[Federal Register Volume 84, Number 218 (Tuesday, November 12, 2019)]
[Notices]
[Pages 61026-61037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24462]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG910


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Sand Island Pile Dike System 
Test Piles Project Near the Mouth of the Columbia River

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the U.S. Army Corps of Engineers, Portland District (Corps) to 
incidentally harass, by Level A and Level B harassment only, marine 
mammals during construction activities associated with the Sand Island 
Pile Dike System Test Piles project near the Mouth of the Columbia 
River.

DATES: This Authorization is effective for one year from the date of 
issuance.

[[Page 61027]]


FOR FURTHER INFORMATION CONTACT: Rob Pauline, 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: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. 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.

Summary of Request

    On March 6, 2019, NMFS received a request from the Corps for an IHA 
to take marine mammals incidental to pile driving activities in the 
Columbia River Estuary. The application was deemed adequate and 
complete on June 20, 2019. The Corps' request is for take of a small 
number of harbor porpoises (Phocoena phocoena), Steller sea lions 
(Eumetopias jubatus), California sea lions (Zalophus californianus), 
and harbor seals (Phoca vitulina richardii) by Level B harassment and 
Level A harassment. Neither the Corps nor NMFS expect serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of Activity

Overview

    The Corps plans to drive test piles in order to investigate the 
feasibility of different construction methods at two of the four Sand 
Island pile dikes at the Mouth of the Columbia River (MCR) (Figure 1 in 
application). The Sand Island pile dikes are comprised of four pile 
dikes, which are named according to river mile (RM) location, at RMs 
4.01, 4.47, 5.15, and 6.37 (the pile dike at RM 6.37 is also referred 
to as the Chinook pile dike). Three of the pile dikes are connected to 
West Sand Island and East Sand Island, and the fourth pile dike in open 
water runs parallel to the Chinook Channel on the upstream side (Figure 
2 in application). The Sand Island pile dikes are part of the Columbia 
River pile dike system and were installed in the 1930's. The Corps 
intends to restore full functionality of pile dikes in the future but 
needs to drive test piles in order to inform possible design. The 
existing pile dikes have deteriorated greatly due to lack of 
maintenance. Impact and vibratory pile installation and vibratory pile 
removal would introduce underwater sounds at levels that may result in 
take, by Level A and Level B harassment, of marine mammals in the 
Columbia River Estuary. In-water construction activities are expected 
to last up to 41 days. The maximum 41 days of work includes the 
following estimates for various pile driving activities:
     Up to 20 days of impact driving only (steel piles);
     Up to 18 days of impact driving AND vibratory 
installation/removal of steel piles; and
     Up to 3 days for vibratory removal of timber piles only.
    A detailed description of the planned test pile project is provided 
in the Federal Register notice for the proposed IHA (84 FR 38227; 
August 6, 2019). Since that time, no changes have been made to the 
planned pile driving activities. Therefore, a detailed description is 
not provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    We published a notice of receipt of the Corps application and 
proposed IHA in the Federal Register on August 6, 2019 (84 FR 38227). 
We received one comment letter from the Marine Mammal Commission 
(Commission).
    Comment 1: The Commission recommended that NMFS continue to 
prioritize the development of a methodology for determining the extent 
of the Level A harassment zones based on the associated permanent 
threshold shift (PTS) cumulative SEL (SELcum) thresholds for the 
various types of sound sources. The Commission also noted that NMFS 
should consider incorporating animat modeling into its user 
spreadsheet.
    Response: The issue of accumulation time continues to be a priority 
for NMFS. The Working Group assembled by NMFS to specifically address 
this issue is exploring several options, including the use of animat 
modeling. Once the NMFS internal Working Group develops a proposal, it 
will be shared with Federal partners and other stakeholders.
    Comment 2: The Commission questioned whether the public notice 
provision, for IHA renewals, including the 15-day comment period, fully 
satisfy the public notice and comment provision in the MMPA. The 
Commission also noted the potential burden on reviewers of reviewing 
key documents and developing comments quickly. Therefore the Commission 
recommended that NMFS refrain from using the proposed renewal process 
for the Corps' authorization. The Commission also recommended that NMFS 
use the IHA Renewal process sparingly and selectively for activities 
expected to have the lowest levels of impacts to marine mammals and 
that require less complex analysis. The Commission's final 
recommendation to NMFS was to provide the Commission and other 
reviewers the full 30-day comment period as set forth in section 
101(a)(5)(D)(iii) of the MMPA
    Response: The Commission has raised this concern before and NMFS 
refers readers to our full response, which may be found in the notice 
of issuance of an IHA to [Oslash]rsted Wind Power LLC (84 FR 52464, 
October 2, 2019.

