown of activity will occur upon sighting of a
marine mammal (or in anticipation of an animal entering the defined
area). Conservative shutdown zones of 150 m for low- and high-
frequency cetaceans, 80 m for phocid pinnipeds, and 10 m for mid-
frequency cetaceans and otariid pinnipeds will be used during all
drilling and vibratory pile driving/removal activities to prevent
incidental Level A harassment exposure for these activities (Table 7).
During impact pile driving, a 150 m zone will be established for all
species except for low-frequency cetaceans for which a 2,000 m zone
will be used. These shutdown zones will be used to prevent incidental
Level A exposures from impact pile driving for mid-frequency cetaceans
and otariid pinnipeds, and to reduce the potential for such take for
other species. The placement of Protected Species Observers (PSOs)
during all pile driving and drilling activities (described in detail in
the Monitoring and Reporting Section) will ensure marine mammals in the
shutdown zones are visible. The 150 m zone is the practical distance
WP&YR anticipates phocid pinnipeds and high-frequency cetaceans can be
effectively observed in the project area. The 2,000 m zone for low-
frequency cetaceans is determined by the width of Taiya Inlet at
Skagway Harbor. Observers will be present on vessels in the Taiya Inlet
and able to observe large whales traveling north into the inlet and
project area.

Table 7--Monitoring and Shutdown Zones for Each Project Activity
----------------------------------------------------------------------------------------------------------------
Monitoring
Source zone (m) Shutdown zone (m)
----------------------------------------------------------------------------------------------------------------
Drilling and Vibratory 13,000 Low- and high- frequency cetaceans: 150.
Installation/Removal. Phocid pinnipeds: 80.
Mid-frequency cetaceans and otariid pinnipeds: 10.
Impact Installation........... 3,700 Low-frequency cetaceans: 2,000.
All other species: 150.
----------------------------------------------------------------------------------------------------------------

Establishment of Monitoring Zones for Level B Harassment--WP&YR
will establish monitoring zones to correlate with Level B monitoring
zones which are areas where SPLs are equal to or exceed the 160 dB rms
threshold for impact driving and the 120 dB rms threshold during
vibratory driving and drilling. Monitoring zones provide utility for
observing by establishing monitoring protocols for areas adjacent to
the shutdown zones. Monitoring zones enable observers to be aware of
and communicate the presence of marine mammals in the project area
outside the shutdown zone and thus prepare for a potential cease of
activity should the animal enter the shutdown zone. The monitoring
zones are described in Table 7. The monitoring zone for drilling and
vibratory pile driving/removal activities is 13,000 m, corresponding to
the maximum distance before landfall. The monitoring zone for impact
pile driving will be 3,700 m. Placement of PSOs on vessels in the Taiya
Inlet allow PSOs to observe marine mammals traveling north into the
inlet and Skagway Harbor. Should PSOs determine the monitoring zone
cannot be effectively observed in its entirety, Level B harassment
exposures will be recorded and extrapolated based upon the number of
observed take and the percentage of the Level B zone that was not
visible.
Soft Start--The use of soft-start procedures are believed to
provide additional protection to marine mammals by providing warning
and/or giving marine mammals a chance to leave the area prior to the
hammer operating at full capacity. For impact pile driving, contractors
will be required to provide an initial set of strikes from the hammer
at reduced energy, with each strike followed by a 30-second waiting
period. This procedure will be conducted a total of three times before
impact pile driving begins. Soft start will 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. Soft
start is not required during vibratory pile driving and removal
activities.
Pre-Activity Monitoring--Prior to the start of daily in-water
construction activity, or whenever a break in pile driving/removal or
drilling of 30 minutes or longer occurs, PSOs will observe the shutdown
and monitoring zones for a period of 30 minutes. The shutdown zone will
be cleared when a marine mammal has not been observed within the zone
for that 30-minute period. If a marine mammal is observed within the
shutdown zone, a soft-start cannot proceed until the animal has left
the zone or has not been observed for 15 minutes. If the Level B
harassment zone has been observed for 30 minutes and non-permitted
species are not present within the zone, soft start procedures can
commence and work can continue even if visibility becomes impaired
within the Level B monitoring zone. When a marine mammal permitted for
Level B take is present in the Level B harassment zone, activities may
begin

