[Federal Register Volume 84, Number 145 (Monday, July 29, 2019)]
[Notices]
[Pages 36581-36591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15970]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-PR-A001


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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

DATES: This authorization is effective from August 1, 2019, through 
July 31, 2020.

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

SUPPLEMENTARY INFORMATION:

Background

    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 February 7, 2019, WSDOT submitted a request to NMFS requesting 
an IHA for the possible harassment of small numbers of marine mammal 
species incidental to Seattle Multimodal Project at Colman Dock in 
Seattle, Washington, from August 1, 2019 to July 31, 2020. After 
receiving the revised project description and the revised IHA 
application, NMFS determined that the IHA application is adequate and 
complete on May 8, 2018. NMFS is proposing to authorize the take by 
Level A and Level B harassments of the following marine mammal species: 
Harbor seal (Phoca vitulina); northern elephant seal (Mirounga 
angustirostris); California sea lion (Zalophus californianus); Steller 
sea lion (Eumetopias jubatus); killer whale (Orcinus orca); long-beaked 
common dolphin (Delphinus capensis), bottlenose dolphin (Tursiops 
truncatus), gray whale (Eschrichtius robustus), humpback whale 
(Megaptera novaeangliae), minke whale (Balaenoptera acutorostrata); 
harbor porpoise (Phocoena phocoena); and Dall's porpoise (P. dalli). 
Neither WSDOT nor NMFS expect mortality to result from this activity 
and, therefore, an IHA is appropriate.
    This IHA covers one year of a larger project for which WSDOT 
obtained prior IHAs (82 FR 21579; July 7, 2017; 83 FR 35226; July 25, 
2018) and intends to request take authorization for subsequent facets 
of the project. The larger 5-year project involves reconfiguring the 
Colman Dock of the Seattle Ferry Terminal while maintaining the same 
vehicle holding capacity as current conditions. WSDOT complied with all 
the requirements (e.g., mitigation, monitoring, and reporting) of the 
previous IHA and information regarding their monitoring results may be 
found in the Estimated Take section.

Description of the Proposed Activity

Overview

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

Dates and Duration

    Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water 
work timing restrictions to protect ESA-listed salmonids, planned WSDOT 
in-water construction is limited each year to July 16 through February 
15. In-water pile driving work will be conducted in daylight hours 
only. It is expected that a total of 146 pile driving days will be 
needed for the 2019/2020 construction work.

Specific Geographic Region

    The Seattle Ferry Terminal at Colman Dock, serving State Route 519, 
is located on the downtown Seattle waterfront, in King County, 
Washington. The terminal services vessels from the Bainbridge Island 
and Bremerton routes, and is the most heavily used terminal in the 
Washington State Ferry system. The

[[Page 36582]]

Seattle terminal is located in Section 6, Township 24 North, Range 4 
East, and is adjacent to Elliott Bay, tributary to Puget Sound (Figure 
1-2 of the IHA application). Land use in the area is highly urban, and 
includes business, industrial, the Port of Seattle container loading 
facility, residential, the Pioneer Square Historic District and local 
parks.

Detailed Description of Specific Activity

    The project will reconfigure the Colman Dock while maintaining 
approximately the same vehicle holding capacity as current conditions. 
The construction began in August 2017. In the 2017-2018 season, the 
construction activities were focused on the South Trestle, Terminal 
Building Foundation, and the temporary and permanent Passenger 
Offloading Facility. In the 2018-2019 season, the construction 
activities were focused on the North Trestle, and Slip 3 bridge seat, 
overhead loading, wingwall, and inner dolphin.
    In the 2019-2020 season, WSDOT plans to work on Slip 2 bridge seat, 
Center Trestle, Slip 2 wingwall extension, and Slips 2 and 3 inner 
dolphins. Both impact pile driving and vibratory pile driving and pile 
removal would be conducted. A total of 58 days are estimated for pile 
driving and 88 days for pile removal.
    In-water construction activities include:
    [ssquf] Permanently install 36-inch (in) steel piles with a 
vibratory hammer, and then proof with an impact hammer for the last 5-
10 feet;
    [ssquf] Permanently install 24-in steel piles with a vibratory 
hammer;
    [ssquf] Removal of various piles with a vibratory hammer; and
    [ssquf] Install and removal of 24-in steel piles with a vibratory 
hammer.
    A list of pile driving and removal activities is provided in Table 
1.