Changes From Proposed to Final Authorization

    Based on informal coordination with the Commission, NMFS has made 
several changes since the publication of the proposed IHA. The number 
of Level A and Level B harassment takes for both harbor porpoise and 
harbor seal were underestimated in the proposed IHA. Therefore, 
authorized take by Level A and Level B harassment for both species has 
increased and is described in detail in the ``Estimated Take'' section. 
In the monitoring report, NMFS will require that the Corps extrapolate 
observed takes across the entirety of the Level B harassment zone based 
on the area that is able to be monitored effectively. This

[[Page 61028]]

measure is described in the ``Monitoring'' section. Finally, the Corps 
will be required to provide marine mammal observational datasheets or 
raw data as part of the marine mammal monitoring report. These changes 
are described in the ``Reporting'' section.

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).
    Table 1 lists all species with expected potential for occurrence 
near the test piles project 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 the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Pacific Marine Mammal SARs (Carretta et al., 2019) an 
Alaska Marine Mammal SARS (Muto et al., 2019). All values presented in 
Table 1 are the most recent available at the time of publication.

                                   Table 1--Marine Mammal Species Likely To Be Found Near the Test Piles Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific..  -, -, N             26,960 (0.05, 25849,          801        139
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  California/............  -, -, Y             2,900 (0.05, 2,784,          16.7       40.2
                                                               Oregon/................                       2014).
                                                               Washington.............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer whale....................  Orcinus orca...........  West Coast Transient...  -, -, N             243 (N/A, 243, 2009)..        2.4          0
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Northern Oregon/.......  -, -, N             21,487 (044, 15,123,          151        3.0
                                                               Washington Coast.......                       2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  Zalophus californianus.  U.S. Stock.............  -, -, N             257,606 (N/A, 233,515,     14,011       >320
                                                                                                             2014).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  -, -, N             41,638 (See SAR,            2,498        108
                                                                                                             41,638, 2015).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina           Oregon and Washington    -, -, N             UNK (UNK, UNK, 1999)..        UND       10.6
                                       richardii.               Coast.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.

    A detailed description of the of the species likely to be affected 
by the test pile project, including brief introductions to the species 
and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (84 FR 38227; August 6, 2019); since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. More general 
information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).

[[Page 61029]]

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    Underwater noise from impact and vibratory pile driving activities 
associated with the planned test piles project has the potential to 
result in harassment of marine mammals in the vicinity of the action 
area. The Federal Register notice for the proposed IHA (84 FR 38227; 
August 6, 2019) included a discussion of the potential effects of such 
disturbances on marine mammals and their habitat, therefore that 
information is not repeated in detail here; please refer to the Federal 
Register notice (84 FR 38227; August 6, 2019).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as 
impact and vibratory 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 species and phocids because 
predicted auditory injury zones are larger than for low-frequency 
species, mid-frequency species and otariids. Auditory injury is 
unlikely to occur for low-frequency species, mid-frequency species and 
otariids. The mitigation and monitoring measures are expected to 
minimize the severity of such taking to the extent practicable.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 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.
    The Corps' planned activity includes the use of continuous 
(vibratory pile driving) and impulsive (impact pile driving) sources, 
and therefore the 120 and 160 dB re 1 [mu]Pa (rms) are applicable.
    Level A harassment for non-explosive sources--NMFS' 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). The Corp's planned activity includes the 
use of impulsive (impact pile driving) and non-impulsive (vibratory 
pile driving) source.
    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--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset acoustic thresholds * (received level)
             Hearing group             -------------------------------------------------------------------------
                                                Impulsive                          Non-Impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans..........  Cell 1: Lpk,flat: 219 dB;  Cell 2: LE,LF,24h: 199 dB.
                                         LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans..........  Cell 3: Lpk,flat: 230 dB;  Cell 4: LE,MF,24h: 198 dB.
                                         LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.........  Cell 5: Lpk,flat: 202 dB;  Cell 6: LE,HF,24h: 173 dB.
                                         LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)....  Cell 7: Lpk,flat: 218 dB;  Cell 8: LE,PW,24h: 201 dB.
                                         LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)...  Cell 9: Lpk,flat: 232 dB;  Cell 10: LE,OW,24h: 219 dB.
                                         LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.

[[Page 61030]]

 
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. 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.

Sound Propagation

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * log10 (R1/R2),

Where:

B = transmission loss coefficient (assumed to be 15)
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log(range)). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log(range)). As is 
common practice in coastal waters, here we assume practical spreading 
loss (4.5 dB reduction in sound level for each doubling of distance). 
Practical spreading is a compromise that is often used under conditions 
where water depth increases as the receiver moves away from the 
shoreline, resulting in an expected propagation environment that would 
lie between spherical and cylindrical spreading loss conditions.