[[Page 4787]]

and Level B take will be recorded. As stated above, if the entire Level
B zone is not visible at the start of construction, piling or drilling
activities can begin. If work ceases for more than 30 minutes, the pre-
activity monitoring of both the Level B and shutdown zone will
commence.
Due to the depth of the water column and strong currents present at
the project site, bubble curtains will not be implemented as they would
not be effective in this environment.
Based on our evaluation of the applicant's measures, NMFS has
determined that the planned 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 to 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.

Marine Mammal Visual Monitoring

Monitoring shall be conducted by NMFS-approved PSOs per the Marine
Mammal Monitoring Plan dated January 18, 2019 available online at
online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
Trained observers shall be placed from the best vantage point(s)
practicable to monitor for marine mammals and implement shutdown or
delay procedures when applicable through communication with the
equipment operator. Observer training must be provided prior to project
start, and shall include instruction on species identification
(sufficient to distinguish the species in the project area),
description and categorization of observed behaviors and interpretation
of behaviors that may be construed as being reactions to the specified
activity, proper completion of data forms, and other basic components
of biological monitoring, including tracking of observed animals or
groups of animals such that repeat sound exposures may be attributed to
individuals (to the extent possible).
Monitoring will be conducted 30 minutes before, during, and 30
minutes after pile driving/removal and drilling activities. In
addition, observers shall record all incidents of marine mammal
occurrence, regardless of distance from activity, and shall document
any behavioral reactions in concert with distance from piles being
driven or removed. Pile driving/removal and drilling 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 30 minutes.
A total of five PSOs will be based on land and vessels. During all
pile driving/removal and drilling activities observers will be
stationed at the Railroad Dock, Yakutania Point, and Dyea Point. These
stations will allow full monitoring of the impact hammer monitoring
zone and the Level A shutdown zones. The vibratory and drilling
monitoring zone will be monitored by the three land-based PSOs and two
PSOs stationed on boats anchored near the shoreline, with each team
(vessel operator and observer) stationed approximately 2 km apart in
the inlet south of the project site (Figure 2 in the WP&YR Marine
Mammal Mitigation and Monitoring Plan).
PSOs will scan the waters using binoculars, and/or spotting scopes,
and will use a handheld GPS or range-finder device to verify the
distance to each sighting from the project site. All PSOs will be
trained in marine mammal identification and behaviors and are required
to have no other project-related tasks while conducting monitoring. In
addition, monitoring will be conducted by qualified observers, who will
be placed at the best vantage point(s) practicable to monitor for
marine mammals and implement shutdown/delay procedures when applicable
by calling for the shutdown to the hammer operator. WP&YR will adhere
to the following observer qualifications:
(i) Independent observers (i.e., not construction personnel) are
required;
(ii) At least one observer must have prior experience working as an
observer;
(iii) Other observers may substitute education (degree in
biological science or related field) or training for experience;
(iv) Where a team of three or more observers are required, one
observer shall be designated as lead observer or monitoring
coordinator. The lead observer must have prior experience working as an
observer; and
(v) WP&YR shall submit observer CVs for approval by NMFS.
Additional standard observer qualifications include:
Ability to conduct field observations and collect data
according to assigned protocols Experience or training in the field
identification of marine mammals, including the identification of
behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
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 and times when in-water construction
activities were suspended to avoid potential incidental injury from
construction sound of marine mammals observed within a defined shutdown
zone; and marine mammal behavior; and

[[Page 4788]]