                              Table 1--Summary of In-Water Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                                   Total number    Number piles/
                Method                     Pile type and size          piles            day          Work days
----------------------------------------------------------------------------------------------------------------
Vibratory drive *.....................  Steel pipe (temp), 24-in             148               8              19
Vibratory drive.......................  Steel pipe, 24-in.......               2               2               1
Vibratory drive **....................  Steel pipe, 36-in.......             148               8              19
Impact drive (proof) **...............  Steel pipe, 36-in.......             148               8              19
Vibratory removal.....................  Timber, 14-in...........           1,046              20              52
Vibratory removal.....................  Steel pipe, 12-in.......             108              11              10
Vibratory removal.....................  Steel H, 14-in..........              19              10               2
Vibratory removal.....................  Steel pipe, 18-in.......              15              10               2
Vibratory removal *...................  Steel pipe (temp), 24-in             148               8              19
Vibratory removal.....................  Steel pipe, 36-in.......               3               1               3
                                                                 -----------------------------------------------
    Total.............................  ........................           1,489  ..............             146
----------------------------------------------------------------------------------------------------------------
* Same 24-in steel pipe piles.
** Same 36-in steel pipe piles.

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

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on June 4, 2019 (84 FR 25757). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). Specific comments and responses are 
provided below.
    Comment 1: Commission recommends that NMFS refrain from using the 
proposed renewal process for WSDOT's authorization. The renewal process 
should be used sparingly and selectively, by limiting its use only to 
those proposed incidental harassment authorizations that are expected 
to have the lowest levels of impacts to marine mammals and that require 
the least complex analyses. Notices for other types of activities 
should not even include the possibility that a renewal might be issued 
using the proposed foreshortened 15-day comment period. If NMFS intends 
to use the renewal process frequently or for authorizations that 
require a more complex review or for which much new information has 
been generated (e.g., multiple or extensive monitoring reports), the 
Commission recommends that NMFS provide the Commission and other 
reviewers the full 30-day comment opportunity set forth in section 
101(a)(5)(D)(iii) of the MMPA
    Response: There was a mistake in the notice of the proposed IHA 
that NMFS may issue a second 1-year IHA without additional notice. The 
correct procedure is that NMFS may issue a second 1-year IHA with a 15-
day public comment period. The conditions that meet the renewal are the 
same as described in the Federal Register notice (84 FR 25757; June 4, 
2019) for the proposed IHA. Separately, NMFS has responded to the same 
comment from the Commission previously and we refer the reader to our 
response, included in the FR notice announcing NMFS issuance of an IHA 
for the (84 FR 31032, June 28, 2019).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species with expected potential for occurrence in 
lower Puget Sound area and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2016). 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

[[Page 36583]]

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 2018 U.S. Pacific Draft Marine Mammal SARs (Carretta et al., 
2019). All values presented in Table 2 are the most recent available at 
the time of publication and are available in the 2017 SARs (Carretta 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 2--Marine Mammals With Potential Presence Within the Proposed Project Area
----------------------------------------------------------------------------------------------------------------
                                                                                  Stock
                                                                                abundance
                                                                    ESA/ MMPA   (CV, Nmin,
         Common name            Scientific name        Stock         status;   most recent     PBR     Annual  M/
                                                                    strategic    abundance               SI \3\
                                                                    (Y/N) \1\  survey) \2\
 
----------------------------------------------------------------------------------------------------------------
                      Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray whale...............  Eschrichtius      Eastern North     N                26,960        801        138
                                robustus.         Pacific.
Family Balaenopteridae:
    Humpback whale...........  Megaptera         California/       Y                 2,900       16.7      >38.6
                                novaneagliae.     Oregon/
                                                  Washington.
    Minke whale..............  Balaenoptera      California/       N                   636        3.5       >1.3
                                acutorostrata.    Oregon/
                                                  Washington.
Family Delphinidae:
    Killer whale.............  Orcinus orca....  Eastern N         Y                    77       0.13          0
                                                  Pacific          N                   243        2.4          0
                                                  Southern
                                                  resident.
                                                 West coast
                                                  transient.
    Long-beaked common         Delphinus         California......  N               101,305        657      >35.4
     dolphin.                   capensis.
    Bottlenose dolphin.......  Tursiops          California/       N                 1,924        198      >0.84
                                truncatus.        Oregon/
                                                  Washington
                                                  offshore.
Family Phocoenidae
 (porpoises):
    Harbor porpoise..........  Phocoena          Washington        N                11,233         66        7.2
                                phocoena.         inland waters.
    Dall's porpoise..........  P. dali.........  California/       N                25,750        172        0.3
                                                  Oregon/
                                                  Washington.
----------------------------------------------------------------------------------------------------------------
                                     Order Carnivora--Superfamily Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals
 and sea lions):
    California sea lion......  Zalophus          U.S.............  N               257,606     14,011       >319
                                californianus.
    Steller sea lion.........  Eumetopias        Eastern U.S.....  N                41,267      2,498        108
                                jubatus.
Family Phocidae (earless
 seals):
    Harbor seal..............  Phoca vitulina..  Washington        N            \4\ 11,036      1,641         43
                                                  northern inland
                                                  waters.
    Northern elephant seal...  Mirounga          California        N               179,000      4,882        8.8
                                angustirostris.   breeding.
----------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-)
  indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the
  MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is
  determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or
  stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of
  variation; Nmin is the minimum estimate of stock abundance.
\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\ Harbor seal estimate is based on data that are 8 years old, but this is the best available information for
  use here (Jefferies et al., 2003; Carretta et al., 2017).