Sound Source Levels

    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes place. There are no source 
level measurements available the piles planned for installation at part 
of the test piles project. Sound pressure levels for impact driving of 
24-in steel piles were taken from Caltrans 2015. Vibratory driving 
source levels for 24-in steel piles came from the United States Navy 
(2015). There was no data available pertaining to vibratory removal of 
24-in timber piles. NMFS recommended that the Corps use data derived 
from Washington Department of Transportation Seattle Pier 62 project 
collected by the Greenbusch Group (2018) for vibratory removal of 14-in 
timber piles. NMFS reviewed the Greenbusch Group (2018) report and 
determined that the findings were incorrectly derived by pooling 
together all steel pile and timber pile measurements at various 
distances. Furthermore, the data was not normalized to the standard 10 
m distance. NMFS analyzed source measurements at different distances 
for all 63 individual timber piles that were removed and normalized the 
values to 10 m. The results showed that the median is 152 dB SPLrms. 
This value was used as the proxy source level for vibratory removal of 
24-in timber piles as shown in Table 5.

 Table 5--Estimated Unattenuated Underwater Sound Pressure Levels Associated with Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
         Pile type & activity                                  Sound source level at 10 m
----------------------------------------------------------------------------------------------------------------
24-Inch Steel Pile Impact              203 dBPK...............  190 dBRMS..............  177 dBSEL.
 Installation \1\.
24-Inch Steel Piles Vibratory          Not Applicable.........  161 dBRMS..............  Not Available.
 Installation/Removal \2\.
24-Inch Timber Pile Vibratory Removal  Not Applicable.........  152 dBRMS..............  Not Available.
 \3\.
----------------------------------------------------------------------------------------------------------------
\1\ From CalTrans 2015 Table I.2-1. Summary of Near-Source (10-Meter) Unattenuated Sound Pressure Levels for In-
  Water Pile Driving Using an Impact Hammer: 0.61-meter (24-inch) steel pipe pile in water ~5 meters deep.
\2\ From United States Navy. 2015. Prepared by Michael Slater, Naval Surface Warfare Center, Carderock Division,
  and Sharon Rainsberry, Naval Facilities Engineering Command Northwest. Revised January 2015. Table 2-2.
\3\ Due to the lack of information for vibratory removal of 24' diameter timber piles, an estimate based on
  removal of 14-inch timber piles is used as a proxy (Greenbusch Group, 2018).

Level A Harassment

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources such as pile 
driving, 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

[[Page 61031]]

incur PTS. Inputs used in the User Spreadsheet, and the resulting 
isopleths are reported below in Table 6.

            Table 6--NMFS Technical Guidance (2018) User Spreadsheet Input To Calculate PTS Isopleths
----------------------------------------------------------------------------------------------------------------
                                          24-in steel impact     24-in steel vibratory      24-in timber pile
                Inputs                       installation         installation/removal           removal
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used.................  E.1) Impact Pile         A.1) Vibratory Pile      A.1) Vibratory Pile
                                        Driving.                 Driving.                 Driving.
Source Level (Single Strike/shot SEL)  177 dB SEL/203 dB Peak.  161 dB RMS.............  152 dB RMS.
Weighting Factor Adjustment (kHz)....  2......................  2.5....................  2.5.
Number of strikes per pile...........  550....................  .......................  .......................
Number of piles per day..............  6......................  6/9....................  9.
Duration to install/removal single     60.....................  30/5...................  5.
 pile (minutes).
Propagation (xLogR)..................  15.....................  15.....................  15.
Distance of source level measurement   10.....................  10.....................  10.
 (meters).
----------------------------------------------------------------------------------------------------------------


                                   Table 7--Level A Harassment (PTS) Isopleths
----------------------------------------------------------------------------------------------------------------
                                                          PTS Isopleth distance  (meters)
                                 -------------------------------------------------------------------------------
            Activity                                                                  Phocid          Otariid
                                    LF cetacean     MF cetacean     HF cetacean      pinniped        pinniped
----------------------------------------------------------------------------------------------------------------
24'' Steel Pipe Pile Impact                881.2            31.3         1,049.7           471.6            34.3
 Installation...................
24'' Steel Pipe Vibratory                   14.2             1.3            21.0             8.6             0.6
 Installation...................
24'' Steel Pipe Vibratory                    5.6             0.5             8.3             3.4             0.2
 Removal........................
24'' Timber Pile Removal                     1.4             0.1             2.1             0.9             0.1
 Vibratory......................
----------------------------------------------------------------------------------------------------------------

Level B Harassment

    Utilizing the practical spreading loss model, the Corps determined 
underwater noise will fall below the behavioral effects threshold of 
160 dB and 120 dB rms for marine mammals at the distances shown in 
Table 8 with corresponding ensonified areas.