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.
WP&YR will submit monthly marine mammal monitoring reports. A draft
marine mammal monitoring report will be submitted to NMFS within 90
days after the completion of pile driving and removal and drilling
activities. It will include an overall description of work completed, a
narrative regarding marine mammal sightings, and associated PSO data
sheets. Specifically, the report must include:
Date and time that monitored activity begins or ends;
Construction activities occurring during each observation
period;
Weather parameters (e.g., percent cover, visibility);
Water conditions (e.g., sea state, tide state);
Species, numbers, and, if possible, sex and age class of
marine mammals;
Description of any observable marine mammal behavior
patterns, including bearing and direction of travel and distance from
pile driving activity;
Distance from pile driving activities to marine mammals
and distance from the marine mammals to the observation point;
Locations of all marine mammal observations; and
Other human activity in the area.
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA
(if issued), such as an injury, serious injury or mortality, WP&YR will
immediately cease the specified activities and report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, and the Alaska Regional Stranding Coordinator. The
report will include the following information:
Description of the incident;
Environmental conditions (e.g., Beaufort sea state,
visibility);
Description of all marine mammal observations in the 24
hours 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 may not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with WP&YR to
determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. WP&YR will not be able to
resume their activities until notified by NMFS via letter, email, or
telephone.
In the event that WP&YR 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 (e.g., in less than a
moderate state of decomposition as described in the next paragraph),
WP&YR will immediately report the incident to the Chief of the Permits
and Conservation Division, Office of Protected Resources, NMFS, and the
NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional
Stranding Coordinator. The report will include the same information
identified in the paragraph above. Activities will be able to continue
while NMFS reviews the circumstances of the incident. NMFS will work
with WP&YR to determine whether modifications in the activities are
appropriate.
In the event that WP&YR 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), WP&YR will report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email
to the Alaska Regional Stranding Coordinator, within 24 hours of the
discovery. WP&YR will provide photographs, video footage (if
available), or other documentation of the stranded animal sighting to
NMFS and the Marine Mammal Stranding Network.

Acoustic Monitoring

WP&YR will conduct acoustic monitoring for the purposes of SSV in
accordance with the Acoustic Monitoring Plan, dated January 28, 2019
available online at online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. WP&YR will collect acoustic data for at least one 42-inch
permanent pile, using all three installation methods (impact pile
driving, vibratory pile driving, and down-the-hole drilling) from at
least two distances from the pile (one approximately 10 meters from the
pile and at least one additional measurement in the far field).
Equipment will record, and sound spectra in one-third octave bands will
be reported, from 10 Hz to 20 kHz. The following data, at minimum,
shall be collected during acoustic monitoring and reported:
Hydrophone equipment and methods: recording device,
sampling rate, distance from the pile where recordings were made; depth
of recording device(s);
Type of pile (42-inch), and segment of pile (1, 2, or 3),
being driven and method of driving/removal and drilling during
recordings; and
Mean, median, and maximum (or 90th percentile), and range
sound levels (dB re 1[micro]Pa): cumulative sound exposure level
(SELCUM), peak sound pressure level (SPLPK), root
mean square sound pressure level (SPLRMS), and single-strike
sound exposure level (SELS-S) as appropriate for the sound
source.
For more details please see WP&YR's acoustic monitoring plan,
available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

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' 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

[[Page 4789]]

growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
Pile driving/removal and drilling activities associated with the
Railroad Dock installation project as outlined previously, have the
potential to disturb or displace marine mammals in Taiya Inlet near
Skagway. Specifically, the specified activities may result in take, in
the form of Level A harassment and Level B harassment from underwater
sounds generated from pile driving and removal and down-the-hole
drilling. Potential takes could occur if individuals of these species
are present in the ensonified zone when these activities are underway.
The takes from Level A and Level B harassment will be due to
potential behavioral disturbance, TTS, and PTS (for select species). No
mortality is anticipated given the nature of the activity and measures
designed to minimize the possibility of injury to marine mammals. Level
A harassment is only anticipated for humpback whales, Dall's porpoise,
harbor porpoise, and harbor seal. The potential for harassment is
minimized through the construction method and the implementation of the
planned mitigation measures (see Mitigation section).
As described previously, minke whales are considered rare in the
project area and we authorize only nominal and precautionary take of
two individuals. Therefore, we do not expect meaningful impacts to
minke whales and find that the total minke whale take from each of the
specified activities will have a negligible impact on this species.
For remaining species, we discuss the likely effects of the
specified activities in greater detail. Effects on individuals that are
taken by Level B harassment, on the basis of reports in the literature
as well as monitoring from other similar activities, will likely be
limited to reactions such as increased swimming speeds, increased
surfacing time, or decreased foraging (if such activity were occurring)
(e.g., Thorson and Reyff 2006; HDR, Inc. 2012; Lerma 2014; ABR 2016).
Most likely, individuals will move away from the sound source and be
temporarily displaced from the areas of pile driving and drilling,
although even this reaction has been observed primarily only in
association with impact pile driving. The pile driving activities
analyzed here are similar to, or less impactful than, numerous other
construction activities conducted in southeast Alaska, which have taken
place with no known long-term adverse consequences from behavioral
harassment. Level B harassment will be reduced to the level of least
practicable adverse impact through use of mitigation measures described
herein and, if sound produced by project activities is sufficiently
disturbing, animals are likely to avoid the area while the activity is
occurring. While vibratory driving and drilling associated with the
planned project may produce sound at distances of many kilometers from
the project site, thus intruding on some habitat, the project site
itself is located in a busy harbor and the majority of sound fields
produced by the specified activities are close to the harbor.
Therefore, we expect that animals annoyed by project sound would avoid
the area and use more-preferred habitats.
In addition to the expected effects resulting from authorized Level
B harassment, we anticipate that humpback whales, harbor porpoises,
Dall's porpoises, and harbor seals may sustain some limited Level A
harassment in the form of auditory injury. However, animals in these
locations that experience PTS would likely only receive slight PTS,
i.e., minor degradation of hearing capabilities within regions of
hearing that align most completely with the energy produced by pile
driving, i.e., the low-frequency region below 2 kHz, not severe hearing
impairment or impairment in the regions of greatest hearing
sensitivity. If hearing impairment occurs, it is most likely that the
affected animal would lose only a small number of decibels in its
hearing sensitivity, which in most cases is not likely to meaningfully
affect its ability to forage and communicate with conspecifics. As
described above, we expect that marine mammals would be likely to move
away from a sound source that represents an aversive stimulus,
especially at levels that would be expected to result in PTS, given
sufficient notice through use of soft start.
The project also is not expected to have significant adverse
effects on affected marine mammals' habitat. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. The activities may cause some fish to leave the area of
disturbance, thus temporarily 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.
In summary and as described above, the following factors support
our determination that the impacts resulting from this activity are not
expected to adversely affect the species or stock through effects on
annual rates of recruitment or survival:
No mortality is anticipated or authorized;
The Level A harassment exposures are anticipated to result
only in slight PTS, within the lower frequencies associated with pile
driving;
The anticipated incidents of Level B harassment are likely
to consist of temporary modifications in behavior that are not
anticipated to result in fitness impacts to individuals;
The specified activity and ensonification area is very
small relative to the overall habitat ranges of all species and does
not include habitat areas of special significance (BIAs or ESA-
designated critical habitat); and
The presumed efficacy of the mitigation measures in
reducing the effects of the specified activity to the level of least
practicable adverse impact.
In addition, although affected humpback whales and Steller sea
lions may be from a DPS that is listed under the ESA, it is unlikely
that minor noise effects in a small, localized area of habitat would
effect the stocks' ability to recover. In combination, we believe that
these factors, as well as the available body of evidence from other
similar activities, demonstrate that the potential effects of the
specified activities will have only minor, short-term effects on
individuals. The specified activities are not expected to impact rates
of recruitment or survival and will therefore not result in population-
level impacts.
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
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 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