    All species that could potentially occur in the proposed action 
area are included in Table 2. More detailed descriptions of marine 
mammals in the WSDOT's Seattle Multimodal Project at Colman Dock 
project area is provided in the Federal Register notice for the 
proposed IHA (84 FR 25757; June 4, 2019). Therefore, it is not repeated 
here.

Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

[[Page 36584]]



                                      Table 3--Marine Mammal Hearing Groups
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                     Hearing group                                     Generalized hearing range *
----------------------------------------------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales)...........  7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins, toothed whales,  150 Hz to 160 kHz.
 beaked whales, bottlenose whales).
High-frequency (HF) cetaceans (true porpoises, Kogia,    275 Hz to 160 kHz.
 river dolphins, cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true seals)........  50 Hz to 86 kHz.
Otariid pinnipeds (OW) (underwater) (sea lions and fur   60 Hz to 39 kHz.
 seals).
----------------------------------------------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the
  group), where individual species' hearing ranges are typically not as broad. Generalized hearing range chosen
  based on ~65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Twelve marine mammal species (eight cetacean and four pinniped (two 
otariid and two phocid) species) have the reasonable potential to co-
occur with the proposed construction activities. Please refer to Table 
2. Of the cetacean species that may be present, three are classified as 
low-frequency cetaceans (i.e., all mysticete species), three are 
classified as mid-frequency cetaceans (i.e., all delphinid species and 
the sperm whale), and two are classified as high-frequency cetaceans 
(i.e., harbor and Dall's porpoises).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take section, and the Mitigation section, to draw conclusions 
regarding the likely impacts of these activities on the reproductive 
success or survivorship of individuals and how those impacts on 
individuals are likely to impact marine mammal species or stocks.
    Potential impacts to marine mammals from the WSDOT's Seattle 
Multimodal Project at Colman Dock are from noise generated during in-
water pile driving activities. Detailed analysis of the impacts is 
provided in the Federal Register notice for the proposed IHA (84 FR 
25757; June 4, 2019). Therefore, it is not repeated here.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization 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 primarily be by Level B harassment, as noise 
generated from in-water pile driving has the potential to result in 
disruption of behavioral patterns for individual marine mammals. There 
is also some potential for auditory injury (Level A harassment) to 
result, primarily for high-frequency cetacean species and phocids 
because predicted auditory injury zones are larger than for mid-
frequency species and otariids, and because these species are much 
smaller than mysticetes, thus they present challenges in implementing 
monitoring and mitigation measures. Auditory injury is unlikely to 
occur for low- and mid-frequency cetacean species and otariids. The 
proposed 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 proposed to 
be 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 proposed 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,

[[Page 36585]]

NMFS uses a generalized acoustic threshold based on received level to 
estimate the onset of behavioral harassment. NMFS predicts that marine 
mammals are likely to be behaviorally harassed in a manner we consider 
Level B harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g., 
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources.
    WSDOT's activity includes the use vibratory hammer, which generates 
non-impulse noises, and impact hammer, which generates impulse noises. 
Therefore, the 120 and 160 dB re 1 [mu]Pa (rms) 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) (Technical Guidance, 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 proposed activity includes the 
use of impulsive (impact pile driving) and non-impulsive (vibratory 
pile driving and pile removal) sources.
    These thresholds are provided in the table 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.