                  Table 8--Level B Harassment Isopleths
------------------------------------------------------------------------
                                             Isopleth      Isopleth area
                Activity                   distance (m)      (km\2\) *
------------------------------------------------------------------------
24 Steel Pipe Pile Impact               1,000             3-4
 Installation...........................
24 Steel Pipe Vibratory                 5,412           64-73
 Installation...........................
24 Steel Pipe Vibratory                 5,412           64-73
 Removal................................
24 Timber Pile Removal                  1,359         0.6-0.7
 Vibratory..............................
------------------------------------------------------------------------
* The lower limit represents the isopleth area for the pile dike at RM
  4.01, which has a slightly smaller area due to land impedances. The
  upper limit of the range is the calculated isopleth area for the pile
  dike at RM 6.37.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Potential exposures to impact pile driving, vibratory 
pile driving and vibratory pile removal were estimated using group size 
estimates and local observational data. As previously stated, take by 
Level B harassment as well as small numbers of take by Level A 
harassment will be will be considered for this action. Take by Level B 
and Level A harassment are calculated differently for some species 
based on monthly or daily sightings data and average group sizes within 
the action area using the best available data. Take by Level A 
harassment is authorized for two species where the Level A harassment 
isopleths are very large during impact pile driving (harbor porpoise 
and harbor seal). Distances to Level A harassment thresholds for other 
project activities (vibratory pile driving/removal) are considerably 
smaller compared to impact pile driving, and mitigation is expected to 
avoid Level A harassment from these other activities.

Cetaceans

Harbor Porpoise
    Harbor porpoises are regularly observed in the oceanward waters 
near the MCR and are known to occur there year-round. Porpoise 
abundance peaks when anchovy (Engraulis mordax) abundance in the river 
and nearshore are highest, which is usually between April and August 
(Litz et al. 2008). The 2016 monitoring report indicated that porpoises 
were sighted on 5 separate occasions (Grette Associates, 2016) while 
none were recorded as part of the 2017 LOA monitoring report. NMFS 
assumed a sighting rate of one animal per day in the proposed IHA for 
the Level B harassment. However, porpoises often occur in groups of 2-
3. Therefore, to estimate take for days when there is vibratory pile 
driving and the Level B harassment zone is large (about five times the 
distance, and 20 times the area, of the Level B harassment zone for 
impact-only pile driving), NMFS has included consideration of a group 
size of 2 animals and will authorize take of two animals per driving 
day. With 21 days of vibratory driving (18 days of impact/vibratory and 
3 days of timber pile vibratory removal), the number of authorized 
harbor porpoise takes by Level B harassment has been increased from 21 
to 42 to account for this

[[Page 61032]]

increase in the estimated number of harbor porpoises likely to enter 
that zone per day.
    For impact pile driving, the Level A harassment zone is slightly 
larger than the Level B harassment zone, and as noted above, about one 
twentieth of the area of the Level B harassment zone for vibratory pile 
driving. For the proposed IHA, NMFS assumed that due their cryptic 
behavior, it was plausible that during the 20 days of impact-only 
driving, some number of porpoises could enter into the Level A 
harassment zone without being detected by PSOs, and we initially 
proposed that 10 would be taken (approximately one fourth of the number 
currently projected for vibratory pile driving, which has a Level B 
harassment zone 20 times larger). No take by Level B harassment is 
proposed during impact only driving days (beyond that already counted 
within the Level A harassment zone) since the Level A harassment 
isopleth is greater than the Level B isopleth for HF cetaceans. 
However, in the proposed IHA we neglected to consider the Level A 
harassment that might occur in the 18 days that includes both vibratory 
and impact pile driving, and therefore we have increased the Level A 
harassment of harbor porpoises from 10 to 20.

