[Federal Register Volume 84, Number 154 (Friday, August 9, 2019)]
[Notices]
[Pages 39263-39264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17068]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XR020


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

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

ACTION: Notice; reissuance of incidental harassment authorization.

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SUMMARY: NMFS has received a request from the Washington State 
Department of Transportation (WSDOT) for the re-issuance of a 
previously issued incidental harassment authorization (IHA) with the 
only change being effective dates that are ten months later (August 1, 
2019-July 31, 2020). The initial IHA authorized take of 12 species of 
marine mammals, by Level A and Level B harassment, incidental to 
construction associated with the Mukilteo Multimodal Project in 
Mukilteo, Washington. The project has been delayed and none of the work 
covered in the initial IHA (effective October 1, 2018-September 30, 
2019) has been conducted. The scope of the activities and anticipated 
effects remain the same, authorized take numbers would not change, and 
the required mitigation, monitoring, and reporting would remain the 
same as authorized in the 2018 IHA referenced above. NMFS is, 
therefore, issuing a second IHA to cover the identical incidental take 
analyzed and authorized in the initial IHA.

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

ADDRESSES: An electronic copy of the final 2018 IHA previously issued 
to WSDOT, WSDOT's application, and the Federal Register notices 
proposing and issuing the 2018 IHA may be obtained by visiting 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 below (see 
FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

    On August 28, 2018, NMFS published final notice of our issuance of 
an IHA authorizing take of marine mammals incidental to the Mukilteo 
Multimodal Project at the Mukilteo ferry terminal (83 FR 43849). The 
effective dates of that IHA were October 1, 2018 through September 30, 
2019. On May 8, 2019, WSDOT informed NMFS that the project was being 
delayed by one year. None of the work identified in the IHA (i.e., pile 
driving and removal) has occurred and no take of any marine mammals has 
occurred since the effective date of the initial IHA. WSDOT submitted a 
formal request for a new identical IHA that would be effective from 
August 1, 2019 through July 31, 2020, in order to conduct the 
construction work that was analyzed and authorized through the 
previously issued IHA. Therefore, an IHA is appropriate.

Summary of Specified Activity and Anticipated Impacts

    The planned activities (including mitigation, monitoring, and 
reporting), authorized incidental take, and anticipated impacts on the 
affected stocks are the same as those analyzed and authorized through 
the previously issued IHA.
    Planned activities include improving the operations and facilities 
serving the mainland terminus of the Mukilteo-Clinton ferry route in 
Washington State. Specifically, the location, timing, and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the original IHA. The mitigation and 
monitoring are also identical to the original IHA and will include 
limiting construction to an in-water work window (July 15-February 15), 
limiting construction to daylight hours only, using bubble curtains 
during impact driving of steel piles, using soft-start during impact 
pile driving, and monitoring and reporting of qualified protected 
species observers (PSOs).
    Species that are expected to be taken by the planned activity 
include harbor seal (Phoca vitulina), California sea lion (Zalophus 
californianus), northern elephant seal (Mirounga angustirostris), 
Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca), 
gray whale (Eschrichtius robustus), humpback whale (Megaptera 
novaeangliae), Dall's porpoise (Phocoenoides dalli), harbor porpoise 
(Phocoena phocoena), minke whale (Balaenoptera acutorostrata), 
bottlenose dolphin (Tursiops truncatus), and long-beaked common dolphin 
(Delphinus capensis). The takes authorized in the 2018 IHA are 
presented in Table 1.

[[Page 39264]]



                                   Table 1--Authorized Take Amount by Species
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                             Species                                  Level A         Level B       Total take
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Harbor seal.....................................................              93           1,860           1,953
California sea lion.............................................               0             868             868
Northern elephant seal..........................................               0               7               7
Killer whale (West coast transient).............................               0              19              19
Steller sea lion................................................               0             154             154
Gray whale......................................................               0               2               2
Humpback whale..................................................               0               6               6
Dall's porpoise.................................................              39             163             202
Harbor porpoise.................................................              39             784             823
Minke whale.....................................................               0               7               7
Bottlenose dolphin..............................................               0              49              49
Long-beaked common dolphin......................................               0              49              49
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    A description of the methods and inputs used to estimate take 
anticipated to occur and, ultimately, the take that was authorized is 
found in the previous documents referenced above. The methods of 
estimating take are identical to those used in the previous IHA, as is 
the density of marine mammals. NMFS has reviewed recent Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and recent scientific literature, and determined that no new 
information affects our original analysis of impacts or take estimate 
under the original IHA.
    We refer to the documents related to the previously issued IHA, 
which include the Federal Register notice of the issuance of the 2018 
IHA for WSDOT's construction work (83 FR 43849), WSDOT's application, 
the Federal Register notice of the proposed IHA (83 FR 30421, June 28, 
2018), and all associated references and documents.

Determinations

    WSDOT will conduct activities identical to those analyzed in the 
previous 2018 IHA. As described above, the number of authorized takes 
of the same species and stocks of marine mammals are identical to the 
numbers that were found to meet the negligible impact and small numbers 
standards and authorized under the 2018 IHA and no new information has 
emerged that would change those findings. The re-issued 2019 IHA 
includes identical required mitigation, monitoring, and reporting 
measures as the 2018 IHA, and there is no new information suggesting 
that our analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) WSDOT's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

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 with respect to environmental 
consequences on the human environment.
    Accordingly, NMFS has determined that the issuance of the IHA 
qualifies to be categorically excluded from further NEPA review. This 
action is consistent with categories of activities identified in CE B4 
of the Companion Manual for NOAA Administrative Order 216-6A, which do 
not individually or cumulatively have 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.

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 the West Coast Region 
Protected Resources Division, whenever we propose to authorize take for 
endangered or threatened species. The effects of this proposed federal 
action were adequately analyzed in NMFS' Biological Opinion for the 
Mukilteo Multimodal Project, dated August 1, 2017, 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

    NMFS has issued an IHA to WSDOT for in-water construction 
activities associated with the Mukilteo Multimodal Project from August 
1, 2019 through July 31, 2020. All previously described mitigation, 
monitoring, and reporting requirements from the 2018 IHA are 
incorporated.

    Dated: August 6, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-17068 Filed 8-8-19; 8:45 am]
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