                                     Table 4--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds                                         Behavioral thresholds
         Hearing group         -------------------------------------------------------------------------------------------------------------------------
                                                      Impulsive                         Non-impulsive          Impulsive              Non-impulsive
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans..  Lpk,flat: 219 dB; LE,LF,24h: 183 dB.................  LE,LF,24h: 199    Lrms,flat: 160 dB......  Lrms,flat: 120 dB.
                                                                                       dB.
Mid-Frequency (MF) Cetaceans..  Lpk,flat: 230 dB; LE,MF,24h: 185 dB.................  LE,MF,24h: 198
                                                                                       dB.
High-Frequency (HF) Cetaceans.  Lpk,flat: 202 dB; LE,HF,24h: 155 dB.................  LE,HF,24h: 173
                                                                                       dB.
Phocid Pinnipeds (PW)           Lpk,flat: 218 dB; LE,PW,24h: 185 dB.................  LE,PW,24h: 201
 (Underwater).                                                                         dB.
Otariid Pinnipeds (OW)          Lpk,flat: 232 dB; LE,OW,24h: 203 dB.................  LE,OW,24h: 219
 (Underwater).                                                                         dB.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive
  sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be
  considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has a reference value of 1[mu]Pa2s. In this
  Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by
  ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is being included to
  indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative
  sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways
  (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which
  these acoustic thresholds will be exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
Source Levels
    The source level for vibratory pile driving and removal of the 18- 
and 24-in steel pile is based on vibratory pile driving of the 30-in 
steel pile at Port Townsend. The unweighted SPLrms source 
level at 10 m from the pile is 174 dB re 1 re 1 [micro]Pa.
    The source level for vibratory pile driving of the 36-in steel 
piles is based on vibratory test pile driving of 36-in steel piles at 
Port Townsend in 2010. Recordings of vibratory pile driving were made 
at a distance of 10 m from the pile. The results show that the 
unweighted SPLrms for vibratory pile driving of 36-in steel 
pile was 177 dB re 1 [micro]Pa.
    The source level for impact pile driving of the 36-in steel pile is 
based on the sound source verification (SSV) measurements at Colman 
Dock in 2018. The source levels reported are: 174 dB re 1 [micro]Pa\2\-
s for SELss, 188 dB re 1 [micro]Pa for SPLrms, 
and 206 dB re 1 [micro]Pa for SPLpk. These levels were 
recorded with the use of bubble curtains for noise attenuation. Since 
WSDOT plans to use bubble curtain for all impact pile driving, NMFS 
considers these measurements are appropriate for impact zone 
calculation.
    The source level for vibratory pile removal of 14-in timber pile is 
based measurements conducted at the Port Townsend Ferry Terminal during 
vibratory removal of a 12-in timber pile by WSDOT. The recorded source 
level is 152 dBrms re 1 [micro]Pa at 16 m from the pile, 
with an adjusted source level of 155 dBrms re 1 [micro]Pa at 
10 m.
    The source levels for vibratory pile removal of 12-in steel and 14-
in steel H piles are based on vibratory pile driving of 12-in steel 
pipe pile measured by CALTRANS. The unweighted source level is 155 
dBrms re 1 [micro]Pa at 10 m.
    A summary of source levels is presented in Table 5.

                 Table 5--Summary of Source Levels for the Seattle Multimodal Project at Colman
                                                    [Year 3]
----------------------------------------------------------------------------------------------------------------
                                                                                  SPLrms, dB  re
                Method                   Pile type/size  (inch)    SEL, dB re  1    1 [micro]Pa    SPLpk, dB  re
                                                                  [micro]Pa\2\-s                    1 [micro]Pa
----------------------------------------------------------------------------------------------------------------
Vibratory driving/removal.............  Steel, 18- and 24-in....             174             174  ..............
Vibratory driving/removal.............  Steel, 36-in............             177             177  ..............
Impact pile driving (proof)...........  Steel, 36-in............             174             188             206
Vibratory removal.....................  Timber, 14-in...........             155             155  ..............
Vibratory removal.....................  Steel, 12-in............             155             155  ..............

[[Page 36586]]

 
Vibratory removal.....................  Steel H, 14-in..........             155             155  ..............
----------------------------------------------------------------------------------------------------------------

    These source levels are used to compute the Level A injury zones 
and to estimate the Level B harassment zones.

Estimating Harassment Zones

    All distances to the Level B harassment zone except for 18-, 24-, 
and 36-in vibratory pile driving are based on the above source levels 
applying practical spreading loss, i.e., 15 * log(R), where R is the 
distance from the pile to where Level B harassment levels are. For 
vibratory pile driving and pile removal, the Level B harassment level 
is 120 dB re 1 [micro]Pa; for impact pile driving, the Level B 
harassment level is 160 dB re 1 [micro]Pa.
    For Level B harassment ensonified areas for vibratory pile driving 
and removal of the 18-in, 24-in, and 36-in steel piles, the distance is 
based on measurements conducted during the year 1 Seattle multimodal 
project at Colman. The result showed that pile driving noise of two 36-
in steel piles being concurrently driven was no longer detectable at a 
range of 5.4 miles (8.69 km). Therefore, the distance of 8,690 m is 
selected as the Level B harassment distance for vibratory pile driving 
and removal of the 18-in, 24-in, and 36-in steel piles.
    For Level A harassment zones, since the peak source levels for both 
pile driving are below the injury thresholds, cumulative SEL were used 
to do the calculations using the NMFS acoustic guidance (NMFS 2018).
    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 in-water 
pile 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. When calculate Level A 
harassment distances using NMFS' User Spreadsheet, input parameters 
pile driving or removal duration (for vibratory hammer) or number of 
strikes (for impact hammer) of each pile and the number of piles 
installed or removed per day.
    Distances of ensonified area for different pile driving/removal 
activities for different marine mammal hearing groups is present in 
Table 6.