Pinnipeds

    Take calculations for Steller sea lions and California sea lions 
were estimated in the IHA using abundance estimates from the South 
Jetty recorded by the Washington Department of Fish and Wildlife (WDFW) 
between 2000 and 2014. The South Jetty is approximately four kilometers 
to the south of Sand Island. The Level B harassment area includes the 
entirety of the South Jetty where pinnipeds haul out. In order to 
estimate take, the average number of animals seen for the months of 
September, October, and November was used a basis for overall pinniped 
abundance as shown in Table 9. Since there was no data available for 
harbor seals during those three months, the December average was used 
to represent the average during the previous three months. NMFS assumed 
animals counted at the South Jetty comprised the majority of pinnipeds 
present in the Lower Columbia River west of Interstate 101 between 
September and November. This total area, including the jetties, was 
approximately 275 km\2\. NMFS calculated the density of each pinniped 
species per km\2\, then multiplied by the area of the harassment zone 
and number of workdays anticipated at each pile dike (Table 10).
    NMFS used the methodology described above to estimate take of 
harbor seals in the proposed IHA resulting in estimated take of 3 seals 
by Level A harassment and 270 seals by Level B harassment. However, the 
Commission felt that the calculated harbor seal density underrepresents 
the number of seal that may occur at the project area. Harbor seals 
have been documented at two sites in Chinook/Baker Bay that are within 
the Level B harassment zone. These sites, however, are used only 
intermittently and feature less than 100 animals. There are an 
additional three haulouts at Desmond Sands, located southeast of the 
project area, including the main lower Columbia River seal haulout. Two 
of the haulouts are described as alternate sites to the main haulout 
and are used intermittently. Surveys resulted in counts of less than 
100 seals at one site and 100-500 seals at the other. More than 500 
seals have been recorded at the main river haulout at Desmond Sands. 
However, that location is approximately 10 km from the nearest test 
pile location (RM 6.37) or 5 km beyond the largest Level B harassment 
zone so may over represent seal numbers in the project area. NMFS opted 
to use WDFW abundance estimates from the South Jetty between 2000 and 
2014 where the maximum daily number of observed seals was 57 as shown 
in Table 9. This daily take rate was multiplied by the number of 
driving days (41) resulting in 2,337 authorized takes by Level B 
harassment. This same daily take rate was used to estimate take of 
harbor seals for the recently expired IHA issued to the City of Astoria 
for a waterfront bridge replacement project (83 FR 19243; May 5, 2018).
    Level A harassment takes for seals could when either an animal pops 
up in the 100-m shut-down zone before the operators are able to cease 
pile driving or when a seal occurs within the larger Level A harassment 
zone of 472-m for impact driving. NMFS has increased harbor seal 
authorized take by Level A harassment by assuming that two animals 
could be taken on each of the 38 days of impact driving. NMFS has 
increased authorized Level A harassment takes of harbor seals from 3 to 
76 and the Level B harassment takes of harbor seals from 270 to 2,337.

                       Table 9--Average Daily Number of Pinnipeds per Month on South Jetty
                                                   [2000-2014]
----------------------------------------------------------------------------------------------------------------
                                                                                  Average number
                                                                  Average number   of California  Average number
                              Month                               of steller sea    sea lions/       of harbor
                                                                    lions/month        month        seals/month
----------------------------------------------------------------------------------------------------------------
September.......................................................             209             249  ..............
October.........................................................             384             508  ..............
November........................................................           1,663           1,214  ..............
December........................................................  ..............  ..............              57
Construction Period Average.....................................             752             657              57
----------------------------------------------------------------------------------------------------------------
Source: Data from Washington Department of Fish and Wildlife 2014.


                                            Table 10--Estimated Level B and Level A Take Calculations for Pinnipeds at River Mile (RM) 4.01 and 6.37
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Level B      Level B
                                                      Density                                            isopleth     isopleth   Take/day RM  Take/day RM   Total take   Total take   Estimated
                     Species                      (animals/km\2\)             Activity type              area RM      area RM        4.01         6.37       RM 4.01      RM 6.37    total takes
                                                                                                           4.01         6.37                                                          (Level B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Stellar Sea lion................................             2.73  Impact Installation \1\...........            3            4         8.19        10.92           82          109        3,563
                                                                   Vibratory Installation/Removal \2\           64           73       174.72       199.29         1572         1794
                                                                   Timber Vibratory Removal \3\......          0.6          0.7         1.64         1.91            2            3
                                                                                                                                                                  1657         1906

[[Page 61033]]

 
California Sea lion.............................             2.39  Impact Installation...............            3            4         7.17         9.56           72           96        3,119
                                                                   Vibratory Installation/Removal....           64           73       152.96       174.47         1377         1570
                                                                   Timber Vibratory Removal..........          0.6          0.7         1.43         1.67            2            3
                                                                                                                                                                  1450         1668
                                                                   Impact Installation...............          0.8          0.9         0.15         0.11            2            1
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Assumes 10 days each at RM 4.01 and RM 6.37 for all pinniped species.
\2\ Assumes 9 days each at RM 4.01 and RM 6.37 for all pinniped species.
\3\ Assumes 1.5 days each at RM 4.01 and RM 6.37 for all pinniped species.

    Table 11 illustrates the stocks NMFS has authorize for take and the 
percentage of the stock taken.