[[Page 4790]]

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.
Table 6 demonstrates the number of animals that could be exposed to
received noise levels that could cause Level A harassment and Level B
harassment for the planned activities in the WP&YR project area. With
the exception of the Northern Resident and West Coast Transient killer
whale stocks and harbor seals, our analysis shows that less than 25
percent of each affected stock could be taken by harassment. The
numbers of animals anticipated to be taken for these stocks would be
considered small relative to the relevant stock's abundances even if
each estimated taking occurred to a new individual--an extremely
unlikely scenario.
Calculated takes do not assume multiple harassments of the same
individual(s), resulting in larger estimates of take as a percentage of
stock abundance than are likely given resident individuals. This is the
case with the resident stocks of killer whale (Alaska and Northern
Resident stocks and harbor seal (Lynn Canal/Stephens Passage stock).
When assuming the total take authorized would occur to a single
stock and that these numbers represent individuals taken, rather than
instances of take, the total authorized take for killer whales as
compared to each potentially affected stock ranges from 4.3 percent to
41.2 percent of each stock abundance. In reality, it is highly unlikely
that 100 individuals of any one killer whale stock will be harassed.
Instead, as pods remain in the area over a period of days, it is
assumed that take will occur on a smaller number of the same
individuals from any stock, (20 individuals, or the estimated group
size from one stock, or 40 individuals, if different pods from the same
stock are taken in both March and April), which would result in smaller
takes as a percentages of stocks (ranging from 0.9 percent to 8.2
percent if takes are from 20 whales from the same stock, or 1.7 percent
to 16.5 percent if takes are from 40 whales from the same stock).
As reported, a small number of harbor seals, most of which reside
in Taiya Inlet year-round, will be exposed to construction activities
for three months. The total population estimate in the Lynn Canal/
Stephens Passage stock is 9,478 animals over 1.37 million acres (5,500
km\2\) of area in their range, which results in an estimated density of
36 animals within Taiya Inlet. The largest Level B harassment zone
within the inlet occupies 17.9 km\2\, which represents less than 0.4
percent of the total geographical area occupied by the stock. The great
majority of these exposures will be to the same animals given their
residency patterns.
Based on the analysis contained herein of the planned activity
(including the planned 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

No relevant subsistence uses of the affected marine mammal stocks
or species are implicated by this action in the project area. The
planned project will occur near but not overlap with the subsistence
area used by the villages of Hoonah and Angoon where harbor seals and
Steller sea lions are available for subsistence harvest (Wolfe et al.
2013; N. Kovaces, Skagway Traditional Council, personal communication).
Therefore, NMFS has determined that the total taking of affected
species or stocks will 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 action with respect to environmental consequences
on the human environment. This action is consistent with categories of
activities identified in Categorical Exclusion B4 (incidental
harassments 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

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally, in this case with the Alaska Regional Office,
whenever we propose to authorize take for endangered or threatened
species.
On February 11, 2019 NMFS Alaska Region issued a Biological Opinion
to NMFS Office of Protected Resources on the issuance of this IHA. The
Biological Opinion determined that the proposed action was not likely
to jeopardize the continued existence of the humpback whale Mexico DPS
and the Steller sea lion western DPS or adversely affect designated
critical habitat.

Authorization

NMFS has issued an IHA to WP&YR for the incidental take of marine
mammals due to in-water construction work associated with the Railroad
Dock dolphin installation project in Skagway, Alaska from February 15,
2019 through February 14, 2020, provided the previously mentioned
mitigation, monitoring, and reporting requirements are incorporated.

Dated: February 13, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2019-02685 Filed 2-15-19; 8:45 am]
BILLING CODE 3510-22-P