                                                     Table 6--Distances to Harassment Zones and Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Injury zone (m)/area (km\2\)
                                                        --------------------------------------------------------------------------------
         Pile type, size & pile  driving method                                               High-                                      Level B ZOI (m)/
                                                         Low- frequency  Mid- frequency     frequency        Phocid          Otariid       area (km\2\)
                                                            cetacean        cetacean        cetacean
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory drive/removal, 24-in steel piles, 8 piles/         96.7/0.029       8.6/0.000     143.0/0.064      58.8/0.011       4.1/0.000     8,690/74.291
 day, 20 min/pile......................................
Vibratory drive 24-in steel pile, 2 piles/day, 20 min/       38.3/0.005       3.4/0.000      56.7/0.010      23.3/0.002       1.6/0.000     8,690/74.291
 pile..................................................
Vibratory drive 36-in steel pile, 8 piles/day, 20 min/      153.3/0.074      13.6/0.001     226.6/0.161      93.2/0.027       6.5/0.000     8,690/74.291
 pile..................................................
Impact drive (proof) 36-in steel pile, 8 piles/day, 200     343.2/0.370      12.2/0.000     408.7/0.524     183.6/0.106      13.4/0.000        736/1.701
 strikes/pile..........................................
Vibratory remove 14-in timber pile, 20 piles/day, 15          8.0/0.000       0.7/0.000      11.8/0.000       4.8/0.000       0.3/0.000     2,154/14.854
 min/pile..............................................
Vibratory remove 12-in steel pile, 11 piles/day, 20 min/      6.5/0.000       0.6/0.000       9.6/0.000       3.9/0.000       0.3/0.000     2,154/14.854
 pile..................................................
Vibratory remove 14-in steel H pile, 10 piles/day, 20         6.1/0.000       0.5/0.000       9.0/0.000       3.7/0.000       0.3/0.000     2,154/14.854
 min/pile..............................................
Vibratory removal 18-in steel pile, 10 piles/day, 20        112.1/0.039       9.9/0.000     165.8/0.086      68.1/0.015       4.8/0.000     8,690/74.291
 min/pile..............................................
Vibratory removal 36-in steel pile, 1 pile/day, 20 min/      38.3/0.005       3.4/0.000      56.6/0.010      23.3/0.002       1.6/0.000     8,690/74.291
 pile..................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence and Take Estimates

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Marine mammal takes are calculated based on its likelihood to be 
present in the Seattle Multimodal project at Colman Dock. For species 
that are frequently occurring in the project area, such as harbor seal, 
California sea lion,

[[Page 36587]]

Steller sea lion, and harbor porpoise, take calculation are based on 
marine mammal monitoring during the 2017/2018 season Seattle Multimodal 
project at Colman Dock when observation data are available, then 
adjusted to account for possible missed observations.
    For marine mammals that do not frequently occur in the Seattle 
Multimodal project area while density information is available, density 
data from the U.S. Navy Marine Species Density Report were used for 
take calculation. These species are gray whale, humpback whale, minke 
whale, killer whale (west coast transient), Dall's porpoise, and 
northern elephant seal.
    For bottlenose dolphin and long-beaked common dolphin, no density 
estimate is available. Therefore, take numbers for these two species 
are based on prior anecdotal observations and strandings in the action 
area.
    A summary of marine mammal abundance and density is provided in 
Table 7.