        Table 11--Level A and Level B Harassment Take Estimates for the Sand Island Pile Dikes Test Piles
----------------------------------------------------------------------------------------------------------------
                                                                                       Stock       Percentage of
                     Species                       Level A take    Level B take      abundance      stock taken
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................................              20              42          21,487             0.3
California Sea Lion.............................  ..............           3,119         296,750             1.1
Stellar Sea Lion................................  ..............           3,563          61,746             5.8
Harbor Seal.....................................              76           2,337          24,732             9.7
----------------------------------------------------------------------------------------------------------------

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.
    In addition to the measures described later in this section, the 
Corps must employ the following standard mitigation measures:
     Conduct briefings between construction supervisors and 
crews and the marine mammal monitoring team prior to the start of all 
pile driving activity, and when new personnel join the work, to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures;
     For in-water heavy machinery work other than pile driving/
removal (e.g., standard barges, tug boats), if a marine mammal comes 
within 25 m, operations shall cease and vessels shall reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions. This type of work could include the following activities: 
(1) Movement of the barge to the pile location; or (2) positioning of 
the pile on the substrate via a crane (i.e., stabbing the pile);
     Work may only occur during daylight hours, when visual 
monitoring of marine mammals can be conducted;
     For any marine mammal species for which take by Level B 
harassment has not been requested or authorized, in-water pile 
installation/removal will shut down immediately when the animals are 
sighted;
     If take by Level B harassment reaches the authorized limit 
for an authorized species, pile installation will be stopped as these 
species approach the Level B harassment zone to avoid additional take 
of them.
    Establishment of Shutdown Zones and Level A Harassment Zones--For 
all pile driving/removal and activities, the Corps establish a shutdown 
zone. The purpose of a shutdown zone is generally to define an area 
within which shutdown of activity would occur upon sighting of a marine 
mammal (or in anticipation of an animal entering the defined area). 
Shutdown zones will vary based on the type of driving/removal activity 
type and by marine mammal hearing group, (See Table 10). Here, shutdown 
zones are larger than the calculated Level A harassment isopleth shown 
in Table 7, except for harbor seals during impact driving when a 100-

[[Page 61034]]

m shutdown zone and a 475-m Level A harassment zone will be visually 
monitored. The largest shutdown zones are generally for low frequency 
and high frequency cetaceans. The placement of (PSOs) during all pile 
driving/removal activities (described in detail in the Monitoring and 
Reporting Section) will ensure that the entirety of all shutdown zones 
are visible during pile installation.

                               Table 12--Shutdown Zones During Project Activities
----------------------------------------------------------------------------------------------------------------
                                                                 Distance (meters)
                                 -------------------------------------------------------------------------------
            Activity                                                                  Phocid          Otariid
                                    LF cetacean     MF cetacean     HF cetacean      pinniped        pinniped
----------------------------------------------------------------------------------------------------------------
24 Steel Pipe Pile                890              35            1050             100              35
 Impact Installation............
24 Steel Pipe                      25              25              25              25              25
 Vibratory Installation.........
24 Steel Pipe                      25              25              25              25              25
 Vibratory Removal..............
24 Timber Pile                     25              25              25              25              25
 Removal Vibratory..............
----------------------------------------------------------------------------------------------------------------

    Establishment of Monitoring Zones for Level B Harassment--The Corps 
will establish monitoring zones, based on the Level B harassment zones 
which are areas where SPLs are equal to or exceed the 160 dB rms 
threshold for impact driving and the 120 dB rms threshold during 
vibratory driving/removal. Monitoring zones provide utility for 
observing by establishing monitoring protocols for areas adjacent to 
the shutdown zones. Monitoring zones enable observers to be aware of 
and communicate the presence of marine mammals in the project area 
outside the shutdown zone and thus prepare for a potential cease of 
activity should the animal enter the shutdown zone. Due to the large 
size of the Level B harassment zones, it is impracticable for the PSOs 
to consistently view the entire harassment area. Therefore, takes by 
Level B harassment will be recorded and extrapolated based upon the 
number of observed takes and the percentage of the Level B harassment 
zone that was not visible. Distances to the Level B harassment zones 
are depicted in Table 13.

     Table 13--Distances to Level B Harassment Zones During Project
                               Activities
------------------------------------------------------------------------
                                                               Distance
                          Activity                                (m)
------------------------------------------------------------------------
24 Steel Pipe Pile Impact Installation...........       1,000
24 Steel Pipe Vibratory Installation.............       5,420
24 Steel Pipe Vibratory Removal..................       5,420
24 Timber Pile Removal Vibratory.................       1,360
------------------------------------------------------------------------