                    Table 7--Marine Mammal Abundance and/or Density Used for Take Calculation
         [Numbers in parenthesis indicate adjustments made to account for possible missed observations]
----------------------------------------------------------------------------------------------------------------
                                                                      Abundance based on
                                                                     observation at WSDOT   Navy Marine Species
                              Species                                 Seattle Multimodal       Density Report
                                                                    project (animals/day)     (animals/km\2\)
----------------------------------------------------------------------------------------------------------------
Humpback whale....................................................  .....................                 0.0007
Minke whale.......................................................  .....................                0.00003
Gray whale........................................................  .....................                0.00051
Killer whale (west coast transient)...............................  .....................                  0.002
Harbor porpoise...................................................                      3  .....................
Dall's porpoise...................................................  .....................                  0.048
Harbor seal.......................................................                 8 (11)  .....................
Northern elephant seal............................................  .....................                0.00001
California sea lion...............................................                     18  .....................
Steller sea lion..................................................              0.6 (1.2)  .....................
----------------------------------------------------------------------------------------------------------------

    For marine mammals with observation data during WSDOT's 2017/2018 
Seattle Multimodal project, take numbers were calculated as:

Total Take = animal abundance x pile driving days

    To determine the portion of total take that would result from Level 
A harassment, the proportion of Level A and Level B harassment was used 
to apportion the total takes. Furthermore, an additional 20 takes of 
harbor seals by Level A harassment is added to account for the higher 
numbers historically sighted during monitoring and the smaller shutdown 
zones (see below).
    For marine mammals that were not observed during the 2017/2018 
season but with known densities in the general area (i.e., gray, 
humpback, and minke whales and Dall's porpoise), take numbers were 
calculated as:

Take = ensonified area (Level A or Level B) x animal density x pile 
driving days

    For long-beaked common dolphin and bottlenose dolphin, an average 
of 7 animals per group is determined based on sighting data from 
Cascadia Research (CRC 2012, 2017). Assuming that an average of one 
group could be encountered per month in the project area, a total of 49 
takes of each species is assessed for the duration of 7 months in-water 
work window.
    For calculated take number less than 15, such as northern elephant 
seals, transient killer whales, humpback whales, gray whales, and minke 
whales, Level B take numbers were adjusted to account for group size 
and the likelihood of encountering. Specifically, for northern elephant 
seal, take of 15 animals is estimated based on the likelihood of 
encountering this species during the project period. For transient 
killer whale, take of 30 animals is estimated based on the group size 
and the likelihood of encountering in the area. For gray, humpback, and 
minke whale, 30, 30, and 10 animals each area estimated, respectively.
    WSDOT will implement strict monitoring and mitigation measures and 
to suspend pile driving activities when SRKWs are detected in the 
vicinity of the action to avoid takes of this population.
    A summary of marine mammal take numbers is provided in Table 8.

                                         Table 8--Estimated Take Numbers
----------------------------------------------------------------------------------------------------------------
                                                     Estimated       Estimated       Estimated        Percent
                     Species                       Level A take    Level B take     total take      population
----------------------------------------------------------------------------------------------------------------
Gray whale......................................               0              30              30            0.11
Humpback whale..................................               0              30              30            1.03
Minke whale.....................................               0              10              10            1.57
Killer whale, transient.........................               0              30              30           12.35
Harbor porpoise.................................             103             335             438            3.90
Dall's porpoise.................................              64             208             272            1.06
Long-beaked common dolphin......................               0              49              49            0.05
Bottlenose dolphin..............................               0              49              49            2.55
California sea lion.............................               0           2,628           2,628            1.02
Steller sea lion................................               0             175             175            0.42
Pacific harbor seal.............................             114           1,492           1,606           14.55
Northern elephant seal..........................               0              15              15            0.01
----------------------------------------------------------------------------------------------------------------


[[Page 36588]]

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.
    Specific mitigation measures are proposed as follows.
    1. Time Restriction.
    Work will occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted.
    2. Establishing and Monitoring Level A, Level B Harassment Zones, 
and Shutdown Zones.
    WSDOT shall establish shutdown zones that encompass the distances 
within which marine mammals could be taken by Level A harassment (see 
Table 7 above) except for harbor seal. For Level A harassment zones 
that is less than 10 m from the source, a minimum of 10 m distance 
should be established as a shutdown zone. For harbor seal, a maximum of 
60 m shutdown zone would be implemented if the actual Level A 
harassment zone exceeds 60 m. This is because there are a few 
habituated harbor seals that repeated occur within the larger Level A 
zone, which makes implementing a shutdown zone larger than 60 m 
infeasible.
    A summary of exclusion zones is provided in Table 9.

          Table 9--Shutdown Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups
----------------------------------------------------------------------------------------------------------------
                                                                Shutdown zone  (m)
                                 -------------------------------------------------------------------------------
 Pile type, size & pile driving                                        High-
             method               Low- frequency  Mid- frequency     frequency        Phocid          Otariid
                                     cetacean        cetacean        cetacean
----------------------------------------------------------------------------------------------------------------
Vibratory drive/removal, 24-in               100              10             150              60              10
 steel piles, 8 piles/day.......
Vibratory drive 24-in steel                   40              10              60              25              10
 pile, 2 piles/day; or vibratory
 removal 36-in steel pile, 1
 pile/day.......................
Vibratory drive 36-in steel                  160              15             230              60              10
 pile, 8 piles/day..............
Impact drive (proof) 36-in steel             350              15             410              60              15
 pile, 8 piles/day..............
Vibratory remove 14-in timber                 10              10              15              10              10
 pile, 20 piles/day; or
 vibratory removal 12-in steel
 pile, 11 piles/day; or
 vibratory removal 14-in steel
 pile, 10 piles/day.............
Vibratory removal 18-in steel                120              10             170              60              10
 pile, 10 piles/day, 20 min/pile
----------------------------------------------------------------------------------------------------------------

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

[[Page 36589]]

about to enter an exclusion zone listed in Tables 8.
    WSDOT shall also implement shutdown measures if SRKWs are sighted 
within the vicinity of the project area and are approaching the Level B 
harassment zone during in-water construction activities.
    If a killer whale approaches the Level B harassment zone during 
pile driving or removal, and it is unknown whether it is a SRKW or a 
transient killer whale, it shall be assumed to be a SRKW and WSDOT 
shall implement the shutdown measure.
    If a SRKW or an unidentified killer whale enters the Level B 
harassment zone undetected, in-water pile driving or pile removal shall 
be suspended until the whale exits the Level B harassment zone to avoid 
further level B harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA and if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone during in-
water construction activities.
    5. Coordination with Local Marine Mammal Research Network.
    Prior to the start of pile driving for the day, the Orca Network 
and/or Center for Whale Research will be contacted by WSDOT to find out 
the location of the nearest marine mammal sightings. The Orca Sightings 
Network consists of a list of over 600 (and growing) residents, 
scientists, and government agency personnel in the United States and 
Canada. Sightings are called or emailed into the Orca Network and 
immediately distributed to other sighting networks including: The NMFS 
Northwest Fisheries Science Center, the Center for Whale Research, 
Cascadia Research, the Whale Museum Hotline and the British Columbia 
Sightings Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile driving.
    Based on our evaluation of the required measures, NMFS has 
preliminarily determined that the prescribed mitigation measures 
provide the means effecting the least practicable impact on the 
affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

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

Monitoring Measures

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its dolphin relocation project at Bremerton and Edmonds 
ferry terminals. The purposes of marine mammal monitoring are to 
implement mitigation measures and learn more about impacts to marine 
mammals from WSDOT's construction activities. The PSOs will observe and 
collect data on marine mammals in and around the project area for 30 
minutes before, during, and for 30 minutes after all pile removal and 
pile installation work. NMFS-approved PSOs shall meet the following 
requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    5. NMFS will require submission and approval of observer CVs.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of ZOI from different pile types, three 
different ZOIs and different monitoring protocols corresponding to a 
specific pile type will be established.
     For Level B harassment zones with radii less than 1,000 m, 
3 PSOs will be monitoring from land;
     For Level B harassment zones with radii larger than 1,000 
m but smaller than 2,500 m, 4 PSOs will be monitoring from land; and
     For Level B harassment zones with radii larger than 2,500 
m, 4 PSOs will be monitoring from land with an additional 1 PSO 
monitoring from a ferry.
    6. PSOs shall collect the following information during marine 
mammal monitoring:
     Date and time that monitored activity begins and ends for 
each day conducted (monitoring period);

[[Page 36590]]

     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 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.
    To verify the required monitoring distance, the exclusion zones and 
Level B harassment zones will be determined by using a range finder or 
hand-held global positioning system device.