    Soft Start--The use of a soft-start procedures is believed to 
provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
will be required to provide an initial set of strikes from the hammer 
at reduced percent energy, each strike followed by no less than a 30-
second waiting period. This procedure will be conducted a total of 
three times before impact pile driving begins. Soft Start is not 
required during vibratory pile driving and removal activities. A soft 
start must be implemented at the start of each day's impact pile 
driving and at any time following cessation of impact pile driving for 
a period of thirty minutes or longer. If a marine mammal is present 
within the Level A harassment zone, soft start will be delayed until 
the animal leaves the Level A harassment zone. Soft start will begin 
only after the PSO has determined, through sighting, that the animal 
has moved outside the Level A harassment zone. If a marine mammal is 
present in the Level B harassment zone, soft start may begin and a 
Level B take will be recorded. Soft start up may occur when these 
species are in the Level B harassment zone, whether they enter the 
Level B zone from the Level A zone or from outside the monitoring area.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving of 30 
minutes or longer occurs, PSOs will observe the shutdown and monitoring 
zones for a period of 30 minutes. The shutdown zone will be cleared 
when a marine mammal has not been observed within the zone for that 30-
minute period. If a marine mammal is observed within the shutdown zone, 
a soft-start cannot proceed until the animal has left the zone or has 
not been observed for 15 minutes. If the Level B harassment zone has 
been observed for 30 minutes and marine mammals are not present within 
the zone, soft start procedures can commence and work can continue even 
if visibility becomes impaired within the Level B harassment zone. When 
a marine mammal permitted for take by Level B harassment is present in 
the Level B harassment zone, piling activities may begin and take by 
Level B will be recorded. As stated above, if the entire Level B 
harassment zone is not visible at the start of construction, pile 
driving/removal activities can begin. If work ceases for more than 30 
minutes, the pre-activity monitoring of both the Level B harassment and 
shutdown zone will commence.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, we have determined that the 
mitigation measures provide the means effecting the least practicable 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which

[[Page 61035]]

take is anticipated (e.g., presence, abundance, distribution, density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving 
activities include the time to install or remove a single pile or 
series of piles, as long as the time elapsed between uses of the pile 
driving equipment is no more than thirty minutes.
    There will be at least two PSOs employed during all pile driving/
removal activities. PSO will not perform duties for more than 12 hours 
in a 24-hour period. One PSO would be positioned close to pile driving/
removal activities at the best practical vantage point. A second PSO 
would be vessel-based to provide best coverage of the appropriate Level 
A and Level B harassment zones. If waters exceed a sea-state which 
restricts the observers' ability to make boat-based observations for 
the full Level A shutdown zone (e.g., excessive wind, wave action, or 
fog), impact pile installation will cease until conditions allow 
monitoring to resume. Contractors should ensure compliance with NOAA 
advisories for safe boat operations based on the size of vessel to be 
used by the marine mammal observer.
    As part of monitoring, PSOs would scan the waters using binoculars, 
and/or spotting scopes, and would use a handheld GPS or range-finder 
device to verify the distance to each sighting from the project site. 
All PSOs would be trained in marine mammal identification and behaviors 
and are required to have no other project-related tasks while 
conducting monitoring. In addition, monitoring will be conducted by 
qualified observers, who will be placed at the best vantage point(s) 
practicable to monitor for marine mammals and implement shutdown/delay 
procedures when applicable by calling for the shutdown to the hammer 
operator. Qualified observers are trained and/or experienced 
professionals, with the following minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Independent observers (i.e., not construction personnel);
     Observers must have their CVs/resumes submitted to and 
approved by NMFS;
     Advanced education in biological science or related field 
(i.e., undergraduate degree or higher). Observers may substitute 
education or training for experience;
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     At least one observer must have prior experience working 
as an observer;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Reporting

    A draft marine mammal monitoring report must be submitted to NMFS 
within 90 days after the completion of pile driving/removal activities. 
This reports will include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the reports must include:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations;
     An estimate of total take based on proportion of the 
monitoring zone that was observed;
     Other human activity in the area; and
     Marine mammal PSO observational datasheets or raw data.
    If no comments are received from NMFS within 30 days, that phase's 
draft final report will constitute the final report. If comments are 
received, a final report for the given phase addressing NMFS comments 
must be submitted within 30 days after receipt of comments. In the 
unanticipated event that the specified activity clearly causes the take 
of a marine mammal in a manner prohibited by the IHA, such as an 
injury, serious injury or mortality, the Corps would immediately cease 
the specified activities and report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator. The report would 
include the following information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;

[[Page 61036]]

     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with the Corps to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Corps would not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the Corps discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
the Corps would immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator. The report would 
include the same information identified in the paragraph above. 
Activities would be able to continue while NMFS reviews the 
circumstances of the incident. NMFS would work with the Corps to 
determine whether modifications in the activities are appropriate.
    In the event that the Corps discovers an injured or dead marine 
mammal and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in these IHAs 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Corps would report the 
incident to the Chief of the Permits and Conservation Division, Office 
of Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator, within 24 hours of the discovery. The Corps would provide 
photographs, video footage (if available), or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network.