Reporting Measures

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

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 8, given that the 
anticipated effects of WSDOT's Seattle Multimodal at Colman Dock 
project involving pile driving and pile removal on marine mammals are 
expected to be relatively similar in nature. There is no information 
about the nature or severity of the impacts, or the size, status, or 
structure of any species or stock that would lead to a different 
analysis by species for this activity, or else species-specific factors 
would be identified and analyzed.
    Although some marine mammals could experience, and are authorized 
for Level A harassment in the form of PTS if they stay within the Level 
A harassment zone during the entire pile driving for the day (114 
harbor seals, 103 harbor porpoises, and 64 Dall's porpoise), the degree 
of injury is expected to be mild and is not likely to affect the 
reproduction or survival of the individual animals. It is expected 
that, if hearing impairments occurs, most likely the affected animal 
would lose a few dB in its hearing sensitivity, which in most cases is 
not likely to affect its survival and recruitment. Hearing impairment 
that occur for these individual animals would be limited to the 
dominant frequency of the noise sources, i.e., in the low-frequency 
region below 2 kHz. Therefore, the degree of PTS is not likely to 
affect the echolocation performance of the two porpoise species, which 
use frequencies mostly above 100 kHz. Nevertheless, for all marine 
mammal species, it is known that in general animals avoid areas where 
sound levels could cause hearing impairment. Nonetheless, we evaluate 
the estimated take in this negligible impact analysis.
    For these species except harbor seal, harbor porpoise and Dall's 
porpoise, takes that are anticipated and authorized are expected to be 
limited to short-term Level B harassment (behavioral and TTS). Marine 
mammals present in the vicinity of the action area and taken by Level B 
harassment would most likely show overt brief disturbance (startle 
reaction) and avoidance of the area from elevated noise levels during 
pile driving and pile removal and the implosion noise. A few marine 
mammals could experience TTS if they occur within the Level B TTS zone. 
However, as discussed earlier in this document, TTS is a temporary loss 
of hearing sensitivity when exposed to loud sound, and the hearing 
threshold is expected to recover completely within minutes to hours.
    Portions of the SRKW range is within the proposed action area. In 
addition, the entire Puget Sound is designated as the SRKW critical 
habitat under the ESA. However, WSDOT would be required to implement 
strict mitigation measures to suspend pile driving or pile removal 
activities when this stock is detected in the vicinity of the project 
area. We anticipate that take of SRKW would be avoided. There are no 
other known important areas for other marine mammals, such as feeding 
or pupping, areas.

[[Page 36591]]

    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' subsection. There 
is no ESA designated critical habitat in the vicinity of the Seattle 
Multimodal Project at Colman Dock area. The project activities would 
not permanently modify existing marine mammal habitat. The activities 
may kill some fish and cause other fish to leave the area temporarily, 
thus impacting marine mammals' foraging opportunities in a limited 
portion of the foraging range. However, because of the short duration 
of the activities and the relatively small area of the habitat that may 
be affected, the impacts to marine mammal habitat are not expected to 
cause significant or long-term negative consequences. Therefore, given 
the consideration of potential impacts to marine mammal prey species 
and their physical environment, WSDOT's proposed construction activity 
at Colman Dock would not adversely affect marine mammal habitat.
    In summary and as described above, the following factors primarily 
support our preliminary 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:
     Injury--only a relatively small number of marine mammals 
(of three stocks) would experience Level A harassment in the form of 
mild PTS, which is expected to be of small degree;
     Behavioral disturbance--eleven species/stocks of marine 
mammals would experience behavioral disturbance and TTS from the 
WSDOT's Seattle Colman Dock project. However, as discussed earlier, the 
area to be affected is small and the duration of the project is short. 
In addition, the nature of the take would involve mild behavioral 
modification; and
     Although portion of the SWKR critical habitat is within 
the project area, strict mitigation measures such as implementing 
shutdown measures and suspending pile driving are expected to avoid 
take of SRKW, and impacts to prey species and the habitat itself are 
expected to be minimal. No other important habitat for marine mammals 
exist in the vicinity of the project area.
    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 proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the proposed activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under 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.
    The estimated takes are below 15 percent of the population for all 
marine mammals (Table 8).
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

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 
proposed IHA qualifies to be categorically excluded from further NEPA 
review.

Endangered Species Act (ESA)

    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 NMFS' West Coast Region 
Protected Resources Division Office, whenever we propose to authorize 
take for endangered or threatened species.
    The California-Oregon-Washington stock of humpback whale and the 
Southern Resident stock of killer whale are the only marine mammal 
species listed under the ESA that could occur in the vicinity of 
WSDOT's proposed construction projects. NMFS worked with WSDOT to 
implement shutdown measures in the IHA that will avoid takes of 
Southern Resident killer whale. NMFS is proposing to authorize take of 
California/Oregon/Washington stock of humpback whale.
    The effects of this proposed Federal action were adequately 
analyzed in NMFS' Reinitiation of Endangered Species Act (ESA) Section 
7(a)(2) Consultation (Humpback Whales) for the Seattle Multimodal 
Terminal at Colman Dock Project, King County, Washington in October 
2018, which concluded that the take NMFS proposes to authorize through 
this IHA would not jeopardize the continued existence of any endangered 
or threatened species or destroy or adversely modify any designated 
critical habitat.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
WSDOT to conduct Seattle Multimodal Project at Colman Dock in Seattle, 
Washington, between August 1, 2019, and July 31, 2020, provided the 
previously prescribed mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: July 23, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-15970 Filed 7-26-19; 8:45 am]
BILLING CODE 3510-22-P