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, our analysis applies to all species listed in 
Table 11, given that NMFS expects the anticipated effects of the 
planned pile driving/removal to be similar in nature. Where there are 
meaningful differences between species or stocks, or groups of species, 
in anticipated individual responses to activities, impact of expected 
take on the population due to differences in population status, or 
impacts on habitat, NMFS has identified species-specific factors to 
inform the analysis.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result of the Corps' planned activity. As stated in the 
mitigation section, shutdown zones that equal or exceed Level A 
harassment isopleths shown in Table 12 will be implemented. Take by 
Level A harassment is authorized for some species (harbor seals, harbor 
porpoises) to account for the slight possibility that these species 
escape observation by the PSOs within the Level A harassment zone. 
Further, any take by Level A harassment is expected to arise from, at 
most, a small degree of PTS because animals would need to be exposed to 
higher levels and/or longer duration than are expected to occur here in 
order to incur any more than a small degree of PTS. Additionally, as 
noted previously, some subset of the individuals that are behaviorally 
harassed could also simultaneously incur some small degree of TTS for a 
short duration of time. Because of the small degree anticipated, 
though, any PTS or TTS potentially incurred here would not be expected 
to adversely impact individual fitness.
    Behavioral responses of marine mammals to pile driving and removal 
at the planned test piles project sites are expected to be mild, short 
term, and temporary. Marine mammals within the Level B harassment zone 
may not show any visual cues they are disturbed by activities or they 
could become alert, avoid the area, leave the area, or display other 
mild responses that are not observable such as changes in vocalization 
patterns. Given the short duration of noise-generating activities 
(between 6-41 days over 3-month period), any harassment would be likely 
be intermittent and temporary. Furthermore, many of the species 
occurring near the MCR or in the Columbia River estuary would only be 
present temporarily based on seasonal patterns or during transit 
between other habitats. These temporarily present species would be 
exposed to even smaller periods of noise-generating activity, further 
decreasing the impacts.
    In addition, for all species there are no known biologically 
important areas (BIAs) within the MCR or Columbia River estuary and 
there is no ESA-designated marine mammal critical habitat. The estuary 
represents a very small portion of the total available habitat to 
marine mammal species.
    More generally, there are no known calving or rookery grounds 
within the project area, but anecdotal evidence from local experts 
shows that marine mammals are more prevalent during spring and summer 
associated with feeding on aggregations of fish. Because the Corps' 
activities would occur in the fall months, the project area represents 
a small portion of available foraging habitat, and the duration of 
noise-producing activities relatively is short, meaning impacts on 
marine mammal feeding for all species should be minimal.
    Any impacts on marine mammal prey that would occur during the 
Corps' planned activity would have at most short-terms effects on 
foraging of individual marine mammals, and likely no effect on the 
populations of marine mammals as a whole. Therefore, indirect effects 
on marine mammal prey during the construction are not expected to be 
substantial, and these insubstantial effects would therefore be 
unlikely to cause substantial effects on marine mammals.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species

[[Page 61037]]

or stock through effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     The Corps would implement mitigation measures including 
soft-starts for impact pile driving and shutdown zones that exceed 
Level A harassment zones for authorized species, except for harbor 
seals which will help to ensure that take by Level A harassment is at 
most a small degree of PTS;
     Anticipated incidents of Level B harassment consist of, at 
worst, temporary modifications in behavior;
     There are no BIAs within the MCR and Columbia River 
estuary or other known areas of particular biological importance to any 
of the affected stocks are impacted by the activity;
     The project area represents a very small portion of the 
available foraging area for all marine mammal species and anticipated 
habitat impacts are minimal; and
     The required mitigation measures (e.g. shutdown zones, 
soft-start) are expected to be effective in reducing the effects of the 
specified activity.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under 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.
    Table 11 in the Marine Mammal Occurrence and Take Calculation and 
Estimation section, present the number of animals that could be exposed 
to received noise levels that may result in take by Level A harassment 
or Level B harassment from the Corps' planned activities. Our analysis 
shows that 9.7 percent or less of the best population estimates of each 
affected stock could be taken. Additionally, the planned test piles 
project is located near the pinniped haulout at the South Jetty. 
Therefore, it is likely that many of these takes will be repeated takes 
of the same animals over multiple days. As such, the take estimate 
serves as a good estimate of instances of take, but is likely an 
overestimate of individuals taken, so actual percentage of stocks taken 
would be even lower.
    Based on the analysis contained herein of the planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations with 
no anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Authorization

    NMFS has issued an IHA to the Corps for conducting test pile 
installation and removal at the Sand Island Pile Dike system near the 
MCR, for one year from the date of issuance, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: November 5, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-24462 Filed 11-8-19; 8:45 am]
 BILLING CODE 3510-22-P